[Cite as Bank of New York Mellon v. Putman, 2014-Ohio-1796.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

BANK OF NEW YORK MELLON, : 

 Plaintiff-Appellee, : CASE NO. CA2012-12-267 

 

 : O P I N I O N

 - vs - 4/28/2014 

 : 

MARYANN J. PUTMAN, et al., : 

 Defendants-Appellants. : 

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CV12-02-0551 

Manley Deas Kochalski, LLC, Michael Carleton, P.O. Box 165028, Columbus, Ohio 43216-

5028, for plaintiff-appellee 

Dann, Doberdruk & Harshman, Marc Dann, Grace Doberdruk, 4600 Prospect Avenue, 

Cleveland, Ohio 44103, for defendants-appellants, Maryann J. Putman and James Putman 

Sara Hirka, 300 High Street, Suite 704, P.O. Box 747, Hamilton, Ohio 45012, for defendant, 

Charleston Wood Homeowners Association 

 S. POWELL, J.

{¶ 1} Defendants-appellants, Maryann J. Putman and James Putman, appeal from 

the decision of the Butler County Court of Common Pleas granting summary judgment to 

plaintiff-appellee, Bank of New York Mellon, f/k/a Bank of New York, as Trustee for the 

Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2006-6 Mortgage 
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Pass-Through Certificates, Series 2006-6 (Bank of New York Mellon). The Putmans also 

appeal from the trial court's decision denying their motion to strike the affidavit of Suzanne 

Szymoniak. For the reasons outlined below, we affirm. 

{¶ 2} On January 26, 2006, Mrs. Putman executed a promissory note in favor of 

Countrywide Home Loans, Inc., in the amount of $540,000 for the purchase of a home 

located at 5543 Charleston Woods Drive, Liberty Township, Butler County, Ohio (Property). 

The note was secured by a mortgage that designated the Putmans as the borrowers, 

Countrywide Home Loans as the lender, and Mortgage Electronic Registration Systems, Inc. 

(MERS) as the mortgagee. According to the mortgage documents, MERS was acting as a 

nominee for Countrywide Home Loans, as well as any of its successors and assigns. The 

Putmans both initialed and signed the mortgage documents. The mortgage was 

subsequently recorded on February 6, 2006. 

{¶ 3} Approximately five years later, the Putmans defaulted on the mortgage and a 

letter noticing that default was sent to the Putmans on May 17, 2011. Thereafter, on 

November 28, 2011, MERS assigned the mortgage to Bank of New York Mellon. The 

assignment was then recorded on December 1, 2011. On February 8, 2012, Bank of New 

York Mellon filed a complaint for foreclosure on the Property. Attached to the complaint was 

the note signed by Mrs. Putman that was indorsed in blank by David A. Spector, the 

managing director of Countrywide Home Loans. The assignment of the mortgage to Bank of 

New York Mellon, as well as a copy of the mortgage itself, was also attached to the 

complaint. 

{¶ 4} On October 19, 2012, Bank of New York Mellon filed a motion for summary 

judgment. Included with the motion was an affidavit from Suzanne Szymoniak, an officer of 

Bank of America, N.A., the servicing agent for the mortgage, as well as a copy of both the 

note and the mortgage. Szymoniak's affidavit also included a copy of the May 17, 2011 letter 
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sent to the Putmans noticing their default on the mortgage. The Putmans then filed a motion 

in opposition to Bank of New York Mellon's motion for summary judgment and a motion to 

strike Szymoniak's affidavit. After holding a hearing on the matter, the trial court denied the 

Putmans' motion to strike and granted summary judgment in favor of Bank of New York 

Mellon. 

{¶ 5} The Putmans now appeal from the trial court's decisions denying their motion to 

strike Szymoniak's affidavit and granting summary judgment to Bank of New York Mellon, 

raising two assignments of error for review. 

{¶ 6} Assignment of Error No. 1: 

{¶ 7} THE TRIAL COURT ERRED BY NOT GRANTING APPELLANT'S MOTION TO 

STRIKE THE AFFIDAVIT OF SUZANNE SZYMONIAK. 

{¶ 8} In their first assignment of error, the Putmans argue the trial court erred by 

denying their motion to strike Szymoniak's affidavit attached to Bank of New York Mellon's 

motion for summary judgment. We disagree. 

{¶ 9} The determination of a motion to strike is within the trial court's broad 

discretion. Ireton v. JTD Realty Invests., L.L.C., 12th Dist. Clermont No. CA2010-04-023, 

2011-Ohio-670, ¶ 19. A trial court's ruling on a motion to strike will be not reversed on appeal 

absent an abuse of that discretion. Wells Fargo v. Smith, 12th Dist. Brown No. CA2012-04-

006, 2013-Ohio-855, ¶ 13, citing State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-

Ohio-4699, ¶ 13. A decision constitutes an abuse of discretion when it is unreasonable, 

arbitrary, or unconscionable. State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio5350, ¶ 11. 

{¶ 10} The Putmans initially argue the trial court erred by failing to strike Szymoniak's 

affidavit because Bank of New York Mellon did not attach any payment records to the 

affidavit evidencing their default on the mortgage. In support of this claim, the Putmans cite 
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our decision in Third Federal S. & L. Assn. of Cleveland v. Farno, 12th Dist. Warren No. 

CA2012-04-028, 2012-Ohio-5245, wherein this court stated, in pertinent part, the following: 

We sustain Farno's first assignment of error as paragraphs five, 

six, and seven of Third Federal's affidavit should have been 

stricken because its summary judgment motion was not 

supported as provided in Civ.R. 56(E), when no documentation 

referenced in those portions of the affidavit were attached to or 

served with the affidavit to show default of payment and payment 

history. 

* * * 

We do not suggest that Third Federal was required to attach 

every document in its file on Farno's note, but Third Federal 

needed to attach or serve with its affidavit some document or 

documents material to the issues in this case, to wit, the default 

in payment and applicable portions of the payment history. 

(Internal citations omitted.) Id. at ¶ 10 and 11. 

{¶ 11} According to the Putmans, our holding in Farno stands for the proposition that 

the inclusion of payment records is a mandatory component of an affidavit in support of a 

motion for summary judgment in a foreclosure action. Such an interpretation, however, 

extends our holding in Farno well-beyond its intended boundaries. Rather, our holding in 

Farno merely stands for the general principle that "[w]hen an affiant relies on documents in 

his affidavit and does not attach those documents, the portions of the affidavit that reference 

those documents must be stricken." Wells Fargo v. Smith, 12th Dist. Brown No. CA2012-04-

006, 2013-Ohio-855, ¶ 17, citing Farno at ¶ 10. A review of Szymoniak's affidavit reveals that 

this simply did not happen here. This is particularly true given that the May 17, 2011 letter 

that specifically notified the Putmans they were in default on the mortgage was included in 

Szymoniak's affidavit, as well as the fact that the Putmans failed to provide any evidence to 

dispute Szymoniak's averments contained in her affidavit regarding the amount they owed on 

the loan. The Putmans' first argument is therefore without merit and overruled. 

{¶ 12} Next, the Putmans argue the trial court erred by failing to strike Szymoniak's 
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affidavit because she was an officer of Bank of America, N.A., the servicing agent for the 

mortgage, and not an employee for Bank of New York Mellon. However, the Putmans have 

not cited to any authority holding as much, nor has our own research uncovered any case 

law that would support such a contention. Rather, a review of the case law reveals that 

affidavits from servicing agents are routinely used to support a motion for summary judgment 

in a foreclosure action. See U.S. Bank, Natl. Assn. v. Zokle, 6th Dist. Erie No. E-13-033, 

2014-Ohio-636, ¶ 24 (stating "[c]ourts have in many cases allowed a representative of a 

bank's loan servicer to establish that the bank holds the note at issue"); Regions Bank v. 

Seimer, 10th Dist. Franklin No. 13AP-542, 2014-Ohio-95, ¶ 19 (noting "[s]everal appellate 

courts have found that, in a foreclosure action, the affidavit of a loan servicing agent 

employee with personal knowledge, provides sufficient evidentiary support for a summary 

judgment in favor of the mortgagee"); see, e.g., Wells Fargo Bank, N.A. v. Dawson, 5th Dist. 

Stark No. 2013CA00095, 2014-Ohio-269, ¶ 19-22 (finding affidavit from bank's loan servicing 

agent was proper summary judgment evidence in foreclosure action); Everbank v. 

Vanarnheim, 3d Dist. Union No. 14-13-02, 2013-Ohio-3872, ¶ 39 (accepting as sufficient an 

affidavit from vice-president of bank's loan servicer averring that the bank was in possession 

of original promissory note). 

{¶ 13} This court has also found affidavits from a loan servicing agent are proper 

summary judgment evidence in foreclosure actions. See JPMorgan Chase Bank, NA v. 

Carroll, 12th Dist. Clinton No. CA2013-04-010, 2013-Ohio-5273, ¶ 25 (finding affidavit from 

servicing agent was proper summary judgment in a foreclosure action as it "comports with 

the requirements of Civ.R. 56(E)"); Fifth Third Mtge. Co. v. Bell, 12th Dist. Madison No. 

CA2013-02-003, 2013-Ohio-3678, ¶ 28 (finding affidavit from loan servicing agent was proper 

summary judgment evidence in a foreclosure action); Deutsche Bank Natl. Trust Co. v. 

Sexton, 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 13 (same); Chase 
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Manhattan Mortg. Corp. v. Urquhart, 12th Dist. Butler Nos. CA2004-04-098 and CA2004-10-

271, 2005-Ohio-4627, ¶ 14 (same). Therefore, as the overwhelming evidence reveals 

Szymoniak's affidavit was proper summary judgment evidence, the Putmans' second 

argument is also without merit and overruled. Accordingly, as we find no merit to either of the 

two arguments advanced by the Putmans under their first assignment of error, the Putmans' 

first assignment of error is overruled. 

{¶ 14} Assignment of Error No. 2: 

{¶ 15} THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION FOR 

SUMMARY JUDGMENT BECAUSE A MATERIAL ISSUE OF FACT REMAINED FOR TRIAL 

REGARDING THE APPEARANCE OF THE ORIGINAL NOTE AND WHETHER OR NOT 

APPELLEE HAD STANDING TO BRING THE FORECLOSURE ACTION IN THE FIRST 

PLACE. 

{¶ 16} In their second assignment of error, the Putmans argue the trial court erred by 

granting summary judgment to Bank of New York Mellon. We disagree. 

{¶ 17} Summary judgment is a procedural device used to terminate litigation when 

there are no issues in a case requiring a formal trial. Roberts v. RMB Ents., Inc., 197 Ohio 

App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.). On appeal, a trial court's decision granting 

summary judgment is reviewed de novo. Moody v. Pilot Travel Ctrs., L.L.C., 12th Dist. Butler 

No. CA2011-07-141, 2012-Ohio-1478, ¶ 7, citing Burgess v. Tackas, 125 Ohio App.3d 294, 

296 (8th Dist.1998). In applying the de novo standard, the appellate court is required to 

"us[e] the same standard that the trial court should have used, and * * * examine the 

evidence to determine whether as a matter of law no genuine issues exist for trial." Bravard 

v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, ¶ 9 (12th Dist.), quoting Brewer v. 

Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383 (8th Dist.1997). 

{¶ 18} Pursuant to Civ.R. 56, a trial court may grant summary judgment only when (1) 
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there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as 

a matter of law, and (3) the evidence submitted can only lead reasonable minds to a 

conclusion that is adverse to the nonmoving party. BAC Home Loans Servicing, L.P. v. 

Kolenich, 194 Ohio App.3d 777, 2011-Ohio-3345, ¶ 17 (12th Dist.). The party moving for 

summary judgment bears the initial burden of demonstrating that no genuine issue of 

material fact exists. Touhey v. Ed's Tree & Turf, L.L.C., 194 Ohio App.3d 800, 2011-Ohio3432, ¶ 7 (12th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Once this 

burden is met, the nonmoving party must then present evidence to show that there is some 

issue of material fact yet remaining for the trial court to resolve. Smedley v. Discount Drug 

Mart, Inc., 190 Ohio App.3d 684, 2010-Ohio-5665, ¶ 11 (12th Dist.). In determining whether 

a genuine issue of material fact exists, the evidence must be construed in the nonmoving 

party's favor. Walters v. Middletown Properties Co., 12th Dist. Butler No. CA2001-10-249, 

2002-Ohio-3730, ¶ 10. 

{¶ 19} The Putmans first argue the trial court erred by granting summary judgment to 

Bank of New York Mellon because the note attached to Syzmoniak's affidavit "was different 

in appearance" from the note originally attached to the complaint. However, the only 

difference between the note attached to the complaint and the note attached to Syzmoniak's 

affidavit is two small computer generated boxes highlighting the identity of the original lender 

as Countrywide Home Loans and the endorsement in blank from David A. Spector, the 

managing director of Countrywide Home Loans. Nothing about the terms of the note has 

been changed. Moreover, Mrs. Putman's initials and signature still appear on both 

documents. We fail to see how this minor difference between the two documents creates an 

issue of material fact. The Putmans' argument to the contrary is overruled. 

{¶ 20} Next, the Putmans argue the trial court erred by granting summary judgment to 

Bank of New York Mellon because it did not have standing to pursue foreclosure on the 
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Property. "Standing is a preliminary inquiry that must be made before a trial court may 

consider the merits of a legal claim." Bank of New York Mellon v. Blouse, 12th Dist. Fayette 

No. CA2013-02-002, 2013-Ohio-4537, ¶ 5, quoting Kincaid v. Erie Ins. Co., 128 Ohio St.3d 

322, 2010-Ohio-6036, ¶ 9. Whether standing exits is a question of law that an appellate 

court reviews de novo. Fifth Third Mtge. Co. v. Bell, 12th Dist. Madison No. CA2013-02-003, 

2013-Ohio-3678, ¶ 13. 

{¶ 21} The Ohio Supreme Court addressed the issue of standing in a foreclosure 

action in Federal Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio5017. In that case, the Ohio Supreme Court determined that a plaintiff lacked standing to 

invoke the jurisdiction of the common pleas court because "it failed to establish an interest in 

the note or mortgage at the time it filed suit." Id. at ¶ 28. In so holding, the Ohio Supreme 

Court noted that "[i]t is an elementary concept of law that a party lacks standing to invoke the 

jurisdiction of the court unless he has, in an individual or representative capacity, some real 

interest in the subject matter of the action." (Emphasis sic.) Id. at ¶ 22. Accordingly, the 

Ohio Supreme Court found that a plaintiff must have standing at the time the complaint is 

filed and the lack of standing cannot be cured by "receipt of an assignment of the claim or by 

substitution of the real party in interest" pursuant to Civ.R. 17(A). Id. at ¶ 26 and ¶ 41. 

{¶ 22} Based on the Ohio Supreme Court's decision in Schwartzwald, this court has 

determined that "a party may establish that it is the real party in interest with standing to 

invoke the jurisdiction of the common pleas court when, 'at the time it files its complaint of 

foreclosure, it either (1) has had a mortgage assigned or (2) is the holder of the note.'" 

(Emphasis sic.) Bank of New York Mellon v. Burke, 12th Dist. Butler No. CA2012-12-245, 

2013-Ohio-2860, ¶ 13, appeal not accepted, 137 Ohio St.3d 1412, 2013-Ohio-5096; BAC 

Home Loans, LP v. Mapp, 12th Dist. Butler No. CA2013-01-001, 2013-Ohio-2968, ¶ 14. In 

reaching this decision, we noted the Ohio Supreme Court's "'deliberate decision to use the 
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disjunctive word 'or' as opposed to the conjunctive word 'and' when discussing the interest 

[plaintiff] was required to establish at the time it filed the complaint' is significant" Burke, 

quoting CitiMortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894, ¶ 

21. 

{¶ 23} After a thorough review of the record, we find Bank of New York Mellon 

established that it had standing at the time the complaint was filed by way of its interest in 

both the note and the mortgage, either of which were sufficient to establish the fact that Bank 

of New York Mellon had standing to prosecute this foreclosure action. Bank of New York 

Mellon is the current holder of the note, by virtue of its possession of the note indorsed in 

blank by David A. Spector, the managing director of Countrywide Home Loans. In addition, 

the mortgage and subsequent assignment from MERS attached to the complaint indicates 

Bank of New York Mellon had the mortgage assigned to it on November 28, 2011, over two 

months before the complaint was filed. Based upon the foregoing, Bank of New York Mellon 

demonstrated that it had an interest in both the note and mortgage at the time it commenced 

this foreclosure action, thereby establishing its standing to sue. The Putmans' argument to 

the contrary is without merit and overruled. 

{¶ 24} The Putmans also argue the trial court erred by granting summary judgment to 

Bank of New York Mellon because the assignment of the mortgage from MERS to Bank of 

New York Mellon was invalid. The Putmans, however, lack standing to challenge the validity 

of the assignment from MERS to Bank of New York Mellon. See U.S. Bank, N.A. v. Lawson, 

5th Dist. Delaware No. 13CAE030021, 2014-Ohio-463, ¶ 39-40 (finding mortgagor lacked 

standing to challenge an assignment of a mortgage between MERS and U.S. Bank); Bank of 

New York Mellon Trust., Co. v. Unger, 8th Dist. Cuyahoga No. 97315, 2012-Ohio-1950, ¶ 35 

(finding mortgagor lacked standing to challenge an assignment of a mortgage between 

MERS and Bank of New York Mellon); see also Duran v. Mortgage Electronic Registration 
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Systems, Inc., N.D.Ohio No. 3:12 CV 1801, 2013 WL 444450, *6 (Feb. 5, 2013) (finding 

mortgagor lacked standing to challenge an assignment of a mortgage between MERS and 

Bank of America). 

{¶ 25} Moreover, even if the Putmans could challenge this assignment, which they 

cannot, Ohio courts "have consistently held that MERS has authority to assign a mortgage 

when it is designated as both a nominee and mortgagee." BAC Home Loans Servicing, L.P. 

v. Haas, 3d Dist. Marion No. 9-13-40, 2014-Ohio-438, ¶ 28; see, e.g., SRMOF 2009-1 Trust 

v. Lewis, 12th Dist. Butler Nos. CA2012-11-239 and CA2013-05-068, 2014-Ohio-71, ¶ 17 

(finding standing was established to foreclose on property where MERS properly assigned its 

interest in the mortgage). By signing the mortgage, the Putmans contractually agreed that 

MERS possess the power to transfer rights in the Property. The Putmans' argument to the 

contrary is likewise without merit and overruled. 

{¶ 26} Finally, the Putmans argue the trial court erred by granting summary judgment 

to Bank of New York Mellon where it failed to comply with all conditions precedent necessary 

to foreclose on the Property. As this court recently stated, once a plaintiff has demonstrated 

standing, thereby invoking the jurisdiction of the trial court, "in order to be entitled to judgment 

in a foreclosure action, the plaintiff must indeed prove it is the current holder of the note and 

mortgage, as well as, default, the amount owed, execution and delivery of the note and 

mortgage, and valid recording of the mortgage." SRMOF 2009-1 Trust at ¶ 16, citing 

Kolenich, 2011-Ohio-3345 at ¶ 17. However, after a thorough review of the record, we find 

Bank of New York Mellon has satisfied all of these conditions, and therefore, is entitled to 

foreclose on the Property. The Putmans' final argument is therefore also without merit and 

overruled. 

{¶ 27} Judgment affirmed. 
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HENDRICKSON, J., concurs. 

RINGLAND, P.J., concurs separately. 

RINGLAND, P.J., concurring separately. 

{¶ 28} I concur in the majority's analysis and resolution of appellants' first assignment 

of error. However, I write separately to concur in judgment only because I do not entirely 

agree with the majority's analysis of appellants' second assignment of error. I again wish to 

reiterate my position, as stated in my dissenting opinion in SRMOF 2009-1 Trust v. Lewis, 

12th Dist. Butler Nos. CA2012-11-239 and CA2013-05-068, 2014-Ohio-71, that in order to 

establish standing in a foreclosure action, a plaintiff must demonstrate, through evidence in 

the record, that it had an interest in both the note and the mortgage at the time it filed the 

complaint. Lewis at ¶ 32. I therefore disagree with the majority's statement that a plaintiff 

only needs to establish an interest in either the note or the mortgage at the time the 

complaint is filed in order to have standing to prosecute a foreclosure action. However, as 

the evidence in the record before us demonstrated that Bank of New York Mellon had an 

interest in both the note and mortgage at the time it filed the complaint, I agree with the 

majority's resolution of appellants' second assignment of error.