[Cite as Wells Fargo Bank, N.A. v. Murphy, 2014-Ohio-2937.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

WELLS FARGO BANK, N.A., 

 PLAINTIFF-APPELLEE, 

V. 

BRIAN S. MURPHY, 

 DEFENDANT-APPELLANT. 

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CASE NO. 13 MA 35 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 11CV4041 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Attorney Scott A. King 

Attorney Terry W. Posey, Jr. 

10050 Innovation Drive 

Suite 400 

Miamisburg, Ohio 45342 

For Defendant-Appellant Attorney Bruce M. Broyles 

5815 Market Street, Suite 2 

Boardman, Ohio 44512 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

 

 

 Dated: June 20, 2014 
[Cite as Wells Fargo Bank, N.A. v. Murphy, 2014-Ohio-2937.]

DONOFRIO, J. 

{¶1} Defendant-appellant Brian S. Murphy appeals the decision of the 

Mahoning County Common Pleas Court granting summary judgment for plaintiffappellee Wells Fargo Bank, N.A. in its foreclosure action. 

{¶2} In 2004, Murphy signed a note for $120,832.00 and entered a 

corresponding mortgage on 2168 Lyon Boulevard, Youngstown, OH 44514. The 

original lender was The Home Mortgage Company, Inc. Wells Fargo was later 

assigned the mortgage and acquired possession of the note after it had been 

indorsed in blank. He defaulted on the loan in July 2011. 

{¶3} On November 23, 2011, Wells Fargo filed a complaint seeking 

judgment on the note and mortgage, and asking for foreclosure on the property. 

Murphy never filed an answer and Wells Fargo filed a motion for default judgment. 

Murphy appeared at the default judgment motion hearing and the trial court denied 

the motion. 

{¶4} Wells Fargo then filed a motion for summary judgment stating that 

under the note and mortgage, it had the absolute right to accelerate the balance of 

the loan upon default and foreclose. Attached to Wells Fargo’s summary judgment 

motion was an affidavit reciting the loan, the default, the failure to cure the default, 

and the amount owed. 

{¶5} Murphy filed a memorandum in opposition, claiming only that he did not 

receive the notice of acceleration. 

{¶6} In response, Wells Fargo filed a reply with an affidavit stating that the 

debt was accelerated pursuant to the terms of the loan and incorporating by 

reference an attached letter from Wells Fargo addressed to Murphy and dated 

October 2, 2011 which set forth a notice of default and acceleration showing a 

delinquency of $2,974.09. 

{¶7} On February 17, 2013, the trial court granted summary judgment in 

favor of Wells Fargo. Murphy filed a timely notice of appeal. 

{¶8} Murphy sets forth one assignment of error with four corresponding 

issues presented for review. The first issue presented for review concerns copies of 
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the note, mortgage, and assignments of the mortgage that Wells Fargo attached in 

support of its summary judgment motion. The remaining three issues he presents for 

review concern the notice of acceleration. Murphy’s sole assignment of error states: 

The trial court erred in granting summary judgment. 

{¶9} An appellate court reviews a trial court’s decision on a motion for 

summary judgment de novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio 

St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, at ¶ 24. Summary judgment can be 

granted where there remain no genuine issues of material fact for trial and where, 

after construing the evidence most strongly in favor of the nonmovant, reasonable 

minds can only conclude that the moving party is entitled to judgment as a matter of 

law. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, citing 

Civ.R. 56(C). The burden of showing that there is no genuine issue of material fact 

initially falls upon the party who files for summary judgment. Id., citing Dresher v. 

Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). 

{¶10} Thereafter, the nonmovant may not rest upon the mere allegations or 

denials of the party’s pleadings but must respond by setting forth specific facts 

showing there is a genuine issue for trial. Id., citing Civ.R. 56(E). “If the party does 

not so respond, summary judgment, if appropriate, shall be entered against the 

party.” Civ.R. 56(E). Although courts are cautioned to construe the evidence in favor 

of the nonmoving party, summary judgment is not to be discouraged where a 

nonmovant fails to respond with evidence supporting the essentials of his claim. 

Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993). 

Wells Fargo’s Holder Status

{¶11} In support of its summary judgment motion, Wells Fargo attached the 

affidavit of Jessibel Mojica (Mojica), identified as a Vice President of Loan 

Documentation. Based upon personal knowledge obtained from her personal review 

of the business records for the loan which is the subject of this action, she stated that 

a review of those business records revealed that Murphy had executed and delivered 
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to The Home Mortgage Company Inc. a note (and accompanying mortgage as 

security for the note) in the amount of $120,832.00 on August 30, 2004. She also 

stated that Wells Fargo is holder of the note and mortgage, but did not reference the 

copies of the note, mortgage, and assignments of the mortgage that were also 

attached to Wells Fargo’s summary judgment motion. 

{¶12} In his first issue presented for review, Murphy takes issue with Wells 

Fargo’s attachment of the note to its summary judgment motion. Because the note 

was indorsed in blank, Murphy argues that Wells Fargo was required to prove that it 

had actual physical possession of the note. Murphy contends that Mojica’s affidavit 

failed to establish that she had personal knowledge of Wells Fargo’s actual physical 

possession of the note. In response, Wells Fargo argues that Murphy has waived any 

argument in that regard since he never filed an answer and did not raise this issue in 

his memorandum in opposition to summary judgment. Wells Fargo otherwise 

contends that the note and mortgage it attached to its pleadings are selfauthenticating and it was the recorded holder at the time it filed its complaint in 

foreclosure. 

{¶13} Initially, we address Wells Fargo’s argument concerning the scope of 

the effect of Murphy’s failure to file an answer. Wells Fargo averred in its foreclosure 

complaint that it was the holder of the note and mortgage and entitled to enforce the 

note and mortgage: 

1. Plaintiff says that it is entitled to enforce a certain 

promissory note, a copy of which is hereto attached, marked Exhibit “A” 

and made a part hereof. 

* * * 

4. Plaintiff * * * further says that it is entitled to enforce a 

certain mortgage deed, securing the payment of said promissory note, 

a copy of which is attached hereto, marked Exhibit “B” and made a part 

of hereof, and is a valid and first lien upon said premises. 
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{¶14} Civ.R. 8(D) explains the effect of a failure to deny: “Averments in a 

pleading to which a responsive pleading is required * * * are admitted when not 

denied in the responsive pleading.” In other words, when a party fails to file an 

answer the trial court is correct to rely on Civ.R. 8(D) to treat the allegations of the 

plaintiff’s complaint as admitted, obviating the need to prove such facts. Tinlin v. 

White, 7th Dist. No. 680, 1999 WL 771277, *7 (Sept. 20, 1999). 

{¶15} Since Murphy did not file an answer in response to Wells Fargo’s 

complaint in foreclosure, Wells Fargo’s statements regarding its entitlement to 

enforce the note and mortgage would normally be deemed admitted, and it would not 

be required to prove such facts. However, the manner in which this case proceeded 

below gives us pause to apply that general rule. Following the trial court’s hearing on 

and denial of Wells Fargo’s motion for default judgment upon Murphy’s appearance 

at the hearing, the court immediately ordered the case to proceed to summary 

judgment. Thus, arguably, Murphy did not (or reasonably believed that he did not) 

have the opportunity to file an answer. 

{¶16} We turn now to Murphy’s first issue presented for review particularly as 

it regards the copy of the note that Wells Fargo attached in support of its summary 

judgment motion and his assertion that Mojica lacked personal knowledge of Wells 

Fargo’s actual physical possession of the note. 

{¶17} R.C. Chapter 1303 governs negotiable instruments. A note or 

promissory note, like the one in this case, is considered a negotiable instrument. R.C. 

1303.03(A). One way for a person to enforce an instrument is to be a holder of the 

instrument. R.C. 1303.31(A). There are two ways a person can become the holder of 

an instrument. First, a person can become the holder of an instrument if the 

instrument is made payable to bearer (i.e., indorsed in blank) and that person is in 

possession of the instrument. R.C. 1303.25(B); R.C. 1301.01(T)(1)(a). Second, a 

person can become the holder of an instrument if the instrument is made payable 

directly to them and they are in possession of the instrument. R.C. 1301.01(T)(1)(b). 
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{¶18} Because a bank seeking to enforce a note must be a holder of the note 

prior to the foreclosure complaint being filed, an issue that arises in foreclosure cases 

with notes that have become bearer instruments is determining when the bank took 

possession of the note. See U.S. Bank Natl. Assn. v. Kamal, 7th Dist. No. 12 MA 

189, 2013-Ohio-5380, ¶ 19. But that does not mean the plaintiff must necessarily 

prove physical possession of the note itself. In Natl. City Mtge. v. Piccirilli, 7th Dist. 

No. 08 MA 230, 2011-Ohio-4312, this court observed: 

Producing the note is obviously the easiest form of proof, but if 

the note is lost or otherwise cannot be produced, the party may rely on 

other evidence. R.C. 1303.31 and 1303.38 specifically provide for the 

enforcement of lost, destroyed or stolen negotiable instruments. Failure 

to attach a copy of a promissory note does not prevent a decision to 

grant summary judgment in a foreclosure action on the property 

securing the note. * * * If a copy of the note is unavailable, the court 

may grant summary judgment based on unrefuted assertions made by 

the lender in an affidavit regarding the note. 

{¶19} Here, Wells Fargo met its initial summary judgment burden to establish 

that it was holder and entitled to enforce the note. Although Murphy did not file an 

answer, he did have the opportunity to take issue with the copy of the note that Wells 

Fargo had attached to and in support of its summary judgment motion in his 

memorandum in opposition and he did not. Instead, Murphy only took issue with the 

notice of acceleration. 

{¶20} A nonmovant’s failure to object to the form of evidence attached to a 

movant’s summary judgment motion results in waiver of any later objection as to the 

form of that evidence. Wells Fargo Home Mtge., Inc. v. Landram, 2d Dist. No. 2011-

CA-38, 2012-Ohio-1088, ¶ 17 (mortgagor waived any objection to mortgagee’s 

reliance upon mortgagor’s bank statements which proved that mortgagor could not 

have sent a check with sufficient funds to cure a default by never objecting to the 
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form of that evidence attached to mortgagor’s summary judgment motion in 

foreclosure action); Stegawski v. Cleveland Anesthesia Group, Inc., 37 Ohio App.3d 

78, 83, 523 N.E.2d 902 (8th Dist.1987) (failure to move to strike or otherwise object 

to documentary evidence submitted by a party in support of a motion for summary 

judgment waives any error in considering that evidence under Civ.R. 56(C)). 

{¶21} Nonetheless, the copy of the note that Wells Fargo attached to and in 

support of its summary judgment motion, along with Mojica’s affidavit, were sufficient 

to meet Wells Fargo’s initial burden under summary judgment. The facts relied upon 

in a motion for summary judgment must be the type of evidence listed in Civ.R. 

56(C), which includes affidavits. “Supporting and opposing affidavits shall be made 

on personal knowledge, shall set forth such facts as would be admissible in evidence, 

and shall show affirmatively that the affiant is competent to testify to the matters 

stated in the affidavit.” Civ.R. 56(E). The personal knowledge requirement is satisfied 

if the affiant states that the affidavit was made on personal knowledge (unless 

controverted by other evidence) or if the contents of the affidavit allow one to infer 

that the affidavit was made upon personal knowledge. Bank One, N.A. v. Swartz, 9th 

Dist. No. 03CA8308, 2004-Ohio-1986, ¶ 14-16 (personal knowledge where affiant 

stated she was a foreclosure specialist at bank, loan file was under her immediate 

supervision, instruments attached to the complaint were accurate copies of the 

originals, the account was in default for the amount stated). See also Ohio Health 

Corp. v. Ryan, 10th Dist. No. 10AP-937, 2012-Ohio-60, ¶ 32; Chase Bank, USA v. 

Curren, 191 Ohio App.3d 507, 2010-Ohio-6596, 946 N.E.2d 810, ¶ 18 (4th Dist.) 

(personal knowledge may be inferred from the contents). 

{¶22} In this instance, Mojica stated that her affidavit was made on personal 

knowledge of how the records pertaining to Murphy’s loan were kept and maintained. 

Although she did not reference the copies of the note, mortgage, and assignments of 

the mortgage that were also attached to Wells Fargo’s summary judgment motion, 

she averred that Wells Fargo was holder of the note and mortgage. 
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{¶23} Ohio case law and rules provide that copies of a note, mortgage, or an 

assignment of a mortgage are ample evidence to establish holder status and grant a 

bank summary judgment in foreclosure. Regarding copies, “[a] duplicate is 

admissible to the same extent as an original unless (1) a genuine question is raised 

as to the authenticity of the original or (2) in the circumstances it would be unfair to 

admit the duplicate in lieu of the original.” Evid.R. 1003. Additionally, notarized 

documents and signatures on commercial paper are self-authenticating. Lorain Cty. 

Bar Assn. v. Kennedy, 95 Ohio St.3d 116, 766 N.E.2d 151 (2002); Evid.R. 902(8)-(9). 

{¶24} Murphy cites Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. 

No. 2010-CA-00291, 2011-Ohio-3202, in support of his argument that Wells Fargo 

was required to submit proof that it was in actual physical possession of the note 

since the note was indorsed in blank. However, Jackson is distinguishable from this 

case. In Jackson, the mortgagor filed an affidavit in opposition to the bank’s summary 

judgment motion challenging the bank’s holder status. Here, Murphy did not 

challenge the authenticity of the copies of the note, mortgage, and assignments of 

the mortgage attached to Wells Fargo’s motion for summary judgment, but instead 

argued only that he had not received notice of Wells Fargo’s intent to accelerate. 

Notice of Acceleration

{¶25} The remaining three issues Murphy presents for review concern the 

notice of acceleration. The mortgage here addressed the notice of acceleration as 

follows: 

22. Acceleration; Remedies. Lender shall give notice to Borrower 

prior to acceleration following Borrower’s breach of any covenant or 

agreement in this Security Instrument (but not prior to acceleration 

under Section 18 unless Applicable Law provides otherwise). The 

notice shall specify: (a) the default; (b) the action required to cure the 

default; (c) a date, not less than 30 days from the date the notice is 

given to Borrower, by which the default must be cured; and (d) that 

failure to cure the default on or before the date specified in the notice 
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may result in acceleration of the sums secured by this Security 

Instrument, foreclosure by judicial proceeding and sale of the Property. 

The notice shall further inform Borrower of the right to reinstate after 

acceleration and the right to assert in the foreclosure proceeding the 

non-existence of a default or any other defense of Borrower to 

acceleration and foreclosure. If the default is not cured on or before the 

date specified in the notice, Lender at its option may require immediate 

payment in full of all sums secured by this Security Instrument without 

further demand and may foreclose this Security Instrument by judicial 

proceeding. Lender shall be entitled to collect all expenses incurred in 

pursuing the remedies provided in this Section 22, including, but not 

limited to, costs of title evidence. 

Authentication 

{¶26} In his memorandum in opposition to Wells Fargo’s summary judgment 

motion, the only challenge Murphy made to Wells Fargo’s ability to enforce the note 

and mortgage was that he did not receive notice of acceleration. In its reply to 

Murphy’s memorandum in opposition, Wells Fargo attached a copy of the October 2, 

2011 letter (notice of acceleration) it sent to Murphy and an affidavit attesting to the 

authenticity of the letter. In his second issue presented for review, Murphy argues 

that the trial court erred in relying on the affidavit as authenticating the notice of 

acceleration. 

{¶27} Here, Wells Fargo provided sufficient evidence that it sent Murphy 

notice of acceleration. Attached to Wells Fargo’s reply to Murphy’s memorandum in 

opposition to Wells Fargo’s summary judgment motion is an affidavit from Lenettra D. 

Smith, a Vice President of Loan Documentation for Wells Fargo. Attached to that 

affidavit and incorporated by reference is the notice of default letter from Wells Fargo. 

That notice is addressed to Bryan S. Murphy at 2168 Lyon Blvd., Poland, OH 44514-

1565. This court has held similar evidence to be sufficient evidence that notice of 

acceleration was sent, even when the mortgagor filed an opposing affidavit stating 
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that they did not receive the notice. CitiMtge., Inc. v. Loncar, 7th Dist. No. 11 MA 174, 

2013-Ohio-2959, appeal not allowed, 2013-Ohio-5096, 137 Ohio St.3d 1413, 998 

N.E.2d 511. 

{¶28} Murphy argues that the affidavit failed to explain how a copy of the 

October 2, 2011 letter was obtained, how it was sent, or that it was a true and 

accurate copy. The record does not support Murphy’s argument in this regard. 

Smith’s affidavit alone refutes each of these arguments in turn: 

2. The averments provided in this affidavit are within the scope of 

my duties. In my position, I have access to business records, including 

loan documents and loan account records maintained by Wells Fargo 

Bank, NA, and I have personal knowledge of the operation of and the 

circumstances surrounding the preparation, maintenance, and retrieval 

of records in Wells Fargo Bank’s record keeping systems. 

3. Loan account records are compiled and recorded as part of 

Wells Fargo Bank NA’s regularly conducted business activity at or near 

the time of occurrence of each event affecting the account by persons 

with knowledge of said event, by or from information transmitted by a 

person with knowledge of the acts or events described within the 

business record. Such records are kept, maintained, and relied upon in 

the course of ordinary and regularly conducted business activity. 

4. I make this affidavit based upon personal knowledge obtained 

from my personal review of the business records for the loan which is 

the subject of this action. 

5. That a notice of the default in payment and acceleration of 

loan was sent to Bryan S. Murphy by U.S. mail on October 2, 2011. 

Further, the notice was sent to Bryan S. Murphy at 2168 Lyon Blvd., 

Poland, Ohio 44514. A True and accurate copy of the notice that was 

sent is attached to this Affidavit. 
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Adequacy 

{¶29} In his third issue presented for review, Murphy argues that the notice of 

acceleration did not comply with the terms of the note and mortgage. Specifically, 

Murphy argues that the notice does not simply state the amount that must be paid 

within thirty days, but rather the notice left it to Murphy to determine and calculate the 

amount that was necessary to avoid acceleration. 

{¶30} Murphy’s argument here is not supported by the language of the 

mortgage or the language of the notice of acceleration. In the event of default, the 

mortgage requires the bank to give the borrower notice of the action required to cure 

the default. Here, after giving Murphy a breakdown of the total past due amount on 

the mortgage account as of the date of the letter, it goes on to inform Murphy of the 

action required to cure the default: 

To avoid the possibility of acceleration, you must pay this 

amount plus any additional monthly payments, late charges and other 

charges that may be due under applicable law after the date of this 

notice and on or before November 1, 2011 in CERTIFIED funds, to 

Wells Fargo Home Mortgage, 1200 W 7th Street, Suite L2-200, Los 

Angeles, CA 90017. 

{¶31} Murphy complains that this part of the notice of acceleration required 

him to determine and calculate the amount that was necessary to avoid acceleration. 

Murphy excises this provision and presents it out of context. The notice clearly states 

that $2,974.09 is the total due to cure the default and bring the loan current as of 

October 2, 2011. The provision Murphy quotes comes after the language informing 

him of the action required to cure the default and served only to reserve Wells 

Fargo’s right to collect any additional monthly payments, late charges, and other 

charges that may have accrued should Murphy have continued nonpayment. 
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Opposing Affidavit Denying Receipt of Notice 

{¶32} In his memorandum in opposition to Wells Fargo’s summary judgment 

motion, Murphy attached his own affidavit stating that he did not receive notice of 

acceleration. In his fourth issue presented for review, Murphy argues this affidavit 

was enough to create a genuine issue of material fact on the issue of whether he 

received the notice. 

{¶33} Section twenty-two of the mortgage does not specifically address 

service, however, section fifteen of the mortgage does: 

15. Notices. All notices given by Borrower or Lender in 

connection with this Security Instrument must be in writing. Any notice 

to Borrower in connection with this Security Instrument shall be deemed 

to have been given to Borrower when mailed by first class mail or when 

actually delivered to Borrower’s notice address if sent by other means. 

Notice to any one Borrower shall constitute notice to all Borrowers 

unless Applicable Law expressly requires otherwise. The notice 

address shall be the Property Address unless Borrower has designated 

a substitute notice address by notice to Lender. * * * There may be only 

one designated notice address under this Security Instrument at any 

one time. * * * If any notice required by this Security Instrument is also 

required under Applicable Law, the Applicable Law requirement will 

satisfy the corresponding requirement under this Security Instrument. 

{¶34} As already indicated, Smith’s affidavit and the copy of the October 2, 

2011 notice of intent to accelerate attached to and authenticated by Smith’s affidavit, 

clearly established that the notice was mailed to Murphy. 

{¶35} As for Murphy’s argument that he never received the notice, the 

mortgage does not require that Wells Fargo show that he actually received the notice 

of intent to accelerate. Murphy’s affidavit stating that he did not receive notice may 

create a genuine of issue of material fact as to whether he actually received the 
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notice. But the terms of the mortgage do not require that he actually receive the 

notice. 

{¶36} There is no genuine issue of material fact as to whether Wells Fargo 

sent the notice by first class mail, which is all that was required under the terms of the 

mortgage. In a similar case involving a mortgagor who filed an affidavit claiming they 

had not received service of the notice, this court found such evidence does not 

create a genuine issue of material fact concerning whether the mortgagee had sent a 

compliant notice according to the terms of the mortgage. CitiMtge., Inc. v. Loncar, 7th 

Dist. No. 11 MA 174, 2013-Ohio-2959, appeal not allowed, 2013-Ohio-5096, 137 

Ohio St.3d 1413, 998 N.E.2d 511. See also Fifth Third Mtge. Co. v. Wizzard, 10th 

Dist. No. 2013-Ohio-3084 appeal not allowed, 2013-Ohio-5285, 137 Ohio St.3d 1423, 

998 N.E.2d 1178 (In response to mortgagor’s claim that she never “received” 

acceleration notice, court held that compliance with the notice provisions of the note 

and mortgage did not hinge upon mortgagor’s actual receipt of the notice of default.) 

{¶37} In sum, Wells Fargo brought a foreclosure action against Murphy for 

defaulting on his loan and mortgage. Smith’s affidavit properly authenticates the 

October 2, 2011 notice of intent to accelerate and established that Wells Fargo sent 

the notice to Murphy in accordance with the terms of the mortgage. There is no 

genuine dispute as to any material fact, and the trial court properly sustained Wells 

Fargo’s motion for summary judgment and granted the foreclosure. 

{¶38} Accordingly, Murphy’s sole assignment of error is without merit. 

{¶39} The judgment of the trial court is affirmed. 

Vukovich, J., concurs. 

Waite, J., concurs.