[Cite as BP Metals, L.L.C. v. Glass, 2018-Ohio-3527.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PAULDING COUNTY 

 

BP METALS, LLC, 

 PLAINTIFF-APPELLANT, CASE NO. 11-17-08 

 v. 

JAMES A. GLASS, ET AL., O P I N I O N 

 

 DEFENDANTS-APPELLEES. 

 

Appeal from Paulding County Common Pleas Court 

Trial Court No. CI 16 172 

Judgment Reversed and Cause Remanded 

Date of Decision: September 4, 2018 

 

APPEARANCES: 

 

Steven L. Diller for Appellant 

 Timothy C. Holtsberry for Appellee, James A. Glass 
Case No. 11-17-08 

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PRESTON, J. 

{¶1} Plaintiff-appellant, BP Metals, LLC (“BP Metals”), appeals the October 

20, 2017 judgment entry of the Paulding County Court of Common Pleas dismissing 

its complaint in foreclosure against defendant-appellee, James A. Glass (“Glass”). 

For the reasons that follow, we reverse. 

{¶2} On July 9, 2015, Glass, doing business as J. Glass & Co., an Ohio sole 

proprietorship, executed a promissory note (the “note”) in the amount of 

$129,500.00 payable to BP Metals as lender “for the sole purpose of developing a 

precious metals refining technique * * *.” (Doc. No. 1, Ex. A). On July 6, 2016, 

Glass, individually and as sole proprietor of J. Glass & Co., executed a “loan 

modification and change in terms agreement” (the “modification”) in which “BP 

Metals extended the additional sum of [$10,000.00] to Roseann Glass, the mother 

of” Glass in exchange for his promise to repay that loan under the terms of the note 

and modification. (Doc. No. 1, Ex. B). That same day, Glass executed a mortgage 

against his residence located at 530 Plainfield Drive, Payne, Ohio 45880 to secure 

the debt in favor of BP Metals. (Doc. No. 1, Ex. C). The mortgage was filed on 

August 11, 2016, recorded in Volume 573 of the Official Records at Page 2088, in 

the Paulding County, Ohio Recorder’s Office. (Id.). 

{¶3} Glass defaulted, and BP Metals instituted a foreclosure complaint 

against him, The Antwerp Exchange Bank, and the Paulding County Treasurer on 
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November 21, 2016. (Doc. No. 1). In its complaint, BP Metals averred that it is the 

holder of the note, the modification, and the mortgage and attached copies of each 

to its complaint. (Id.). Glass, pro se, filed his answer on December 6, 2016. (Doc. 

No. 5). The Antwerp Exchange Bank filed its answer on December 6, 2016. (Doc. 

No. 8). 

{¶4} Throughout the pendency of the case, Glass filed a number of 

“documents” and the parties exchanged various motions which do not pertain to the 

outcome of this appeal. On February 3, 2017, BP Metals filed a motion to deem 

admitted its requests for admission of Glass. (Doc. No. 18). On February 8, 2017, 

Glass filed a “Motion to Withdraw Admission” requesting that the trial court 

“withdraw [BP Metals’s] Motion to deem [its] requests for admission” admitted. 

(Doc. No. 19). On March 27, 2017, the trial court granted BP Metals’s motion to 

deem admitted its requests for admission of Glass and denied Glass’s February 8, 

2017 motion. (Doc. No. 38). 

{¶5} On May 4, 2017, Glass, represented by counsel, filed a motion for leave 

to file an answer to BP Metals’s complaint, which the trial court granted on May 8, 

2017. (Doc. Nos. 60, 61). BP Metals filed a memorandum in opposition to Glass’s 

motion for leave to file an answer and motion to vacate the trial court’s order 

granting Glass’s motion for leave to file an answer. (Doc. No. 62). 
Case No. 11-17-08 

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{¶6} On July 11, 2017, Glass filed a motion for leave to file instanter an 

amended answer and counterclaims, which he filed instanter. (Doc. No. 70). BP 

Metals filed a memorandum in opposition to Glass’s motion for leave to file 

instanter an amended answer and counterclaims. (Doc. No. 74). 

{¶7} On April 4, 2017, BP Metals filed a motion requesting that the trial 

court find Glass in contempt of court for failing “to obey the subpoena issued on 

March 8, 2017 compelling him to appear for deposition on March 27, 2017.” (Doc. 

No. 41). On April 6, 2017, the trial court ordered Glass to show cause and scheduled 

a contempt hearing. (Doc. No. 44). On July 9, 2017, after a hearing, Glass admitted 

to being in contempt of the trial court’s subpoena order. (Doc. No. 73). On July 

20, 2017, BP Metals filed a motion requesting the assessment of fees and costs based 

on the trial court’s order finding Glass in contempt of its subpoena order. (Doc. No. 

75). Glass filed a memorandum in opposition to BP Metals’s motion for fees and 

costs. (Doc. No. 76). 

{¶8} BP Metals filed a motion for summary judgment on April 28, 2017. 

(Doc. No. 50). 

{¶9} On September 11, 2017, Glass filed a motion to dismiss BP Metals’s 

complaint arguing that BP Metals lacked standing to sue Glass in foreclosure. (Doc. 

No. 78). Glass did not articulate the ground under which he was requesting 

dismissal of BP Metals’s complaint. (Id.). However, Glass attached numerous 
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exhibits to his motion. (Id.). BP Metals filed a memorandum in opposition to 

Glass’s motion on September 18, 2017. (Doc. No. 79). BP Metals attached 

numerous exhibits to its memorandum. (Id.). On October 12, 2017, Glass filed a 

motion for leave to file instanter his response to BP Metals’s memorandum in 

opposition to his motion, which he filed instanter. (Doc. No. 80). BP Metals filed 

a memorandum in opposition to Glass’s motion for leave to file his response 

instanter to its memorandum in opposition to Glass’s motion. (Doc. No. 81). On 

October 20, 2017, the trial court denied Glass’s motion for leave to file his response 

instanter to BP Metals’s memorandum in opposition to Glass’s motion to dismiss. 

(Doc. No. 82). That same day, apparently treating Glass’s motion as a motion for 

summary judgment, the trial court concluded that BP Metals lacked standing to sue 

Glass in foreclosure and dismissed the action. (Doc. No. 83). In that same decision, 

the trial court held moot all other pending motions and ordered Glass to pay BP 

Metals $5,332.44 in fees in relation to its conclusion that Glass was in contempt of 

its subpoena order. (Id.). 

{¶10} On November 20, 2017, BP Metals filed its notice of appeal. (Doc. 

No. 84). It raises two assignments of error for our review. 

Assignment of Error No. I 

The trial court erred when it granted Appellee’s Motion to 

Dismiss and ruled that Appellant lacked the standing required to 

invoke the jurisdiction of the common pleas court. 
Case No. 11-17-08 

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{¶11} In its first assignment of error, BP Metals argues that the trial court 

erred by dismissing its complaint in foreclosure after concluding that BP Metals 

lacked standing to invoke the jurisdiction of the trial court. BP Metals contends that 

it had standing to invoke the jurisdiction of the trial court because it is a “person” 

entitled to enforce the negotiable instrument. 

{¶12} As an initial matter, it is not clear what form of dismissal Glass relied 

on in arguing that dismissal was warranted in this case or what form of dismissal 

the trial court ultimately determined was appropriate. However, because the parties 

attached exhibits to their motion and memorandum in opposition, respectively, and 

because the trial court considered evidence beyond the allegations contained in the 

complaint, we are assuming that the trial court proceeded under summary judgment. 

See Eichenberger v. Woodlands Assisted Living Residence, L.L.C., 10th Dist. 

Franklin No. 12AP-987, 2013-Ohio-4057, ¶ 9, 20. 

{¶13} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there 

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

matter of law, and reasonable minds can reach but one conclusion when viewing the 

evidence in favor of the non-moving party, and the conclusion is adverse to the nonmoving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. 

of Edn., 69 Ohio St.3d 217, 219 (1994). 
Case No. 11-17-08 

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{¶14} “The party moving for summary judgment has the initial burden of 

producing some evidence which demonstrates the lack of a genuine issue of material 

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing 

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is 

not required to produce any affirmative evidence, but must identify those portions 

of the record which affirmatively support his argument.” Id., citing Dresher at 292. 

“The nonmoving party must then rebut with specific facts showing the existence of 

a genuine triable issue; he may not rest on the mere allegations or denials of his 

pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E). 

{¶15} “Civ.R. 17(A) requires that ‘a civil action must be prosecuted by the 

real party in interest,’ that is, by a party who can discharge the claim upon which 

the action is instituted or is the party who has a real interest in the subject matter of 

that action.” U.S. Bank, N.A. v. Coffey, 6th Dist. Erie No. E-11-026, 2012-Ohio721, ¶ 13, quoting Discover Bank v. Brockmeier, 12th Dist. Warren No. CA2006-

057-078, 2007-Ohio-1552, ¶ 7. “If an individual or one in a representative capacity 

does not have a real interest in the subject matter of the action, that party lacks the 

standing to invoke the jurisdiction of the court.” Id., citing State ex rel. Dallman v. 

Court of Common Pleas, Franklin Cty., 35 Ohio St.2d 176 (1973), syllabus. “In a 

foreclosure action, a party may establish its interest in the suit, and thus have 

standing to bring a foreclosure suit, when at the time it files its complaint in 
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foreclosure, it either (1) has had the mortgage assigned to it, or (2) is the holder of 

the note.” JP Morgan Chase Bank v. Stevens, 8th Dist. Cuyahoga No. 104835, 

2017-Ohio-7165, ¶ 36, citing Bank of Am., N.A. v. Calloway, 8th Dist. Cuyahoga 

No. 103622, 2016-Ohio-7959, ¶ 13, citing CitiMortgage, Inc. v. Patterson, 8th Dist. 

Cuyahoga No. 98360, 2012-Ohio-5894, ¶ 21, citing Fed. Home Loan Mtge. Corp. 

v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. See also BAC Home Loans 

Servicing, L.P. v. Haas, 3d Dist. Marion No. 9-13-40, 2014-Ohio-438, ¶ 26 (noting 

that “[i]n order to have standing, BAC was required to be either the holder of the 

note or to have been assigned the mortgage prior to the complaint being filed”). 

{¶16} “A note secured by a mortgage is a negotiable instrument that is 

governed by R.C. Chapter 1303.” Id. at ¶ 37, citing Wells Fargo Bank, N.A. v. 

Carver, 8th Dist. Cuyahoga No. 102822, 2016-Ohio-589, ¶ 14. “Under R.C. 

1303.31(A), three ‘persons’ are entitled to enforce an instrument: (1) the holder of 

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

of a holder; and (3) a person not in possession of the instrument who is entitled to 

enforce the instrument under R.C. 1303.38 or 1303.58(D).” Id. “R.C. 

1301.201(B)(21)(a) defines a holder of a negotiable instrument as ‘[t]he person in 

possession of a negotiable instrument that is payable either to bearer or to an 

identified person that is the person in possession.’” Id., quoting R.C. 

1301.201(B)(21)(a). 
Case No. 11-17-08 

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{¶17} Glass asserted that he is entitled to judgment as a matter of law with 

evidence that he alleges demonstrates that BP Metals does not have possession of 

the note depicting his “original” signature. As support for his contention, Glass 

relied on an email from the attorney representing BP Metals to his attorney stating 

that BP Metals “does not have a note with Mr. Glass’s original signature” because 

“Mr. Glass sent [BP Metals] a copy via e-mail only and is believed to have not 

forwarded the original. He signed his version and his that in [sic] his possession.” 

(Doc. No. 78, Ex. B). Contrary to Glass’s assertion that this evidence entitles him 

to judgment as a matter of law, this evidence creates a genuine issue of material fact 

as to whether BP Metals is a holder of the instrument and entitled to enforce it. That 

is, whether the instrument held by BP Metals does or does not bear Glass’s original 

signature does not divest BP Metals of its status as a person entitled to enforce the 

instrument. 

{¶18} The trial court’s conclusion that BP Metals is not a holder of the 

instrument because Glass converted the instrument into electronic form and retained 

the hardcopy wholly ignores that electronic records are enforceable under Ohio law. 

Indeed, the Ohio Uniform Electronic Transaction Act codified under R.C. Chapter 

1306 recognizes the enforceability of electronic records. R.C. 1306.06 provides: 

(A) A record or signature may not be denied legal effect or 

enforceability solely because it is in electronic form. 
Case No. 11-17-08 

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(B) A contract may not be denied legal effect or enforceability 

solely because an electronic record was used in its formation. 

(C) If a law requires a record to be in writing, an electronic record 

satisfies the law. 

(D) If a law requires a signature, an electronic signature satisfies 

the law. 

R.C. 1306.01(E) defines “electronic” as “relating to technology having electrical, 

digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.” R.C. 

1306.01(M) defines “record” as “information that is inscribed on a tangible medium 

or that is stored in an electronic or other medium and is retrievable in perceivable 

form.” In addition, R.C. 1306.01(G) defines “electronic record” as “a record 

created, generated, sent, communicated, received, or stored by electronic means.” 

Finally, “electronic signature” is defined as “an electronic sound, symbol, or process 

attached to or logically associated with a record and executed or adopted by a person 

with the intent to sign the record.” R.C. 1306.01(H). 

{¶19} A document converted to digital form and remitted by email is an 

electronic record. As such, the email referenced above creates a genuine issue of 

material fact as to whether the parties agreed to conduct the transaction by electronic 

means and create a binding contract under Ohio law. See R.C. 1306.08(B) (“The 

effect of an electronic record or electronic signature attributed to a person * * * shall 
Case No. 11-17-08 

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be determined from the context and surrounding circumstances at the time of its 

creation, execution, or adoption, including the parties’ agreement, if any, and 

otherwise as provided by law.”); R.C. 1306.12 (“In a proceeding, evidence of a 

record or signature may not be excluded solely because it is in electronic form.”); 

R.C. 1306.07(A) (“If the parties have agreed to conduct a transaction by electronic 

means and a law requires a person to provide, send, or deliver information in writing 

to another person, the requirement is satisfied if the information is provided, sent, 

or delivered, as the case may be, in an electronic record capable of retention by the 

recipient at the time of receipt.”). Because there is a genuine issue of material fact 

as to whether the parties agreed to conduct the transaction by electronic means and 

create a binding contract within the meaning of R.C. Chapter 1306, there is a 

genuine issue of material fact as to whether BP Metals is a holder of the note and, 

consequently, has standing to invoke the jurisdiction of the trial court. 

{¶20} Moreover, the trial court’s conclusion that summary judgment in favor 

of Glass is proper because BP Metals lacked standing to invoke the jurisdiction of 

the trial court is further erroneous because it ignores that Glass also executed a 

mortgage in favor of BP Metals. Indeed, the record reflects that BP Metals attached 

a copy of the mortgage to its complaint revealing that Glass executed the mortgage 

to secure the debt in favor of BP Metals. (Doc. No. 1, Ex. C). See Haas, 2014-

Ohio-438, at ¶ 28. 
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{¶21} For these reasons, we conclude that summary judgment in favor of 

Glass is improper. BP Metals’s first assignment of error is sustained. 

Assignment of Error No. II 

The trial court erred when it did not allow time for additional 

discovery before granting Appellee’s Motion to Dismiss. 

{¶22} Because we determined under BP Metals’s first assignment of error 

that the trial court improperly granted summary judgment in favor of Glass, BP 

Metals’s second assignment of error is rendered moot, and we decline to address it. 

See App.R. 12(A)(1)(c); Chase Home Fin., L.L.C. v. Dunlap, 4th Dist. Ross No. 

11CA3266, 2013-Ohio-1915, ¶ 2. 

{¶23} Having found error prejudicial to the appellant herein in the particulars 

assigned and argued, we reverse the judgment of the trial court and remand for 

further proceedings consistent with this opinion. 

Judgment Reversed and 

Cause Remanded 

ZIMMERMAN and SHAW, J.J., concur. 

/jlr