# Nationstar Mtge., L.L.C. v. Bates-Brown

> Ohio Court of Appeals · March 26, 2019 · 2019 Ohio 1073

URL: https://www.frixlaw.com/law-library/cases/4381006

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** March 26, 2019
- **Citations:** 2019 Ohio 1073
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Beatty Blunt
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

[Cite as Nationstar Mtge., L.L.C. v. Bates-Brown, 2019-Ohio-1073.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Nationstar Mortgage LLC :
d/b/a Mr. Cooper,
:
Plaintiff-Appellee,
:
v. No. 18AP-639
: (C.P.C. No. 17CV-8174)
Antoinette M. Bates-Brown a/k/a
Antoinette M. Bates a/k/a : (REGULAR CALENDAR)
Antoinette M. Brown et al.,
:
Defendants-Appellants.
:

D E C I S I O N

Rendered on March 26, 2019

On brief: McGlinchey Stafford, and James W. Sandy, for
appellee. Argued: James W. Sandy.

On brief: Antoinette M. Bates-Brown, pro se. Argued:
Antoinette M. Bates-Brown.

APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} In this foreclosure case, defendant-appellant, Antoinette Bates-Brown,
appeals from a judgment of the Franklin County Court of Common Pleas in favor of
plaintiff-appellee, Nationstar Mortgage, LLC d/b/a Mr. Cooper ("Nationstar"). Pursuant
to the following analysis, we affirm.
I. Facts and Procedural History
{¶ 2} On November 12, 2015, Bates-Brown executed a note for $103,785 in favor of
Quicken Loans. That same day, she signed a mortgage on the real property located at 3169
Pine Valley Road, Columbus, Ohio, to mortgagee Mortgage Electronic Registration
No. 18AP-639 2

Systems, Inc. ("MERS") as security for the note. The note was specifically endorsed to
Nationstar and a blank allonge was subsequently attached to the note. MERS assigned the
mortgage to Nationstar on August 29, 2017.
{¶ 3} Nationstar's September 8, 2017 complaint alleged Bates-Brown is the obligor
on the note secured by the mortgage on her residence. The complaint further asserted that
the note is in default, and that Nationstar was entitled to judgment in the amount of
$101,485.87 plus interest from April 1, 2017. Nationstar attached a copy of the note,
mortgage, and recorded mortgage assignment to the complaint. Nationstar sought
foreclosure on the home and a forced sheriff's sale on the property. Bates-Brown's pro se
October 11, 2017 answer was a general denial containing, inter alia, defenses that Nationstar
was not the real party in interest and that Nationstar failed to join necessary parties.
{¶ 4} A flurry of filings followed. Initially, Bates-Brown filed a motion for hearing
pursuant to the attachment statute, R.C. 2715.04, arguing that Nationstar was not the real
party in interest. The documents she attached to her motion do not address Nationstar's
status as plaintiff; rather, the papers purport to pay off her loan in full. Specifically, she
fastened to her opposition: (1) a "Private International Administrative Remedy Demand
No. AMB-092617-AB"; (2) a purported "Certified Promissory Note" payable to Nationstar
in the amount of $105,500; "Verification of Tender of Payment"; (3) "Instructions and
Notice of Fiduciary Obligation Indenture [R]egarding the Registered Promissory Note
Tendered for Full Discharge"; (4) a "Promissory Note" for $50,000 that can be
"[f]inancially [t]raded"; and (5) proof of certified mail return upon Nationstar of those
documents. (Ex.'s attached to Jan. 22, 2018 Answer and Mot. for Dismissal.) The trial
court denied the unopposed motion, noting that Nationstar had not filed a motion for
attachment.
{¶ 5} Next, Nationstar lodged its motion for summary judgment on January 8,
2018. Nationstar attached the affidavit of Ms. Felecee Davis in support. (Dec. 19, 2017
Davis Aff.) Styled as an "Answer and Motion to Dismiss," Bates-Brown's ensuing
opposition indicated the loan was paid in full pursuant to the highlighted documents she
attached in support of her motion for hearing. Nationstar's reply countered that Bates-
Brown failed to sustain her reciprocal Civ.R. 56 burden via her unauthenticated,
inadmissible, and legally invalid documents.
No. 18AP-639 3

{¶ 6} On March 22, 2018, Bates-Brown moved to amend her October 11, 2017
answer under Civ.R. 15 to include additional defenses and counterclaims. Four days later,
Bates-Brown lodged another Civ.R. 15 motion, this time to amend her January 22, 2018
opposition to Nationstar's motion for summary judgment. Her proposed amended
opposition, styled as a motion to dismiss, argued the trial court lacked jurisdiction. In
particular, she proffered an unauthenticated letter dated March 11, 2018 to her from Mr.
Cooper stating that "Tiaa, fsb (Fka Everbank)" ("Everbank") is the owner of her note. (Ex.
A at 1 attached to the Mar. 26, 2018 Motion to Dismiss.) As such, she argued the trial court
lacked jurisdiction because nonparty Everbank, as the note's owner, is the real party in
interest, not Nationstar. Nationstar opposed both motions on delay and inadmissibility
grounds.
{¶ 7} Bates-Brown then sought to add Everbank as a party and to compel discovery
from Nationstar related to her real party-in-interest contentions. Nationstar opposed,
asserting it has standing via its holder status and that it properly responded to Bates-
Brown's discovery demands. Nationstar further contended Bates-Brown failed to make
good-faith efforts to resolve her concerns with it before filing her motion as Civ.R. 37(A)
requires.
{¶ 8} The trial court's July 10, 2018 decision and entry addressed the noted
motions. First, the trial court denied Bates-Brown's motion for leave to amend her
October 11, 2017 answer, reasoning that undue delay and prejudice were present because
Nationstar's motion for summary judgment was fully briefed. Second, the trial judge
denied Bates-Brown's motion to add Everbank because Nationstar, as the note's holder,
qualified as a real party in interest under R.C. 1303.31. Third, the trial court granted
Nationstar's motion for summary judgment, finding that Nationstar had satisfied its Civ.R.
56 burden and that Bates-Brown had not sustained her reciprocal Civ.R. 56 burden. In
accordance with that entry, the trial court executed its final judgment entry in favor of
Nationstar on July 27, 2018 for all the relief Nationstar sought in its complaint. This appeal
followed.
II. Assignments of Error
{¶ 9} Appellant appeals and assigns the following three assignments of error for
our review:
No. 18AP-639 4

[I.] The trial court improperly granted the motion for
summary judgement [sic] in favor of Plaintiff due to the fact
that it denied Defendant's (Amended) Motion to Dismiss and
ignored other pleadings that proffer evidence of the presence of
genuine issues of material fact regarding Plaintiff's failure to
provide sufficient proof of entitlement to foreclose and
damages.

[II.] The trial court granted the Defendant-Appellant's Motion
to Join a Party, but erred when it prematurely terminated the
case with a foreclosure judgment without enforcing its own
order to join the necessary party.

[III.] The trial court denied the Defendant-Appellant's
Constitutional right to due process when it failed to schedule a
hearing and/or trial and to compel discovery.
III. Standard Of Review
{¶ 10} Appellate review of summary judgment is de novo, which means without
deference to the trial court's decision. Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No.
14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th
Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5; see also Garb-Ko, Inc. v. Benderson, 10th Dist.
No. 12AP-430, 2013-Ohio-1249, ¶ 7. Pursuant to Civ.R. 56(C), summary judgment shall be
granted if: (1) no genuine issue of material fact remains to be litigated; (2) the moving party
is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in
favor of the nonmoving party, reasonable minds can come to but one conclusion, that
conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing Co.,
54 Ohio St.2d 64, 66 (1978).
{¶ 11} Under the rule, the moving party bears the initial burden of informing the
trial court of the basis for the motion and of identifying those portions of the record
demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio
St.3d 280, 293 (1996). Once the moving party discharges its initial burden, summary
judgment is appropriate only if the nonmoving party does not respond, by affidavit or as
otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for
trial. Adams v. Kurz, 10th Dist. No. 09AP-1081, 2010-Ohio-2776, ¶ 10, citing Civ.R. 56(E)
and Dresher at 293.
IV. Analysis
{¶ 12} We address the assignments of error out of order for ease of analysis.
No. 18AP-639 5

A. Second Assignment of Error—Motion to Join Everbank
{¶ 13} In the second assignment of error, Bates-Brown asserts that the trial court
committed error by granting her motion to join Everbank but then denying her motion to
compel discovery relative to Everbank. To support her contention, she relies on the
disposition sheet attached to the entry that indicates the trial court tied-off her joinder
motion as granted. In so arguing, she ignores the plain language of the entry itself that
clearly denies that motion. Specifically, the entry holds that Bates-Brown failed to include
grounds establishing how joinder of Everbank was required under Civ.R. 19. The entry
continues by noting the letter, even if properly authenticated, is irrelevant because the
current holder of the note and mortgage may institute a foreclosure, even if the holder is
not the owner. The entry concludes by explicitly stating Bates-Brown's motion to add is
"DENIED." (Emphasis sic.) (July 10, 2018 Decision and Entry at 5.)
{¶ 14} In this instance, we adhere to the "simple analysis that a trial court speaks
through its entry." State v. Powers, 10th Dist. No. 15AP-422, 2015-Ohio-5124, ¶ 18. Here,
the entry itself is clear that the motion to join is denied. The tie-off sheet serves merely an
administrative and not substantive function by removing pending motions from the trial
court's docket. Because the entry itself clearly denies the motion to join, Bates-Brown's
second assignment of error is overruled.
B. First Assignment of Error—Motion for Summary Judgment
{¶ 15} In the first assignment of error, Bates-Brown maintains that the trial court
improperly ignored her proffered evidence disputing the amount due and her real party-in-
interest contention when granting Nationstar's motion for summary judgment. Because
the entry is clear that the trial court did so consider, we disagree on both fronts.
{¶ 16} Nationstar, as the party seeking to foreclose on Bates-Brown's mortgage,
must present evidentiary-quality materials showing: (1) it is the holder of the note and
mortgage or is a party entitled to enforce the instrument; (2) if it is not the original
mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all
conditions precedent have been met; and (5) the amount of principal and interest due.
Deutsche Bank Natl. Trust Co. v. Thomas, 10th Dist. No. 14AP-809, 2015-Ohio-4037, ¶ 9,
19.
No. 18AP-639 6

{¶ 17} Nationstar lodged Davis's affidavit in support of its motion for summary
judgment. Therein, Davis did not provide her specific job title at Nationstar, but she did
aver:
[R]esponsibilities at Nationstar include reviewing documents
prepared by legal representatives that are relevant to
mortgage loans and borrowers and verifying Nationstar's
information based on the system of record. The averments
provided in this affidavit are within the scope of my duties.
The duties of my position include the review of Nationstar's
loan records, ensuring accuracy of Nationstar's loan records,
and executing documents. The averments provided in this
affidavit are within the scope of my duties.

(Davis's Aff. at ¶ 2.) This language sufficiently established that she was a Nationstar
employee charged with reviewing and confirming customers' mortgage loan data. In this
regard, she utilized her personal knowledge obtained from her personal review of
Nationstar's business records for Bates-Brown's account to testify that Bates-Brown
executed the note and mortgage. Id. at ¶ 5. Davis averred that Nationstar held the note at
the time the complaint was filed and for the duration of the foreclosure action. Id. Davis
testified that MERS assigned the related mortgage to Nationstar, and that the assignment
was properly recorded prior to the foreclosure complaint. Id. at ¶ 6. She continued by
providing that Bates-Brown's note was in default and noting Nationstar had mailed Bates-
Brown the requisite default and demand letters prior to initiating the foreclosure. Davis
testified Bates-Brown did not cure the default and that the amount due was $101,485.87
with interest at 4.375 percent per annum from April 1, 2017. Davis attached a copy of Bates-
Brown's note with endorsement and allonge, mortgage, recorded mortgage assignment,
default letter, demand letter, and payment history to Davis's affidavit. Nationstar therefore
established its burden under both Civ.R. 56 and Thomas.
{¶ 18} Because Nationstar sustained its burden, the burden then shifted to Bates-
Brown to produce Civ.R. 56 evidence showing that a genuine issue of material fact existed
for trial. Kurz at ¶ 10. In this regard, she first attacks the amount due. Particularly, her
January 22, 2018 opposition claims she paid off the loan via the documents attached to her
motion for hearing discussed supra.
{¶ 19} Civ.R. 56(C) limits the type of evidentiary materials that a trial court can
consider when ruling on summary judgment to "the pleadings, depositions, answers to
No. 18AP-639 7

interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, [that are] timely filed in the action." Thus, the rule "places strict
limitations upon the type of documentary evidence that a party may use in support of or in
opposition to summary judgment." Arnold v. Columbus, 10th Dist. No. 14AP-418, 2015-
Ohio-4873, ¶ 31. Documents that do not fall within one of the categories of evidence listed
in Civ.R. 56(C) may be introduced as proper evidentiary material only when incorporated
by reference into a properly framed affidavit pursuant to Civ.R. 56(E). Thompson v. Hayes,
10th Dist. No. 05AP-476, 2006-Ohio-6000, ¶ 103. " 'Documents which are not sworn,
certified, or authenticated by way of affidavit have no evidentiary value and shall not be
considered by the trial court.' " Id., quoting State ex rel. Shumway v. Ohio State Teachers
Retirement Bd., 114 Ohio App.3d 280, 287 (10th Dist.1996).
{¶ 20} Here, Bates-Brown's purported payment documents were not "pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, [or] written stipulations of fact" authenticated by way of affidavit. Civ.R. 56(C).
In addition, her documents were unauthenticated. Hence, the trial court properly refrained
from reviewing them pursuant to the plain text of Civ.R. 56 and Thompson.
{¶ 21} As noted above, Davis's affidavit established that Bates-Brown's account was
in default. In a mortgage foreclosure case, "[a]n affidavit stating the loan is in default, is
sufficient for purposes of Civ.R. 56, in the absence of evidence controverting those
averments." (Citation and internal quotations omitted.) Logansport Sav. Bank, FSB v.
Shope, 10th Dist. No. 15AP-148, 2016-Ohio-278, ¶ 13. Because Bates-Brown failed to
maintain her reciprocal burden of producing Civ.R. 56 evidence establishing a genuine
issue of material fact as to the amount due, we find no error in the trial court's entries
sustaining Nationstar's motion for summary judgment.
{¶ 22} Bates-Brown's second endeavor to obtain reversal of the trial court's entry
and final judgment entry is intertwined with her first assignment of error. That is, she
attempts to utilize her March 26, 2018 proposed amended opposition to assert the trial
court lacked jurisdiction because Nationstar was the holder, and not the owner, of the
underlying note. She contends the trial court improperly ignored the letter stating that
Everbank owns the note. This argument is without merit for three reasons. First, the letter
No. 18AP-639 8

is inadmissible under Civ.R. 56. Second, even if the letter was admissible, it was irrelevant.
And third, the record explicitly provides that the trial court did address the letter.
{¶ 23} To begin, the letter is inadmissible. As noted, it is not within Civ.R. 56(C)'s
parameters and is also unauthenticated by affidavit. This results in our holding under
Civ.R. 56 and Thompson that the trial court correctly excluded the letter from its summary
judgment determination.
{¶ 24} Second, assuming arguendo, that the trial court could have appropriately
considered the letter stating that Everbank was the owner of the note, we would reach the
same conclusion because such a fact, if true, would not prevent Nationstar from initiating
and maintaining the foreclosure. This is so because a promissory note secured by a
mortgage is a negotiable instrument. Bank of Am., N.A. v. Pasqualone, 10th Dist. No.
13AP-87, 2013-Ohio-5795, ¶ 29. Pursuant to R.C. 1303.31(A)(1), a "[p]erson entitled to
enforce" a negotiable instrument includes the holder of the instrument. "Holder" is defined,
in relevant part, as "[t]he person in possession of a negotiable instrument that is payable
either to bearer or to an identified person that is the person in possession." R.C.
1301.201(B)(21)(a).
{¶ 25} Davis's affidavit establishes that Nationstar held the note on the day
Nationstar filed the foreclosure and for the duration of the foreclosure case at the trial court
level. Nationstar was therefore a "[p]erson entitled to enforce" the note as a "[h]older"
pursuant to R.C. 1301.201 and 1303.31. Bates-Brown's "owner" descriptive for Nationstar
is thus of no import. Consequently, because the trial court correctly held Nationstar's
"[h]older" status granted Nationstar standing to assert the foreclosure, we overrule this
portion of the first assignment of error.
{¶ 26} Third, the record shows the trial court did consider her real party-in-interest
assertions within the context of Bates-Brown's motion to add Everbank. In particular, and
as discussed above, the trial court's July 10, 2018 entry referenced the letter when
indicating a note's holder has standing to bring a foreclosure case even if the holder is not
the note's owner. The first assignment of error lacks merit and is overruled.
No. 18AP-639 9

C. Third Assignment of Error—Due Process
{¶ 27} Finally, Bates-Brown argues in her third assignment of error that the trial
court violated her due process rights by not conducting a discovery hearing or a full trial.
We overrule this assignment of error.
{¶ 28} Civ.R. 56(C) mandates the granting of summary judgment where, as here,
there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. "It is well-settled that the mechanism of summary judgment, applied
appropriately under reasonable conditions and procedures, does not violate a party's right
to trial by jury." Bank of N.Y. v. Barclay, 10th Dist. No. 03AP-844, 2004-Ohio-1217, ¶ 28,
citing Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 (1944). We held above that the
trial court properly granted summary judgment in favor of Nationstar. As such, there are
no due process concerns present here under Barclay.
{¶ 29} The trial court did not explicitly deny Bates-Brown's motion to compel. In
this circumstance, we assume the trial court denied the motion. Hinton v. Ohio Bur. of
Sentence Computation, 10th Dist. No. 17AP-187, 2018-Ohio-237, ¶ 6, citing CitiMortgage,
Inc. v. Guinther, 10th Dist. No. 12AP-654, 2013-Ohio-4014, ¶ 24. We note further that
Civ.R. 37 does not require a hearing on discovery violations. Johnson Controls v. Cadle
Co., 11th Dist. No. 2006-T-0030, 2007-Ohio-3382, ¶ 14. Therefore, we overrule this final
ground of contention under the third assignment of error.
V. CONCLUSION
{¶ 30} Pursuant to the foregoing analysis, the trial court did not err in granting
Nationstar's motion for summary judgment denying Bates-Brown's motion to add and
declining to proceed with a hearing or trial. Having overruled each assignment of error, we
affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.

BRUNNER and HANDWORK, JJ., concur.

HANDWORK, J., retired, formerly of the Sixth Appellate
District, assigned to active duty under the Ohio Constitution,
Article IV, Section 6(C).
______________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4381006. Public record. Not legal advice.