[Cite as Bank of New York Mellon v. Argo, 2015-Ohio-268.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

BANK OF NEW YORK MELLON, 

FKA THE BANK OF NEW YORK 

 Plaintiff-Appellee 

-vsBARRY ARGO, ET AL 

 Defendants-Appellants 

JUDGES: 

: Hon William B. Hoffman, J. 

: Hon. W. Scott Gwin, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. 14CA59 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court 

of Common Pleas, Case No. 2012CV0121 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: January 21, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

MATTHEW RICHARDSON DANIEL MCGOOKEY 

MATTHEW P. CURRY KATHRYN EYSTER 

MELISSA N. HAMBLE 225 Meigs Street 

MANLEY DEAS KOCHALSKI Sandusky, OH 44970 

Box 165028 

Columbus, OH 43216-5028 
[Cite as Bank of New York Mellon v. Argo, 2015-Ohio-268.]

Gwin, J., 

{¶1} Appellants appeal the June 23, 2014 judgment entry of the Richland 

County Court of Common Pleas granting summary judgment in favor of appellee and 

entering a decree of foreclosure. 

Facts & Procedural History

{¶2} On February 1, 2012, appellee Bank of New York Mellon fka The Bank of 

New York, as Trustee for the Certificateholders CWALT, Inc., Alternative Loan Trust 

2005-85CB, Mortgage-Pass Through Certificates, Series 2005-85CB, filed a complaint 

against appellants Barry Argo and Lynn Argo. The complaint alleged that appellee is a 

person entitled to enforce the note pursuant to R.C. 1303.31. A copy of the note, 

mortgage, and assignment of mortgage were attached to the complaint. The note 

attached to the complaint dated November 7, 2005, designates the Lender as 

Residential Finance Corporation (“Residential Finance”). The mortgage dated 

November 7, 2005, secures the property located at 56 Grand Blvd., Shelby, Ohio. The 

Lender is listed on the mortgage as Residential Finance with Mortgage Electronic 

Registration Systems (“MERS”) listed as the mortgagee and nominee for Lender and 

Lender’s successor and assigns. The mortgage assignment recorded on October 26, 

2011, assigns the mortgage dated November 7, 2005 to appellee. The original lender is 

listed on the assignment as Residential Finance and the assignment is signed by 

MERS. 

{¶3} Appellants filed pro se answers to the complaint on February 7, 2012 and 

then participated in court-sponsored mediation. Appellants subsequently retained 

counsel, filed an amended answer to the complaint with leave of the trial court, and the 
Richland County, Case No. 14CA59 3 

parties conducted discovery and further mediation. On December 23, 2013, the trial 

court reinstated the case to the active docket after the parties failed to settle the matter 

at mediation. 

{¶4} On May 9, 2014, appellee filed a motion for summary judgment. Attached 

to the motion for summary judgment was the affidavit of Rebecka Mayoh (“Mayoh”), a 

Document Control Officer for Select Portfolio Servicing, Inc. (“Select Portfolio”), the 

servicer for appellee. Mayoh attached copies of the note, mortgage, and assignment of 

mortgage to her affidavit. The copy of the note that Mayoh attached differed from the 

note attached to the complaint, as it contained an extra page entitled “allonge,” from 

Residential Finance to Countrywide Bank, N.A. The allonge was endorsed from 

Countywide Bank, N.A. to Countrywide Home Loans, Inc., and then endorsed by 

Countrywide Home Loans, Inc. in blank. Appellants filed a memorandum in opposition 

to appellee’s motion for summary judgment on June 4, 2014. Attached to the 

memorandum in opposition was the affidavit of Barry Argo, stating that he wanted to 

save his home and was trying to qualify for a loan modification. Appellee filed a reply 

brief on June 10, 2014. On June 23, 2014, the trial court granted appellee’s motion for 

summary judgment. 

{¶5} Appellants appeal the June 23, 2014 judgment entry of the Richland 

County Court of Common Pleas and assign the following as error: 

{¶6} “I. THE TRIAL COURT ERRED IN GRANTING [APPELLEE’S] MOTION 

FOR SUMMARY JUDGMENT.” 
Richland County, Case No. 14CA59 4 

Summary Judgment Standard

{¶7} Civil Rule 56(C) in reviewing a motion for summary judgment which 

provides, in pertinent part: 

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. 

{¶8} 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 

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 
Richland County, Case No. 14CA59 5 

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). 

{¶9} 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. 

{¶10} 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). 

Real Party in Interest

{¶11} Appellants argue summary judgment is not appropriate in this case 

because appellee was not the holder of the note and mortgage when the foreclosure 

was filed. We disagree. 
Richland County, Case No. 14CA59 6 

{¶12} To have standing to pursue a foreclosure action, a plaintiff “must establish 

an interest in the note or mortgage at the time it filed suit.” Home Loan Mtge. Corp. v. 

Schwartzwald, 134 Ohio St.3d, 2012-Ohio-5017, 979 N.E.2d 1214. The current holder 

of the note and mortgage is the real party in interest in a foreclosure action. U.S. Bank 

Nat’l. Assn v. Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178, 908 N.E.2d 1032 (7th 

Dist.), citing Chase Manhattan Corp. v. Smith, 1st Dist. Hamilton No. C061069, 2007-

Ohio-5874. R.C. 1303.31 provides: 

(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. 

(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. 

{¶13} In this case, appellee pled in its complaint that it was a person entitled to 

enforce the note pursuant to R.C. 1303.31 and also attached to the complaint a copy of 

the note, mortgage, and assignment of mortgage. Appellee included the affidavit of 

Mayoh in support of its motion for summary judgment providing that the loan records 

reflect that appellee is the owner and holder of a bond/note and mortgage executed by 
Richland County, Case No. 14CA59 7 

appellant Barry Argo in the sum of $207,000.00 dated November 7, 2005. Copies of the 

note with allonge, mortgage, and mortgage assignment were attached to the affidavit. 

{¶14} Appellants argue that the assignment of the mortgage is not sufficient for 

appellee to be the holder of the note and mortgage without an assignment of the note. 

Further, that the assignment of the mortgage is not sufficient for appellee to enforce the 

note and mortgage as the holder of the note and mortgage because MERS never had 

any interest in the note and appellee failed to submit any evidence that MERS is a 

nominee of Residential Finance. 

{¶15} Pursuant to the decisions of this Court, the assignment of the mortgage, 

without the express transfer of the note, is sufficient to transfer both the note and 

mortgage if the record indicates that the parties intended to transfer both the note and 

mortgage. Bank of New York v. Dobbs, 5th Dist. Knox No. 2009-CA-000002, 2009-

Ohio-4742; Freedom Mtge. Corp v. Vitale, 5th Dist. Tuscarawas No. 2013 AP 08 0037, 

2014-Ohio-1549. 

{¶16} This case is analogous to Dobbs and Vitale as the record indicates the 

parties intended to transfer both the note and the mortgage. The note dated November 

7, 2005 provides that, “in addition to the protections given to the Note Holder under this 

Note, a Mortgage * * * (the “Security Instrument”), dated the same date as this Note, 

protects the Note Holder from possible losses which might result if I do not keep the 

promises which I make in this Note.” Further, that the Security Instrument “describes 

how and under what conditions I may be required to make immediate payment in full of 

all amounts I owe under this Note * * *.” 
Richland County, Case No. 14CA59 8 

{¶17} The November 7, 2005 mortgage was notarized on November 7, 2005 

and recorded at the Richland County Recorder on November 15, 2005. This mortgage, 

in which MERS is the mortgagee and nominee for lender Residential Finance, defines 

“Note” as “the promissory note signed by Borrower and dated November 7, 2005. The 

Note states that Borrower owes Lender two hundred seven thousand and 00/100 

Dollars * * *.” Further, that the mortgage secures to Lender “(i) the repayment of the 

Loan, and all renewals, extensions and modifications of the Note, and (ii) the 

performance of Borrower’s covenants and agreements under this Security Instrument 

and Note.” Finally, the mortgage provides that the Borrower and Lender covenant and 

agree that “Borrower shall pay when due the principal of, and interest on, the debt 

evidenced by the Note and any prepayment charges and late charges due under the 

Note.” The note refers to the mortgage and the mortgage refers to the note. Thus, we 

find a clear intent by the parties to keep the note and mortgage together rather than 

transferring the mortgage alone. The assignment of the mortgage was sufficient to 

transfer both the mortgage and the note. 

{¶18} In addition, the mortgage assignment refers to the note as it provides that 

the assignor transfers to appellee “all beneficial interest under that certain Mortgage 

described below together with the note and obligations therein described * * *.” The 

mortgage assignment was notarized on October 18, 2011 and recorded in the Richland 

County Recorder’s office on October 26, 2011. Since the mortgage assignment was 

recorded on October 26, 2011, prior to the complaint being filed in this case, the note 

was effectively transferred on that date. Accordingly, there are no genuine issues of 
Richland County, Case No. 14CA59 9 

material fact as to whether appellee is the real party in interest with standing to pursue 

this foreclosure action. 

{¶19} Appellants argue the assignment of mortgage is not sufficient to transfer 

the note because MERS, who assigned the mortgage, had no interest in the note. This 

Court has repeatedly upheld the right and authority of MERS, when designated as a 

nominee and mortgagee, to transfer interests in notes and mortgages. Freedom Mtge. 

Corp. v. Vitale, 5th Dist. Tuscarawas No. 2013 AP 08 0037, 2014-Ohio-1549; Wells 

Fargo Bank v. Elliott, 5th Dist. Delaware No. 13 CAE 03 0012, 2013-Ohio-3690. In this 

case, the mortgage provides that “Borrower does hereby mortgage, grant, and convey 

to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to 

the successors and assigns of MERS * * * the following described property * * *.” The 

Lender is listed in the mortgage as Residential Finance. The assignment filed by 

appellee and attached to its complaint and motion for summary judgment was recorded 

on October 26, 2011 and states that MERS, as the holder of the mortgage and nominee 

for Residential Finance, assigns and transfers the mortgage to appellee. Accordingly, 

MERS had the authority to assign the mortgage to appellee and MERS properly 

executed the assignment as nominee for Residential Finance prior to the filing of the 

complaint in this case. Further, the mortgage signed by appellants provides that they 

“understand and agree that MERS (as nominee for Lender and Lender’s successors 

and assigns) has the right: to exercise any or all of those interests, including, but not 

limited to, the right to foreclose and sell the Property; and to take any action required of 

Lender * * *.” 
Richland County, Case No. 14CA59 10 

{¶20} Appellants also argue that appellee did not provide evidence that MERS 

was a nominee of the originating lender and thus the assignment of mortgage is not 

valid. As noted above, appellants specifically signed the mortgage stating they 

understood MERS, as nominee for Lender, had the right to exercise any or all interests 

of the Lender. Further, as noted by this Court in U.S. Bank, N.A. v. Lawson, 5th Dist. 

Delaware No. 13CAE030021, 2014-Ohio-463, because a debtor is not a party to the 

assignment of a mortgage, the debtor lacks standing to challenge its validity when there 

is no dispute between the original mortgagee and the entity subsequently named as an 

assignee of the mortgage as to the assignment’s validity and there was no dispute that 

the borrower had defaulted on his loan and was subject to foreclosure. There is no 

dispute between MERS and appellee as to whether the mortgage was properly 

assigned. There is also no dispute appellants defaulted on their mortgage loan. 

Accordingly, the assignment of mortgage is not invalid. 

Note 

{¶21} Appellants argue the trial court erred in finding appellee was the holder of 

the note because Mayoh never said the note was a true and accurate copy of the 

original and two different copies of the note were allegedly submitted by appellee, as 

the note attached to the complaint did not have attached the allonge to the note that 

was attached to the note submitted with the copy of the note attached as an exhibit to 

Mayoh’s affidavit. The mortgage and its assignment bear notarial seals and were filed 

of record in the Richland County Recorder’s Office years prior to the initiation of this 

suit. The note makes reference to the mortgage and the mortgage makes reference to 

the note. Furthermore, the mortgage assignment states it transfers to appellee “all 
Richland County, Case No. 14CA59 11 

beneficial interest under the certain Mortgage * * * together with the note(s) and 

obligations therein described * * *.” As detailed above, this cross-referencing between 

the instruments is sufficient to raise a rebuttable presumption of intent to convey both 

the mortgage and the note to appellee and appellants failed to submit Civil Rule 56 

evidence to rebut this presumption. Accordingly, any arguments regarding the copy of 

the note and/or the allonge submitted with the affidavit for summary judgment are moot 

as appellee is the holder of the note and mortgage and thus appellee is entitled to 

enforce the note and mortgage. 

Affidavit – Personal Knowledge 

{¶22} Appellants contend the affidavit of Mayoh was insufficient because it is not 

based upon personal knowledge as she did not state she had access to the collateral 

file and, further, that, the affidavit does not include records of the account at issue. 

{¶23} Evidence Rule 803(6) provides that records of regularly conducted 

business activity are admissible, as an exception to the rules of hearsay, if shown to be 

such “by the testimony of the custodian or other qualified witness.” The question of 

what may lay a foundation for the admissibility of business records as a custodian or 

other qualified witness must be answered broadly. Citimortgage v. Cathcart, 5th Dist. 

Stark No. 2013CA00179, 2014-Ohio-620. It is not a requirement that the witness have 

firsthand knowledge of the transaction giving rise to the business record. Id. “Rather, it 

must be demonstrated that: the witness is sufficiently familiar with operation of the 

business and with the circumstances of the record’s preparation, maintenance and 

retrieval, that he can reasonably testify on the basis of this knowledge that the record is 
Richland County, Case No. 14CA59 12 

what it purports to be, and that it was made in the ordinary course of business 

consistent with the elements of Rule 803(6).” Id. 

{¶24} Civil Rule 56(E) provides that an affidavit must “be made on personal 

knowledge [and] set forth such facts as would be admissible in evidence.” Civil Rule 

56(E). A mere assertion of personal knowledge satisfies Civil Rule 56(E) if the nature of 

the facts in the affidavit combined with the identity of the affiant creates a reasonable 

inference that the affiant has personal knowledge of the facts in the affidavit. JPMorgan 

Chase v. Snedeker, 5th Dist. Licking No. 13-CA-98, 2014-Ohio-1593. 

{¶25} In her affidavit, Mayoh avers that she is a Document Control Officer at 

Select Portfolio Servicing, Inc., the servicer for appellee, and Select Portfolio maintains 

a computer database of acts, transactions, payments, communications, escrow account 

activity, disbursements, events, and analyses with respect to the mortgage loans which 

Select Portfolio services. Further, that she has access to the loan records maintained 

with respect to the subject loan and, based upon those records, she is personally 

familiar with the subject loan and is authorized to make this certification. Mayoh states 

that in her capacity as Document Control Officer, she has access to the loan records 

relating to the mortgage loans that are maintained in the ordinary course of the regularly 

conducted activity of mortgage loan servicing, including the Borrowers’ mortgage loan. 

Further, that the statements she makes in the affidavit are based upon her review of the 

loan records relating to appellants’ mortgage loan and from her own personal 

knowledge of how the loan records are kept and maintained. Mayoh avers that the loan 

transaction for appellants’ mortgage was recorded at or near the time of the event and 

by or from information transmitted from a person with knowledge and she has 
Richland County, Case No. 14CA59 13 

personally reviewed and independently verified the accuracy of the factual information 

included in the affidavit. 

{¶26} Mayoh states the records reflect that appellee is the owner and holder of a 

bond/note and mortgage executed by Barry Argo in the sum of $207,000.00 dated 

November 7, 2005, and that Barry Argo defaulted on the terms and conditions of the 

note/bond and mortgage by failing to make the payment due December 1, 2011, and all 

payments due thereafter. Additionally, that appellee is entitled to collect the amount 

due on the note and enforce the mortgage, including the unpaid principal balance due 

and owing, including accrued interest and advances for taxes, and insurance. Mayoh 

verifies that attached as Exhibits A and B are copies of the note and mortgage and 

attached as Exhibit C is a copy of the demand letter sent to appellants prior to the 

foreclosure. Mayoh states that, as of the date of execution, the amount due on the Note 

includes (a) unpaid principal in the amount of $207,000.00; (b) interest on the unpaid 

principal at the rate of 6.375% from November 1, 2011; (c) advances made for taxes 

and insurance; and (d) advances made to protect the property. The amount of principal 

and interest set forth in Mayoh’s affidavit are the same figures of principal and interest 

contained in the trial court’s judgment entry granting summary judgment. 

{¶27} From her position and her statement that she reviewed the loan records in 

the instant case, it may be reasonably inferred that Mayoh has personal knowledge to 

qualify the documents as an exception to the hearsay rule as a business document. 

See Freedom Mtge. Corp. v. Vitale, 5th Dist. Tuscarawas No. 2013 AP 08 0037, 2014-

Ohio-1549. The affidavit is properly admissible Civil Rule 56 evidence and appellants 

fail to submit any Civil Rule 56 evidence to contradict the affidavit. Further, the affidavit 
Richland County, Case No. 14CA59 14 

stated the loan was in default and the affidavit specifically stated the amount of principal 

and interest due and owing based on Mayoh’s review of appellants’ loan records and 

payment history included in the business records. Appellants did not submit any 

evidence in their response to appellee’s motion for summary judgment regarding the 

payment history, the account status, or the balance of the account. Appellants thus 

failed to submit any Civil Rule 56 evidence that would controvert Mayoh’s averments 

regarding the status, payment history, or balance of the account. See Citimortgage, Inc. 

v. Roznowski, 5th Dist. Stark No. 2012-CA-93, 2014-Ohio-4792. Accordingly, the trial 

court did not err in granting summary judgment based on Mayoh’s affidavit. 

Equity 

{¶28} Appellants argue that foreclosure is inequitable because appellants 

attempted to work with the lender to procure a loan modification. In support, appellants 

cite PHH Mtge. Corp. v. Barker, 190 Ohio App.3d 71, 2010-Ohio-5061, 940 N.E.2d 662 

(3rd Dist), wherein the Third District Court of Appeals affirmed the trial court’s decision 

to reinstate the mortgage rather than proceed with foreclosure, on the ground that 

foreclosure was inequitable under the facts of the case. Id. In Barker, the court found 

that the “extremely unique factual circumstances” where the borrower attempted to pay 

the mortgage, attempted to enter into a modification, where the borrower made 

payments sufficient to cure the default on the mortgage after the alleged default when 

they received a mortgage coupon book, and where the lender accepted payments after 

the alleged default, the equities weighed in favor of the mortgage being reinstated. 

{¶29} We find the facts of this case to be distinguishable from the Barker case. 

In this case, there is no evidence that appellants attempted to pay the mortgage, that 
Richland County, Case No. 14CA59 15 

appellants made payments sufficient to cure the default on the mortgage, or that 

appellee accepted payments after the alleged default. According to Mayoh’s affidavit, 

the loan has been in default since December of 2011 and appellants failed to set forth 

any Civil Rule 56 evidence to contradict this assertion. Further, this case twice went to 

mediation since its filing, once in February of 2012 with the final mediation scheduled for 

December of 2012, and again in September of 2013 when the case was placed on the 

inactive docket for loss mitigation review until reactivated in December of 2013. Thus, 

we cannot say that the foreclosure was inequitable in this case. 

{¶30} Based upon the foregoing, we overrule appellants’ assignment of error. 

The June 23, 2014 judgment entry of the Richland County Court of Common Pleas 

granting summary judgment in favor of appellee and entering a decree of foreclosure is 

affirmed. 

 

 
Richland County, Case No. 14CA59 16 

Hoffman, P.J., concurring 

{¶31} I concur in the majority's analysis and disposition of all issues addressed 

in the majority opinion with a singular exception. I do not believe a debtor lacks 

standing to challenge the validity of an assignment of a mortgage for the reasons set 

forth in my dissenting opinion in U.S. Bank, N.A. v. Lawson, 5th Dist. Delaware No. 

13CAE030021, 2014-Ohio-463. I, nevertheless, concur based upon the other reason 

advanced by the majority for finding the assignment of the mortgage valid; i.e., 

Appellants specifically signed the mortgage stating they understood MERS, as nominee 

for Lender, had the right to exercise any or all interests of the Lender.