[Cite as BAC Home Loans Servicing, LP v. Altizer, 2012-Ohio-5378.]

COURT OF APPEALS 

KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

BAC HOME LOANS SERVICING, LP 

 Plaintiff-Appellee 

-vsDAVID ALTIZER, ET AL. 

 Defendants-Appellants 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 12-CA-13 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of 

Common Pleas, Case No. 10FR10-0651 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: November 19, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

KIMBERLEE S. ROHR JOHN SHERROD 

Lerner, Sampson & Rothfuss Mills, Mills, Fiely & Lucas, LLC 

120 East Fourth Street, Suite 800 503 South Front Street, Ste. 240 

Cincinnati, Ohio 45202 Columbus, Ohio 43215 
Knox County, Case No. 12-CA-13 2

Hoffman, P.J. 

{¶1} Defendants-appellants David and Brenda Altizer appeal the June 19, 2012 

Entry Granting Summary Judgment and Decree in Foreclosure entered by the Knox 

County Court of Common Pleas. Plaintiff-appellee is BAC Home Loans Servicing, LP 

fka Countrywide Home Loans Servicing, LP (“Countrywide”). 

STATEMENT OF THE FACTS AND CASE 

{¶2} On November 13, 2006, Appellants executed a promissory note in favor of 

Countrywide in the amount of $237,500.00. Appellants secured the note with a 

mortgage to Mortgage Electronic Registration Systems (“MERS”) as nominee for 

Countrywide. Countrywide subsequently indorsed the note in blank and transferred it to 

Appellee, who later merged with Bank of America. The mortgage was also assigned to 

Appellee. 

{¶3} Appellants defaulted under the terms of the note and mortgage, and 

Appellee accelerated the debt. On October 19, 2010, Appellee filed a Complaint in 

Foreclosure against Appellants. Copies of the note, mortgage, and assignment of 

mortgage were attached as exhibits to the Complaint. Appellants filed a pro se Answer, 

in which they admitted to contacting Bank of America for purposes of a loan 

modification or federal loan program. Appellants did not assert any defenses or, in any 

other way, contest Appellee’s standing or status as the real party in interest. 

{¶4} On December 8, 2011, Appellee filed a motion to substitute Bank of 

America, successor by merger to Appellee, as party plaintiff. Appellee included 

documents detailing the merger of Appellee and Bank of America, which became 

effective July 1, 2011. On March 20, 2012, Appellee filed a motion for summary 
Knox County, Case No. 12-CA-13 3

judgment with the supporting affidavit of Betty J. Marion, Assistant Vice President for 

Bank of America. Appellants filed a memorandum contra. Appellee filed a Notice of 

Filing of Note which included a copy of the note bearing a blank indorsement from the 

original lender. The trial court granted summary judgment in favor of Appellee on June 

19, 2012. 

{¶5} It is from this judgment entry Appellants appeal, assigning as error: 

{¶6} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION 

FOR SUMMARY JUDGMENT WHERE IT DID NOT FOLLOW ITS OWN LOCAL RULE 

REGARDING EVIDENCE OF ASSIGNMENT OF THE PROMISSORY NOTE AT 

ISSUE.” 

STANDARD OF REVIEW 

{¶7} Summary judgment proceedings present the appellate court with the 

unique opportunity of reviewing the evidence in the same manner as the trial court. 

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As 

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio 

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. 

{¶8} Civ.R. 56 provides summary judgment may be granted only after the trial 

court determines: 1) no genuine issues as to any material fact remain 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.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267. 
Knox County, Case No. 12-CA-13 4

{¶9} It is well established the party seeking summary judgment bears the 

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. 

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for 

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that 

the nonmoving party cannot prove its case, bears the initial burden of informing the trial 

court of the basis for the motion, and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on the essential element(s) 

of the nonmoving party's claims. The moving party cannot discharge its initial burden 

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no 

evidence to prove its case. Rather, the moving party must be able to specifically point to 

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the 

nonmoving party has no evidence to support the nonmoving party's claims. If the 

moving party fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the nonmoving party 

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing 

there is a genuine issue for trial and, if the nonmovant does not so respond, summary 

judgment, if appropriate, shall be entered against the nonmoving party.” The record on 

summary judgment must be viewed in the light most favorable to the opposing party. 

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924. 
Knox County, Case No. 12-CA-13 5

I 

{¶10} In their sole assignment of error, Appellants contend the trial court erred in 

granting summary judgment in favor of Appellee as Appellee failed to establish it was 

the holder of the note at issue. 

{¶11} The Local Rules of the Knox County Court of Common Pleas include 

specific requirements for the filing of foreclosure actions. Knox Local R. 16.01 provides: 

{¶12} “Rule 17 of the Ohio Rules of Civil Procedure shall be strictly enforced in 

all mortgage foreclosure actions. The following information shall be contained in the 

complaint: 

{¶13} “(A) A copy of the note, along with an affirmative statement in the body of 

the complaint that the plaintiff is the holder in due course of the note. If the note does 

not reflect that the plaintiff is the holder on its face, a copy of an assignment of the note 

shall be filed, demonstrating that the plaintiff is the owner and holder of the note.” 

{¶14} Civ.R. 17(A) reads, in pertinent part: 

{¶15} “Every action shall be prosecuted in the name of the real party in interest. 

An executor, administrator, guardian, bailee, trustee of an express trust, a party with 

whom or in whose name a contract has been made for the benefit of another, or a party 

authorized by statute may sue in his name as such representative without joining with 

him the party for whose benefit the action is brought. * * * No action shall be dismissed 

on the ground that it is not prosecuted in the name of the real party in interest until a 

reasonable time has been allowed after objection for ratification of commencement of 

the action by, or joinder or substitution of, the real party in interest. Such ratification, 
Knox County, Case No. 12-CA-13 6

joinder, or substitution shall have the same effect as if the action had been commenced 

in the name of the real party in interest.” 

{¶16} In Wachovia Bank, N.A. v. Cipriano, Fifth Dist. App. No. 09CA007, 2009-

Ohio-5470, ¶ 38, this Court explained: “Pursuant to Civ.R. 17(A), the real party of 

interest shall ‘prosecute’ the claim. The rule does not state ‘file’ the claim.” We thus 

rejected the defendant's argument in that case the trial court lacked jurisdiction because 

Wachovia was not the holder or owner of the note and mortgage at the time of the filing 

of the complaint. Id. at ¶ 40. A party must provide evidence of its right to enforce the 

note and mortgage prior to the trial court’s entering a judgment. U.S. Bank Natl. Assn. 

v. Bayless, Fifth Dist. App. No. 09 CAE 01 004, 2009-Ohio-6115. See, also, LaSalle 

Bank Natl. Assn. v. Street, Fifth Dist. App.No. 08 CA 60, 2009-Ohio-1855, ¶ 28. 

{¶17} “The purpose behind the real party in interest rule is ‘to enable the 

defendant to avail himself of evidence and defenses that the defendant has against the 

real party in interest, and to assure him finality of the judgment, and that he will be 

protected against another suit brought by the real party at interest on the same matter’.” 

Shealy v. Campbell, 20 Ohio St.3d 23, 24-25, 485 N.E.2d 701 (1985). (Citations 

omitted). 

{¶18} “The real-party-in-interest rule concerns only proper party joinder. Civ.R. 

17(A) does not address standing; rather, the point of the rule is that “suits by 

representative plaintiffs on behalf of the real parties in interest are the exception rather 

than the rule and should only be allowed when the real parties in interest are identifiable 

and the res judicata scope of the judgment can be effectively determined.” Federal 

Home Loan Mortgage Corp. v. Schwartzwald, Slip Opinion No. 2012-Ohio-5017, 
Knox County, Case No. 12-CA-13 7

quoting Lincoln Property Co. v. Roche, 546 U.S. 81, 90, 126 S.Ct. 606, 163 L.Ed.2d 415 

(2005), citing Consumer Fedn. of Am. v. Upjohn Co., 346 A.2d 725, 729 (D.C.1975) 

(construing analogous District of Columbia rule). 

{¶19} Standing, on the other hand, is a “jurisdictional requirement”. State ex rel. 

Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 176, 179, 298 N.E.2d 

515 (1973). Because standing to sue is required to invoke the jurisdiction of the 

common pleas court, “standing is to be determined as of the commencement of suit.”

Schwartzwald, supra. (Citations omitted). 

{¶20} The Rules of Civil Procedure do not extend the jurisdiction of the courts of 

this state, and a common pleas court cannot substitute a real party in interest for 

another party if no party with standing has invoked its jurisdiction in the first instance. 

Civ. R. 82. “Accordingly, a litigant cannot pursuant to Civ.R. 17(A) cure the lack of 

standing after commencement of the action by obtaining an interest in the subject of the 

litigation and substituting itself as the real party in interest.” Schwartzwald, supra.1

{¶21} We find the Complaint filed by Appellee in the instant action alleges 

sufficient general facts, coupled with the attached exhibits, to establish Appellee had 

standing, at the commencement of the action, to invoke the jurisdiction of the Knox 

County Court of Common Pleas. Appellee’s merger with Bank of America did not impact 

its standing to initiate the foreclosure or in any way affect its status as the real party in 

interest. 

{¶22} We find Appellee presented evidence to the trial court which established it 

was the holder of the note and mortgage. Accordingly, we find Appellee complied with 

 

1

 We find Schwartzwald effectively reverses this Court’s previous holdings to the 

contrary in Cipriano, Bayless and Street. 
Knox County, Case No. 12-CA-13 8

Civ. R. 17.2 Further, Appellee supported its motion for summary judgment with affidavits 

and documents which establish it is the real party in interest. Appellants failed to 

present any evidence to the contrary or which showed an issue of material fact was in 

dispute. 

{¶23} Based upon the foregoing, we find the trial court did not err in granting 

summary judgment in favor of Appellee. 

{¶24} Appellants’ sole assignment of error is overruled. 

{¶25} The judgment of the Knox County Court of Common Pleas is affirmed. 

By: Hoffman, P.J. 

Wise, J. and 

Edwards, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS 

 

 

2

 To the extent the trial court failed to adhere to its Loc.R. 16.01, we find no abuse of 

discretion. 
Knox County, Case No. 12-CA-13 9

IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

BAC HOME LOANS SERVICING, LP : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

DAVID ALTIZER, ET AL. : 

 : 

 Defendants-Appellants : Case No. 12-CA-13 

 For the reasons stated in our accompanying Opinion, the judgment of the Knox 

County Court of Common Pleas is affirmed. Costs to Appellants. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS