PENNYMAC CORP., Plаintiff-Appellee, v. LOIS J. NARDI, et al., Defendants-Appellants.
CASE NO. 2014-P-0014
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
December 8, 2014
2014-Ohio-5710
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2013 CV 00048.
Judgment: Affirmed
Chrissy M. Dunn and John R. Wirthlin, Blank Rome LLP, 1700 PNC Center, 201 East Fifth Street, Cincinnati, OH 45202 (For Plaintiff-Appellee).
Brian K. Duncan and Bryan D. Thomas, Duncan Law Group, LLC, 600 South High Street, Suite 100, Columbus, OH 43215 (For Defendants-Appellants).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from the Portage County Court of Common Pleas. Appellants Michael and Lois Nardi appeal the trial court‘s granting of summary judgment in favor of appellee PennyMac Corp. (“PennyMac“) on PennyMac‘s foreclosure complaint. On appeal, appellants raise a variety of challenges to the summary judgment; however, their principal arguments concern whether PennyMac, and its predecessor-in-interest J.P. Morgan Chase Bank, N.A. (“Chase“) had standing
{¶2} In June 2004, Lois Nardi, signed and delivered a note in the amount of $256,105 to Chase Manhattan Mortgage Corp., Chase‘s predecessor-by-merger. As security for the note, appellants executed and delivered a mortgage on the property to Chase‘s predecessor in the same amount as the note. In May of 2011, Chase acquired the note through merger, and in October 2012, Lois defaulted on the note. Chase accelerated the balance due on the note and eventually filed a complaint for foreclosure.
{¶3} Later, Chase moved for summary judgment by supplying an affidavit averring that Lois was in default of both the note and the mortgage and that Chase possessed the note prior to and during this litigation. In response, appellants filed a combined motion for an extension of time to respond to the summary judgment motion to permit discovery, and a brief in opposition to summary judgment. No evidence was attached to the brief in opposition to summary judgment; however, the trial court permitted appellants time to obtain discovery. In February of 2014, Chase moved to substitute PennyMac as the party plaintiff as PennyMac was the current holder of the note and mortgage. The following month, and approximately eight months after the trial court ruled that it would give appellants time to acquire discovery, the trial court granted summary judgment in favor PennyMac. Appellants did not provide a supplemental brief in opposition to summary judgment before the trial court‘s ruling.
{¶4} As the sole assignment of error, appellants assert:
{¶6} Within this assignment of error, appellants argue that there are multiple issues of material fact in dispute such as (1) whether Chase or PennyMac breached the note and mortgagе, (2) whether Chase and PennyMac had standing to litigate, (3) whether Chase or PennyMac were holders in due course, (4) something concerning the “allocation of payments,” (5) something concerning the doctrine of unclean hands, (6) whether the mortgage was properly executed and (7) whether the appraisal or the amount owed on the underlying loan was established.
{¶7} Arguments 1 and 4-7 are dismissed for violating
{¶9} We now turn tо standing. Appellants allege that Chase and PennyMac failed to prove at each stage of the litigation they had standing. In regard to Chase, although appellants acknowledge that Chase attached a copy of the note, mortgage and certificates оf merger to the complaint, appellants claim that these documents were insufficient to demonstrate Chase or PennyMac had standing. Appellants also argue that the complaint or “other pleadings” may not have been properly executed. In regard to PennyMac, appellants argue that PennyMac did not have standing to litigate because they did not have standing when the action commenced.
{¶10} Appellants have provided no evidence the complaint or “other pleadings” were improperly executed so as to defeat summary judgment. Rather, this argument, like the arguments previously discussed, is a conclusory, speculative argument that violates
{¶12} Whether a plaintiff has standing to initiate a foreclosure action turns on whether they are a person entitled to enforce the instrument at issue. See United States Bank Natl. Assn. v. Gray, 10th Dist. Franklin No. 12AP-953, 2013-Ohio-3340, ¶23.
{¶14} Finally, to establish standing at the pleading stage, Chase was only required tо plead facts that were sufficient to survive a motion to dismiss. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). When evaluating a motion to dismiss, an appellate court accepts the allegations in the complaint as true, construes all inferences in favor of the non-moving party and will only dismiss a complaint if it apрears “beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” Monroe v. Forum Health, 11th Dist. Trumbull No. 2012-T-0026, 2012-Ohio-6133, ¶24, quoting O‘Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. Although courts are normally limited to the four corners of the complaint in determining a motion to dismiss, in foreclosure actions, we must also look to the attaсhed note and mortgage. See Deutsche Bank Natl. Trust Co. v. Rudolph, 8th Dist. Cuyahoga No. 98383, 2012-Ohio-6141, ¶20, 27-28 (noting the
{¶15} Here, attached to the complaint were copies of the note between Lois Nardi and Chase Manhattan Corp., which was made payable to the latter. An endorsement in blank by Chase Manhattan Corp. was also attached to the complaint, аs were the certificate of merger establishing that Chase Manhattan Corp. merged into Chase. A copy of the mortgage was also attached. Finally, within paragraph eight of Chase‘s complaint, it alleged that it was a “person entitled to enforce the Note, pursuant to Section 1303.31 of the Ohio Revised Code, and the Mortgage was given to secure the Note.” Based on this allegation, coupled with the attached documents, Chase could have survived a motion to dismiss for lack of standing.
{¶16} PennyMac also had standing when it was substituted as party plaintiff in this matter. Before Chase moved to substitute PennyMac, it moved for summary judgment and provided an affidavit of Richard Eubanks, a Vice President of Chase, which in pertinent part averred that Chase possessed the note at the time of filing and during the litigation. In Chase‘s motion to substitute PennyMac it noted thаt PennyMac was now the holder of the note and mortgage and attached a valid assignment of the mortgage demonstrating such. The trial court subsequently granted the motion. Nothing here demonstrates a broken chain in standing. Furthermore, Eubanks
{¶17} Next, appellants challenge the validity of the assignment of the mortgage from Chase to PennyMac on the basis that appellants were “or may have been, unaware of these alleged assignmеnts.” Appellants further assert that Chase never produced the originals of the note or mortgage for appellants’ inspection. Moreover, appellants argue that appellee is not in possession of the note. In regard to these last two arguments, appellants’ attorney does not explain how these allegations if true constitute reversible error, and so we elect not to consider them pursuant to
{¶18} Finally, appellants challenge the validity of the affidavit in support of Chase‘s summary judgment motion. First, appellants argue that the attached affidavit solely relies upon “buzz words” and makes “blanket legal conclusions.” Next, appellants assert without any elaboration that the affidavit fails to comply with
{¶20} The fifth paragraph of Chase‘s supporting affidavit states:
{¶21} “I have access to Chase‘s business records, including the business records for and relating to [Lois‘s] loan. I make this affidavit based upon my review of Chase‘s records relating to [Lois‘s] loan, including copies of the Note and the Mortgage, and records from Chase‘s electronic servicing system, MSP, and from my own personal knowledge of how such records are kept and maintained. I have personally verified the accuracy of the factual information in this Affidavit based on my review of Chase‘s business reсords. The loan records for [Lois] are maintained by Chase in the course of its regularly conducted business activities and are made at or near the time of the event, by or from information transmitted by a person with
{¶22} Accordingly, Chase‘s affidavit laid the foundation for admission of evidence from the business records exception. Consequently, the sole assignment of error is without merit.
{¶23} The judgment of the Portage County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.