[Cite as Nationstar Mtge. L.L.C. v. Payne, 2017-Ohio-513.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Nationstar Mortgage LLC, : 

 Plaintiff-Appellee, : 

 No. 16AP-185 

v. : (C.P.C. No. 14CV-13435)

Brian K. Payne, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

 

D E C I S I O N 

Rendered on February 14, 2017 

 

On brief: Thompson Hine LLP, John B. Kopf and 

Michael L. Dillard, Jr., for appellee. Argued: Michael L. 

Dillard, Jr.

On brief: Brian K. Payne, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Defendant-appellant, Brian K. Payne, appeals a judgment of the Franklin 

County Court of Common Pleas in favor of plaintiff-appellee, Nationstar Mortgage LLC 

("Nationstar"). For the following reasons, we affirm that judgment. 

{¶ 2} On December 23, 2014, Nationstar filed a complaint against Payne. The 

complaint alleged that Nationstar was the holder of and/or the person entitled to enforce 

a promissory note executed by Payne, and that Nationstar was the holder of the mortgage 

that secured the note. Additionally, the complaint alleged that Payne had defaulted on the 

note and owed Nationstar the balance due. Nationstar sought a monetary judgment, 
No. 16AP-185 2 

foreclosure of the mortgage, sale of the mortgaged property, and payment of the monetary 

judgment from the sale proceeds. 

{¶ 3} Nationstar subsequently amended the complaint to add additional 

defendants who may possess an interest in the mortgaged property. These additional 

defendants failed to answer the amended complaint. Payne, however, answered both the 

original and amended complaints. 

{¶ 4} On February 1, 2016, Nationstar filed two motions. In the first, Nationstar 

sought a default judgment against those defendants who had failed to answer the 

complaint. In the second, Nationstar sought summary judgment against Payne. 

{¶ 5} To support its motion for summary judgment, Nationstar relied on the 

affidavit of Sara P. Afford, a document execution specialist for Nationstar. Afford testified 

that the documents attached to her affidavit were true and exact copies of Payne's note 

and mortgage, the assignment of the mortgage, the loan payment history, and the demand 

letter that Nationstar had sent to Payne. Afford also testified that Payne had defaulted 

under the note and mortgage by failing to make payments due. When Payne did not cure 

the default, Nationstar accelerated the amount due under the note and mortgage. Payne 

owed Nationstar the principal sum of $96,211.65, plus interest at a rate of 5.875 percent 

per year from June 1, 2014. 

{¶ 6} On February 17, 2016, the trial court entered judgment granting both of 

Nationstar's motions. Payne failed to respond to Nationstar's motion for summary 

judgment prior to the trial court's judgment. However, after the trial court issued its 

judgment, Payne filed a memorandum in opposition to Nationstar's motion for summary 

judgment, as well as a cross-motion for summary judgment. The trial court ignored this 

belated filing. 

{¶ 7} Payne now appeals the February 17, 2016 judgment, and he assigns the 

following errors: 

[1.] THE TRIAL COURT ABUSED ITS DISCRETION 

WHEN IT ENTERED DEFAULT JUDGMENT AGAINST MR. 

Brian K. Payne, HOLDING HE WAS IN DEFAULT OF 

MOTION OR ANSWER. 

[2.] WHETHER DEFAULT JUDGMENT CAN BE 

PROPERLY ENTERED AGAINST A PARTY (MR. PAYNE) 
No. 16AP-185 3 

WHOM IS NOT MENTIONED IN THE MOTION FOR 

ENTRY OF DEFAULT JUDGMENT. 

WHETHER THE TRIAL COURT SHOULD HAVE ENTERED 

DEFAULT AGAINST DEFENDANT EVEN THOUGH THE 

DEFENDANT WAS NOT NAMED ON THE MOTION TO 

ENTER DEFAULT AND FURTHER HE HAD APPEARED IN 

THE CASE AND ANSWER THE PLAINTIFF'S AMENDED 

COMPLAINT ALONG WITH OTHER PLEADINGS 

PREVIOUS TO PLAINTIFF'S AMENDED COMPLAINT. 

[3.] A GENUINE ISSUE OF MATERIAL FACT WAS IN 

DISPUTE THAT SHOULD HAVE PRECLUDED SUMMARY 

JUDGMENT, AND IF NOT, WHETHER THE TRIAL COURT 

RULE CORRECTLY ON THE LAW. 

[4.] NATIONSTAR'S OWN PROOFS ESTABLISHED 

THAT NATIONSTAR IS NOT THE HOLDER OF THE NOTE, 

AND THEREFORE LACKS STANDING TO FORECLOSE. 

IN ORDER TO HAVE STANDING TO FORECLOSE, A 

PLAINTIFF MUST SHOW BOTH (1) THAT THE 

DEFENDANT OWES A DEBT TO THE PLAINTIFF AND (2) 

THAT THE PLAINTIFF HAS A SECURITY INTEREST IN 

THE PROPERTY. 

[5.] THE TRIAL COURT ERRED IN GRANTING 

SUMMARY JUDGMENT BECAUSE THERE IS A GENIUNE 

ISSUE OF MATERIAL FACT IN RESPECT TO NATIONSTAR 

IS THE HOLDER OF THE NOTE AND MORTGAGE. 

[6.] TRANSFER OF A NEGOTIABLE INSTRUMENT IS 

GOVERN BY THE UNIFORM COMMERCIAL CODE, 

REQUIRES PHYSICAL POSSESSION AND INDORSEMENT 

OF A NOTE PAYABLE TO ORDER. 

[7.] WHETHER NATIONSTAR PROOFS WERE 

SUFFICIENT TO SUPPORT ENTRY OF SUMMARY 

JUDGMENT AND OR FINAL JUDGMENT. 

DEFENDANT EXECUTED A NOTE TO GLOBAL EQUITY, 

LENDING, INC., AND MORTGAGE TO MERS. WHERE AS 

NATIONSTAR DID NOT PRESENT EVIDENCE AS TO HOW, 

WHEN....NOT EVEN A DATE, IF EVER IT BECAME 

HOLDER OF THE NOTE ENTITLED TO ENFORCE, ALSO, 

NATIONSTAR HAS NOT SHOWN EVIDENCE THAT 
No. 16AP-185 4 

WOULD ESTABLISH IT AS THE REAL PARTY IN 

INTEREST. 

[8.] WHETHER PLAINTIFF'S ALLEGED POSSESSION 

AND HOLDER OF THE NOTE, SUPPORTED ONLY BY AN 

ASSIGNMENT Of MORTGAGE, FAILS TO MEET THE 

REQUIREMENTS OF THE UNIFORM COMMERCIAL CODE 

AND DOES NOT GIVE RISE TO A CLAIM OF RELIEF 

AGAINST THE MAKER OF THE NOTE. 

[9.] WHETHER NATIONSTAR'S CLAIM OF POSSESSION 

WAS UNSUPPORTED BY COMPETENT EVIDENCE, AND 

THEREFORE NATIONSTAR FAILED EVEN TO SHOW 

POSSESSION IN THE NOTE. 

[10.] AS NATIONSTAR MORTGAGE, LLC FAILED TO 

SHOW THAT IT WAS THE HOLDER OF THE NOTE AND 

THE ASSIGNEE OF THE MORTGAGE IT IS NOT A PROPER 

PARTY TO THE FORECLOSURE ACTION AND LACKS 

STANDING TO FORECLOSURE. 

[11.] WHETHER MERS BY ITS OWN GUIDELINES HAS 

AUTHORITY TO ASSIGN NOTES AND OR MORTGAGES. 

[12.] WHETHER GLOBAL EQUITY LENDER INC., GAVE 

MERS AUTHORITY TO ASSIGN IT'S MORTGAGE. 

[13.] WHETHER SARA P. AFFORD AFFIDAVIT AND 

NOTARY HAS A SIGNATURE, AND IF NOT, WHETHER A 

MISSING SIGNATURE CONSTITUTES AN IMPROPER 

AFFIDAVIT, AND WHETHER THE AFFIANT AVERMENT 

IN THAT PURPORTED AFFIDAVIT IS INCOMPETENT 

TESTIMONY, AND WHETHER AN INCOMPETENT 

TESTIMONY AS TO THE NOTE AND MORTGAGE 

CREATES A GENUINE FACTUAL ISSUE IN DISPUTE, AND 

WHETHER DEFENDANT HAS TIMELY OBJECTED TO 

THE AFFIDAVIT ON THESE GROUNDS, AND THE 

AFFIDAVIT SHOULD BE STRIKEN OR WHETHER 

SUMMARY JUDGMENT SHOULD BE DENIED PLAINTIFF. 

[14.] WHETHER NATIONSTAR PROOFS WERE 

SUFFICIENT TO ESTABLISH THAT NATIONSTAR HAD 

THE RIGHT TO ENFORCE THE NOTE AND MORTGAGE 

AND SUPPORT ENTRY OF SUMMARY JUDGMENT AND 

OR FINAL JUDGMENT. 
No. 16AP-185 5 

[15.] WHETHER DOCUMENTS THAT NATIONSTAR 

MORTGAGE, LLC RELIED, UPON IN SUPPORT OF ITS 

MOTION FOR SUMMARY JUDGMENT TO ESTABLISH ITS 

STATUS AS HAVING POSSESSION AND OR HOLDER 

WERE PROPERLY CERTIFIED AND AUTHENTICATED. 

[16.] WHETHER THE COPIED NOTE AND MORTGAGE 

WERE ATTACHED TO AN AFFIDAVIT FOR THE 

PURPOSES OF BEING CERTIFIED AND 

AUTHENTICATION. 

[17.] AND WHETHER THE DEFENDANT IS TIMELY TO 

STRIKE THESE PORTIONS OF THE SARA P. AFFORD 

AFFIDAVIT NOT IN COMPLIANCE WITH RULE 56(E) AND 

RULES OF EVIDENCE. 

[18.] WHETHER COPIED NOTE, MORTGAGE, 

ASSIGNMENT OF MORTGAGE, PAYMENT HISTORY AND 

DEMAND LETTER SATISFIED THE AFFIDAVIT 

REQUIREMENTS OF 56(E), WHICH STATES THAT 

"DOCUMENTS" ATTACH TO AN AFFIDAVIT MUST BE 

CERTIFIED OR SWORN TO, AND IF NOT, WHETHER 

DEFENDANT'S MOVE TO STRIKE THIS PORTION OF 

SARA P. AFFORD AFFIDAVIT IS TIMELY. 

[19.] WHETHER SARA P. AFFORD AFFIDAVIT AT 5 

AVERRING THAT....." that true and exact copies of the Note, 

Mortgage, Assignment of Mortgage, Payment History and 

Demand Letter are attached hereto...." SATISFIED THE 

VERIFICATION REQUIREMENTS OF 56(E), WHICH 

STATES THAT ....." 'CERTIFIED' COPIES ATTACHED ARE 

TRUE AND ACCURATE REPRODUCTIONS OF THE 

ORIGINAL".....IF NOT, WHETHER DEFENDANT'S MOVE 

TO STRIKE THIS PORTION OF SARA AFFORD AFFIDAVIT 

IS TIMELY [emphasize added]. 

[20.] WHETHER AN AFFIDAVIT BASED ON PERSONAL 

REVIEW OF THE BUSINESS RECORDS PROVIDE A BASIS 

FOR AFFIANT TO TESTIFY TO POSSESSION OF THE 

NOTE. 

[21.] THE TRIAL COURT ERRED BY NOT ALLOWING 

DEFENDANT TIME AS REQUIRED BY RULE 56.( C) AND 

OR Local Rule 11(I)(1) TO RESPOND TO PLAINTIFF'S 

SUMMARY JUDGMENT MOTION PRIOR TO THE TRIAL 

COURT ENTERING SUMMARY JUDGMENT. 
No. 16AP-185 6 

[22.] WHETHER DISCOVERY SHOULD HAVE BEEN 

ALLOWED PRIOR TO THE TRIAL COURT ENTERING 

SUMMARY JUDGMENT, IF NOT, WHETHER 

DEFENDANT'S CROSS-MOTION FILED FEBRUARY 29TH, 

2016 AND OTHER PREVIOUS FILINGS WAS TIMELY 

FILED; AND NOTWITHSTANDING THE FACT THAT 

DEFAULT AND SUMMARY JUDGMENT WAS ENTERED, 

WHETHER THIS ENTIRE CASE SHOULD BE RULED AT 

THIS TIME IN IT'S ENTIRETY BY APPEAL'S COURT OR 

REMAND FOR FURTHER PROCEEDINGS IN RESPECT TO 

THE DEFAULT AND OR DISCOVERY. 

[23.] IF DEFENDANT SHOULD PREVAIL IN HIS APPEALWHETHER DEFENDANT'S REQUEST FOR ATTORNEY 

FEES WAS TIMELY AND PROPER.1

{¶ 8} Before reviewing Payne's assignments of error, we must address the 

affidavit that Payne includes in his appellant's brief. Appellate review is limited to the 

record as it existed at the time the trial court rendered its judgment. Wiltz v. Clark 

Schaefer Hackett & Co., 10th Dist. No. 11AP-64, 2011-Ohio-5616, ¶ 13. Payne's affidavit 

was not before the trial court when it issued the judgment on appeal. Consequently, we 

will not consider Payne's affidavit when deciding this appeal. 

{¶ 9} By his first and second assignments of error, Payne argues that the trial 

court erred in granting default judgment against him. Payne misreads the trial court's 

judgment. The trial court only granted default judgment against the non-answering 

defendants, i.e., Jane Doe, the unknown spouse, if any, of Payne; the Taylor Payne-Bey 

Family Development Trust; and John Doe, trustee of the Taylor Payne-Bey Family 

Development Trust. The trial court granted summary judgment against Payne. Because 

the trial court did not engage in the error Payne alleges, we overrule Payne's first and 

second assignments of error. 

{¶ 10} The remainder of Payne's assignments of error challenge the trial court's 

grant of summary judgment against him. A trial court will grant summary judgment 

under Civ.R. 56 when the moving party demonstrates that: (1) there is no genuine issue of 

material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 

 

1 Because Payne did not sequentially number all of his assignments of error, we have renumbered the 

assignments of error. We quote Payne's assignments of error verbatim, without correcting any 

grammatical errors. 
No. 16AP-185 7 

reasonable minds can come to but one conclusion when viewing the evidence most 

strongly in favor of the nonmoving party, and that conclusion is adverse to the nonmoving 

party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. 

Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial 

court's ruling on a motion for summary judgment is de novo. Hudson at ¶ 29. This 

means that an appellate court conducts an independent review, without deference to the 

trial court's determination. Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 

2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio4490, ¶ 6 (10th Dist.). 

{¶ 11} The party moving for summary judgment 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. Dresher v. Burt, 

75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden 

under Civ.R. 56 by simply making conclusory allegations. Id. Rather, the moving party 

must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that 

there are no genuine issues of material fact and the moving party is entitled to judgment 

as a matter of law. Id. If the moving party meets its burden, then the nonmoving party 

has a reciprocal burden to set forth specific facts showing that there is a genuine issue for 

trial. Civ.R. 56(E); Dresher at 293. If the nonmoving party does not so respond, 

summary judgment, if appropriate, shall be entered against the nonmoving party. 

Dresher at 293. 

{¶ 12} We will begin our review of the assignments of error challenging the grant 

of summary judgment with Payne's twenty-first assignment of error. By that assignment 

of error, Payne argues that the trial court erred in not providing him 28 days to respond to 

Nationstar's motion for summary judgment. We find this argument unavailing. 

{¶ 13} Pursuant to Civ.R. 56(C): 

[u]nless otherwise provided by local rule or by order of the 

court, the adverse party may serve responsive arguments and 

opposing affidavits within twenty-eight days after service of [a 

summary judgment] motion, and the movant may serve reply 

arguments within fourteen days after service of the adverse 

party's response. 
No. 16AP-185 8 

By inserting the clause "[u]nless otherwise provided by local rule or by order of the court" 

before the 28-day and 14-day deadlines, Civ.R. 56(C) makes clear that it only provides 

default deadlines for the circumstance where no applicable local rule or court order exists. 

In other words, the 28-day and 14-day deadlines apply "only in the absence of a local rule 

or court order providing times for briefing motions, whether or not the rule or order 

specifically addresses summary judgment motions, and does not supersede or affect the 

application of local rules or orders addressing briefing on motions." 2015 Staff Notes, 

Civ.R. 56. 

{¶ 14} Here, Loc.R. 21.01 of the Franklin County Court of Common Pleas, General 

Division, sets forth the time periods for responding and replying to motions. In relevant 

part, that rule provides that "[t]he opposing counsel or a party shall serve any answer 

brief on or before the 14th day after the date of service as set forth on the certificate of 

service attached to the served copy of the motion." As Loc.R. 21.01 specifies the deadline 

for responding to a motion, that rule applies and limits the amount of time Payne had to 

respond to Nationstar's motion for summary judgment to 14 days. See Brisco v. U.S. 

Restoration & Remodeling, Inc., 10th Dist. No. 14AP-533, 2015-Ohio-3567, ¶ 12 (quoting 

Loc.R. 21.01 and Loc.R. 57.02, and concluding that "the rules provide a party 14 days to 

file a brief in opposition to a motion, including filing all evidentiary materials in support 

of the responsive pleading"). Accordingly, we overrule Payne's twenty-first assignment of 

error. 

{¶ 15} By Payne's twenty-second assignment of error, he argues that the trial court 

erred in granting Nationstar summary judgment when he still had discovery to conduct. 

We disagree. 

{¶ 16} Generally, Civ.R. 56(F) provides the sole remedy for a party who must 

respond to a motion for summary judgment before it has completed adequate discovery. 

Mootispaw v. Mohr, 10th Dist. No. 15AP-885, 2016-Ohio-1246, ¶ 10; Commons at Royal 

Landing, LLC v. Whitehall, 10th Dist. No. 15AP-240, 2016-Ohio-362, ¶ 8. Pursuant to 

Civ.R. 56(F), a party may request that the trial court defer ruling on the motion for 

summary judgment pending the completion of discovery. Mootispaw at ¶ 10; Commons 

at Royal Landing at ¶ 9. When a party fails to move for a Civ.R. 56(F) continuance, a trial 

court may grant summary judgment to the moving party even if discovery remains 
No. 16AP-185 9 

incomplete. Mootispaw at ¶ 10; Commons at Royal Landing at ¶ 11. Moreover, the party 

that fails to move for a Civ.R. 56(F) continuance does not preserve his right to challenge 

the adequacy of discovery on appeal. Mootispaw at ¶ 10. 

{¶ 17} Here, Payne did not move for a continuance under Civ.R. 56(F). 

Consequently, the trial court did not err in granting Nationstar summary judgment on its 

claims against him, even though Payne had not obtained the discovery he sought or 

planned to seek. Accordingly, we overrule Payne's twenty-second assignment of error. 

{¶ 18} We next turn to the assignments of error that attack the evidence that 

Nationstar relied upon to prove its entitlement to summary judgment. By these 

assignments of error, Payne essentially asserts three arguments. First, by his thirteenth 

assignment of error, Payne argues that Afford's affidavit is invalid because neither Afford 

nor a notary public signed the affidavit. Second, by his ninth, fourteenth, fifteenth, 

sixteenth, eighteenth, and nineteenth assignments of error, Payne argues that the trial 

court erred in considering the documents attached to Afford's affidavit because Afford did 

not have the personal knowledge necessary to authenticate them. Third, by his 

seventeenth and twentieth assignments of error, Payne argues that the trial court erred in 

considering any of Afford's affidavit testimony because she lacked the personal knowledge 

necessary to testify to the facts she set forth in her affidavit. Each of these assignments of 

error fail because they suffer a fundamental flaw: Payne waived them when he failed to 

timely object to Nationstar's evidence. 

{¶ 19} " 'Ordinarily, reviewing courts do not consider questions not presented to 

the court whose judgment is sought to be reversed.' " State ex rel. Quarto Mining Co. v. 

Foreman, 79 Ohio St.3d 78, 81 (1997), quoting Goldberg v. Indus. Comm., 131 Ohio St. 

399, 404 (1936). A party waives the ability to argue on appeal any error which it could 

have called, but did not call, to the trial court's attention at a time when the trial court 

could have avoided or corrected that error. Id.; accord Limle v. Laboratory Corp. of Am., 

137 Ohio App.3d 434, 437 (10th Dist.2000) ("The failure to timely advise a trial court of 

possible error, by objection or otherwise, results in a waiver of the issue for purposes of 

appeal."). 

{¶ 20} When moving for summary judgment, a party must direct the trial court to 

evidentiary materials of the type listed in Civ.R. 56(C). Giffin v. Crestview Cadillac, 10th 
No. 16AP-185 10 

Dist. No. 09AP-278, 2009-Ohio-6569, ¶ 38. Civ.R. 56(C) limits the material a trial court 

can consider to "pleadings, depositions, answers to interrogatories, written admissions, 

affidavits, transcripts of evidence, and written stipulations of fact, if any." Civ.R. 56(C). A 

party who wishes to rely on a document not listed in Civ.R. 56(C) must incorporate that 

document into an affidavit. Giffin at ¶ 38. To incorporate attached evidentiary exhibits, 

an affidavit need only state that the attached exhibits are true copies of the original 

documents. Civ.R. 56(E); Am. Express Travel Related Servs. v. Silverman, 10th Dist. No. 

06AP-338, 2006-Ohio-6374, ¶ 12. 

{¶ 21} Despite the dictates of Civ.R. 56(C), a trial court may consider evidence not 

specifically listed if the adverse party fails to timely object to that evidence. State ex rel. 

Gilmour Realty, Inc. v. Mayfield Heights, 122 Ohio St.3d 260, 2009-Ohio-2871, ¶ 17; 

accord Columbus v. Bahgat, 10th Dist. No. 10AP-943, 2011-Ohio-3315, ¶ 16 ("Absent an 

objection, a trial court has the discretion to consider unauthenticated documents when 

rendering summary judgment."). Moreover, failure to timely move to strike or otherwise 

object to non-Civ.R. 56(C) evidence waives any error arising from the trial court's 

consideration of that evidence. Bradley v. Ohio Dept. of Transp., 10th Dist. No. 13AP918, 2014-Ohio-3205, ¶ 21; Timberlake v. Jennings, 10th Dist. No. 04AP-462, 2005-

Ohio-2634, ¶ 14. 

{¶ 22} Affidavits offered in support of or in opposition to summary judgment 

"shall be made on personal knowledge, shall set forth such facts as would be admissible in 

evidence, and shall show affirmatively that the affiant is competent to testify to the 

matters stated in the affidavit." Civ.R. 56(E). A trial court, however, may consider 

affidavits that do not comply with the Civ.R. 56(E) requirements when no timely objection 

to the affidavit is raised. Citizens Banking Co. v. Parsons, 10th Dist. No. 11AP-480, 2014-

Ohio-2781, ¶ 17; New Falls Corp. v. Russell-Seitz, 10th Dist. No. 08AP-397, 2008-Ohio6514, ¶ 10. Additionally, a party who fails to timely argue to the trial court that an affiant 

lacks personal knowledge waives that argument on appeal. Parsons at ¶ 17; Russell-Seitz

at ¶ 12. 

{¶ 23} Here, in his memorandum in opposition to summary judgment, Payne 

argued that Afford lacked the personal knowledge necessary (1) to authenticate the note, 

mortgage, and assignment of the mortgage and (2) to testify that Nationstar possessed the 
No. 16AP-185 11 

note. Payne, however, did not file his memorandum in opposition until after the trial 

court had granted Nationstar summary judgment. Thus, by the time Payne raised his 

objections, the trial court had entered a final judgment and, consequently, could neither 

avoid nor correct the alleged error. Payne, therefore, waived all arguments premised on 

Afford's alleged lack of personal knowledge, and the trial court did not err in considering 

Afford's affidavit or the documents attached to it. Accordingly, we overrule Afford's ninth 

and fourteenth through twentieth assignments of error. 

{¶ 24} Payne never argued below that Afford's affidavit lacked both the affiant's 

and the notary public's signatures. Payne, therefore, waived that argument for purposes 

of appeal, and we will not address it. Accordingly, we overrule Payne's thirteenth 

assignment of error. 

{¶ 25} Payne makes one final attack against Afford's affidavit. He incorporates 

into his appellant's brief a motion to strike Afford's affidavit, which repeats the same 

arguments that he raises in his ninth and thirteenth through twentieth assignments of 

error. For the same reasons we set forth above, we deny Payne's motion to strike. 

{¶ 26} By his third, fifth, and sixth assignments of error, Payne argues that the trial 

court erred in granting Nationstar summary judgment because Nationstar failed to 

establish itself as the person entitled to enforce Payne's note. We disagree. 

{¶ 27} In order to prevail in a foreclosure action, a plaintiff must prove that it is the 

person entitled to enforce the defendant's note. CitiMortgage, Inc. v. Taylor, 10th Dist. 

No. 15AP-726, 2016-Ohio-8337, ¶ 18. A plaintiff qualifies as a "[p]erson entitled to 

enforce" a negotiable instrument if the plaintiff is "[t]he holder of the instrument." R.C. 

1303.31(A)(1). The definition of "holder" varies depending on whether the negotiable 

instrument at issue is made payable to a particular person or not. If the instrument is 

payable to bearer, the holder is the person in possession of that instrument. R.C. 

1301.01(T)(21)(a).2 If the instrument is payable to an identified person, the holder is the 

identified person when in possession of the instrument. R.C. 1303.01(T)(21)(b). 

 

2 Effective June 29, 2011, Am.H.B. No. 9, 2011 Ohio Laws File 9, repealed R.C. 1301.01, amended the 

provisions of R.C. 1301.01, and renumbered that section so it now appears at R.C. 1301.201. R.C. 1301.201 

only applies to transactions entered into after the effective date of that statute. Payne executed the note at 

issue in this case on December 20, 2004, well before the June 29, 2011 effective date of R.C. 1301.201. 

Consequently, we apply R.C. 1301.01 to this appeal. 
No. 16AP-185 12 

{¶ 28} A person can become a holder of a negotiable instrument when (1) the 

instrument is issued to that person or (2) a holder transfers the instrument to that person 

through negotiation. Uniform Commercial Code Official Comment (1990), Section 3-201, 

Comment 1. With one inapplicable exception, "if an instrument is payable to an identified 

person, negotiation requires transfer of possession of the instrument and its indorsement 

by the holder." R.C. 1303.21(B). An "indorsement" is "a signature, other than that of a 

signer as maker, drawer, or acceptor, that alone or accompanied by other words is made 

on an instrument [to accomplish] * * * negotiat[ion] [of] the instrument." R.C. 

1303.24(A)(1)(a). A holder may make either a special or blank indorsement. Uniform 

Commercial Code Official Comment (1990), Section 3-205, Comment 2. A "special 

indorsement" is an indorsement that identifies the person to whom the indorsement 

makes the instrument payable, while a "blank indorsement" is any indorsement that is not 

a special indorsement. R.C. 1303.25(A) and (B). "When an instrument is indorsed in 

blank, the instrument becomes payable to bearer and may be negotiated by transfer of 

possession alone until specially indorsed." R.C. 1303.25(B). 

{¶ 29} To identify the holder of a particular note, courts must first examine the face 

of the note, as well as any indorsements. Bank of Am., N.A. v. Pasqualone, 10th Dist. No. 

13AP-87, 2013-Ohio-5795, ¶ 32. In the note at issue in this case, Payne agreed to pay 

$96,300 to Global Equity Lending, Inc., thus making Global Equity Lending the original 

holder of Payne's note. Payne's note, however, did not remain in Global Equity Lending's 

hands for long, as evidenced by two indorsements on the note. 

{¶ 30} Payne disregards both indorsements, arguing that they have no evidentiary 

value because they lack verification. We are not persuaded by this argument. In order to 

challenge the authenticity of, or the authority to make, a signature on an instrument, a 

defendant must specifically deny the validity of the signature in its answer. R.C. 

1303.36(A); Romano's Carryout, Inc. v. P.F. Chang's China Bistro, Inc., 196 Ohio App.3d 

648, 2011-Ohio-4763, ¶ 13 (10th Dist.). Absent a specific denial, the defendant admits to 

the validity of the signature. R.C. 1303.36(A). Here, because Payne failed to specifically 

deny the indorsements' validity in his answers to both the original and amended 

complaints, Payne conceded to the indorsements' validity and cannot challenge it now. 

Thus, we turn to the indorsements to determine who holds Payne's note. 
No. 16AP-185 13 

{¶ 31} In the first indorsement, dated December 20, 2004, Global Equity Lending 

indorsed the note to Flagstar Bank, FSB. This first indorsement is a special indorsement 

because it identified the person, i.e., Flagstar Bank, to whom the indorsement made the 

note payable. 

{¶ 32} The second, undated indorsement was signed by two individuals and stated: 

PAY TO THE ORDER OF 

WITHOUT RECOURSE 

FLAGSTAR BANK, FSB 

(Ex. A-1, Afford Aff.) Because this second indorsement did not identify the person to 

whom it made the note payable, it is a blank indorsement. Once Flagstar Bank indorsed 

the note in blank, the note became payable to bearer. R.C. 1303.25(B). The holder of a 

note payable to bearer is the person who possesses the note. R.C. 1301.01(T)(21)(a). 

Afford testified that Nationstar possesses Payne's note. Thus, between the note and 

Afford's affidavit testimony, Nationstar presented sufficient evidence to prove that it is the 

holder of Payne's note. See Wells Fargo Bank, N.A. v. Odita, 10th Dist. No. 13AP-663, 

2014-Ohio-2540, ¶ 10 (because the note at issue was indorsed in blank, the bank could 

establish its status as holder of the note by proving that it was in possession of the note); 

JPMorgan Chase Bank, N.A. v. Fallon, 4th Dist. No. 13CA3, 2014-Ohio-525, ¶ 14 (same); 

Pasqualone, 10th Dist. No. 13AP-87, 2013-Ohio-5795, at ¶ 33 (same). As holder of 

Payne's note, Nationstar is the person entitled to enforce that note upon Payne's default. 

Consequently, we overrule Payne's third, fifth, and sixth assignments of error. 

{¶ 33} By his eighth assignment of error, Payne argues that Nationstar cannot rely 

on the assignment of the mortgage to establish itself as holder of the note. The 

assumption underlying Payne's argument is wrong; Nationstar does not premise its status 

as holder of Payne's note on the mortgage assignment. As we just explained above, 

Nationstar qualifies as the holder of Payne's note because the note is endorsed in blank 

and Nationstar has possession of it. Accordingly, we overrule Payne's eighth assignment 

of error. 

{¶ 34} By his eleventh and twelfth assignments of error, Payne argues that 

Mortgage Electronic Registration System, Inc. ("MERS") lacked the authority to assign 

Payne's mortgage to Nationstar. We disagree. 
No. 16AP-185 14 

{¶ 35} The mortgage that secures Payne's note names MERS as mortgagee and 

explains that "MERS is a separate corporation that is acting solely as a nominee for 

Lender and Lender's successors and assigns." (Ex. A-2 at 1, Afford Aff.) The mortgage 

identifies Global Equity Lending as "Lender." By executing the mortgage, Payne 

"mortgage[d], grant[ed] and convey[ed] to MERS (solely as nominee for Lender and 

Lender's successors and assigns) and to the successors and assigns of MERS" the property 

located at 2860 Barrows Road. Id. at 3. Payne also agreed that MERS had the right to 

exercise any of the legal interests granted by Payne to MERS in the mortgage. 

{¶ 36} MERS recorded the mortgage with the Franklin County Recorder on 

January 24, 2005. Over nine years later, on November 28, 2014, MERS, in its capacity as 

nominee for Global Equity Lending, executed an assignment of the mortgage to 

Nationstar. Nationstar recorded the assignment on December 1, 2014. 

{¶ 37} Under well-settled Ohio law, MERS has the authority to assign a mortgage 

when that mortgage designates MERS as both nominee and mortgagee. Bank of New 

York Mellon v. Argo, 5th Dist. No. 14CA59, 2015-Ohio-268, ¶ 19; Wells Fargo Bank, N.A. 

v. Geiser, 12th Dist. No. CA2013-06-103, 2014-Ohio-3379, ¶ 16; BAC Home Loans 

Servicing, L.P. v. Haas, 3d Dist. No. 9-13-40, 2014-Ohio-438, ¶ 28. Here, because MERS 

fulfilled the dual roles of nominee and mortgagee, it had the authority to assign Payne's 

mortgage to Nationstar. Accordingly, we overrule Payne's eleventh and twelfth 

assignments of error. 

{¶ 38} By his fourth, seventh, and tenth assignments of error, Payne argues that 

the trial court erred in granting Nationstar summary judgment because Nationstar lacked 

standing to pursue its action against him. We disagree. 

{¶ 39} "[T]he fundamental requirement of standing is that the party bringing the 

action must have a personal stake in the outcome of the controversy, i.e., that it must be 

the injured party." Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-

Ohio-4603, ¶ 32. Standing is a jurisdictional requirement; a party's lack of standing 

vitiates the party's ability to invoke the jurisdiction of a court over the party's action. 

Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 22. However, a party's 

lack of standing deprives a court of jurisdiction over a particular case, not subject-matter 

jurisdiction. Id. Subject-matter jurisdiction is the power of a court to hear a particular 
No. 16AP-185 15 

class of cases. Id. at ¶ 19. A court's jurisdiction over a particular case refers to the court's 

authority to proceed or rule on a specific case that is within the court's subject-matter 

jurisdiction. Id. Any error in the exercise of jurisdiction over a particular case causes a 

judgment to be voidable rather than void. Id.; In re J.J., 111 Ohio St.3d 205, 2006-Ohio5484, ¶ 15. Additionally, when an opposing party fails to timely raise a challenge to a 

court's jurisdiction over a particular case, that alleged error is waived and not preserved 

for appeal. Id. 

{¶ 40} In the case at bar, Payne failed to file any timely response to Nationstar's 

motion for summary judgment, so, consequently, he did not timely assert the lack of 

standing as a basis for denying Nationstar summary judgment. Normally, Payne's failure 

to timely assert the lack of standing would result in waiver of the argument on appeal. 

Payne, however, did assert that Nationstar lacked standing in his answer to the amended 

complaint, and he moved for dismissal on that basis.3 Therefore, we will consider Payne's 

standing argument on appeal. 

{¶ 41} Typically, a foreclosure action consists of a legal action to collect on the 

defaulted note together with an equitable action to force a sale of the mortgaged property. 

Holden at ¶ 5. In such an action, "[t]he person entitled to enforce the note pursuant to 

R.C. 1303.31 has standing to seek a personal judgment against the promisor on that 

obligation, while the mortgagee or its successor and assign has standing to foreclose on 

the mortgage." Id. at ¶ 35. The plaintiff must possess the requisite stake in the action on 

the date that it files the action. Federal Home Loan Mtge. Corp. v. Schwartzwald, 134 

Ohio St.3d 13, 2012-Ohio-5017, ¶ 24-25. 

{¶ 42} Here, as we discussed above, Nationstar established itself as the person 

entitled to enforce Payne's note because the note is endorsed in blank and Nationstar 

possesses it. In addition to testifying to Nationstar's current possession of the note, 

Afford also stated in her affidavit that "Nationstar had physical possession of the original 

Note at the time the Complaint was filed." (Afford Aff. at ¶ 6.) Given this testimony, 

Nationstar was the person entitled to enforce Payne's note at the time it filed the 

complaint, and thus, it had standing to seek a legal judgment on the note. 

 

3 The trial court never ruled on this motion. The trial court likely overlooked the motion because Payne 

incorporated it into his answer instead of filing it as a separate document. 
No. 16AP-185 16 

{¶ 43} Payne's mortgage names MERS, acting solely as nominee for Global Equity 

Lending, as the mortgagee. On November 28, 2014, MERS assigned Nationstar the 

mortgage, which made Nationstar the holder of the mortgage when Nationstar filed its 

foreclosure action on December 23, 2014. Nationstar, therefore, proved its standing to 

seek an equitable judgment for foreclosure of the mortgage. 

{¶ 44} In sum, Nationstar had standing to invoke the jurisdiction of the trial court 

because it possessed the necessary interest in the note and mortgage on the date it filed its 

complaint. Accordingly, we overrule Payne's fourth, seventh, and tenth assignments of 

error. 

{¶ 45} By his twenty-third assignment of error, Payne argues that he should 

receive his attorney fees if he prevails on this appeal. Because Payne has not prevailed on 

this appeal, the twenty-third assignment of error is moot, and thus, we will not rule on it. 

{¶ 46} For the foregoing reasons, we overrule Payne's first through twenty-second 

assignments of error. Our ruling on those assignments of error moots the twenty-third 

assignment of error. We deny Payne's motion to strike, and we affirm the judgment of the 

Franklin County Court of Common Pleas. 

Judgment affirmed; 

motion denied.

TYACK, P.J., and SADLER, J., concur.