[Cite as Nationstar Mtge., L.L.C. v. Perry, 2013-Ohio-5024.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 99497

NATIONSTAR MORTGAGE, L.L.C. 

PLAINTIFF-APPELLEE 

vs. 

ANGELA M. PERRY 

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-759730 

BEFORE: Stewart, A.J., Celebrezze, J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: November 14, 2013 
FOR APPELLANT

Angela M. Perry, pro se 

7855 Summerset Drive 

Walton Hills, OH 44146 

ATTORNEYS FOR APPELLEE 

Matthew P. Curry 

Matthew J. Richardson 

Manley, Deas & Kochalski, L.L.C. 

P.O. Box 165028 

Columbus, OH 43216 
MELODY J. STEWART, A.J.: 

{¶1} Defendant-appellant Angela Perry appeals from a summary judgment 

granting foreclosure in favor of plaintiff-appellee Nationstar Mortgage, L.L.C. On 

appeal, Perry asserts two assignments of error. First, Perry argues that the trial court 

improperly granted summary judgment because Nationstar did not own or hold the note 

prior to filing its complaint. In her second assignment of error, Perry argues that the trial 

court erred in granting summary judgment because Nationstar lacked standing. For the 

reasons that follow, we affirm. 

{¶2} In August 2007, Perry executed a promissory note for $240,000 secured by a 

mortgage for the purchase of property in Walton Hills, Ohio. On July 15, 2011, 

Nationstar filed a complaint against Perry seeking $238,498.87 after Perry defaulted on 

her mortgage loan payments. Attached to the complaint was a copy of an unendorsed 

promissory note naming Flagstar Bank, F.S.B., as the payee. Also attached to the 

complaint was a copy of the mortgage and two mortgage assignments. The first 

mortgage assignment demonstrated that on November 18, 2008, the mortgage was 

assigned from Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for 

Flagstar, F.S.B., to Flagstar, F.S.B. The second mortgage assignment demonstrated that 

on December 4, 2009, the mortgage was assigned from Flagstar, F.S.B., to Nationstar. 

{¶3} On August 8, 2012, Nationstar filed a motion for summary judgment. 

Attached to the motion was the affidavit of a Nationstar employee attesting to the 
existence of the debt and to the amount owed. Also attached to the motion, was another 

copy of the note. This copy of the note was endorsed in blank by Flagstar, F.S.B. 

{¶4} On November 29, 2012, Perry filed a motion for leave to respond to 

Nationstar’s motion for summary judgment. Perry also filed a motion to dismiss the 

complaint. On December 18, 2012, the court denied both of Perry’s motions. On the 

same day, the magistrate granted summary judgment in favor of Nationstar. The trial 

court adopted the magistrate’s decision on January 4, 2013. This appeal followed. 

 

{¶5} Recently, the Ohio Supreme Court addressed the issue of standing in a 

foreclosure action. In Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 

2012-Ohio-5017, 979 N.E.2d 1214, the court found that standing to sue is required to 

invoke the jurisdiction of the common pleas court and is determined at the 

commencement of a suit. Id. at  24. In foreclosure cases, standing exists where a party 

either has a mortgage assignment or is the holder of the note at the time the complaint is 

filed. CitiMortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894, 

 21. In this case, Nationstar has met its burden of proof with regard to standing because 

it had both the mortgage assignment and was the holder of the note at the time the 

complaint was filed. 

{¶6} This case is analogous to Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. 

Cuyahoga No. 98502, 2013-Ohio-1657. In Najar, when the appellants-borrowers failed 

to make payments on their note, the appellee-bank filed a foreclosure action. Copies of 
the unendorsed note and mortgage that the borrowers had executed in favor of the 

original lender were attached to the complaint. Id. at  7. The bank then moved for 

summary judgment that was granted by the trial court. In support of its motion, the bank 

included an affidavit of the vice president of the mortgage servicer, copies of the 

unendorsed note, the note endorsed in blank, the mortgage, the mortgage assignment, and 

various other loan-related documents. Id. at  21. On appeal, the borrowers asserted, 

among other arguments, that the note at issue was not a negotiable instrument because it 

was unendorsed at the time the complaint was filed and that the trial court erred by 

entering summary judgment in favor of the bank because the bank had failed to establish 

its right to enforce the note and mortgage. Id. at  2. The borrowers also argued that the 

bank lacked standing to foreclose on the property. Id. 

{¶7} In affirming the decision of the trial court, this court found that the 

appellee-bank was both in possession of the note and was a holder of the note at the time 

the complaint was filed. Id. at  58. Specifically, we noted that the evidentiary 

materials supplied by the appellee bank, including the chain of assignments and transfers 

of the note and mortgage, the borrowers’ default, and the balance owned on the loan, 

established that the bank was the proper party entitled to foreclose on the property. Id. at 

 25. 

{¶8} Here, Nationstar has provided similar documents demonstrating that it is the 

proper party to foreclose on Perry’s property. Similar to Najar, in this case there are two 

notes that are part of the record — an unendorsed note attached to the complaint and a 
note endorsed in blank attached to the affidavit in support of the motion for summary 

judgment. Like the appellants in Najar, Perry argues that Nationstar lacks standing 

because the note attached to the complaint was unendorsed. Perry’s argument is 

incorrect. 

{¶9} The “holder” of a negotiable instrument is entitled to enforce the instrument. 

R.C. 1303.31(A). A “holder” of a note includes a person who is in possession of an 

instrument payable to bearer. R.C. 1301.01(T)(1)(a).1

 Under R.C. 1303.03, a “negotiable 

instrument” is an unconditional promise or order to pay a fixed amount of money, with or 

without interest or other charges described in the promise or order, if it meets all of the 

following requirements: 

(1) It is payable to bearer or to order at the time it is issued or first comes 

into possession of a holder. 

 (2) It is payable on demand or at a definite time. 

(3) It does not state any other undertaking or instruction by the person 

promising or ordering payment to do any act in addition to the payment of 

money, but the promise or order may contain any of the following: 

(a) An undertaking or power to give, maintain, or protect collateral to 

secure payment; 

(b) An authorization or power to the holder to confess judgment or realize 

on or dispose of collateral; 

(c) A waiver of the benefit of any law intended for the advantage or 

protection of an obligor. 

 1

 Renumbered R.C. 1301.201(B)(21). 
{¶10} The note attached to the motion for summary judgment was endorsed in 

blank by Flagstar, F.S.B. Therefore, since the note is bearer paper, it qualifies as a 

negotiable instrument. Accordingly, we find Nationstar has demonstrated its holder 

status at the time the complaint was filed. 

{¶11} As we held in Najar, although a party seeking foreclosure must establish 

that it was the holder of the note and mortgage at the time the foreclosure action is filed, it 

need not present its proof on the exact date of filing. Najar at  57, citing Bank of N.Y. 

Mellon v. Watkins, 10 Dist. Franklin No. 11AP-539, 2012-Ohio-4410,  18. Proof may 

be offered after the filing date, including proof submitted as part of a motion for summary 

judgment, establishing a plaintiff’s status as holder of the note at the time the complaint 

was filed. Najar at  57. 

{¶12} Nationstar demonstrated it was in possession of the note at the time the 

complaint was filed by attaching the unendorsed note. In its motion for summary 

judgment, Nationstar demonstrated it was the holder of the note at the time the complaint 

was filed with the affidavit of one of its employees, along with a copy of the note 

endorsed in blank. “The mere fact that there were two different copies of the note in the 

record — one with endorsements and one without — does not mandate a finding that one 

of the notes was ‘unauthentic’ or otherwise preclude summary judgment.” Id. at  59, 

citing United States Bank, N.A. v. Adams, 6th Dist. Erie No. E-11-070, 2012-Ohio-6253, 

 19-20. 
{¶13} Finally, Perry challenges the affidavit of Nationstar’s employee by claiming 

that the document is inadmissible hearsay because the affidavit was not based on personal 

knowledge nor does it authenticate the mortgage and the note as “true copies.” These 

arguments are also unpersuasive. 

{¶14} Under Civ.R. 56(E), an affidavit must be made on personal knowledge, set 

forth such facts that would be admissible in evidence, and affirmatively demonstrate that 

the affiant is competent to testify to the matters stated in the affidavit. Additionally, 

documents referred to in an affidavit must be attached and must be sworn or certified 

copies. Civ.R. 56(E). Verification of these documents is generally satisfied by an 

appropriate averment within the affidavit; for example, “such copies are true copies and 

reproductions.” Najar at ¶ 20, citing State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 

459, 423 N.E.2d 105 (1981), paragraph three of the syllabus. 

{¶15} Perry argues that the affidavit failed to state in detail how the statements of 

the employee were based on personal knowledge. However, we find that the affidavit 

was sufficiently based on personal knowledge for Civ.R. 56(E) purposes. The affiant for 

Nationstar testified about his access to, and review of, the business records maintained in 

the ordinary course of Nationstar’s mortgage loan servicing. He also testified to his 

personal knowledge of Perry’s loan and default under the note and mortgage and to the 

amount owed on the note, and he did so making the proper averments. There is no 

requirement that an affiant explain the basis for his personal knowledge where his 

personal knowledge can be reasonably inferred based on the affiant’s position and other 
facts contained in the affidavit. Najar at  74. The trial court properly granted summary 

judgment. 

{¶16} Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MELODY J. STEWART, ADMINISTRATIVE JUDGE 

FRANK D. CELEBREZZE, JR., J., and 

SEAN C. GALLAGHER, J., CONCUR