Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANTS Dan L. McGookey Kathryn M. Eyster
McGookey Law Office, L.L.C.
ATTORNEYS FOR APPELLEE Michael L. Wiery Jessica Wilson
Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A.
JPMorgan Chase Bank, N.A., s.b.m. Bank One, N.A. Nelson M.
Reid Bricker & Eckler, L.L.P. Keesha N. Warmsby Baker
State of Ohio Department of Taxation Mike DeWine Ohio
United States of America Marlon A. Primes Assistant United
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Blackmon,
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
Appellants, Sandra J. Herren and Thomas R. Herren, appeal the
grant of summary judgment in favor of Federal National
Mortgage Association ("Fannie Mae") in a
foreclosure case. The Herrens argue that there are genuine
issues of material fact that make summary judgment
inappropriate. After a thorough review of the record and law,
this court reverses and remands.
Factual And Procedural History
Sandra and Thomas executed a note and mortgage on December 1,
2001.The note involved appellants and Nexthome
Mortgage Corporation ("Nexthome"). The note
submitted in this case bears an endorsement from Nexthome to
Metropolitan Bank ("Metropolitan") and a further
endorsement from Ohio Savings Bank, N.A. ("Ohio
Savings") in blank. Attached to the note is an allonge
from Metropolitan to Ohio Savings. The assignments of
mortgage submitted with the complaint include three
assignments. The first is an assignment from Nexthome to Ohio
Savings. The second is a corrective assignment from
CitiMortgage, Inc. ("Citi"), as attorney-in-fact
for Ohio Savings to Citi. This assignment includes language
indicating that the Federal Deposit Insurance Corporation
("FDIC") took over the assets of Ohio Savings and
that Citi was acting on behalf of the FDIC when making the
assignment. The third assignment is from Citi to
Fannie Mae. In 2010, the Herrens were in default and Citi,
the purported owner of the note, sent them a default letter
setting forth their right to cure and accelerated the note.
In 2011, a foreclosure complaint was filed by Citi. This
complaint was eventually dismissed without prejudice. The
note was then transferred to Fannie Mae, and it instituted a
second foreclosure case on July 9, 2014.
The case proceeded through discovery and depositions, and
Fannie Mae filed a motion for summary judgment. The Herrens
opposed the motion by filing a brief in opposition supported
by affidavits and deposition testimony and also filed a
motion to strike an affidavit attached to Fannie Mae's
motion based on an alleged lack of personal knowledge of the
affiant. Fannie Mae then filed a reply brief in support of
summary judgment and a brief in opposition to the motion to
On August 22, 2016, the magistrate assigned to the case
issued a decision finding that Fannie Mae was entitled to
summary judgment and entitled to the relief sought in the
complaint. The magistrate also denied the motion to strike.
The Herrens filed objections to the magistrate's
decision, and Fannie Mae filed a reply in support. On
September 21, 2016, the trial court adopted the
magistrate's decision in a separate opinion. The Herrens
then filed the instant appeal, claiming that "[t]he
trial court erred in granting Fannie Mae's motion for
Law and Analysis
Standard of Review
Summary judgment under Civ.R. 56 provides for the expedited
adjudication of matters where there is no material fact in
dispute to be determined at trial. To obtain summary
judgment, the moving party must show that "(1) there is
no genuine issue of material fact; (2) the moving party is
entitled to judgment as a matter of law; and (3) it appears
from the evidence that reasonable minds can come to but one
conclusion when viewing evidence in favor of the nonmoving
party, and that conclusion is adverse to the nonmoving
party." Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex
rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69
Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).
The moving party has the initial responsibility of
establishing its entitlement to summary judgment. Dresher
v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264
(1996). "[I]f the moving party meets this burden,
summary judgment is appropriate only if the nonmoving party
fails to establish the existence of a genuine issue of
material fact." Deutsche Bank Natl. Trust Co. v.
Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657,
¶ 16, citing Dresher at 293.
Once a moving party demonstrates no material issue of fact
exists for trial and the party is entitled to judgment, it is
the nonmoving party's duty to come forth with argument
and evidence that demonstrates a material issue of fact does
exist that would preclude judgment as a matter of law.
The Herrens first assert that Fannie Mae lacks standing.
Standing requires that, in order to invoke the jurisdiction
of a court, a party must have a real interest in the
litigation at the outset. Fed. Home Loan Mtge. Corp. v.
Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979
N.E.2d 1214. A plaintiff is required to show it
"'suffered (1) an injury that is (2) fairly
traceable to the defendant's allegedly unlawful conduct,
and (3) likely to be redressed by the requested
relief.'" Deutsche Bank Natl. Trust Co. v.
Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d
1243, ¶ 20, quoting Moore v. Middletown, 133
Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22. In
the foreclosure context, that requires a plaintiff to show
that it is entitled to enforce the note and has an interest
in the mortgage. Fannie Mae v. Hicks,
2016-Ohio-8484, 77 N.E.3d 380, ¶ 4 (8th Dist), fn. 2,
citing Holden at ¶ 27.
Entitled to Enforcement
Under Ohio's version of the Uniform Commercial Code
("UCC"), one entitled to enforce an instrument is
any of the following:
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the