[Cite as Bank of New York Mellon Trust Co, N.A. v. Loudermilk, 2013-Ohio-2296.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

THE BANK OF NEW YORK MELLON 

TRUST CO, N.A. 

 Plaintiff-Appellee 

-vsCHARLES D. LOUDERMILK, 

DECEASED, ET AL. 

 Defendants-Appellants 

JUDGES: 

: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. Sheila G. Farmer, J. 

: 

: 

: Case No. 2012-CA-30 

: 

: 

: O P I N I O N

: 

CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court 

of Common Pleas, Case No. 2010CV00106 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: June 3, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

AMELIA BOWER THOMAS CORBIN 

300 East Broad Street, Suite 590 842 North Columbus Street 

Columbus, Ohio 43251 Lancaster, Ohio 43130 
[Cite as Bank of New York Mellon Trust Co, N.A. v. Loudermilk, 2013-Ohio-2296.]

Gwin, P.J. 

{¶1} Appellants appeal the May 15, 2012 judgment entry and decree of 

foreclosure of the Fairfield County Common Pleas Court. 

Facts & Procedural History 

{¶2} Charles Loudermilk (“Loudermilk”) owned the real property known as 4105 

Lancaster-Chillicothe Road S.W., Lancaster, Ohio since 1968. When he purchased the 

property, it consisted of 184 total acres. In 1999, Loudermilk sold 80.5 acres to third 

parties and in 2001 he conveyed another 14.3 acres to a third party. In October of 

2001, Loudermilk mortgaged the remaining 89 acres to Washtenaw Mortgage. He 

refinanced one year later with a mortgage to CIT Consumer Finance covering the 89 

acres and, in that refinance, he paid off the 2001 mortgage. In December of 2004, 

Loudermilk had a survey performed to split off ten acres of the 89 acre parcel. The 

survey split out a ten acre parcel which included Loudermilk’s three bedroom house. In 

January of 2005, Loudermilk refinanced with First Magnus Financial, securing the ten 

acre parcel surveyed in December of 2004. Funds from the First Magnus mortgage 

went to pay the prior mortgage, taxes, credit card bills, and the costs of surveying the 

property. The description of the ten acre tract was prepared by a surveyor hired by 

Vantage Land Title, the title agency closing both the 2005 and 2006 transactions. 

{¶3} In May of 2006, Loudermilk again refinanced. On May 25, 2006, he 

executed a note in favor of LoanCity in the amount of $171,000. Loudermilk secured 

the note with a mortgage to Mortgage Electronic Registration Systems (“MERS”) as 

nominee for LoanCity. LoanCity subsequently endorsed the note in blank and 

transferred it to Residential Funding Corporation. Residential Funding Corporation then 
Fairfield County, Case No. 2012-CA-30 3 

endorsed the note in blank and transferred it to JPMorgan Chase Bank, N.A. as Trustee 

for RAMP 2006RS5. Attached to the note is an allonge endorsing the note from 

JPMorgan Chase Bank, N.A. as Trustee for RAMP 2006RS5 to appellee The Bank of 

New York Mellon Trust Company, National Association fka The Bank of New York Trust 

Company, N.A. as successor to JPMorgan Chase Bank N.A. as Trustee for RAMP 

2006RS5. At the time of the refinance, the lender appraised the ten acre parcel. 

Loudermilk used the funds from the refinancing to pay off the 2005 mortgage and 

unsecured debt. The mortgage contained no legal description, but included the 4105 

Lancaster-Chillicothe Road S.W., Lancaster, Ohio street address and the auditor’s 

permanent parcel number. The mortgage was not recorded. At the closing, Loudermilk 

executed a quit-claim deed to split the ten acre portion that included the house from the 

remainder of 89 acre parcel. While the lot split was approved by the Fairfield County 

Engineer, the split was not concluded because the deed process was not finished. 

{¶4} Subsequent to the execution of the 2006 mortgage, Loudermilk conveyed 

22 acres to a third party, leaving a balance of approximately 67 acres. Loudermilk died 

intestate on December 22, 2008. On February 13, 2009, Dale Loudermilk was 

appointed administrator of Charles Loudermilk’s estate. Dale Loudermilk previously 

lived in a mobile home on the property that was not located on the ten acres involved in 

the land split or the 2005 and 2006 mortgage. In 2009 after his father’s death, Dale 

Loudermilk moved into the house located on the ten acres mortgaged in 2005. Dale 

Loudermilk testified he has not paid the mortgage, real estate taxes, rent, or insurance 

on the property since moving into the house in 2009. 
Fairfield County, Case No. 2012-CA-30 4 

{¶5} Loudermilk defaulted under the terms of the note and mortgage and 

appellee accelerated the debt. On January 27, 2010, appellee filed a Complaint for 

Foreclosure against Loudermilk and appellants Unknown Spouse of Charles H. 

Loudermilk, Thomas Corbin, Dale Loudermilk as heir of the estate of Charles 

Loudermilk, Pamela Rupp as heir of the estate of Charles Loudermilk, and Dale 

Loudermilk as Administrator of the estate of Charles Loudermilk. Copies of the note, 

allonge to note, and mortgage were attached as exhibits to the complaint. 

{¶6} Appellee filed a motion for summary judgment seeking foreclosure of the 

ten-acre parcel based on default in payment. Appellants filed a response and their own 

motion for summary judgment. On May 15, 2012, the trial court entered an order 

granting appellee’s motion for summary judgment and ordering appellee to submit a 

foreclosure decree. Appellant filed an appeal of the trial court’s May 15, 2012 judgment 

entry granting summary judgment to appellee and raises the following assignments of 

error on appeal: 

{¶7} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

TO PLAINTIFF/APPELLEE, WHEN GENUINE ISSUES OF MATERIAL FACT EXISTED 

AND THE MOVANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. 

{¶8} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

TO PLAINTIFF/APPELLEE WHEN ITS CLAIM WAS BASED ENTIRELY UPON 

EQUITABLE PRINCIPLES, AND THE EQUITIES DO NOT FAVOR THE CLAIMANT. 

{¶9} “III. THE TRIAL COURT ERRED IN FINDING THAT THE 

PLAINTIFF/APPELLEE WAS THE REAL PARTY IN INTEREST. 
Fairfield County, Case No. 2012-CA-30 5 

{¶10} “IV. THE TRIAL COURT ERRED IN FAILING TO APPLY THE DOCTRINE 

OF LACHES. 

{¶11} “V. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

TO PLAINTIFF/APPELLEE WHEN ITS CLAIM WAS BARRED BY ORC 2105.06. 

{¶12} “VI. THE TRIAL COURT ERRED BY DENYING TO 

DEFENDANT/APPELLANT LEAVE TO AMEND ITS PLEADINGS.” 

Summary Judgment 

{¶13} Civ. R. 56 states in pertinent part: 

{¶14} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue of material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to 

have the evidence or stipulation construed mostly strongly in the party’s favor. A 

summary judgment, interlocutory in character, may be rendered on the issue of liability 

alone although there is a genuine issue as to the amount of damages.” 

{¶15} A trial court should not enter a summary judgment if it appears a material 

fact is genuinely disputed, nor if, construing the allegations most favorably towards the 

non-moving party, reasonable minds could draw different conclusions from the 
Fairfield County, Case No. 2012-CA-30 6 

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 

(1981). The court may not resolve any ambiguities in the evidence presented. Inland 

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the 

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 

733 N.E.2d 1186 (6th Dist. 1999). 

{¶16} When reviewing a trial court’s decision to grant summary judgment, an 

appellate court applies the same standard used by the trial court. Smiddy v. The 

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review 

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 

1243. 

{¶17} The party moving for summary judgment bears the initial burden of 

informing the trial court of the basis of the motion and identifying the portions of the 

record which demonstrate the absence of a genuine issue of fact on a material element 

of the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 

(1996). Once the moving party meets its initial burden, the burden shifts to the nonmoving party to set forth specific facts demonstrating a genuine issue of material fact 

does exist. Id. The non-moving party may not rest upon the allegations and denials in 

the pleadings, but instead must submit some evidentiary materials showing a genuine 

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 

(12th Dist. 1991). 
Fairfield County, Case No. 2012-CA-30 7 

I. Genuine Issues of Material Facts 

{¶18} Appellants first argue the trial court erred in granting summary judgment 

because there are genuine issues of material fact concerning whether: a deed was 

presented to Dale Loudermilk in order to complete the lot split of the property; the 

mortgage instrument was properly notarized; the foreclosure could be effectuated with 

no legal description attached to the mortgage; Loudermilk intended to mortgage the ten 

acres referenced in the prior mortgage; and Loudermilk had the opportunity to review 

the closing documents. 

{¶19} Appellants question whether the mortgage was properly notarized and 

whether Loudermilk had the opportunity to review and understand the closing 

documents. Appellants present an affidavit from Dale Loudermilk stating he did not find 

a copy of the mortgage in his father’s house and the property was to pass to him upon 

his father’s death. However, Dale Loudermilk’s lack of knowledge about the mortgage 

and his father’s assertions about the property do not create material issues of fact. Dale 

Loudermilk testified he never discussed finances with his father and never discussed or 

had any knowledge of any of the mortgages on the property dating back to 2001. Dale 

Loudermilk further stated his father did not consult him prior to selling off pieces of the 

land and did not know how much any of the land was sold for. Loudermilk sold and 

mortgaged his property frequently from 1999 to 2006. Though Dale Loudermilk states a 

copy of the mortgage was not found in his father’s house, Dale did find in his father’s 

checkbook a record of his father’s monthly payment of the mortgage. Loudermilk was 

able to fully benefit from the 2006 refinance. The affidavit from Ginger Krznarich, Vice 

President of Operations for Vantage Land Title, demonstrates Loudermilk was able to 
Fairfield County, Case No. 2012-CA-30 8 

pay off a prior mortgage, pay down unsecured debts, and retain $381.35 in proceeds 

from the funds of the 2006 refinance. The affidavit of Ms. Krznarich provides that, at the 

closing, Loudermilk executed and delivered a $171,000 Note to LoanCity and $171,000 

mortgage to LoanCity/MERS. There is no evidence that Loudermilk did not understand 

the closing documents or the mortgage was not properly notarized. Loudermilk had 

been paying on the mortgage monthly from 2006 until his death in 2008. 

{¶20} Appellants further argue the deeds involved the lot split were not 

presented to Dale Loudermilk. An affidavit signed by Dale Loudermilk states he was 

never asked to sign the deeds. While the evidence suggests there was a plan in place 

for transfers to strawmen to conclude the ten acre split, both parties agree the lot split 

was not completed and the deeds questioned by Dale Loudermilk were never filed. 

Accordingly, the existence of these uncompleted and unsigned deeds does not create a 

genuine issue of material fact with regards to the foreclosure case. 

{¶21} Appellants argue there are genuine issues of material fact regarding the 

property to be mortgaged because the mortgage lacked a legal description. We 

disagree. “Ohio mortgage law does not set forth a precise legal description that must 

be included on a mortgage.” Fifth Third Mtge. Co. v. Brown, 970 N.E.2d 1183, 2012-

Ohio-2205 (8th Dist.). R.C. 5302.12 provides a properly executed mortgage is valid 

when “in substance” it follows the form: a description of land or interest in land and 

encumbrances, reservations, and exceptions, if any. A description of the property does 

not require a formal “metes and bounds” description. Brown, 970 N.E.2d at 1183. A 

mortgage providing a correct parcel number and street address has been deemed a 

sufficient legal description of property subject to a mortgage. ABN AMRO Mtge. Group, 
Fairfield County, Case No. 2012-CA-30 9 

Inc. v. Jackson, 159 Ohio App.3d 551, 558-59, 2005-Ohio-297, 824 N.E.2d 600 (2d 

Dist); In re Bunn, 578 F.3d 487, 490 (6th Cir. 2009) (determining under Ohio law, a 

mortgage that only provided a street address of residential property and not a legal 

description gave sufficient notice to third parties of the existence of the mortgage if it is 

clear from the chain of title what the borrower was mortgaging). 

{¶22} Here, the correct street mailing address and auditor’s permanent parcel 

number were both included in the 2006 mortgage. Further, the 2005 mortgage 

contained the ten acre description that should have been attached to the 2006 

refinance. It is thus clear from the chain of title that Loudermilk was mortgaging the ten 

acre parcel covered by the prior mortgage with his 2006 refinance. 

{¶23} Appellants finally argue genuine issues of material fact exist because 

there are questions as to whether Loudermilk intended to mortgage the ten acres 

referenced by the prior mortgage. Appellants posit perhaps Loudermilk intended to 

mortgage a different ten acres of the eighty-nine acre property. 

{¶24} In this case, the testimony and documentary evidence demonstrates 

Loudermilk intended to mortgage the ten acres referenced by the prior mortgage and 

covering the house. The surveyor prepared a survey and legal description for the ten 

acres and Ginger Krznarich testified Vantage Land Title sent a letter on April 27, 2006 

to the Fairfield County Audior / Engineer with the survey and legal description attached 

stating the “owner of the property wants to refinance property just using the 10.0 acres.” 

Krznarich testified the title commitment given to Loudermilk at the closing was for the 

ten acres covered by the previous mortgage and the prior incorrect title commitment 

was changed to reflect the land to be mortgaged. Exhibit 5 of an affidavit by Nancy 
Fairfield County, Case No. 2012-CA-30 10 

Dilworth, duly authorized signer of GMAC Mortgage, LLC, the loan servicing agent for 

the Bank of New York Mellon Trust Company, states the commitment for title insurance 

would have been presented to Loudermilk at the closing and the title commitment 

reflected the ten acre parcel covered by the previous mortgage. Further, the 2005 

mortgage contained the legal description of the ten acres at issue. Appellee’s appraisal 

conducted at the time of the 2006 refinance, which appellants do not challenge, was 

based upon the value of the ten acres containing the house, as indicated by the 

Dilworth affidavit. 

{¶25} The evidence demonstrates that going back to 2004, Loudermilk sought to 

segregate the ten acres containing his house to mortgage, but not the remainder of his 

land. The ten acres referenced in the prior mortgage are the only ten acres contained in 

the documents and testimony. In Dilworth’s affidavit, she states the only ten acre tract 

referenced in any of the records relating to Loudermilk’s mortgage is the ten acres with 

the home. Dale Loudermilk testified he did not know what his father did financially and 

was unaware of any of the various mortgages his father had placed on the property. 

There is no evidence Loudermilk had another ten acre parcel in mind when he 

refinanced the mortgage in 2006. Accordingly, we find no genuine issue of material fact 

exists as to the ten acres being mortgaged. 

{¶26} Appellants’ first assignment of error is overruled. 

II. Equity 

{¶27} Appellants argue appellee is not entitled to a judgment based on equitable 

principles. Appellants first argue the title agency hired by appellant to complete the title 

work for the 2006 mortgage was reckless in failing to include a legal description on the 
Fairfield County, Case No. 2012-CA-30 11 

mortgage. As discussed more fully above, the correct street mailing address and 

auditor’s permanent parcel number are included on the mortgage and it is clear from the 

chain of title of the property the ten acres to be mortgaged. The failure to include the 

legal description under the facts in this case is thus not a failure to act in good faith. 

{¶28} Appellants further argue they have a defense to judgment based upon 

appellee’s failure to record its mortgage. R.C. 5301.23 provides, “All properly executed 

mortgages shall be recorded in the office of the county recorder of the county in which 

the mortgaged premises are situated and shall take effect at the time they are delivered 

to the recorder for record.” R.C. 5301.23(A). 

{¶29} In Ohio, the “failure or success of recording an instrument has no effect on 

its validity as between the parties to that instrument.” Bank One, N.A. v. Dillon, 9th Dist. 

No. 04CA008571, 2005-Ohio-1950, ¶ 9. “The purpose of the recording statutes is to put 

other lien holders on notice and to prioritize the liens.” GMAC Mtge. Corp. v. McElroy, 

5th Dist. No. 2004-CA-00380, 2005-Ohio-2837, ¶ 16 (internal citation omitted). 

{¶30} In this case, the lack of recording does not provide a defense for 

appellants and the failure to record is not a failure to act in good faith. The recording 

statutes protect purchasers for value, not parties to a transaction. The Wayne Bldg. and 

Loan Co. of Wooster v. Yarborough, 11 Ohio St.2d 195, 213 (1967). Here, appellants 

are not bona fide purchasers for value, but are heirs of an estate. 

{¶31} Appellants also argue appellee is not entitled to be subrogated to the 2005 

prior mortgage that was paid off with the proceeds of the 2006 refinance because of 

appellee’s negligence in not recording the mortgage and failing to include a legal 

description. In their complaint, appellee alternatively pled they were entitled to an 
Fairfield County, Case No. 2012-CA-30 12 

equitable lien for the amount of the mortgage if the mortgage was facially invalid and 

argued equitable subrogation only applied to the extent necessary to show Loudermilk 

could not receive the benefit of having his debts paid without having a mortgage attach 

to the ten acre parcel. 

{¶32} In this case, we found the correct street mailing address and auditor’s 

permanent parcel number are included on the mortgage and it is clear from the chain of 

title of the property the ten acres to be mortgaged. Further, that appellants are not bona 

fide purchasers for value and there are no competing lenders for first lien position. 

Thus, the doctrine of equitable subrogation need not be applied in this case. 

{¶33} Appellants finally argue appellees are not entitled to the equitable remedy 

of reformation of the mortgage. Reformation is “available where it is shown that a 

written instrument does not express the true agreement entered into between the 

contracting parties by reason of a mutual mistake. Wagner v. Nat’l. Fire Ins. Co., 132 

Ohio St. 405, 412, 8 N.E.2d 144 (1937). In such a case, the equitable remedy of 

reformation is available in order to make the writing conform to the real intention of the 

parties. Id. We find reformation is not necessary in this case based upon our findings 

regarding the legal description, recording, and the lack of a bona fide purchaser. 

{¶34} Appellants’ second assignment of error is overruled. 

III. Real Party in Interest 

{¶35} Appellants argue the trial court erred in finding appellee was the real party 

in interest. 

{¶36} Civil Rule 17(A) provides that “every action shall be prosecuted in the 

name of the real party in interest.” A real party in interest “has been defined as ‘ * * * 
Fairfield County, Case No. 2012-CA-30 13 

one who has real interest in the subject matter of the litigation, and not merely an 

interest in the action itself, i.e., one who is directly benefited or injured by the outcome 

of the case.’ “(Citations omitted.) Shealy v. Campbell, 20 Ohio St.3d 23, 24, 485 N.E.2d 

701 (1985). “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.” 

Id. at 24–25, 485 N.E.2d 701 quoting In re Highland Holiday Subdivision, 27 Ohio 

App.2d 237, 240, 273 N.E.2d 903 (4th Dist.1971). 

{¶37} The current holder of the note and mortgage is the real party in interest in 

foreclosure actions. U.S. Bank Natl. Assoc. v. Marcino, 181 Ohio App.3d 328, 908 

N.E.2d 1032, 2009–Ohio–1178 (7th Dist.), ¶ 32 citing Chase Manhattan Mtge. Corp. v. 

Smith, 1st Dist. No. C061069, 2007–Ohio–5874, ¶ 18. R.C. 1303.31 provides: 

{¶38} (A) “Person entitled to enforce” an instrument means any of the following 

persons: 

(1) The holder of the instrument; 

(2) A nonholder in possession of the instrument who has the rights of a 

holder; 

(3) A person not in possession of the instrument who is entitled to enforce 

the instrument pursuant to Section 1303.38 or division (D) of section 

1303.58 of the Revised Code. 
Fairfield County, Case No. 2012-CA-30 14 

(B) A person may be a “person entitled to enforce” the instrument even 

though the person is not the owner of the instrument or is in wrongful 

possession of the instrument. 

{¶39} To properly support a motion for summary judgment in a foreclosure 

action, a plaintiff must show: 

 “(1) the movant is the holder of the note and mortgage, or is a party 

entitled to enforce the instrument; 

 (2) if the movant is not the original mortgagee, the chain of assignments 

and transfers; 

 (3) all conditions precedent have been met; 

 (4) the mortgage is in default; and 

 (5) the amount of principal and interest due.” 

Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. No. 2010-CA-00291, 2011-

Ohio-3202. 

{¶40} Appellants first argue the note shows no assignments on its face and no 

assignments are attached. However, the affidavit of Nancy Dilworth, attached to 

appellee’s motion for summary judgment, states otherwise. Dilworth states she has 

“personal knowledge of the facts contained” in her affidavit. She states “Attached 

hereto as Exhibit 1 is a true and accurate copy of a promissory note with indorsements 

and an allonge to note, executed and delivered by Borrower.” Further, “as evidenced by 

Exhibit 1, the interest in the Note transferred from Loan City to Residential Funding 

Corporaiton in May, 2006. Residential Funding Corporation then transferred the interest 

in the Note to JPMorgan Chase Bank, as Trustee, who then transferred the interest in 
Fairfield County, Case No. 2012-CA-30 15 

the Note to Plaintiff.” Finally, Dilworth states appellee “maintains possession of the 

original Note and has maintained possession at all times material to this action.” While 

Attorney Corbin submitted an affidavit challenging Ms. Dilworth’s affidavit, he did not 

conduct a deposition of Ms. Dilworth or point to any specific evidence appellants 

introduced to contradict any of the information contained in her affidavit. 

{¶41} The Note, attached as an exhibit to the complaint, appellee’s motion for 

summary judgment, and the Dilworth affidavit, demonstrates that on May 25, 2006, 

Loudermilk executed a note in favor of LoanCity in the amount of $171,000. LoanCity 

subsequently endorsed the note in blank and transferred it to Residential Funding 

Corporation. Residential Funding Corporation then endorsed the note in blank and 

transferred it to JPMorgan Chase Bank, N.A. as Trustee for RAMP 2006RS5. R.C. 

1303.25(B) provides “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.” Attached to the note is an allonge endorsing the note from JPMorgan Chase 

Bank, N.A. as Trustee for RAMP 2006RS5 to appellee The Bank of New York Mellon 

Trust Company, National Association fka The Bank of New York Trust Company, N.A. 

as successor to JPMorgan Chase Bank N.A. as Trustee for RAMP 2006RS5. 

Accordingly, we find appellee is the holder of the note and appellee has shown the 

chain of assignments and transfers of the note. 

{¶42} Appellants argue there is doubt as to whether appellee was in possession 

of the mortgage when the suit was filed and that appellee has not shown the 

assignment of the mortgage. Ms. Krznarich testified she thinks the original mortgage 

document is currently with the title company underwriter or counsel for the title agency 
Fairfield County, Case No. 2012-CA-30 16 

or appellee. However, she testified she sent a certified copy of the executed mortgage 

to LoanCity in 2006 and a certified copy of the executed mortgage is attached to the 

complaint. In appellee’s motion for summary judgment, counsel for appellee indicates 

he has the original, executed 2006 mortgage in his possession. Further, the affidavits 

of Ms. Dilworth and Ms. Krznarich state the mortgage was delivered. However, as 

appellants correctly argue, there is no valid assignment of the mortgage contained in 

the documents provided by appellee. The assignment provided by appellee was 

completed in February of 2012, after appellee filed their foreclosure complaint. 

{¶43} We find this case is analogous to Central Mtge Co. v. Webster, 5th 

Dist. No. 2011CA00242, 2012-Ohio-4478, in which Central Mortgage was the current 

holder of the note, but could not establish it was the holder of the mortgage through the 

assignment of mortgage. However, because the mortgage follows the note it secures, 

we found Central Mortgage to be a real party in interest. Id. As noted in the Central 

Mtge. Co. case, Kuck v. Sommers, 59 Ohio Law Abs. 400, 100 N.E.2d 68, 75 (3rd Dist. 

1950) holds: “[w]here a note secured by a mortgage is transferred so as to vest the 

legal title to the note in the transferee, such transfer operates as an equitable 

assignment of the mortgage, even though the mortgage is not assigned or delivered.” 

This Court has consistently relied on Kuck v. Sommers to find the holder of the note is 

the real party in interest entitled to pursue its rights under the note and mortgage. See 

Central Mtge. Co., LaSalle Bank Nat’l. Assn. v. Street, 5th Dist. No. 08CA60, 2009-

Ohio-1855, Bank of New York v. Dobbs, 5th Dist. No. 2009-CA-000002, 2009-Ohio4742, Duetsche Bank Nat’l. Trust Co. v. Hansen, 5th Dist. No. 2010 CA 00001, 2011-

Ohio-1223, 2010-1 CRE Ventures, LLC v. Costanzo, 5th Dist. No. 11 CAE 01 003, 
Fairfield County, Case No. 2012-CA-30 17 

2011-Ohio-3530. Other appellate courts and the Sixth District Court of Appeals have 

utilized Kuck v. Sommers to find the holder of the note, in the absence of evidence of 

the assignment of mortgage, is the real party in interest. U.S. Bank Nat’l. Assn. v. 

Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178, 908 N.E.2d 1032 (7th Dist.) (stating 

Ohio courts have “held that whenever a promissory note is secured by a mortgage, the 

note constitutes the evidence of the debt and the mortgage is a mere incident to the 

obligation” and negotiation of a note operates as an equitable assignment of the 

mortgage, even though the mortgage is not assigned or delivered, and finding the 

Uniform Commercial Code, as adopted in Ohio, supports the conclusion that the owner 

of a promissory note should be recognized as the owner of the related mortgage); U.S. 

Bank v. Coffey, 6th Dist. No. E-11-026, 2012-Ohio-721 (alleged assignee of the 

mortgage which could not provide evidence of the assignment of mortgage but could 

demonstrate possession of the promissory note was the real party in interest). 

{¶44} Ms. Dilworth’s affidavit establishes the conditions precedents have been 

met, the mortgage is in default, and states the amount of the principal and interest due. 

{¶45} Pursuant to the precedent of this court, we conclude there is sufficient 

evidence in the record to establish appellee is the real party in interest and appellants’ 

third assignment of error is overruled. 

IV. Laches 

{¶46} Appellants argue the trial court erred in failing to apply the doctrine of 

laches, stating Loudermilk’s estate is prejudiced by the fact appellee did not sooner 

address the issues before the court. We disagree. 
Fairfield County, Case No. 2012-CA-30 18 

{¶47} Laches has been defined by the Ohio Supreme Court as “an omission to 

assert a right for an unreasonable and unexplained length of time, under circumstances 

prejudicial to the adverse party.” Connin v. Bailey, 15 Ohio St.3d 34, 35, 472 N.E.2d 

328 (1984), quoting Smith v. Smith, 168 Ohio St. 447, 156 N.E.2d 113 (1959). A delay 

in asserting a right does not of itself constitute laches. Id. Laches is “predominantly a 

question of fact to be resolved according to the circumstances of each individual case.” 

Bitonte v. Tiffin Sav. Bank, 65 Ohio App.3d 734, 739, 585 N.E.2d 460 (3rd Dist. 1989). 

{¶48} Based on the procedural history of this case, the trial court did not err in 

failing to apply the doctrine of laches. Laches involves two elements: (1) “an omission 

to assert a right for an unreasonable and unexplained length of time,” (2) “under the 

circumstances prejudicial to the adverse party.” Connin, 15 Ohio St.3d at 35-36. Under 

the second element “it must be shown that the person for whose benefit the doctrine will 

operate has been materially prejudiced by the delay of the person asserting his claim.” 

Id. First, appellants did not prove there was an unreasonable delay on appellee’s part. 

The mortgage did not default until December 1, 2008 and the foreclosure was filed on 

January 27, 2010. Further, even if the delay was unreasonable, there is no evidence 

appellants were materially prejudiced by the delay. The evidence demonstrates 

appellant Dale Loudermilk actually benefited from the delay. Dale Loudermilk testified 

since his father’s death, he and his family have been living in the house for free, not 

paying the mortgage, real estate taxes, rent, or insurance. Accordingly, appellants’ 

fourth assignment of error is overruled. 
Fairfield County, Case No. 2012-CA-30 19 

V. Probate Statutes

{¶49} Appellants argue the trial court erred in granting summary judgment 

because appellee’s claim was barred by R.C. 2105.06. Appellants later state in their 

reply brief that R.C. 2117.06 and R.C. 2117.10 are the correct statutes that bar 

appellee’s claim. Appellants argue these statutes apply to bar appellee’s claim because 

a mortgage did not exist when Charles Loudermilk died and appellee’s lone remedy was 

to file a claim with his estate. Further, that because appellee did not record the 

mortgage prior to Charles Loudermilk’s death, appellee cannot take advantage of R.C. 

2117.10’s exception. We disagree. 

{¶50} R.C. 2117.06 provides that all creditors having a claim against an estate 

shall present their claims within six months after the death of decedent or else the claim 

is barred. R.C. 2117.10 states the “failure of the holder of a valid lien upon any of the 

assets of an estate to present the lienholder’s claim upon the indebtedness secured by 

the lien . . . shall not affect the lien if the same is evidenced by a document admitted to 

public record . . .” 

{¶51} R.C. 5301.01(A) states that a “mortgage . . . shall be signed by the 

grantor, mortgagor . . . The signing shall be acknowledged by the grantor, mortgagor. . . 

before a . . . notary public . . . who shall certify the acknowledgment and subscribe the 

official’s name to the certificate of the acknowledgment.” “The validity of the mortgage 

is not affected by whether or not the mortgage is recorded, and foreclosure is a remedy 

independent of those provided for in the probate court.” Weaver v. Bank of New York 

Mellon, 10th Dist. No. 11AP-1065, 2012-Ohio-4373; Beneficial Mtge. Co. of Ohio v. 

Currie, 5th Dist. No. 2003CA00238, 2004-Ohio-5190 (holding mortgage liens do not fall 
Fairfield County, Case No. 2012-CA-30 20 

under the requirements of R.C. 2117.06); GMAC Mtge. Corp. v. McElroy, 5th Dist. No. 

2004-CA-00380, 2005-Ohio-2837 (finding the property was subject to the mortgage lien 

and the heirs take the property subject to the lien and the purpose of recording statutes 

is to put other lien holders on notice and to prioritize liens); BAC Home Loans Serv., LP 

v. Mowery Properties, Ltd., 10th Dist. No. 10AP-396, 2011-Ohio-1596 (holding the 

mortgage liens run with the property and remain against the title holder, not with the 

estate). A foreclosure claim “is not characterized as a claim against an estate, but 

rather as a claim in the nature of an in rem proceeding to reach the mortgaged property 

to satisfy a debt.” Weaver, 10 Dist. No. 11AP-1065 at ¶ 22. 

{¶52} In this case, there is no dispute Loudermilk executed a note and mortgage 

agreement in favor of appellee for the principal amount of $171,000 and Loudermilk 

defaulted on the note and mortgage. The validity of this mortgage and note is not 

affected by the fact that the mortgage was not recorded. The purpose of appellee’s 

action was not to seek a personal judgment against Loudermilk or the estate, but 

instead was in the nature of an in rem proceeding to reach the mortgaged property, 

subject it to sale, and have the proceeds applied as payment for debt. Appellee 

specifically states it is not seeking a personal judgment against Loudermilk or the 

estate. Thus, the foreclosure action on the mortgage lien does not constitute a “claim 

against the estate” under R.C. 2117.06 and R.C. 2117.06 does not preclude appellee’s 

right to bring an action in foreclosure. Appellants’ assignment of error V is overruled. 
Fairfield County, Case No. 2012-CA-30 21 

VI. Motion for Leave to Amend Pleadings

{¶53} Appellants argue the trial court erred by denying appellants leave to 

amend their pleadings. We disagree. Civil Rule 15(A) states “a party may amend his 

pleading only by leave of court or by written consent of the adverse party. Leave of 

court shall be freely given when justice so requires.” The decision whether to permit a 

party leave to amend his pleadings is within the trial court’s sound discretion. Nat’l 

Bank of Fulton Co. v. Haupricht Bros., 55 Ohio App.3d 249, 564 N.E.2d 101 (6th Dist. 

1988). In order to find an abuse of discretion, we must determine the trial court’s 

decision was unreasonable, arbitrary, or unconscionable and not merely an error of law 

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

{¶54} Appellees filed their complaint on January 27, 2010. Appellants filed their 

answer on February 25, 2010. After cross-dispositive motions had been filed and 

briefed by both parties, appellants filed a motion to amend their answer to assert 

counterclaims of negligence, slander of title, misrepresentation, constructive fraud, and 

equity. The trial court denied appellants’ motion because of the “late date” of the motion 

and because the cross-dispositive motions had been fully briefed. Because the 

dispositive motions had been fully briefed ready for the trial court to rule on and the 

claims appellants sought to bring were tort claims rather than compulsory 

counterclaims, we do not find the trial court acted unreasonably, arbitrarily, or 

unconscionably in denying appellants’ motion for leave to amend. Assignment of Error 

IV is overruled. 

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

summary judgment to appellee. 
Fairfield County, Case No. 2012-CA-30 22 

{¶56} Appellants’ Assignments of Error I, II, III, IV, V, and VI are therefore 

overruled. 

{¶57} The judgment of the Fairfield County Common Pleas Court is affirmed. 

By Gwin, P.J., 

Hoffman, J., and 

Farmer, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. SHEILA G. FARMER 

WSG:clw 0522
[Cite as Bank of New York Mellon Trust Co, N.A. v. Loudermilk, 2013-Ohio-2296.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

THE BANK OF NEW YORK MELLON : 

TRUST CO., N.A. : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

CHARLES D. LOUDERMILK, : 

DECEASED, ET AL. : 

 : 

 : 

 Defendants-Appellants : CASE NO. 2012-CA-30 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Fairfield County Common Pleas Court is affirmed. Costs to appellant. 

 _________________________________ 

 HON. W. SCOTT GWIIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. SHEILA G. FARMER