U.S. Bank Natl. Assn. v. Marcino

• Decision Date: 10 March 2009
• Docket Number: No. 08 JE 2.,08 JE 2.
• Citation: 181 Ohio App.3d 328,2009 Ohio 1178,908 N.E.2d 1032
• Parties: U.S. BANK NATIONAL ASSOCIATION as Trustee for the BNC Mortgage Loan Trust 2006-2, Appellee, v. MARCINO et al., Appellants.
• Court: Ohio Court of Appeals

908 N.E.2d 1032

181 Ohio App.3d 328

2009-Ohio-1178

U.S. BANK NATIONAL ASSOCIATION as Trustee for the BNC Mortgage Loan Trust 2006-2, Appellee, v. MARCINO et al., Appellants.

No. 08 JE 2.

Court of Appeals of Ohio, Seventh District, Jefferson County.

Decided March 10, 2009.

Lerner, Sampson & Rothfuss, L.P.A., Deanna C. Stoutenborough, and M. Elizabeth Hils, for appellee.

Anthony T. Marcino and Melissa C. Marcino, pro se.

WAITE, Judge.

{¶ 1} Appellant, Anthony T. Marcino, appearing pro se, appeals the summary judgment entered in the Jefferson County Court of Common Pleas in favor of appellee, U.S. Bank National Association, as trustee for the BNC Mortgage Loan Trust 2006-2 in this foreclosure action. Appellant contends that summary judgment was granted in error because appellee has never demonstrated that it is the real party in interest.

{¶ 2} Although appellee incorrectly argues that the trial court took judicial notice of the recorded assignment of the note and mortgage at issue in this case appellee, in the alternative, successfully relies on several sections of the Ohio Revised Code, adopted from the Uniform Commercial Code, to establish that it is the current note and mortgage holder in this case.

Facts

{¶ 3} On August 18, 2006, appellant obtained a mortgage loan from BNC Mortgage Inc. ("BNC"). In consideration of the loan, appellant executed an adjustable rate note in the face amount of $75,200. Appellant and his wife, Melissa C. Marcino, granted a mortgage in favor of BNC on the real estate located at 1927 Majestic Circle, Steubenville, Ohio to secure the indebtedness.

{¶ 4} Attached to the note is a separate document, captioned "Allonge to Note," which reads, in its entirety, "PAY TO THE ORDER OF: __________________ WITHOUT RECOURSE BNC MORTGAGE, INC." The allonge is signed on behalf of BNC by "Dolores Martinez, Asst. Vice President."

{¶ 5} According to the affidavit of appellee's vice president of loan documentation, Steven M. Patrick, dated November 13, 2007, appellee is the holder of the note and mortgage. Appellant defaulted under the terms of the note and mortgage, and the account is due for the June 1, 2007 payment and all subsequent payments. As of November 13, 2007, a principal balance of $74,816.76 was due on the account, with interest thereon from May 1, 2007, at 8.375 percent per annum. There is an acceleration provision in both the note and mortgage, allowing appellee to call the entire unpaid principal balance with interest immediately due and payable.

{¶ 6} On September 7, 2007, appellee filed its complaint in forfeiture against the Marcinos. On September 11, 2007, the Marcinos, appearing pro se, filed a number of affidavits in response to the complaint, including those captioned "Affidavit: Withdrawal of Participation in Social Security," "Affidavit: Live Birth," "Affidavit: Declaration of Domicile," "Affidavit: Certificate of Citizenship," "Affidavit: Revocation of Signature," and "Affidavit: Revocation of Power of Attorney." The affidavits were apparently filed in an effort to call into question the trial court's jurisdiction over the Marcinos. Each of the affidavits was signed by the Marcinos as "Sovereign state Citizen[s]/Principal[s], by special appearance, proceeding Sui Juris."

{¶ 7} On October 16, 2007, appellees filed a motion for default judgment. The Marcinos filed two pleadings on October 19, 2007, captioned "Amended Answers, Defenses, and Counterclaims" and "Motion and Order of Dismissal, And Or Demurrer." On October 23, 2007, the trial court set the motion for default judgment for hearing on October 29, 2007.

{¶ 8} On October 26, 2007, appellee filed a motion to strike the Marcinos' answer or for leave to file a reply to the counterclaims. On the same day appellee filed a reply to the Marcinos' motion to dismiss. On October 29, 2007, the Marcinos filed a pleading captioned "Amended Defenses (Continued)."

{¶ 9} On October 31, 2007, the trial court denied the motion for default judgment, gave the Marcinos an extension of time until November 2, 2007, to file an amended answer to the complaint, and gave appellee an additional 30 days to respond to the Marcinos' counterclaims.

{¶ 10} On November 27, 2007, appellee filed its motion for summary judgment. The Marcinos filed a so-called motion for dismissal of summary judgment on November 26, 2007, which the trial court treated as a response in opposition to appellee's motion for summary judgment.

{¶ 11} The trial court conducted a hearing on the motion for summary judgment on December 17, 2007. At the hearing, appellant estimated that he had made his last payment on the note in "June, May, early last year."

{¶ 12} Appellant also conceded that he had not filed any affidavits or exhibits in support of his brief. The trial court attempted to explain to appellant his evidentiary burden on summary judgment, twice describing the difference between argument and evidence. The trial court told appellant that he must produce evidence in the form of an affidavit or exhibits in order to survive a properly supported motion for summary judgment.

{¶ 13} However, appellant insisted that appellee had failed to meet its burden on summary judgment because appellee had not produced the original loan document and had failed to establish that the note had been assigned to appellee by BNC. Appellant stated:

{¶ 14} "[S]ince the inception of this loan I have—I have asked for discovery for this—this whole loan and it's taken me much distress, not only my credit but my whole financial situation to—for me to— I'm still trying to get them to prove that this is—that they are the—the original note holder. They have yet to prove that."

{¶ 15} The trial court twice explained that appellee was not the original holder but that the note and the mortgage had been assigned to appellee. The trial court stated, "[Appellee] attached the assignment in their things showing that the note and mortgage were then assigned to them."

{¶ 16} Contrary to the trial court's statement, the record reflects that a copy of the assignment was not filed in support of appellee's motion for summary judgment. In appellee's brief, it claims:

{¶ 17} "U.S. Bank also submitted a Memorandum in Support of its Motion for Summary Judgment. The Memorandum recited an additional fact of which the trial court was permitted to take judicial notice, i.e., that an assignment of the Mortgage had been recorded in the Jefferson County real estate records on September 24, 2007, approximately three weeks after the filing of the Complaint. * * * The trial court took judicial notice of the recorded assignment during the hearing on December 17, 2007."

{¶ 18} At the hearing, appellant continued to assert that appellee had not met its burden on summary judgment. Appellant summarized his legal argument as follows:

{¶ 19} "[T]he debtor has to prove that they own this debt. They have not done it yet. They have not done it yet. They filed a copy, a glorified certified copy. It doesn't validate the debt. They have to prove it prima facie and that means the original. I've been asking for that for, you know, 12 to 18 months but officially only three or four because it's been filed and they have to prove that.

{¶ 20} "The general accounting practices ledger will prove that, one, they have not lent me money. They've lent me credit. They do not have the original note. They do not have the original mortgage and it's illegal for banks—national banks to lend credit and I've stated that."

{¶ 21} When asked by the trial court whether appellant's signature appeared on the note he responded, "No." However, when asked again, appellant responded, "No. Those are—those are copies of what appears to be my signature but yet they have not—they have not proven that."

{¶ 22} Due to a typographical error in the judgment entry, the trial court granted default judgment instead of summary judgment in favor of appellee, and the decree of foreclosure was entered on December 17, 2007. Appellant filed his notice of appeal on January 16, 2008. On May 1, 2008, the real property subject to this action was withdrawn from sheriff's sale on application of appellee. Appellee indicated that it was reviewing the matter and disposition of its collateral, and therefore did not wish to execute judgment at that time. On July 28, 2008, while the case was on limited remand, the trial court issued a nunc pro tunc judgment and decree in foreclosure in order to correct the typographical error in the original judgment.

Standard of Review

{¶ 23} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court as set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Before summary judgment can be granted, the trial court must determine that (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 the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267. When a court considers a motion for summary judgment, the facts must be taken in the light most favorable to the nonmoving party. Id.

{¶ 24} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264. If the moving party carries its burden, the nonmoving party has the reciprocal burden of setting forth specific facts showing that...