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Wells Fargo Delaware Trust Co., N.A. v. Esparza

Court of Appeals of Ohio, Fifth District

June 21, 2013

WELLS FARGO DELAWARE TRUST CO., N.A. Plaintiff-Appellee
v.
ANTHONY ESPARZA, ET AL. Defendants-Appellants

Appeal from the Licking County Common Pleas Court, Case No. 2012 CV 00296

For Plaintiff-Appellee, MATTHEW J. RICHARDSON, Manley Deas Kochalski, LLC

For Defendants-Appellants, JOHN SHERROD, Mills, Mills, Fiely & Lucas, LLC

JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

OPINION

Hoffman, P.J.

{¶1} Defendants-appellants Anthony Esparza and Betsy Esparza appeal the February 14, 2013 Judgment Entry and Decree in Foreclosure entered by the Licking County Court of Common Pleas, which granted summary judgment in favor of plaintiff-appellee Wells Fargo Delaware Trust Company, N.A. and ordered the subject property be foreclosed and sold.

STATEMENT OF THE CASE

{¶2} On or about August 18, 2003, Appellants executed a promissory note ("the Note") in the original amount of $379, 100.00. Appellants secured the Note with a mortgage encumbering real property commonly known as 1763 Welsh Hills Road, Granville, Ohio 43023 ("the Property"). Appellants defaulted on the loan in April, 2009.

{¶3} Wells Fargo acquired the Note as trustee for Vericrest Opportunity Loan Trust 2011-NPL1. Wells Fargo initiated a foreclosure action against Appellants relative to the Property on March 2, 2012. Attached to the complaint was a copy of the Note showing an indorsement to CitiMortgage. The trial court granted Wells Fargo leave to amend its complaint on April 25, 2012. To the amended complaint, Wells Fargo attached a copy of the Note filed with the original complaint as well as two allonges. The first allonge shows an indorsement from CitiMortgage to U.S. Bank as the trustee for the LSF7 Bermuda NPL 1 Trust. The second allonge shows an indorsement from U.S. Bank to blank. Wells Fargo also attached copies of a complete and unbroken chain of mortgage assignments from the loan originator, IndyMac Bank, F.S.B. to Wells Fargo "together with the promissory note secured by such mortgage and all sums of money due and to become due on such promissory note". The Note was assigned to Wells Fargo on September 13, 2011.

{¶4} Wells Fargo filed a motion for summary judgment on September 25, 2012. In support of its motion, Wells Fargo attached the affidavit of Neha Modi, a loan servicer. Modi authenticated copies of the Note, the Mortgage, the assignments of mortgage, and the notice of default sent to Appellants. The copy of the Note was accurate and contained all of the essential terms, however, Modi failed to attach and authenticate copies of the allonges.

{¶5} Appellants filed a memorandum in opposition, asserting a genuine issue of material fact existed as to whether Wells Fargo was in possession of the Note at the time of the filing of its complaint in foreclosure, March 2, 2012. Appellants further argued a genuine issue of material fact also existed as to whether Wells Fargo had standing to bring the lawsuit and enforce the Note.

{¶6} Wells Fargo filed a reply brief which included a supplemental affidavit from Jeannette Bochniak, a loan servicing agent. Bochniak averred Wells Fargo obtained possession of the Note on July 27, 2011. In addition to the two allonges filed with the amended complaint, two additional allonges were attached to the Bochniak affidavit, which showed indorsements from U.S. Bank to Wells Fargo, and Wells Fargo to blank.

{¶7} Via Judgment Entry and Decree in Foreclosure filed February 14, 2012, the trial court granted summary judgment in favor of Wells Fargo, and ordered the Property ...


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