IN THE SUPREME COURT OF OHIO

BAC HOME LOANS SERVICING, CASE NO. 13 -C-

-vs-

Plaintiff-Appellee,

JOHN M. UNTISZ, et al.,

Defendant-Appellant.

On appeal from the EleventhDistrict Court of Appeals,Geauga County, Case No. 2012-G-3072

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT JOHN M. UNTISZ

DAVID N. PATTERSON, ESQ. (#0015280) (COUNSEL OF RECORD)

33579 Euclid AvenueWilloughby Ohio 44094440-943-4700440-943-1882 (facsimile)pattersonlawgncweb. com

Counsel for Appellant-Defendant

ROSE MARIE L. FIORE, ESQ. (#0065243) (COUNSEL OF RECORD)25550 Chagrin Boulevard, Suite 406Cleveland, Ohio 44122216-360-7200216-360-7210 (facsimile)Counsel for Appellee-Plaintiff

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TABLE OF CONTENTS

Page

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND THERE IS A SUSBSTANTIALCONSTITUTIONAL QUESTION INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW . . . . . . . . . . . . . . . . . . . 5

Proposition of Law No. I: In order to invoke the subject matter jurisdictionof an Ohio common pleas court, a plaintiff in a foreclosure matter musthave standing and be a real party in interest regarding an interest in andpossession of the related note and mortgage and a quiet title by the title-owner must stand to challenge such alleged interests.

CONCLUSION ......................................................... 12

CERTIFICATE OF SERVICE . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPENDIX ............................................................. 13

Judgment Entry and Decree of Foreclosure, April 30, 2012

Judgment Entry and Opinion, 11'" Appellate District, March 18, 2013

-1-

EXPLANATION OF WHY THIS CASE IS A CASEiF PT tRT.TC OR CTREAT GENERAL INTEREST AN]

This matter involves a case of general or great public interest and/or substantial

constitutional question based in part upon the misapplication of law, reliance upon facts not on the

Record, and failure to apply recent precedence of this Court. The instant matter builds upon this

Court's decision in the Federal Home Loan Mortgage Corp. v. Schwartzwald, 2012-Ohio-5017,

which held that a plaintiff in a foreclosure case that does not hold the note or mortgage at the

time it files the complaint lacks standing to commence litigation.

Ohio law and equity hold that a note is severed from the related mortgage at origination,

which has the effect of rendering the mortgage unenforceable, particularly when the infamous

Mortgage Electronic Registration Systems, Inc. ("MERS") is involved, subsequently attempting

to assign a non-existent interest.. As in the Schwartzwald decision, without ownership of the

note or mortgage, a bank, including the Appellee in this matter, has no interest in the property

and its claimed rights are a cloud upon the title in the property of homeowner, to wit: Appellant.

The issues set forth herein have application far beyond foreclosure cases; they relate to

some of the fundamental underpinnings of the Ohio judicial system.. This Court has repeatedly

held that standing and "real party in interest" are threshold issues which must be established

before any Ohio court may proceed to the merits of a case. There is no "foreclosure" exception

anywhere in the Ohio Constitution or the Rules of Civil Procedure. The rules governing Ohio's

courts should apply equally to all plaintiffs. As in this matter, the very structure and practices of

MERS add an additional, significant element to the foreclosure and housing catastrophes which

have occurred in Ohio, indeed the nation.

-1-

Standing and real party in interest requirements are not merely an important issue to the

thousands of Ohioans who face foreclosure this year, and the many mortgage lenders who are

trying to recover money they believe is owed on those mortgage loans. These well-established

principals of law and equity mirror and supplement the constitutional power of Ohio's common

pleas courts to hear cases.

Section 4(B), Article IV, of the Ohio Constitution and this Court's constitutional power to

promulgate the Rules of Civil Procedure are implicated in these types of cases. Section 4(B),

Article IV of the Constitution limits the jurisdiction of common pleas courts:

The courts of common pleas and divisions thereof shall have such originaljurisdiction over all justiciable matters and such powers of review of proceedingsof administrative officers and agencies as may be provided by law.

Standing and "real party of interest" are undeniable parts of justiciability and the application of

the Ohio Constitution and Ohio Rules of Civil Procedure.

As was decided in the Schwartzwald decision by this Court, Rule 17 of the Ohio Rules of

Civil Procedure mandates that all cases must be prosecuted in the name of the "real party in

interest". Standing and real party in interest status go hand-in-hand and are not being properly

applied by many lower courts which has already created and continues to create an inequitable

and unconstitutional foreclosure pandemic. Unfettered judgments for banks must stop.

STATEMENT OF THE CASE AND FACTS

On March 25, 2010, Appellee-Plaintiff BAC Home Loans Servicing, LP (hereinafter

referred to as "Appellee") filed a Complaint for foreclosure in the Geauga County Court of

Common Pleas. Appellant-Defendant John M. Untisz (hereinafter referred to as "Appellant")

filed his Answer on July 19, 2010.

-2-

Appellant filed a separate Complaint for Quiet Title and other relief in Geauga County

Court of Common Pleas, Case No. 11M000614, which was addressed before the same court and

within the foreclosure matter. On October 3, 2011, the trial court consolidated the quiet title

action with the foreclosure matter.

Despite potential conflicting interests and defenses among the individual summary

judgment movants, Appellee and MERS filed a joint Motion for Summary Judgment on January

26, 2012. The sole request for relief in the Motion for Summary Judgment was the dismissal of

the quiet title claims alleged by Appellant in Case No. 11M000614.

On December 1, 2011, Appellee and MERS filed their answer to Appellant's quiet title

claims The Appellee also renewed and supplemented its Motion for Summary Judgment on

January 26, 2012. On March 1, 2012, Appellant filed a Brief in Opposition to the Motion for

Summary Judgment. Although setting a pre-trial hearing, the trial court granted foreclosure

utilizing the form proposed summary judgment presented by banks in most, if not all,

foreclosure matters.

On April 26, 2012, Appellant timely filed a Notice of Appeal to the Eleventh Appellate

District of Ohio, Geauga County. After briefing and oral arguments, the court of appeals

incorrectly found on March 18, 2013 that the Appellant's Assignment of Errors were without

merit and affirmed the summary judgment entered by the trial court. The court of appeals

misapplied Ohio law, incorrectly relied upon facts not on the Record, and failed to apply recent

precedence of this Court.

Appellant is the titled and true ovmer of and/or hold an interest in the subject real estate.

Through his claims presented, Appellant challenged various issues including, but not limited to,

the legal standards of standing, ownership and interest, proper party in issue and the negation of

-3-

and void nature of the alleged Note and Mortgage recorded on July 17, 2008, an alleged Allonge

(undated), an alleged Assignment of Mortgage from the original mortgagee, American Midwest

Mortgage Corporation, to MERS recorded on July 21, 2008, and an alleged Mortgage

Assignment from MERS to Appellee recorded on March 4, 2010.

Appellant properly pleaded that MERS did not have the capacity to obtain an interest, to

transfer or assign any interest and/or to foreclose, whether directly or indirectly, by advertisement

as MERS did not and does not own or have any alleged interest in the Property and/or was not

the servicing agent of the mortgage related to the underlying indebtedness regarding the Property.

The "assignment" of 2010 bears the signature "Aaron Formby" as alleged "Vice President" of

Defendant MERS, but who is actually an employee of Appellee. The evidence showed that Mr.

Formby was never and has never been an employee, agent, representative or otherwise of MERS.

Appellee, as the movant for summary judgment, provided no evidence to the contrary which

would warrant taking the matter out of the hands of the trier-of-fact.

The quiet title claims were commenced because Appellee and MERS failed to provide

Appellant, as the alleged borrower, with true, complete, and accurate documents showing proper

title, ownership, holding, or otherwise of the original note and mortgage. Appellee and MERS

were unable and/or unwilling to produce proof of claim or interest; therefore, no said party is a

real party in interest as required by law to have any interest in the premises above and right to

foreclosure or otherwise attempt collection thereon.

-4-

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: In order to invoke the subject matter jurisdiction ofan Ohio common pleas court, a plaintiff in a foreclosure matter must havestanding and be a real party in interest regarding an interest in and possession ofthe °related note and mortgage and a quiet title by the title-owner must stand to

challenge such alleged interests.

Section 4 of Article IV of the Ohio Constitution reads as follows:

(B) The courts of common pleas shall have such original jurisdiction over alljusticiable matters and such powers of review of proceedings of administrative

officers and agencies as may be provided by law.

This amendment was designed to restrict the power of common pleas courts to hear only cases

which presented justiciable matters. Village of Monroeville v. Ward (1971), 27 Ohio St.2d 179,

181. The key words of the provision are "justiciable matters."

The requirement of "justiciable matters" limits a common pleas court's original

jurisdiction over only those cases which present real controversies. Lundblad v. Celeste, 772

F.2d 907, (6th Cir. 1985). To be justiciable, a controversy must be grounded on a present dispute,

not on a possible future dispute. Kincaid v. Eris Ins. Co., 2010-Ohio-6036, 2009-1936, at ¶17.

This concept requires an immediacy of conflicting interests such that the matter is presented in an

adversarial setting. State ex rel. Dallman v Franklin Cty . Court of Common Pleas (1973), 35

Ohio St.2d 176,179. As the Court stated in Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14:

It has been long and well established that it is the duty of every judicial tribunal todecide actual controversies between parties legitimately affected by specific factsand to render judgments which can be carried into effect. It has become settledjudicial responsibility for courts to refrain from giving opinions on abstractpropositions and to avoid the irnposition by judgment of premature declarations or

advice upon potential controversies.

See also, Moore u City of Middletown, 2010-Ohio-2962 ¶7.

-5-

Recently, the Court in Federal Home Loan Mortgage Corp v. Schwartzwald, 2012-Ohio-

5017, significantly tightened the requirements for the filing of foreclosures by parties not the

original lenders who allege title to the underlying note and mortgage. The Schwartzwald

decision held that when a party lacks standing to bring the action, such defect cannot be cured

through an assignment prior to judgment. Id. at 14. The Schwartzwald decision mandates

dismissal of any pending foreclosure case filed before the plaintiff obtained a valid assignment of

the loan documents. Id.

In Schwartzwald, the defendant-borrowers purchased their home in November, 2006, and

executed a promissory note and mortgage in favor of Legacy Mortgage. Id. at 3. Ostensibly,

Legacy Mortgage immediately endorsed the promissory note and assigned the mortgage to Wells

Fargo Bank, N.A., who was the servicing agent for Federal Home Loan Mortgage Corporation

(Freddie Mac). Id. Thereafter, Freddie Mac filed a foreclosure lawsuit. Id. After the filing of

the Complaint, Wells Fargo executed an assignment of the note and mortgage to Freddie' Mac,

which Freddie Mac filed with the trial court on June 17, 2009. Id. Freddie Mac later filed the

2006 assignment from Legacy to Wells Fargo. Id.

In addition to ordering that a party commencing litigation must have standing to sue at the

time of the filing of the action, the Schwartzwald Court appears to endorse and uphold prevailing

case law in Ohio and other jurisdictions that it is a plaintiff's duty to establish standing and "real

party in interest" requirements set forth in Ohio law and the Ohio Rules of Civil Procedure. Id.

at 9. The Court further sanctioned the position that MERS lacks standing to assign and/or

institute foreclosure proceedings without property possession of the Note and Mortgage

supported with a valid, enforceable assignment of interest. Id.

-6-

The Appellee's Motion for Summary Judgment was a bare-bone, generic motion filled

unsubstantiated arguments. Moreover, the trial court and court of appeals casually glossed over

the counterclaim and third party complaint without any supporting law or precedence.

Accordingly, the Motion for Summary Judgment should have been denied on all matters and

grounds to allow the matter to be tried upon the merits, not assumptions that a bank or other

similar institution is a real party interest with standing to foreclosure.

The court of appeals even relied upon non-existent evidence to uphold the summary

judgment. The lower court found no error because it believed that the Appellee showed or

attempted to show the note and mortgage to Appellant and/or his counsel. There was no

evidence whatsoever on the record that this was true. In fact, the Appellant argued and presented

evidence at length before both the trial court and court of appeals that it was the Appellee who

failed to meet its burden and duty to show possession of the note and mortgage.

The Appellee also did not proffer a single iota of evidence, whether by affidavit or

otherwise, to support the Motion for Summary Judgment. For summary judgment to be granted,

a party must submit evidence, preferably an affidavit or other testimony. Bell v. Bei ng tler,

Franklin App. No. 02AP-569, 2003-Ohio-88, urireported. Appellee did not submit any evidence,

let alone any competent, competent evidence, to support its alleged lack of genuine issues of

material fact.

Appellant properly pleaded that MERS was falsely and/or fraudulently named, appointed

and/or characterized as the recorded documents, which identify MERS as nominee, assignor,

successor, or otherwise, which MERS is not and never was. The alleged "assig_n_ments" in the

instant matter were and remain fraudulent, in both law and equity.

-7-

The quiet title claims were commenced because Appellee and MERS each failed to

provide Appellant, as the alleged borrower, with true, complete, and accurate documents

showing proper title, ownership, holding, or otherwise of the original note and mortgage.

Appellee and MERS were unable and/or unwilling to produce proof of claim or interest;

therefore, no said party was or is a real party in interest as required by law to have any interest in

the Appellant's property sufficient to allow a foreclosure thereon.

A quiet title equitable and statutory action seeks to determine all adverse claims to real

property, not just whether a particular lien-holder has a specific right to foreclosure due to

alleged grounds of breach or liability. The action was the result of Appellee and MERS asserting

contradictory rights to the same land apart from the right to relief pursuant to a specific contract

or lien. The counterclaims and third party claims were brought to remove clouds on the title.

Appellee and MERS improperly and illegally refused to show Appellant the Note and

Mortgage, despite the mysterious and unsupported finding by the court of appeals. For a

mortgage to be in default, the borrower, or maker of the promissory note, must have dishonored

the note pursuant to Uniform Commercial Code ("U.C.C."), Article 3-3-501 (b) 2(i) and Ohio

Revised Code Section 1303.61.

Under U.C.C. § 3-50, a promissory note is not dishonored until the maker refuses to pay it

when presentment thereof is made. "Presentment" is defined by the U.C.C. as ". .. a demand to

pay the instrument made by a person entitled to enforce an instrument." The U.C.C. also requires

that "[u]pon demand of the person to whom presentment is made, the person making presentment

must 1) exhibit the instrument". U.C.C. §3-501(B)(2)(a). The party must show i_t nhysically

possesses the note and mortgage. Id. As set forth in Appellant's quiet title action, Appellee and

the alleged servicer improperly and illegally refuse to show Appellant the Note and Mortgage.

-8-

Until the proper presentment is made the U.C.C. requires that the ". . . obligation is

suspended to the same extent the obligation would be discharged if an amount of money equal to

the amount of the instrument were taken." Id. In the case of a note instrument, suspension of the

obligation continues until dishonor of the note or until it is paid. U.C.C. §3-310(b). Thus,

Appellant, as the alleged borrower, is not in default unless Appellee can and does exhibit the

alleged original instrument, thus proving the alleged dishonor.

Ohio law holds that the note in this matter was severed from the mortgage at origination,

which had the effect of rendering the mortgage unenforceable because'MERS was involved and

subsequently assigned its alleged interest. It is clear that the original lender in this matter and

MERS agreed that the note would be held by the original lender and the mortgage would remain

in MERS' name. Thus, when the note was transferred, the mortgage did not follow. Without

ownership of the note or mortgage, Appellee had no interest in the property and its claimed rights

are a cloud upon the title in the property of Appellant.

The alleged "assignment" of the mortgage attached to Appellee's foreclosure complaint

was incapable of transferring the applicable note because MERS had no interest in the note. An

assignment of a mortgage without the note is a nullity. See, e.g., Carpenter v. Longan (1872), 83

U.S. 271, 274 ("The note and mortgage are inseparable; the former as essential, the latter as an

incident. An assignment of the note carries the mortgage with it, while an assignment of the latter

alone is a nullity"). Since Appellee's alleged "assignment" of the mortgage was without the note,

such was invalid to transfer an interest to Appellee. Since MERS is not named on the promissory

note, MERS has no interest in the note and can never transfer it.

MERS has actually previously admitted that the very foundation of its business model

requires that the Note and Mortgage become separate and distinct. In re Agard, 2011 Bankr.

-9-

LEXIS 488, ¶37 (MERS does not have standing). When a note and mortgage are separated, the

party seeking enforcement must prove not only that it is acting on behalf of a valid assignee of

the note, but also that it is acting on behalf of the valid assignee of the mortgage. Id.; Carpenter

v. Longan, 83 U.S. at 274 (finding that an assignment of the mortgage without the note is a

nullity); Landmark Nat'1 Bank v. Kesler, 216 P.3d 158, 166-67 (Kan. 2009) (finding that when a

mortgage loan lies with an independent entity, the mortgage may become unenforceable). In

Bellislri v Ocwen Loan Servicing, L.L.C., 284 S.W.3d 619, 2009 Mo. App. LEX1S 219 ¶9, a

Missouri Court of Appeals held that since MERS was not named on the promissory note,

MERS's assignment with the promissory note failed to transfer an enforceable interest.

A party is entitled to enforce a promissory note when that party falls into one of three

categories set forth in Ohio Revised Code Section 1303.31(A) and U.C.C. §3-301. One such

category is when the person is a holder of the note. A person is a "holder" of the note by having

physical possession of the note, which has either been endorsed to that person or endorsed in

blank. R.C. 1303.31(A)(1); R.C. 1301.01(T)(1); U.C.C. §§ 3-301, 1-201.

A promissory note, as a negotiable instrument, is freely transferable and provides the

holder with the right to demand money or bring suit to recover money on the note. R.C.

1303.22(A); R. C. 1303.31. However, the right to enforce a note cannot be assigned, but instead

the note must be negotiated in accord with the Uniform Commercial Code as adopted by Ohio in

Ohio Revised Code §1301.01, et seq. An attempt to assign a note creates a claim to ownership,

but does not transfer the right to enforce the note. In re: Wells (N.D.Ohio 2009), 407 B.R. 873.

Once a note is endorsed, its negotiation is only complete upon physical transfer of

possession. R.C. 1303.24(A)(1)(a); R.C. 1303.21(A); U.C.C. §§ 3-204, 3-201. The transfer of

possession requires physical delivery of the note "for the purpose of giving the person receiving

-10-

delivery the right to enforce the instrument." R.C. 1301.01(N); U.C.C. §§303.22(A), 3-203;

Vitols v. Citizens Banking Co., F.3d 1227, 1233 (6th Cir. 1993); Norfolk Shipbuilding &

Drydock Corp. v. E.L. Carlyle, 242 B.R. 881, 887 (Bankr. E.D. Va. 1999). Moreover, ". ..

possession alone does not establish that the party [in possession of a note] is entitled to receive

payments under it." Citizens Fed. Sav., 78 Ohio App.3d at 287.

Under Ohio law, the .right to enforce a note cannot be assigned. The note must be

negotiated in accord with Ohio Revised Code Section 1301.01, et seq. and U.C.C., Article 3. An

attempt to assign a note creates a claim to ownership, but does not transfer the right to enforce

the note. Id.

In the summary judgment motion, Appellee merely cited generic law, some of which is

incorrect and the rest non-dispositive of the issues of this case. The trial court cited and referred

to no case law or precedence whatsoever. The court of appeals also mirrored the lack of relevant,

supportive case law or precedence and even added "facts" which were not of record.

A cloud on title is but an apparent defect. Even in a slight degree, any such cloud casts

doubt upon the owner's title and stands in the way of a full and free exercise of ownership.

Meerhoff v. Huntington Mtge. Co. (1995), 103 Ohio App.3d 164, 168. An invalid lien recorded

against one's title creates the appearance that there is an encumbrance on title when in fact there

is not. Id.

Such was the very purpose and intent of Appellant's quiet title action. The Appellee's

lien cast doubt on Appellant's title to the property in question. It should have been the duty of

the trier of fact to determine whether the liens in question constitute a cloud on Appellant's title

or any or all liens are valid. The Appellee's motion for summary judgment. should have been

denied as a matter of law and given the existence of genuine issues of material fact.

-11-

CONCLUSION

For the foregoing reasons, this case involves a matter of public and of great general interest

and involves substantial constitutional questions. The interplay of the Ohio Constitution and the

Ohio Rules of Civil Procedure makes the issues presented in this case of substantial

constitutional significance and concern. The Appellant respectfully requests that this Court grant

jurisdiction in this matter.

ON, ESQ. (#UU1)2.8u)

33579 Euclid AvenueWilloughby Ohio 44094440.943.4700440.943.1882 (facsimile)pattersonlawgncweb.comCounsel for Appellant John M. Untisz

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Memorandum in Support of

Jurisdiction was sent this day of May, 2013, was sent to Rose Marie L. Fiore, Esq.,

Attorney for Appellee, at 25550 Chagrin Boulevard, Suite 406, Cleveland, Ohio 44122.

Respectf submitted,

N. PATTE SO SQ. (#0015280)Counsel for Appellant John M. Untisz

submitted,

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M^R 18 2013KAMIN'KlM.DENISE

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1 i

•^ ^

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

BAC HOME LOANS SERVICING, LP,f.k.a. COUNTRYWIDE HOME LOANSSERVICING, L.P.,

Plaintiff-Appellee,

-vs-

JOHN M. UNTISZ, et al.,

Defendant-Appellant.

OPINION

CASE NO. 2012-G-3072

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 10F000333.

Judgment: Affirmed.

Rose Marie Lynn Fiore and James S. Wertheim, McGlinchey Stafford PLLC, 25550Chagrin Boulevard, Suite -406, Cleveland, OH 44122 (For Plaintiff-Appellee).

David N. Patterson, 33579 Euclid Avenue, Willoughby, OHDefendant-Appellant).

TIMOTHY P. CANNON, P.J.

44094-3199 (For

{11} Appellant, John M. Untisz, appeals the judgment of the Geauga County

Court of Common Pleas granting the motion for summary judgment of appellee, BAC

Home Loans Servioino, L.P,, f.k.a. Countrywide Home Loans Servicing, L.P. ("BAC"), on

its complaint for foreclosure and on appellant's complaint to quiet title. For the following

reasons, we affirm.

19h7'UL-LUIJl111U/ 1 u1 -

{52} On July 15, 2008, appellant purchased residential property in Geauga

County. Appellant signed a promissory note, and he granted a mortgage on the

property to American Midwest Mortgage Corporation ("American Midwest"). The

mortgage was assigned from American Midwest to Mortgage Electronic Registration

Systems, Inc. ("MERS"); this assignment was recorded on July 21, 2008.

Subsequently, the mortgage was assigned from MERS to Bank of America, N.A. ("Bank

of America"), successor by merger to BAC; this assignment was recorded on March 4,

2010.

{113} BAC filed a complaint in foreclosure on March 25, 2010, alleging a default

under the note and demanding enforcement of the mortgage. Appellant, acting pro se,

filed an answer.

{14} Appellant then recorded documents with the Geauga County Recorder's

Office. The documents are titled as follows: (1) Appointment of Superseding Successor

Trustee; (2) Affidavit of John Untisz; (3) Qualified Written Request; (4) Notice of Right to

Cancel; (5) Notice of Lender's Default; (6) Modification of Mortgage Note; and (7)

Release of Lien and Full Reconveyance.

{1(5} A week after filing such documents in the recorder's ofEice, appellant filed

a separate quiet title action against BAC, MERS, and American Midwest seeking a

declaration from the trial court that Bank of America has no interest in the property and

that the note has a zero balance.

(16) The trial court consolidated the foreclosure and quiet title action.

{117} After consolidation, movants, BAC, MERS, and American Midwest, filed a

motion for summary judgment as to both the foreclosure and quiet title action. In its

2

19t17-UL-LU i ^l ul i u ^

motion, movants attached an affidavit averring the above documents were deceptively

recorded by appellant, as the mortgage was never modified to appoint appellant as

successor trustee or superseding successor trustee. Further, the note had not been

modified to an indebtedness of zero dollars nor had it been "fully' satisfied by

consideration tendered January 16, 2011." BAC maintains that appellant's obligation

under the note and mortgage remains outstanding and unsatisfied. In such motion,

movants specifically requested to strike the above documents filed by appellant with the

recorder.

{18} With respect to the foreclosure action, appellant, in his brief in opposition

to BAC's motion for summary judgment', maintains that MERS does not have capacity

to "obtain an interest, to transfer or assign any interest and/or to foreclose." Appellant

argues that there is no real party in interest as required by law and that he is not in

default because BAC cannot produce the original note.

{19} With respect to the quiet title action, appellant states he commenced such

action because BAC failed to provide him with "true, complete, and accurate documents

showing proper title, ownership, holding, . or otherwise of the original note and

mortgage." BAC maintains that the recorded documents are not improper clouds on the

title.

(¶10) In a March 13, 2012 judgment entry, the trial court found the following:

{1[11} [Tjhe defense of the mortgagor in this case revolved principally

around a claim that the Plaintiff had no right to enforce the note or

1. BAC had originally filed a motion for summary judgment, which related solely to its foreciasurecomplaint; however, per the trial court's judgment entry of December 21, 2011, the parties filed a

supplemental motion, which addressed both the foreclosure action and appellant's quiet title action.

3

MH9-UC-CU13Unu1 iu; 1-)

•y^

otherwise foreclose. However, the Summary Judgment motion and

attachments thereto clearly reveal that Plaintiff was the real party in

interest at the time that the matter was filed and furtherthat the

mortgage has been assigned to Plaintiff.

{112} The trialcourt also found that the original promissory note was made ^

available to appellant for inspection. Further, the trial court dismissed appellant's quiet

title action and ordered the documents filed by appellant to be removed from the public

record.

{1113} Appellant filed a timely notice of appeal and asserts the following

assignment of error:

{1,14} "Reviewing the Appellee's Motion for Summary Judgment de novo, the

record is clear and convincing that the trial court erred to the prejudice of Appellant by

granting Appellee's Motion for Summary 'Judgment in favor of Appellee on the

foreclosure Complaint and against Appellant on the quiet title counterclaims and third

party complaint."

{4115} Pursuant to Civil Rule 56(C), summary judgment is proper if:

{¶16} (1)No genuine issue as to any material fact remains to be litigated;

(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, and viewing such evidence most strongly in

favor of the party against whom the motion for summary judgment

is made, that conclusion is adverse to that party. Temple v. Wean

United, Inc., 50 Ohio St.2d 317,127 (1977).

4

I9H7-UG-CU I J k I 1 I u ^-+

^

{117} To prevail on a motion for summary judgment, the moving party has the

initial burden to affirmatively demonstrate that there is no genuine issue of material fact

to be resolved in the case, relying on evidence in the record pursuant to Civ.R. 56(C).

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If this initial burden is met, the

nonmoving party then bears the reciprocal burden to set forth specific facts which prove

there remains a genuine issue to be litigated, pursuant to Civ.R. 56(E). Id.

{%8} An appellate court reviews an award of summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 ( 1996). Thus, the court of appeals

applies "the same standard as the trial court, viewing the facts in the case in a light most

favorable to the - non-moving party and resolving any doubt in favor of the non-moving

party." Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

{119} A party seeking foreclosure on a mortgage must establish: (1) execution

and delivery of the note and mortgage, (2) valid recording of the mortgage, (3) that it is

the current holder of the note and mortgage, (4) default, and (5) the amount owed.

Perpetual Fed. Sav. Bank v. TDS2 Property Mgt., LLC, 10th Dist. No. 09AP-285, 2009-

Ohio-6774, ¶19,

{1[20} Here, movants attached the evidence necessary to establish each

element for foreclosure. Movants attached a copy of the mortgage and note executed

by appellant, which demonstrates it was recorded in Geauga County; the Mortgage

Assignment from American Midwest to MERS dated July 15, 2008; and the Mortgage

Assignment from MERS to BAC, dated February 22, 2010. Movants also attached an

affidavit of Angelica Williams, assistant secretary of BAC, who averred that she is the

custodian of the business records and has personal knowledge of the facts contained in

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the affidavit. Ms. Williams averred that she examined the. loan histories of appellant;

that appellant has been in default since October 2009; and that appellant owed -the

principal balance of $166,273.74, plus interest at the rate of 6.500% per annum from

September 1, 2009, until paid, plus late charges and, pursuant to the mortgage, all

sums advanced for the payment of real estate taxes and assessments, insurance

premiums, and property protection. Pursuant to Dresher, supra, therefore, the burden

shifted to appellant to set forth specific facts that would create a genuine issue for trial.

{121} Although on appeal and in his response to summary judgment, appellant

asserts the "alleged 'assignments' in the instant matter were and remain fraudulent, in

both law and equity," he failed to provide any evidence to support or buttress this

assertion. Therefore, appellant has failed to meet his burden under Dresher.

Accordingly, we conclude the trial court did not err in granting movants' summary

judgment on the complaint for foreclosure.

{122} 'We also find the trial court did not err in granting movants' summary

judgment on appellant's complaint to quiet title. After filing several documents in the

recorder's ofFce with respect to the property in question, appellant filed a complaint

seeking to have the alleged cloud removed and title to the property quieted. Appellant

based his allegations on the documents he recorded, which were executed solely by

appellant.

{¶23} R.C. 5303.01 governs an action to quiet title and states, "[a]n action may

be brought by a person in possession of real property, by himself or tenant, against any

person who claims an interest therein adverse to him, for the purpose of determining

such adverse interest."

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19h7-UC-CUiJII l[U l I u• - -'

{124} In their motion for summary judgment, movants established there was no

genuine issue of material fact that the documents recorded by appellant, and signed

solely by appellant, were false and have no legal effect. Movants attached the affidavit

of Susan Reynolds of Bank of America. Ms. Reynolds averred that she has access to

Bank of America's business records relating to the July 15, 2008 loan made to

appellant, including the mortgage and note. Her affidavit also avers that Bank of

America "did not consent to the execution or recordation of any of the documents

recorded by [appellant] with the Geauga County Recorder's Office on June 3, 2011

relating to [appellant's] attempt to modify documents entered into with (Bank of

America]"; that "[Bank of America] is not a signatory to any of the documents (appellant]

recorded with the [recorder's] office"; that the "mortgage had not been modified to

appoint [appellant] as Successor Trustee or Superseding Successor Trustee"; and that

the note had not been satisfied.

{1[25} In his response, appellant did not provide any evidence to set forth

specific facts that prove there remains a genuine issue to be litigated, pursuant to Civ.R.

56(E). Appellant merely stated that "the evidence conclusively shows" the recorded

documents are not improper clouds. Appellant -claims the quiet title was commenced

because movants failed to provide appellant with documentation demonstrating "proper

title, holding, or otherwise ownership of the original note and mortgage." Movants,

however, attached the proper documentation to their motion for summary judgment.

{126} Even when construed in a light most favorable to the nonmoving party, we

find there to be no genuine issue of material fact *and that the trial court did not err in

granting movants' motion for summary judgment as to the quiet title action.

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f9t1y-lS°C-CU I 3 l i nu 1 i u 1 1

Furthermore, the trial court did not err in striking the documents filed by appellant with

the county recorder.

{1127} Appellant's assignment of error is without merit.

{128} The judgment of the Geauga County Court of Common Pleas is hereby

affirmed.

DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.

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