[Cite as Wells Fargo Fin. Ohio 1 Mtge. Group v. Lieb, 2011-Ohio-1988.]

 IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO 

WELLS FARGO FINANCIAL OHIO 1 : 

MORTGAGE GROUP 

Plaintiff-Appellee : C.A. CASE NO. 23688 

v. : T.C. NO. 2007CV2175 

MICHAEL LIEB, et al. : (Civil appeal from 

 Common Pleas Court) 

Defendants-Appellants : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 22nd day of April , 2011. 

 . . . . . . . . . . 

SCOTT A. KING, Atty. Reg. No. 0037582 and TERRY W. POSEY, Atty. Reg. No. 

0078292, P. O. Box 8801, 2000 Courthouse Plaza, N.E., Dayton, Ohio 45401 

Attorneys for Plaintiff-Appellee 

CHARLES F. ALLBERY, III, Atty. Reg. No. 0006244, 137 N. Main Street, Suite 500, 

Dayton, Ohio 45402 

Attorney for Defendant-Appellant Dru Lieb 

 . . . . . . . . . . 

OSOWIK, J. (by assignment) 

{¶ 1} Dru Lieb appeals from the judgment of foreclosure entered in favor of Wells 

Fargo Financial. Because Lieb fails to show that there are issues of material fact that 

preclude summary judgment on Wells Fargo’s foreclosure claim, we will affirm. 
2

I

{¶ 2} In January 1984, Dru Lieb and her husband, Michael Lieb, purchased a 

residence in Kettering, Ohio. They financed the purchase with a mortgage and took joint 

title. In 1995, Michael, by deed, granted his interest to Dru, who then held sole interest. In 

2002, the Liebs refinanced their mortgage with a different bank. Around December 2004, 

they began to consider refinancing again, this time with Wells Fargo. Michael started talking 

with two of Wells Fargo’s agents. While Dru wanted to refinance, she did not like the terms 

that the agents were offering. Ultimately, Dru told them that she was not going to sign the 

promissory note for the loan. The agents told Dru that, in order for the refinance to go 

through, she did not need to sign the promissory note, but she did need to sign the mortgage 

that secured the note. Dru agreed to this arrangement. 

{¶ 3} On March 10, 2005, a quit-claim deed bearing Dru’s signature was filed and 

recorded. This deed, dated March 8, 2005, purports to transfer Dru’s full interest in the 

residence to herself and Michael jointly, giving them each a half interest. 

{¶ 4} On March 21, 2005, the refinance closing was held at the Liebs’ residence. 

Present were Dru and Michael and Wells Fargo’s two agents. Michael signed a promissory 

note, and he executed a deed purporting to transfer his half-interest in the residence back to 

Dru. In addition to various other documents, both Dru and Michael executed the mortgage. 

The deed and mortgage were filed and recorded. Both documents show that they were 

acknowledged by notary Felicia R. Woodrum on the day of the closing. 

{¶ 5} On March 14, 2007, after Michael failed to make the monthly payments, 
3

Wells Fargo filed a foreclosure complaint against the Liebs. On August 30, 2007, Dru filed 

an amended answer, containing counterclaims and crossclaims. On June 2, 2008, Dru filed a 

motion for summary judgment on Wells Fargo’s claims, arguing that the mortgage was not 

properly acknowledged under R.C. 5301.01 and that her signature on the March 8, 2005 

deed was forged. 

{¶ 6} On July 14, 2008, Wells Fargo filed an amended complaint, claiming that it 

had an equitable mortgage lien on the property and a mortgage by estoppel. Wells Fargo 

filed a motion for partial summary judgment on its claims and Dru’s counterclaims. On 

November 19, 2008, Wells Fargo filed a motion for summary judgment on its claims in the 

amended complaint, arguing simply that there was no dispute that Michael was in default 

under the note and that, therefore, it was entitled to foreclose on the mortgage. Wells Fargo 

argued that, even if the mortgage were not enforceable under the law because it was not 

properly acknowledged under R.C. 5301.01, it was entitled to enforce the mortgage in 

equity. 

{¶ 7} On January 2, 2009, a magistrate issued a decision on Wells Fargo’s partial 

motion for summary judgment, its motion for summary judgment, and Dru’s motion for 

summary judgment. The magistrate granted Wells Fargo summary judgment on its claim 

against Michael based on the promissory note. But the magistrate denied summary judgment 

on the claim for foreclosure. The magistrate concluded that there were genuine issues of 

material fact concerning whether a notary was present at the closing to acknowledge the 

Liebs’ signatures on the mortgage, which prevented a determination of whether the mortgage 

was valid. The magistrate also found that there was not enough evidence to determine 
4

whether genuine issues of material fact existed concerning whether Wells Fargo could 

enforce the mortgage in equity. On January 16, 2009, Wells Fargo filed objections to the 

magistrate’s decision. 

{¶ 8} On February 10, 2009, the trial court sustained Wells Fargo’s objections. The 

court concluded that there were no genuine issues of material fact concerning the validity 

and enforceability of the mortgage. It first concluded that the Liebs failed to present 

sufficient evidence that the deed and mortgage were not validly executed. The court also 

concluded that Wells Fargo could enforce the mortgage in equity because both Liebs 

testified that Dru intended to sign the mortgage documents and understood what she was 

doing. Dru appealed, but this court dismissed her appeal on July 14, 2009, for lack of a final 

appealable order. 

{¶ 9} On September 8, 2009, the trial court entered a final judgment and a decree of 

foreclosure. The court pertinently found that Michael owed Wells Fargo $331,723.24, plus 

interest, and it concluded that because Michael was in default Wells Fargo was entitled to 

foreclose on the mortgage. Finally, the trial court wrote that the judgment-order is a final 

appealable order and there is no just cause for delay under Civ.R. 54(B). 

{¶ 10} Dru appealed. 

II

{¶ 11} Dru presents two assignments of error: 

First Assignment of Error

{¶ 12} “THE TRIAL COURT ERRED IN RENDERING A DECISION WHICH IT 
5

CONSIDERED A FINAL APPEALABLE ORDER, WHEN SUBSTANTIAL ISSUES AND 

CAUSES OF ACTION IN THE CASE HAVE NOT YET BEEN DETERMINED.” 

Second Assignment of Error

{¶ 13} “THE TRIAL COURT ERRED BY RENDERING SUMMARY 

JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT REMAINED FOR 

DETERMINATION.” 

A. The Appealed Order Is Final and Appealable

{¶ 14} In the first assignment of error, Dru appears to argue that the February 10, 

2009 order granting Wells Fargo summary judgment on its claims against the Liebs is not a 

final order. But it was from the court’s September 8, 2009 judgment-order that Dru 

appealed, and that order is final. “Generally, orders confirming a sale and foreclosure orders 

that find the amounts due to claimants are final, appealable orders. See, e.g., Third Nat. Bank 

of Circleville v. Speakman (1985), 18 Ohio St.3d 119; Queen City Sav. & Loan Co. v. Foley

(1960), 170 Ohio St. 383; and Oberlin Sav. Bank Co. v. Fairchild (1963), 175 Ohio St. 311. 

However, if claims are still pending in the trial court, the order must have a Civ. R. 54(B) 

certification to be appealed.” NBD Mortg. Co. v. Marzocco (Nov. 2, 2001), Montgomery 

App. No. 18824. Here, the September 8 judgment-order that Dru appealed found the amount 

due to Wells Fargo and ordered a sheriff’s sale of the residence. If unresolved issues remain, 

the September judgment-order contains the Civ.R. 54(B) certification. The appealed 

judgment-order is final and appealable. 

{¶ 15} The first assignment of error is overruled. 
6

B. Summary Judgment Is Proper

{¶ 16} Summary judgment shall be rendered “upon the tripartite demonstration: (1) 

that there is no genuine issue as to any material fact; (2) that the moving party is entitled to 

judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, 

and that conclusion is adverse to the party against whom the motion for summary judgment 

is made, who is entitled to have the evidence construed most strongly in his favor.” Harless 

v. Willis Day Warehousing Inc. (1978), 54 Ohio St.2d 64, 66; see Civ.R. 56(C). 

{¶ 17} Dru argues in the second assignment of error that summary judgment on 

Wells Fargo’s foreclosure claim was improper because genuine issues of material fact exist 

that concern the mortgage’s enforceability. First, Dru contends that a factual issue exists 

concerning whether the mortgage was properly executed. She alleges that the notary who 

acknowledged their signatures on the mortgage was not present to witness the signing. 

Second, Dru contends that an issue of fact exists that affects the validity of the March 8, 

2005 deed purporting to grant Michael a joint interest in the residence. She asserts that she 

did not sign it. But neither of these facts is material to the question of whether Wells Fargo is 

entitled to foreclose on the Liebs’ residence. 

{¶ 18} Section 5301.01 of the Revised Code states three requirements for a mortgage 

to be considered validly executed. One of the requirements is that the signing of the 

mortgage be acknowledged before one of the individuals specified in the statute. See R.C. 

5301.01(A)(2). But “Ohio law clearly holds that ‘[a] defectively executed conveyance of an 

interest in land is valid as between the parties thereto, in the absence of fraud.’” Lasalle 
7

Bank N.A. v. Zapata, 184 Ohio App.3d 571, 2009-Ohio-3200, at ¶21, quoting Citizens Natl. 

Bank in Zanesville v. Denison (1956), 165 Ohio St. 89, 95, superseded by statute as stated in

In re Nowak, 104 Ohio St.3d 466, 2004-Ohio-6777, at ¶11. Therefore, between the parties, a 

mortgage “will be specifically enforced as a contract for a mortgage, whether * * * the defect 

is in respect to the signing, acknowledgment, or attestation,” in order to carry out the 

intentions of the parties. 69 Ohio Jurisprudence 3d (1977) 86-87, Mortgages, Section 10; see 

Seabrooke, at 169 (saying that “a court may give full effect to a defective instrument in 

order to carry out the intentions of the parties”), citing Section 28, Article II, Ohio 

Constitution and R.C. 2719.01. The only exception is fraud. See Zapata, at ¶23 (saying that 

in order to avoid enforcement of a mortgage, fraud must be established with respect to its 

execution). Dru did not plead fraud in her amended answer.1

 

{¶ 19} Based on her deposition testimony, it appears that Dru was fully aware of 

what she was doing and intended to execute the mortgage. This is how Dru explained her 

understanding of the transaction: 

{¶ 20} “* * * [W]hat I told them [the agents] initially before I saw the terms and 

things, I was going to do as usual, which was sign the mortgage, sign the note, and do 

everything as had happened in the prior [2002] refinancing. But, on this one [refinancing] 

when I found out that the interest rate was more and started asking Michael questions about 

why–what is this? I don’t understand and stuff like that. I didn’t really get an answer that 

made sense to me. So, I said well, I don’t know what this is for. So, you’re going to have to 

 1

The word “fraudulent” is used in the amended answer to describe Wells Fargo’s claim. But “fraud” is not affirmatively 

set forth as a defense like Civ.R. 8(C) requires. Nor is the amended answer’s averment of fraud stated with the particularity 

required by Civ.R. 9(C).
8

explain it. Well, anyway, everybody got in an uproar, and I told one or other or both of the 

guys that I was not going to sign the note. And somehow they came back and I don’t know if 

they told me or Michael, but I think it was somehow I got the information that they had 

checked with their supervisor. Used car deal. And that the loan could still go ahead if I just 

signed the mortgage. That was–it sounded like it was, like they wanted this to go through no 

matter what. So I said okay. But, you know, I’ve got to remain the sole owner and all that 

kind of stuff. You know, if it’s just signing the mortgage, I’ll do that. But, so that he can do 

whatever he wants, but he is going to be the guy on the note and I remember thinking that 

they were not really–I could not believe they would do it, but it look like they did so.” 

{¶ 21} (Dru Lieb’s Depo. 99-101). 

{¶ 22} Dru was expressly asked whether she had read the mortgage document; she 

replied that she had. She was expressly asked whether, when she signed the mortgage, she 

believed that she owned the property; she replied that she did. Then: 

{¶ 23} “Q.And that document pledged that real estate as security for the payment of 

the note, that is what the document says, right? 

{¶ 24} “A. As far as–I guess.” 

{¶ 25} (Dru Lieb’s Depo. 97). 

{¶ 26} There is no genuine dispute that Dru fully intended to execute a mortgage in 

favor of Wells Fargo to secure the promissory note that Michael alone had signed. Dru does 

not say that she did not know that what she was signing was a mortgage document; she does 

not say that she did not know what it meant to grant a mortgage to a bank in return for a 

loan. Dru agreed to do what was needed of her for Michael to get the loan. Her only 
9

conditions appear to be that she avoid liability for the note and remain the sole owner of the 

residence. Both of these conditions were satisfied. Paragraph 12 of the mortgage document 

provides: “Any Borrower who co-signs this Security Instrument but does not execute the 

Note: (a) is co-signing this Security Instrument only to mortgage, grant and convey that 

Borrower’s interest in the Property under the terms of this Security Instrument; [and] (b) is 

not personally obligated to pay the sums secured by this Security Instrument * * *.” And, 

when the last closing document was signed, Dru held all the interest in the residence because 

Michael had signed a deed granting her the half interest that she ostensibly granted to him in 

the March 10, 2005 deed. 

{¶ 27} Dru says that she knew nothing of the March 10, 2005 deed when she signed 

the mortgage. She says that her signature on it was forged. Still, at the closing, Dru believed 

that she owned the full interest. If the deed were invalid, like Dru argues, the legal effect 

would only be that, instead of Michael and Dru each mortgaging a half interest in the 

property, Dru alone mortgaged the whole interest. But this is what she thought she was doing 

and intended to do. Whether the March 10, 2005 deed is valid, therefore, is not material. 

{¶ 28} In Lasalle Bank N.A. v. Zapata, the court enforced a defectively executed 

mortgage between a mortgagor and a mortgagee. Noting that the mortgagee never asserted a 

claim of fraud in her answer, the court said, “Rather, she attests only that she did not sign the 

mortgage deed in the presence of the notary public.” Zapata, at ¶22. “She does not argue,” 

continued the court, “that she never intended to sign the mortgage.” Id. “Therefore,” said the 

court, “we conclude that she should not be permitted to renege on her agreement.” Id., citing 

Seabrooke. We conclude the same here. Neither of the issues of fact raised by Dru is 
10

material to whether Wells Fargo may enforce the mortgage. Dru does not allege fraud that 

would preclude enforcement, and we do not see any such evidence in the record. 

{¶ 29} Wells Fargo is entitled to enforce the mortgage as a matter of law. Michael 

defaulted on the note, so Wells Fargo may foreclose. Based on the evidence, construed most 

strongly in Dru’s favor, this is the only reasonable conclusion. 

{¶ 30} The second assignment of error is overruled. 

{¶ 31} The judgment of the trial court is Affirmed. 

. . . . . . . . . . 

FAIN, J. and FROELICH, J., concur. 

(Hon. Thomas J. Osowik, Sixth District Court of Appeals, sitting by assignment of the Chief 

Justice of the Supreme Court of Ohio). 

Copies mailed to: 

Scott A. King 

Terry W. Posey 

Charles F. Allbery, III 

Hon. Mary L. Wiseman