[Cite as Bank of New York Mellon v. Walker, 2017-Ohio-535.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 104430

BANK OF NEW YORK MELLON

PLAINTIFF-APPELLEE 

vs. 

PHENON WALKER, ET AL.

DEFENDANTS-APPELLANTS 

JUDGMENT: 

AFFIRMED IN PART; REVERSED IN PART 

AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-13-806009 

BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: February 16, 2017 
ATTORNEYS FOR APPELLANTS

Rick L. Brunner 

Patrick M. Quinn 

Brunner Quinn 

35 N. Fourth Street, Suite 200 

Columbus, Ohio 43215 

ATTORNEYS FOR APPELLEE

For Bank of New York Mellon Trust Company, N.A. 

Rick D. DeBlasis 

Lerner, Sampson & Rothfuss 

120 E. Fourth Street, 8th Floor 

Cincinnati, Ohio 45202 

Craig A. Thomas 

Lerner, Sampson & Rothfuss 

P.O. Box 5480 

Cincinnati, Ohio 45201 

Also Listed

For State of Ohio Department of Taxation 

Nicole R. Randall 

150 E. Gay Street, 21st Floor 

Columbus, Ohio 43215 

For United States of America

Lori White Laisure 

Assistant United States Attorney 

U.S. Courthouse, Suite 400 

801 W. Superior Avenue 

Cleveland, Ohio 44113 
FRANK D. CELEBREZZE, JR., J.: 

{¶1} Appellants, Phenon Walker and Whole Sailing, L.L.C., appeal the grant of 

summary judgment and foreclosure in favor of appellee, Bank of New York Mellon Trust 

Company, N.A. (“Bank of New York”). Appellants argue that the trial court erred in 

adopting the magistrate’s decision because the statute of limitations barred recovery, 

Bank of New York lacked standing, and Bank of New York had not satisfied all the 

conditions precedent necessary for foreclosure. After a thorough review of the facts and 

law, this court affirms in part, reverses in part, and remands. 

I. Factual and Procedural History

{¶2} Walker executed a note in the amount of $975,000 that was secured by a 

mortgage on real property located at 13880 Edgewater Drive, Lakewood, Ohio. Bank of 

New York filed a complaint for foreclosure on April 29, 2013, alleging that Walker was 

delinquent on a note held and enforceable by Bank of New York. By that time, Whole 

Sailing, L.L.C., was the record owner of the property. This appears to be a company 

owned by Walker. The complaint alleged that Walker was delinquent as of June 1, 2004. 

 Bank of New York attached a copy of the note and mortgage as well as records of 

assignments up to and including an assignment to Bank of New York. 

{¶3} Appellants responded with a motion to dismiss based on a lack of standing, 

violations of the federal Fair Debt Collection Practices Act, statute of limitations, and the 

failure to name necessary parties. The court denied the motion. After filing separate 
answers, appellants then responded with a motion for summary judgment arguing that 

Bank of New York’s claims were time-barred. The magistrate denied the motion, noting 

that the date of acceleration remained a material question of fact necessary to determine 

when the statute of limitations began to accrue. 

{¶4} On September 26, 2014, Bank of New York then filed its own motion for 

summary judgment. It argued that Walker was delinquent on the note. It also asserted 

that it sent Walker a notice of default on November 26, 2012. On December 11, 2014, 

Walker filed a motion for a continuance to obtain legal counsel because her attorney had 

died. The trial court granted the motion in part and indicated that it would give 

appellants until January 12, 2015, to file a response. A notice of appearance was filed on 

January 7, 2015. On January 16, 2015, the magistrate issued an opinion finding Bank of 

New York was entitled to summary judgment. No brief in opposition or request for an 

extension appears on the docket prior to the magistrate’s decision. 

{¶5} However, after some confusion was discovered as to the motion for summary 

judgment and the death of Walker’s counsel, the magistrate set aside the decision for 

summary judgment in favor of Bank of New York to allow appellants an opportunity to 

respond. Appellants filed a brief in opposition and their own motion for summary 

judgment. Appellants’ motion for summary judgment was stricken by the court for 

failing to follow the schedule set by the court. In opposing summary judgment, 

appellants did not dispute the validity of the debt, but asserted that the current action was 

barred by the applicable statute of limitations. The magistrate found Bank of New York 
was entitled to summary judgment. On April 6, 2016, the trial court adopted the 

magistrate’s decision finding that appellants did not support the affirmative defense of 

statute of limitations with admissible evidence. Therefore, the court ruled, Bank of New 

York was entitled to judgment. 

{¶6} Appellants then filed this appeal raising three errors for review: 

I. The trial court erred in finding the statute of limitations under R.C. 

1303.16(A) did not apply to the foreclosure of the note. 

II. The trial court erred in finding the [Bank of New York] was entitled to 

foreclosure under Holden or Najar. 

III. The trial court erred in finding the [Bank of New York] was entitled to 

foreclosure as it did not comply with all conditions precedent as required 

under Vengal.

II. Law and Analysis

A. Standard of Review

{¶7} Summary judgment, according to Civ.R. 56, is appropriate only when there is 

no genuine issue of material fact, the moving party is entitled to judgment as a matter of 

law, and the evidence is such that reasonable minds can come to only one conclusion 

when viewing the evidence in a light most strongly in favor of the nonmoving party, that 

conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 

327, 364 N.E.2d 267 (1977). This court normally reviews summary judgment de novo, 

or without deference to the trial court’s decision. Brewer v. Cleveland City Schools Bd. 

of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997). 
{¶8} However, this case involves the trial court’s adoption of a magistrate’s 

decision after no objections were filed. Therefore, a different standard of review applies. 

Fannie Mae v. Ford, 2016-Ohio-919, 61 N.E.3d 524, ¶ 10 (8th Dist.). See also In re 

S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476. Where a magistrate issues a 

written opinion with findings of facts and conclusions of law, a party that fails to timely 

bring any claimed errors to the trial court’s attention waives them. Id. at ¶ 12, citing, S.J. 

v. J.T., 6th Dist. Lucas No. L-11-1011, 2011-Ohio-6316, ¶ 8. Therefore, a plain error 

standard applies. “Plain error is not favored and is only applicable in rare cases where 

the error ‘seriously affects the basic fairness, integrity, or public reputation of the judicial 

process, thereby challenging the legitimacy of the underlying judicial process itself.’” 

S.H. at ¶ 12, quoting S.J. at ¶ 8, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 

N.E.2d 1099 (1997). 

B. Statute of Limitations

{¶9} Below, it was disputed which statute of limitations applied to the note in this 

case. This court has previously addressed the appropriate statute of limitations that 

applies to negotiable instruments such as the note in this case. Mohammad v. Awadallah, 

8th Dist. Cuyahoga No. 97590, 2012-Ohio-3455. If the instrument in question bears the 

hallmarks of a negotiable instrument, then R.C. 1303.16 governs despite the fact that the 

note constitutes a written contract as well. Id. at ¶ 18. In this appeal, the parties now 

agree that the note in question constitutes a negotiable instrument under Ohio’s version of 

the Uniform Commercial Code, and therefore, R.C. 1303.16 applies. 
{¶10} The date of acceleration or the natural maturity date of the instrument 

is the triggering event for the statute of limitations under R.C. 1303.16. 

“Except as provided in division (E) of this section, an action to enforce the 

obligation of a party to pay a note payable at a definite time shall be brought 

within six years after the due date or dates stated in the note or, if a due date 

is accelerated, within six years after the accelerated due date.” R.C. 

1303.16(A). While there are limited cases in Ohio interpreting 

acceleration under R.C. 1303.16(A), courts in other states have noted, in 

applying UCC 3-118, that acceleration generally requires a separate act, 

aside from a mere failure to meet a due date, especially when there is 

language in the note that the lender may give notice of acceleration due to 

non-payment. Thompson v. D.A.N. Joint Venture III, L.P., M.D. Ala. 

No.1:05-CV-938-TFM, 2007 U.S. Dist. LEXIS 10849, *9 (Feb. 13, 2007) 

(a debt “does not mature for the purpose of the statute of limitations” until 

the last installment is due and unpaid if the note contains an acceleration 

clause that may be, but is not, exercised by the creditor); Florian v. Lenge, 

91 Conn. App. 268, 880 A.2d 985, 994 (Conn.App.2005) (“[w]hen 

acceleration of the total unpaid debt is optional on the part of the holder of a 

note, and the holder has given no indication to the debtor that the entire 

balance is presently due, the cause of action does not accrue until that 

balance is due pursuant to the particular note or the holder has notified the 
debtor of an earlier date”) (Citation Omitted). See also Boulder Capital 

Group, Inc. v. Lawson, 2nd Dist. Clark No. 2014-CA-58, 2014-Ohio-5797, 

¶ 16 (where a lender had the option to accelerate a debt, such a provision 

was not self-executing and “[a]cceleration did not and could not take place 

until the holder exercised the option”) (Citation Omitted). 

Bank of New York Mellon v. DePizzo, 2015-Ohio-4026, 42 N.E.3d 1218, ¶ 18 (11th 

Dist.). 

{¶11} Therefore, some affirmative action on the part of the lender is required to 

demonstrate an acceleration. The filing of a foreclosure action is such an affirmative 

action because acceleration is required as a condition precedent to a foreclosure filing. 

United States Bank N.A. v. Aguilar-Crow, 7th Dist. Mahoning No. 15 MA 0113, 

2016-Ohio-5391, ¶ 40, citing Huntington Bank v. Popovec, 7th Dist. Mahoning No. 12 

MA 119, 2013-Ohio-4363, ¶ 15; LaSalle Bank, N.A. v. Kelly, 9th Dist. Medina No. 

09CA0067-M, 2010-Ohio-2668, ¶ 13; First Fin. Bank v. Doellman, 12th Dist. Butler No. 

CA2006-02-029, 2007-Ohio-222, ¶ 20. 

{¶12} Here, the trial court found that the only properly submitted evidence of 

when the note was accelerated was a notice sent to appellants from Bank of New York, 

dated November 26, 2012, indicating that if payment was not made in 30 days, the 

amount due could be accelerated. Contrarily, appellants filed an affidavit on September 

26, 2014, from James R. Douglass. There, he averred that he obtained certified records 

from the Cuyahoga County Clerk of Courts that were attached to the affidavit. The 
certified records that were attached were complaints from previous foreclosure filings in 

2004 and 2007. However, appellants did not attach these records to their final opposition 

to summary judgment, but did quote from those documents. The magistrate and trial 

court found that appellants submitted no admissible evidence about when the statute of 

limitations began to run. This was clearly contrary to the record in this case and 

constitutes plain error. 

{¶13} In DePizzo, the Eleventh District found that an allegation that a previous 

foreclosure filing did not necessarily trigger an acceleration when there was no evidence 

of how that previous filing was terminated. DePizzo, 2015-Ohio-4026, 42 N.E.3d 1218, 

at ¶ 25. This decision, made at the pleading stage, indicated that the trial court could not, 

as a matter of law, determine from the face of the complaint that the action was barred by 

the statute of limitations. Id. However, the court recognized that a previous foreclosure 

filing could indicate an acceleration occurred. Id. at ¶ 22-25. 

{¶14} Taking these previous foreclosure filings into consideration, there is a 

material question of fact about the acceleration date. In the previous filings, entities in 

privity with Bank of New York acknowledged in the complaints that all conditions 

precedent to foreclosure were satisfied. An acceleration is one such condition. 

Aguilar-Crow, 7th Dist. Mahoning No. 15 MA 0113, 2016-Ohio-5391 at ¶ 40. However, 

Bank of New York argues that appellants did not indicate how these earlier foreclosure 

filings terminated, and therefore, are not conclusive on acceleration. Bank of New York 

further argues that without a judicial determination, there can be no acceleration. 
{¶15} The complaints themselves indicate an acceleration occurred and that all 

conditions precedent were satisfied. Bank of New York or those in privity with it have 

made a sworn statement in another judicial proceeding that the entire balance due under 

the note had been accelerated. Where a party takes a position in a judicial proceeding, 

judicial estoppel can prevent that party from taking an inconsistent position in a 

subsequent action. Fish v. Bd. of Commrs., 13 Ohio St.2d 99, 102, 234 N.E.2d 590 

(1968) (“[The Board of Commissioners] thus elected to assert one of two inconsistent 

substantive rights; and, especially after having been successful in the assertion of that 

right in a judicial proceeding, cannot now assert the other inconsistent right in a judicial 

proceeding.”). However, judicial estoppel only applies where the position was accepted 

by the court. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 

174, ¶ 25. 

{¶16} It is true that appellants did not provide the trial court with information 

about the termination of those previous foreclosure actions. Therefore, the doctrine of 

judicial estoppel may not apply here, but that remains a material question of fact. 

Further, if those actions ended in settlement, then an acceleration may have been 

rescinded. However, the date of accrual of delinquent payments and interest is the same 

in those previous foreclosure filings and the instant complaint. Therefore, it is unlikely 

that a settlement or reinstatement of the loan occurred following the foreclosure filing. 

In any event, there are material questions of fact left to determine the date of acceleration. 

 
{¶17} In this case, it cannot be said that, as a matter of law, acceleration did not 

occur as a result of the previous foreclosure filings. Through properly submitted records 

from previous foreclosure filings, appellants have demonstrated that material questions of 

fact remain about the date of acceleration. The trial court erred in holding that appellants 

did not prove their affirmative defense when, at this stage of the litigation, they only have 

to show there are material questions of fact. As such, Bank of New York is not entitled 

to judgment as a matter of law. 

{¶18} Even if Bank of New York can no longer obtain a judgment on the note, the 

mortgage still provides an avenue for relief. “[T]he bar of the note, or other instrument 

secured by mortgage, does not necessarily bar an action on the mortgage.” Kerr v. 

Lydecker, 51 Ohio St. 240, 253, 37 N.E. 267 (1894). This is because, as a result of a 

recent Ohio Supreme Court decision, the mortgage is governed by a different statute of 

limitations. 

{¶19} The mortgagee may bring an action in ejectment that is governed by a 

21-year limitations period as set forth in R.C. 2305.04. See Bradfield v. Hale, 67 Ohio 

St. 316, 65 N.E. 1008 (1902). See also Deutsche Bank Natl. Trust Co. v. Holden, 147 

Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.2d 1243, ¶ 23 (“the mortgagee may bring an 

action in ejectment to take possession of the mortgaged property, receive the income from 

it, and apply the proceeds to the debt, restoring the property to the mortgagor when the 

debt is satisfied.”). The mortgagee also has the option of bringing a foreclosure action 

based on the mortgage. Holden at ¶ 24. A mortgage is a specialty, and as such, is 
governed by a different statute of limitations than a negotiable instrument. Bradfield

at 322. Former R.C. 2305.06, at the time the instrument was created, stated, “[e]xcept as 

provided in sections 126.301 and 1302.98 of the Revised Code, an action upon a specialty 

or an agreement, contract, or promise in writing shall be brought within fifteen years after 

the cause thereof accrued.”1

 Therefore, even if Bank of New York is unable to obtain a 

judgment on the note, they still have a remedy in ejectment or to obtain a judgment on the 

mortgage through a foreclosure action under the longer statute of limitations, which has 

not yet expired. 

{¶20} The Ohio Supreme Court recently addressed the rights of a 

mortgagee that could no longer obtain a judgment on a note, but still held 

the note and was a party entitled to enforce the note. Holden. The court 

recognized, an action on a promissory note is different from an action on a 

mortgage securing the note and that the two actions are separate and distinct 

remedies to collect a debt. While the party entitled to enforce the note 

pursuant to R.C. 1303.31 has standing to seek a personal judgment against 

the maker on that obligation, the mortgagee — or its successors and assigns 

— has standing to foreclose a mortgage and pursue a judicial sale to recover 

any amounts owed under the mortgage, as evidenced by the deficiency on 

the note. 

 1

 The period set forth in the current statute is eight years, but the statute and uncodified 

portions of the legislation indicate it is not to apply retroactively. 
Id. at ¶ 2. Contra Lydecker at 254-255 (“But when a note is secured by mortgage, the 

statute of limitations as to both is the same; and therefore the mortgage will be available 

as a security to the note in an action for foreclosure and sale until the note shall be either 

paid or barred by the statute; but in such case an action for foreclosure and sale can not be 

maintained on the mortgage after an action on the note shall be barred by the statute of 

limitations.”). The Holden court found that the mortgagee could enforce its interest and 

was entitled to foreclosure on the mortgage even though the note secured by the mortgage 

was discharged in bankruptcy. Holden at paragraph two of the syllabus. The court held 

the lender “must still demonstrate that it is the party entitled to enforce the note — 

regardless of whether it can obtain a personal judgment on it against the [borrower].” Id. 

at ¶ 27. This casts serious doubt on long-standing law in this state. 

{¶21} For example, the Twelfth District set forth the proposition that, 

it has long been settled in this state that when a debt that is secured by a 

mortgage is barred by the statute of limitations, the mortgage securing the 

debt is also barred. See Hopkins [v. Clyde], 71 Ohio St. [141,] 149-150[, 72 

N.E. 846 (1904)] (citing cases from several other jurisdictions, holding that 

when a debt that is secured by a mortgage is barred by the statute of 

limitations, the mortgage is also barred); and Lydecker, 51 Ohio St. at 255 

(foreclosure action cannot be maintained on mortgage after an action on 

note secured thereby is barred by the statute of limitations). See, also, 

Bradfield, 67 Ohio St. at 322-323 (discussing the proposition that an action 

upon a mortgage may be met with the same statutory bar that applies to a 

suit to recover the debt it secures, but finding that principle inapplicable to 

the case before it, which involved an action in ejectment). The rationale 

for this rule is set forth in 69 Ohio Jurisprudence 3d (2004), 137, Mortgages 

and Deeds of Trust, Section 64, as follows: 

“The dominant feature of a real estate mortgage is that it is security 

for an obligation to which it is collateral; therefore, the obligation secured is 
regarded as the primary obligation and the mortgage as merely incidental 

thereto. [Footnote omitted.] The lien of the mortgage can thus be no greater 

than the actual obligation secured. If the obligation is destroyed, the 

mortgage dies with it, [Evans v. Beaver (1893), 50 Ohio St. 190, 33 N.E. 

643, and Klein v. Clark (C.P.1955), 59 Ohio Op. 286, 73 Ohio L. Abs. 130, 

135 N.E.2d 85] for the incident cannot survive the thing to which it is 

incidental. [Id.]” 

Barnets, Inc. v. Johnson, 12th Dist. Preble No. CA2004-02-005, 2005-Ohio-682, ¶ 16-17. 

 The reasoning for that well-settled proposition is no longer true after Holden. 

{¶22} Here, as in Holden, if the statute of limitations bars recovery on the note, 

Bank of New York is a party entitled to enforce the note, but cannot obtain a judgment on 

it. Bank of New York is in the same position as Deutsche Bank in Holden. Holden

makes clear that there are separate remedies attendant to the mortgage, which means the 

mortgage is no longer a mere incident to the note. 

{¶23} This court is hesitant to extend Holden beyond the bankruptcy context, but 

there is no language in that opinion that would strictly limit the available remedies beyond 

the context addressed there. The rationale applies equally here: where a party cannot 

obtain a judgment on the note because of an infirmity that applies only to the note, the 

party may still seek to enforce the valid obligations contained within the mortgage, 

including ejectment or foreclosure. 
{¶24} Therefore, Bank of New York, if unable to enforce the note due to the 

expiration of the statute of limitations, is still entitled to enforce the mortgage under the 

longer, unexpired period for a specialty set forth in former R.C. 2305.04. Bank of New 

York’s second cause of action in its complaint sought foreclosure of the mortgage and it 

has demonstrated that it is entitled to that relief. The trial court properly granted 

summary judgment on that claim. Appellants’ first assignment of error is sustained in 

part and overruled in part. 

C. Standing

{¶25} Appellants next argue that Bank of New York lacked standing necessary for 

the requested relief in this action under two cases — Deutsche Bank Natl. Trust Co. v. 

Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, and Holden, 147 Ohio St.3d 85, 

2016-Ohio-4603, 60 N.E.3d 1243. 

{¶26} Standing is necessary to invoke the jurisdiction of the court and turns on 

whether a plaintiff “has, in an individual or representative capacity, some real interest in 

the subject matter of the action.” State ex rel. Dallman v. Franklin Cty. Court of 

Common Pleas, 35 Ohio St.2d 176, 179, 298 N.E.2d 515 (1973). Generally, that means 

an injury that results from another’s allegedly unlawful conduct for which the court may 

grant relief. Sonis v. Rasner, 2015-Ohio-3028, 39 N.E.3d 871, ¶ 45 (8th Dist.). 

{¶27} Here, while appellants now dispute that Bank of New York lacks standing to 

enforce the mortgage, appellants did not do so in objections to the magistrate’s decision 
below, and did not bring this argument to the attention of the trial court at the appropriate 

time. Therefore, they have waived all but plain error.2

 

{¶28} Bank of New York provided a chain of recorded assignments that facially 

demonstrated entitlement to enforce the mortgage. The mortgage instrument lists 

Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for First National 

Bank of Arizona as the mortgagee. The recorded assignments provided by Bank of New 

York indicate that in 2006, the mortgage was assigned by MERS, as nominee for First 

National Bank of Arizona to JPMorgan Chase Bank as Trustee, “c/o Residential Funding 

Corporation.” The mortgage was then assigned to Bank of New York by JPMorgan 

Chase in 2008. Under a plain error review, Bank of New York is entitled to enforce the 

mortgage and foreclosure. Appellants’ second assignment of error is overruled. 

D. Conditions Precedent 

{¶29} Appellants finally argue that Bank of New York failed to satisfy necessary 

conditions precedent to obtain the requested relief. Again, appellants failed to raise this 

as an issue in any objections to the magistrate’s decision. Therefore, appellants have 

waived all but plain error. 

{¶30} To prevail on a motion for summary judgment claim in a foreclosure action, 

the plaintiff must prove: 

 2

Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 23, 

dispenses with the notion that a lack of standing is equivalent to a lack of subject-matter jurisdiction 

that can be raised at any time. Therefore, the plain error standard applies to this claim. 
(1) that the plaintiff is the holder of the note and mortgage, or is a party 

entitled to enforce the instrument; (2) if the plaintiff is not the original 

mortgagee, the chain of assignments and transfers; (3) that the mortgagor is 

in default; (4) that all conditions precedent have been met; and (5) the 

amount of principal and interest due. 

Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, at ¶ 17. 

{¶31} Appellants claim that the affidavit averring that a demand letter was sent 

and that no payments were forthcoming is deficient in that it does not indicate when or 

how the demand letter was sent and does not indicate if the mortgage requires proof of 

mailing. See New York Life Ins. & Annuity v. Vengal, 2014-Ohio-4798, 23 N.E.3d 180 

(8th Dist.). 

{¶32} However, the statement in the affidavit of Michelle Cramptons references an 

attached demand letter that was mailed and indicates a demand for payment was made 

and no payments were forthcoming. The demand letter was dated November 26, 2012. 

The mortgage does not require proof of mailing, and nothing exists in the record to rebut 

the allegation that the demand letter was sent and received by appellants. Reviewing for 

plain error, the affidavit and notice were sufficient to demonstrate Bank of New York 

satisfied this condition precedent. Therefore, no plain error exists in this regard. 

Appellants’ third assignment of error is overruled. 

III. Conclusion

{¶33} The trial court committed plain error when it found that appellants submitted 

no admissible evidence of previous foreclosures when appellants filed an affidavit in this 

case with certified records from the clerk of courts attached. Those complaints indicate 
that a demand of the entire amount of the loan had previously been made. A material 

question of fact exists as to the acceleration date. Therefore, the court erred in granting 

summary judgment on Bank of New York’s action on the note. However, the court did 

not commit plain error when ruling that Bank of New York was entitled to enforce the 

mortgage because it constitutes a separate action governed by a longer statute of 

limitations. Even assuming appellants are correct about the date of acceleration, Bank of 

New York is entitled to enforce the mortgage and appellants failed to demonstrate plain 

error exists on this point. Therefore, this part of the trial court’s decision is affirmed. 

Finally, Bank of New York has facially satisfied standing requirements and the conditions 

precedent to entitle them to foreclosure. Appellants have not demonstrated that plain 

error exists in this regard. 

{¶34} This cause is affirmed in part, reversed in part, and remanded to the 

common pleas court for further proceedings consistent with this opinion. 

It is ordered that appellants and appellee share the 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 common 

pleas court 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. 

FRANK D. CELEBREZZE, JR., JUDGE 
EILEEN T. GALLAGHER, P.J., and 

ANITA LASTER MAYS, J., CONCUR