author: BROWN, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Mathias D. PETTY, Defendant-Appellant.
    No. 17AP-385
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 21, 2017
    On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Argued: Seth L. Gilbert.
    On brief: The Hemminger Law Firm, LLC, and Chad K. Hemminger, Westerville, for appellant. Argued: Chad K. Hemminger, Westerville.
    DECISION
   BROWN, J.

{¶ 1} This is an appeal by defendant-appellant, Mathias D. Petty, from a judgment of the Franklin County Court of Common Pleas resentencing him pursuant to a remand order from this court regarding consecutive sentence findings.

{¶ 2} On July 16, 2014, appellant was indicted on one count of rape, in violation of R.C. 2907.02, and one count of importuning, in violation of R.C. 2907.07(A). The rape count included a repeat violent offender specification.

{¶ 3} The following background facts are taken from this court's decision in State v. Petty , 10th Dist. No. 15AP-950, 2017-Ohio-1062, 2017 WL 1091583, rendered following appellant's direct appeal of his judgment of conviction and sentence for rape and importuning. At trial, C.A., a female, who was age 12 at the time of the events, testified that on June 10, 2014, she began using an app called "the Badoo app." Id. at ¶ 3. The app is "use[d] * * * 'to meet people,' [and a] user is supposed to be 18 or older." Id.

{¶ 4} In July 2014, "C.A. began communicating through the Badoo app with a particular individual whose screen name was 'T-h-a-i,' " and "[t]hey began talking about '[g]iving head, sex, stuff that shouldn't have been talking about.' " Id. at ¶ 4. C.A. did not disclose her age to this individual, and C.A. "did not know the age of the other individual." Id. According to C.A., "Thai first brought up the topic of oral sex on the app." Id.

{¶ 5} On July 5, 2014, C.A. and her mother were at C.A.'s aunt's house. That evening, C.A. and Thai had been exchanging text messages. Later that night, C.A. went outside on the porch because the individual texting her wanted to " 'come over, and [she] said okay.' " Id. at ¶ 6. The individual was asking C.A. for her address, and C.A. testified: "[h]e was asking me if I was going to do it then. I needed to do it, and if I wasn't, then he doesn't have to come.' " Id. C.A. "defined 'it' as he wanted her to [p]erform oral sex." Id.

{¶ 6} At trial, C.A. identified appellant as Thai, the individual who arrived at her aunt's house that evening. Thai arrived and walked up to the porch. C.A. was texting at the time, and Thai "said, '[y]ou look pretty occupied, and I said okay. * * * Then he said, [i]f you're not going to do it, I can just leave. * * * I said okay, and I stopped texting. * * * He asked me if he wanted to-if I was going to pull it out or if he was.' " Id. at ¶ 7.

{¶ 7} C.A. testified that appellant "unzipped his pants. 'He took it out, and I got down on my knees, and I started sucking-I started giving oral sex.' " Id. at ¶ 8. C.A. testified that she "put appellant's penis in her mouth. Appellant 'was moving my head' with his hand." Id.

{¶ 8} C.A.'s mother then came out on the porch "and 'started yelling.' Her mother 'was cussing a lot.' " Id. at ¶ 9. C.A. "stood up and her mother 'asked what * * * did I just do, and I said, [n]othing. I wouldn't tell her the truth. And then she started getting louder, and then that's when everybody in the kitchen came outside.' " Id. C.A. testified appellant appeared to be "cornered" on the porch as other members of the family came outside, but appellant "then jumped over the banister, and he ran to his car across the street and drove away." Id. at ¶ 10.

{¶ 9} C.A. initially told the responding officer that nothing occurred. C.A. "did not tell the truth because she did not want to deal with the consequences." Id. at ¶ 11. Later, at the hospital, she told a detective what happened. The detective showed her a photographic array, and C.A. picked appellant's photograph from the array and identified him as the individual who appeared on the porch that evening.

{¶ 10} On July 5, 2014, Columbus Police Officer David Schulz responded to a dispatch regarding a reported sexual assault of a minor. Officer Schulz spoke with C.A.'s mother, L.A., "who was 'frustrated, upset, and just distraught all around.' " Id. at ¶ 13. L.A. gave the officer her daughter's phone, and the officer was able to view some messages and "learned that the daughter had used a message service through an app identified as 'Badoo.' " Id. at ¶ 14. A family friend "provided the name of suspect Mathias Petty by linking the Badoo account to a linked Instagram account to a linked Facebook account." Id. at ¶ 16.

{¶ 11} L.A. testified her daughter C.A. was 12 years of age in July 2014. On the evening of the incident, L.A. looked out the front door to check on her daughter, and she observed her daughter " 'kneeled down on her knees. There was a comforter under her knees, and * * * a person standing in front of her holding something in his hand.' " Id. at ¶ 20. L.A. "observed 'my daughter performing oral sex on him.' " Id. L.A. "saw his penis, and observed appellant zip up his pants." Id.

{¶ 12} L.A. "opened the door and yelled at appellant. As she walked outside, appellant backed up against the banister and zipped up his pants." Id. at ¶ 21. L.A. attempted to position herself near the stairs to prevent him from leaving, but appellant "vaulted over the banister and ran to a car parked across the street." Id.

{¶ 13} Inside the house, C.A. initially "denied everything, but eventually told L.A. what happened." Id. at ¶ 22. L.A. phoned police and took C.A. to Nationwide Children's Hospital ("Children's Hospital"); L.A. spoke with detectives at the hospital. Officers showed L.A. a photo array, and she picked out an individual from the array. Some of L.A.'s family members were able to utilize the app and obtain the identity of the individual; they gave the name to a police officer that evening, and showed the officer text messages from C.A.'s phone. At trial, L.A. identified appellant as the male she observed on the porch that evening.

{¶ 14} On July 6, 2014, Lauren Moore, a social worker at Children's Hospital, interviewed C.A. During the interview, "C.A. told Moore that she put his 'thing' in her mouth, later clarified as his penis, and C.A. started 'sucking on-sucking it.' " Id. at ¶ 24.

{¶ 15} Appellant, who testified on his own behalf, stated he started using the Badoo app "for dating. I was on there for hooking up." Id. at ¶ 29. He acknowledged messaging back and forth on the app with C.A. Appellant testified that "[a]t first, the conversations were '[j]ust being flirty [a]nd it did lead to sexual conversations a lot.' " Id. at ¶ 30. Appellant denied knowing C.A. was 12 years of age. At one point, C.A. asked appellant " 'Do you want to hook up?' " Id. at ¶ 30. Appellant asked what she meant and, "[a]ccording to appellant, C.A. responded: '[a]re you trying to fuck or not? And I responded with, like, I don't really just jump into sex, but, like, I'm down to explore other things. I'm down to do other things. And I meant, like, sexually, but not intercourse.' " Id.

{¶ 16} Appellant testified that on July 5, 2015, C.A. gave him an address and invited him to " 'come over.' " Id. at ¶ 31. Appellant believed they were going to watch television and " 'that we would have had some form of * * * physicality during that.' " Id.

{¶ 17} Appellant testified that when he walked up to the porch, C.A. was sitting in a chair looking at her phone. Appellant stated that C.A. "got, like, cute and flirty with me, and she was like, [d]o you want me to do it?" Id. at ¶ 34. C.A. then "slid down from the chair onto the ground." Id. C.A. grabbed appellant's right front jeans pocket. Appellant asked if she was going to invite him inside. Appellant testified C.A. stated "[w]hat's wrong with right here? We're alone." Id.

{¶ 18} According to appellant, C.A. was pulling on his jeans pocket while he was holding up his belt; at that moment, "an older woman, that I now know as [L.A.], comes out of the house and is like, [w]hat the fuck are you doing? You know, and she looks at me, and I'm like, [i]s there some kind of a problem? I said, [i]f there is, I don't want any trouble. If there's an issue, I can just leave." Id. at ¶ 35. The woman approached appellant and grabbed his "torso," but he was able to get away from her grasp and jump over the porch banister and go to his car. Id.

{¶ 19} During direct examination, when questioned whether he asked C.A. to perform oral sex, appellant "stated: '[n]o, I didn't. We had talked about it over the phone. I don't know if I could say that it happened that day.' " Id. at ¶ 37. Appellant also "denied that his penis was ever exposed," and he stated that "C.A. 'was lying' about performing oral sex on him." Id.

{¶ 20} Appellant acknowledged that he was convicted of a robbery offense when he was 16 years of age, and was tried as an adult. Appellant "pled guilty to that and received a four-year sentence in prison for robbery." Id. at ¶ 38.

{¶ 21} On cross-examination, appellant testified that he was 24 years of age, and that he was previously convicted of robbery with a weapon. He acknowledged that the Badoo app was "used primarily for individuals to meet and engage in sexual activity." Id. at ¶ 39. When questioned about what messages he sent to C.A., "appellant testified: 'I probably couldn't recall anything exactly, but I definitely was talking about how I would love to, you know, get head from her and that I would love to touch her, I would love to be inside her, things like that.' " Id. He also "acknowledged talking to C.A. about oral sex 'that day.' " Id. When asked if he solicited C.A. for oral sex, "appellant responded: 'I would say yes.' " Id.

{¶ 22} Following deliberations, the jury returned verdicts finding appellant guilty of rape and importuning. The trial court separately found appellant guilty of the repeat violent offender ("RVO") specification. The court sentenced appellant to an indefinite term of 10 years to life imprisonment for rape, an additional consecutive 3-year term for the RVO specification, and 24 months for importuning, with the rape and importuning counts to be served consecutively to each other.

{¶ 23} Appellant timely appealed his conviction, raising four assignments of error. Specifically, appellant argued that: (1) the trial court erred in overruling his hearsay objection to a police officer's testimony about the contents of C.A.'s phone messages, (2) the trial court erred in denying his motion for judgment of acquittal as to the RVO specification, (3) his convictions were against the manifest weight of the evidence, and (4) the trial court's aggregated prison sentence was contrary to law. In Petty , this court overruled appellant's first, second, and third assignments of error.

{¶ 24} With respect to his fourth assignment of error, challenging the trial court's sentence, this court rejected appellant's contentions the trial court erred by failing to merge the rape and importuning counts and in sentencing him to a term of 10 years to life on the rape count. We further determined, however, that the trial court failed to make requisite findings under R.C. 2929.14(C) for the imposition of consecutive sentences. Thus, while affirming the convictions, this court remanded the matter for the trial court to consider whether consecutive sentences were appropriate under the statute and, if so, to make the appropriate findings on the record at the sentencing hearing and to incorporate those findings into its sentencing entry.

{¶ 25} On April 26, 2017, the trial court conducted a resentencing hearing. On May 2, 2017, the trial court filed a judgment entry imposing an indefinite term of 10 years to life imprisonment for count one (rape), and a 24-month sentence for count two (importuning), as well as an additional 3-year consecutive term of imprisonment for the RVO specification. The court ordered counts one and two to be served consecutively to each other, as well as consecutively to appellant's prior sentence in case No. 14CR-1733.

{¶ 26} On appeal, appellant raises the following assignment of error for this court's review:

Defendant-Appellant's aggregated prison sentence is clearly and convincingly contrary to law and/or the product of an abuse of discretion by the trial court.

{¶ 27} Under his single assignment of error, appellant argues the trial court's imposition of consecutive sentences was contrary to law and constituted an abuse of discretion. Appellant contends the trial court failed to consider the statutory factor of proportionality when it imposed the 24-month sentence for count two (importuning) to run consecutive to both the rape sentence and the RVO specification. According to appellant, the trial court erred when it failed to state any findings as to why the imposition of an additional two years on the importuning charge was necessary and not disproportionate.

{¶ 28} At the outset, we note appellant's contention that the trial court's imposition of consecutive sentences constituted an abuse of discretion misstates the applicable standard of review. An appellate court reviews a sentence imposed by a trial court "under the standard of review set forth in R.C. 2953.08(G)(2), which governs all felony sentences." State v. Kaaz , 12th Dist. No. CA2016-05-010, 2017-Ohio-5669, 2017 WL 2838397, ¶ 92, citing State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Pursuant to the provisions of R.C. 2953.08(G)(2), "an appellate court does not review the sentencing court's decision for an abuse of discretion." Id. , citing Marcum at ¶ 10. Instead, " R.C. 2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the appellate court finds by clear and convincing evidence that 'the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law.' " Id. , quoting Marcum at ¶ 1.

{¶ 29} Under Ohio law, "[a] sentence is not clearly and convincingly contrary to law where trial court 'considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within the permissible statutory range.' " Id. at ¶ 93, quoting State v. Julious , 12th Dist. No. CA2015-12-224, 2016-Ohio-4822, 2016 WL 3595688, ¶ 8. A trial court's imposition of a consecutive sentence is contrary to law where the court "fails to make the consecutive sentencing findings as required by R.C. 2929.14(C)(4)." Id. at ¶ 94, citing State v. Marshall , 12th Dist. No. CA2013-05-042, 2013-Ohio-5092, 2013 WL 6063390, ¶ 8.

{¶ 30} R.C. 2929.14(C)(4) states as follows:

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 31} Thus, the above provisions require a trial court to make three findings before imposing consecutive sentences: "(1) that consecutive sentences are necessary to protect the public from the future crime or to punish the offender; (2) that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public; and (3) that one of the subsections (a), (b), or (c) apply." State v. Roush , 10th Dist. No. 12AP-201, 2013-Ohio-3162, 2013 WL 3808173, ¶ 76.

{¶ 32} In State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus, the Supreme Court of Ohio held: "In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings." Further, "a word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld." Id. at ¶ 29.

{¶ 33} At the resentencing hearing in this case, the trial court stated in part the following:

This Court finds that consecutive sentences are necessary to protect the public from future crime and to punish the offender.
Consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, finding that the Defendant, Mr. Petty, was out on bond in Case No. 1733 when the offense in 3744 occurred.
The Court also notes that the harm caused by these multiple offenses, the rape and the importuning, was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of Mr. Petty's conduct.
Finally, the Court notes, in support of its decision to impose consecutive sentences on these two counts, that the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender, noting Mr. Petty's prior conviction for aggravated robbery, as a felony of the first degree.
In support of these consecutive sentences, specifically the Court notes the Defendant's prior conviction for aggravated robbery; that he failed to respond favorably in the past to a sanction imposed for criminal convictions; and that the injury to the victim in 3744 of both crimes, separate crimes, which required separate animus and are complete crimes in and of themselves, those injuries were serious, psychological injuries.

(Apr. 26, 2017 Tr. at 16-17.)

{¶ 34} On review, the record indicates the trial court engaged in the proper analysis regarding the issue of proportionality. As set forth above, the trial court specifically found that "[c]onsecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, finding that the Defendant, Mr. Petty, was out on bond in Case No. 1733 when the offense in 3744 occurred." (Apr. 26, 2017 Tr. at 16.) In addition to finding that consecutive sentences were necessary to protect the public from future crime and to punish the offender, and that consecutive sentences were not disproportionate to the seriousness of the offender's conduct and to the danger he posed to the public, the trial court also made the third requisite finding as to whether at least one of the factors under R.C. 2929.14(C)(4), subsection (a), (b) or (c), was applicable.

{¶ 35} As noted by plaintiff-appellee, State of Ohio, the trial court made findings as to the applicability of all three of the factors listed under those subsections. Specifically, the trial court found (pursuant to R.C. 2929.14(C)(4)(a) ) that appellant "was out on bond in Case No. 1733 when the offense in 3744 occurred"; further, the court found (pursuant to R.C. 2929.14(C)(4)(b) ) "the harm caused by these multiple offenses, the rape and the importuning, was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of Mr. Petty's conduct," and that (pursuant to R.C. 2929.14(C)(4)(c) ) appellant's "history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from further crime by the offender, noting Mr. Petty's prior conviction for aggravated robbery, as a felony of the first degree." (Apr. 26, 2017 Tr. at 16-17.)

{¶ 36} During the hearing, the trial court also cited appellant's "prior conviction for aggravated robbery; that he failed to respond favorably in the past to a sanction imposed for criminal convictions; and that the injury to the victim in 3744 of both crimes, separate crimes, which required separate animus and are complete crimes in and of themselves, those injuries were serious, psychological injuries." (Apr. 26, 2017 Tr. at 17.)

{¶ 37} Appellant raises an argument related to the trial court's finding under R.C. 2929.14(C)(4)(b), asserting the trial court should not have imposed consecutive sentences because, according to appellant, the rape and importuning offenses were "part of the same course of conduct." Appellant, in essence, raises a merger argument.

{¶ 38} We note that, in his direct appeal, appellant raised a similar argument; specifically, that the trial court erred in not merging the rape and importuning counts based on his contention that "since force was not involved, the importuning was a natural part of the rape because the offenses were committed with the same animus, or a desire for sex, and the harm from each offense was not separate and identifiable from the harm of the other offense." Petty at ¶ 72. This court rejected appellant's argument, finding that the offenses were based on "separate conduct." Id. at ¶ 77. On this point, we determined that "appellant committed the rape when he engaged in sexual conduct with C.A.," while "[t]he act of seeking, asking, influencing, inviting, tempting, or pressuring [i.e., importuning] was complete before any sexual conduct or sexual contact occurred." Id. at ¶ 78. This court further held that "these two offenses involve separate harms, and, therefore, are not allied offenses." Id. at ¶ 79. Accordingly, appellant's assertion the trial court erred in failing to impose concurrent sentences on the basis that the offenses were part of the same course of conduct is not persuasive.

{¶ 39} Nor do we find persuasive appellant's contention the trial court erred in failing to consider the fact he was 16 years of age at the time of the offense giving rise to the RVO specification. As noted by the state, appellant was bound over to the adult court (in 2008) prior to being convicted of aggravated robbery with a firearm specification.

{¶ 40} A review of the record in this case indicates the trial court made the requisite findings under R.C. 2929.14(C)(4), and we note the trial court incorporated its findings into the post-remand judgment entry. Further, the record does not show clearly and convincingly that the trial court's findings are unsupported by the record or the sentence is otherwise contrary to law.

{¶ 41} Based on the foregoing, appellant's single assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.

Judgment affirmed.

TYACK, P.J., and LUPER SCHUSTER, J., concur.

      In Franklin C.P. No. 14CR-1733, appellant entered a guilty plea and was sentenced on two counts of aggravated burglary (including a firearm specification attached to one of the counts) and one count of intimidation of a witness.


source: Caselaw Access Project

author: MARY J. BOYLE, J.:

license: Public Domain

text:
    Leonard CLARK, Plaintiff-Appellee v. OHIO DEPARTMENT OF JOB AND FAMILY SERVICES, Defendant-Appellant
    No. 105642
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
    Michael DeWine, Ohio Attorney General, BY: Theresa Hanna, Assistant Attorney General, Health & Human Services Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215, ATTORNEYS FOR APPELLANT
    Michael Siegert, Kennedy, PC Law Offices, P.O. Box 96, Houston, Pennsylvania 15342, ATTORNEY FOR APPELLEE
    BEFORE: Boyle, J., McCormack, P.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Defendant-appellant, Ohio Department of Job and Family Services ("ODJFS"), appeals from the Cuyahoga County Common Pleas Court's decision remanding an administrative appeal by plaintiff-appellee, Leonard Clark. On appeal, ODJFS raises one assignment of error for our review:

Because Mr. Clark's agency-level appeal request was untimely, the lower court erred by failing to either affirm the Administrative Appeal Decision, which dismissed Mr. Clark's administrative appeal request, or dismiss Mr. Clark's appeal to court for failure to exhaust administrative remedies.

{¶ 2} We find merit to ODJFS's assignment of error and reverse and remand for the common pleas court to dismiss Clark's appeal.

I. Procedural History and Factual Background

{¶ 3} Clark applied for Medicaid benefits with ODJFS in February 2015. Clark was a resident of Walton Manor, a nursing home, and sought the benefits to pay for the cost of care. On June 8, 2015, however, ODJFS denied Clark's application, finding that his resources exceeded the maximum allowed for eligibility. Clark appealed ODJFS's denial, but ODJFS overruled Clark's appeal on September 1, 2015. Attached to ODJFS's state hearing decision was a notice, explaining the decision as well as the formal steps that Clark needed to take if he disagreed with the decision and wanted to file an appeal. Specifically, the notice stated, "Your written request must be received by the Bureau of State Hearings within 15 calendar days from the mailing date of this notice."

{¶ 4} After the hearing, but before the appeal deadline passed, the nursing facility policy administrator for the Ohio Department of Medicaid, Cheryl Guyman, emailed Walton Manor, informing the staff member in charge of Clark's case that ODJFS's denial of benefits was improper. Guyman stated, "The hearing officer is not basing his decision on the most recent CMS guidance which is in the State Medical Director Letters. You need to request an Administrative Appeal Request by email or phone." Unfortunately, when the staff member tried to forward this information to Clark's attorney, she sent it to the incorrect email address. As a result, Clark's attorney did not receive it until September 18, 2015. Upon receiving this information, Clark's counsel and Walton Manor appealed the administrative decision on behalf of Clark on September 18, 2015.

{¶ 5} On September 22, 2015, ODJFS dismissed Clark's request as untimely. Clark appealed to the Cuyahoga County Court of Common Pleas, contesting the dismissal as error. The court determined that Clark's "request for an administrative appeal with the Ohio Department of Job and Family Services was improperly denied as being untimely" and remanded the appeal to ODJFS for a hearing on the merits in accordance with the correct eligibility criteria. On April 6, 2017, ODJFS appealed the lower court's decision to this court.

II. Law and Analysis

A. Standard of Review

{¶ 6} "[A] recipient of assistance from a family services program may appeal a decision of the ODJFS to the common pleas court, pursuant to R.C. 119.12." Grill v. Ohio Dept. of Job & Family Servs. , 9th Dist. Summit No. 03CA0029-M, 2003-Ohio-5780, 2003 WL 22439752, ¶ 12 (" Grill I "). R.C. 119.12, which governs administrative-agency appeals, states that "the court may affirm the order of the agency complained of in the appeal it if finds, upon consideration of the entire record * * * that the order is supported by reliable, probative, and substantial evidence[.]"

{¶ 7} If a party appeals the common pleas court's judgment, the appellate court "review[s] and determine[s] the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative, and substantial evidence in the entire record." R.C. 119.12(M). On appeal, we determine "only whether the trial court abused its discretion." Brown v. Ohio Dept. of Job & Family Servs. , 8th Dist. Cuyahoga No. 92008, 2009-Ohio-1096, 2009 WL 633690, ¶ 11, citing Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 614 N.E.2d 748 (1993) ; see also Notarian v. Ohio Dept. of Human Servs. , 8th Dist. Cuyahoga No. 77032, 2000 WL 1738351, *2-3 (Nov. 22, 2000) ; Grill I at ¶ 16.

B. Timeliness of Clark's Appeal

{¶ 8} ODJFS argues that the common pleas court erred when it found that Clark timely appealed ODJFS's denial of his Medicaid benefits. In response, although not raised in his brief, Clark argued at oral argument that, while his appeal was untimely, Ohio Adm.Code 5101:6-8-01(E)(1) gives ODJFS the discretion to accept untimely filed administrative appeals.

{¶ 9} Ohio Adm.Code 5101:6-8-01(C)(4) states that a request for an administrative appeal "must be received by the office of legal services, ODJFS, within fifteen calendar days from the date the decision being appealed was issued." "[T]he Ohio Supreme Court has established that the deadline is 15 days and there is no ability to construe [the statute] liberally." B.B. v. Ohio Dept. of Job & Family Servs. , 9th Dist. Summit No. 22218, 2005-Ohio-340, 2005 WL 236184, ¶ 10, citing Nibert v. Ohio Dept. of Rehab & Corr. , 84 Ohio St.3d 100, 702 N.E.2d 70 (1998). The Ninth District Court of Appeals has held that Ohio Adm.Code 5101:6-8-01(C)(4) requires strict compliance. See B.B. at ¶ 10 (affirming the dismissal of appellant's administrative appeal because the agency received their request one day after the deadline); Grill v. Ohio Dept. of Job & Family Servs., 9th Dist. Summit No. 02CA0039-M, 2003-Ohio-1139, 2003 WL 1041343, ¶ 23 (" Grill II ") (reversing the common pleas court's remand because the appellee's request was received three days late).

{¶ 10} Yet, as Clark correctly pointed out at oral argument, Ohio Adm.Code 5101:6-8-01(E)(1)(c) provides that "[a]n administrative appeal request may be dismissed because * * * [i]t is not timely, as defined by paragraph (C)(4)." In other words, ODJFS has the discretion to dismiss or not dismiss an appeal filed after the 15-day deadline.

{¶ 11} Corresponding with that point, Clark argues that subsections (C)(4) and (E)(1) create a conflict that must be resolved in his favor. A similar argument was raised in Stoyer v. Ohio Dept. of Job & Family Servs. , 10th Dist. Franklin No. 08AP-1118, 2009-Ohio-2658, 2009 WL 1637684. There, the Tenth District Court of Appeals reviewed a nearly identical case, where the appellant appealed ODJFS's decision one day after the 15-day deadline. ODJFS dismissed the appeal as untimely and, on appeal, the common pleas court affirmed the dismissal. On review, the Tenth District noted that "[t]he Ninth District Court of Appeals has concluded that if the request is even one day late * * * the appeal must be dismissed." Id. at ¶ 9, citing Grill II, 9th Dist. Summit No. 02CA0039-M, 2003-Ohio-1139, 2003 WL 1041343, and B.B. The Tenth District noted, however, that Ohio Adm.Code 5101:6-8-01(C)(4) and (E)(1), "when read in conjunction[,]" may infer "that timeliness of the request is within the sound discretion of the agency." Id. at ¶ 11. Nevertheless, the Tenth District ultimately found that "it [was] uncontested that Stoyer did not mail his notice until after the time period had run." As a result, the court concluded "that the court of common pleas did not abuse its discretion in affirming the dismissal." Id.

{¶ 12} Subsection (C)(4) requires that ODJFS receive an administrative appeal within 15 days after the decision being appealed. Subsection (E)(1) gives ODJFS the discretion to dismiss an appeal if it does not comply with subsection (C)(4)'s requirements. Those two provisions do not conflict-one defines the time limits of appealing an administrative decision, and the other governs ODJFS's power to accept or dismiss an appeal based on the timeliness or lack thereof.

{¶ 13} While Stoyer is instructive, we reach a different conclusion when applying Ohio Adm.Code 5101:6-8-01(C)(4) and (E)(1) to the facts of this case. Because the state hearing decision was issued on September 1, 2015, the Bureau of State Hearings had to receive Clark's request for an appeal by September 16, 2015. The evidence makes it clear-and the parties agree-that ODJFS did not receive Clark's request for an administrative appeal until September 18, 2015, two days after the September 16, 2015 deadline. Like Stoyer , Clark filed his administrative appeal after the deadline and ODJFS dismissed his appeal. Unlike Stoyer , however, the common pleas court in this case found that ODJFS's dismissal was not supported by reliable, probative, and substantial evidence and that Clark's appeal was timely. While the facts of this case certainly evoke sympathy for Clark, the evidence shows that his appeal was late, and under Ohio Adm.Code 5101:6-8-01, ODJFS's dismissal based on that late filing was a permissible use of its discretion. Further, our review is limited to the common pleas court decision finding ODJFS's dismissal as improper, and in light of the evidence presented, it is clear that the common pleas court abused its discretion.

C. Mistaken Good Faith

{¶ 14} In his brief, Clark also argues that his appeal was filed untimely because of the hearing officer's good-faith mistake and his representative's clerical error, and therefore, he should not be penalized. Although Clark's representative, not Clark, sent the request in late, that mistake is imputed to Clark. See Faulkner v. Integrated Servs. Network, Inc. , 8th Dist. Cuyahoga Nos. 81877 and 83083, 2003-Ohio-6474, 2003 WL 22861771, ¶ 22, citing GTE Automatic Elec., Inc. v. ARC Industries, Inc. , 47 Ohio St.2d 146, 351 N.E.2d 113 (1976) ("Ohio law recognizes that an attorney's neglect is imputed to his client."); In re Malone , 10th Dist. Franklin No. 03AP-489, 2003-Ohio-7156, 2003 WL 23024377, ¶ 31, quoting Weiss v. Indus. Comm. , 65 Ohio St.3d 470, 605 N.E.2d 37 (1992) ("The failure of an attorney to file a timely pleading 'should be imputed to the client.' "). Further, the late filing by Clark's representative does not constitute excusable neglect, which, when properly proven, excuses a party's critical mistakes. In re Malone , 10th Dist. Franklin No. 03AP-489, 2003-Ohio-7156, 2003 WL 23024377, ¶ 30 ("Attorney ignorance as to the filing deadlines provided under the court rules is insufficient to constitute excusable neglect[.]").

{¶ 15} All of this being said, this case is nothing short of unfair and dismaying. While we understand ODJFS's position on the appeal before us, we are nonetheless troubled by the fact that ODJFS exercised its discretion to dismiss Clark's appeal on a technicality instead of reviewing its prior decision that raised serious alarm within the Ohio Department of Medicaid.

{¶ 16} The Medicaid program was established to provide "federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons." Harris v. McRae , 448 U.S. 297, 301, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). In Ohio, ODJFS is assigned to supervise Medicaid. Rodefer v. McCarthy , 2015-Ohio-3052, 36 N.E.3d 221, ¶ 34. In this case, ODJFS has left Clark, a person in need seeking financial assistance for his medical treatment, without a reliable method of paying for his medical care. While, unfortunately, our hands are tied, and we are left with no other option but to sustain ODJFS's assignment of error, there are no winners in this case.

{¶ 17} ODJFS's assignment of error is sustained, and the judgment of the Cuyahoga County Court of Common Pleas is reversed. This case is remanded to the lower court to affirm ODJFS's dismissal of Clark's administrative appeal.

TIM McCORMACK, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      The administrative-appeal process is explained in Rodefer v. McCarthy , 2015-Ohio-3052, 36 N.E.3d 221, ¶ 35 : "R.C. 5101.35 authorizes an administrative appeal from the ODJFS decision. An appellant is first entitled to a state hearing by the ODJFS. R.C. 5101.35(B). That decision may be appealed to the director of the ODJFS. R.C. 5101.35(C). An appellant who disagrees with the administrative appeal decision of the director (or the director's designee) may appeal the decision to the court of common pleas, pursuant to R.C. 119.12. R.C. 5101.35(E)." See also George v. Ohio Dept. of Human Services , 10th Dist. Franklin No. 04AP-351, 2005-Ohio-2292, 2005 WL 1109658, ¶ 32.

      ODJFS also filed a motion to stay execution of the lower court's judgment pending appeal, and the lower court granted the motion.

      "[T]he statute requires receipt and merely depositing the request in the mail is not the same thing." B.B. at ¶ 10, citing Townsend v. Bd. of Bldg. Appeals , 49 Ohio App.2d 402, 361 N.E.2d 271 (9th Dist.1976). Therefore, "the request must be received within 15 days, or else be dismissed." B.B. at ¶ 6, citing Grill I.


author: WELBAUM, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR the REGISTERED HOLDERS OF GE COMMERCIAL MORTGAGE CORPORATION, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C1, Acting By and Through its Special Servicer, LNR Partners, LLC, Plaintiff-Appellee v. COURTHOUSE CROSSING ACQUISITIONS, LLC, et al., Defendants-Appellants
    No. 27648
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on December 22, 2017
    JAMES P. BOTTI, Atty. Reg. No. 0023051, and JARED M. KLAUS, Atty. Reg. No. 0087780, 41 South High Street, Suite 3100, Columbus, Ohio 43215, Attorneys for Plaintiff-Appellee
    TAMI HART KIRBY, Atty. Reg. No. 0078473, 1 South Main Street, Suite 1600, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee
    ROBERT R. KRACHT, Atty. Reg. No. 0025574, CHARLES J. PAWLUKIEWICZ, Atty. Reg. No. 0011499, and NICHOLAS R. OLESKI, Atty. Reg. No. 0095808, 101 West Prospect Avenue, Suite 1800, Cleveland, Ohio 44115, Attorneys for Defendants-Appellants
   WELBAUM, J.

{¶ 1} In this case, Defendants-Appellants, Courthouse Crossing Acquisitions, LLC and Schon C.C. Holdings (collectively, "Crossing") appeal from a summary judgment rendered in favor of Plaintiff-Appellee, U.S. Bank National Association, as Trustee for the Registered Holders of GE Commercial Mortgage Corporation, Commercial Mortgage Passthrough Certificates, Series 2006-C1, acting by and through Its Special Servicer, LNR Partners, LLC ("U.S. Bank"). Crossing contends that the trial court erred in granting summary judgment in favor of U.S. Bank because there are genuine issues of material fact concerning whether U.S. Bank is the holder of a promissory note, and with respect to how the original lender transferred the note to U.S. Bank.

{¶ 2} We conclude that the trial court did not err in rendering summary judgment in favor of U.S. Bank. There were no genuine issues of material fact concerning whether the bank was the holder of the promissory note, or how the original lender transferred the note. In addition, Crossing was precluded from asserting alleged failure to comply with a services and pooling agreement that purportedly involved the note, because Crossing was a third party to the agreement. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In October 2016, U.S. Bank filed a foreclosure action against Courthouse Crossing Acquisition, LLC, Schon C.C. Holding, and the Montgomery County Treasurer. The complaint alleged that U.S. Bank held a $12,700,000 promissory note that Crossing had signed, as well as a mortgage and security agreement on premises located at 10 North Ludlow Street, Dayton, Ohio. In addition, the complaint alleged that U.S. Bank owned security interests in Crossing's personal property due to UCC-1 financing statements filed with the State of Ohio and Montgomery County, Ohio.

{¶ 4} U.S. Bank also filed a motion for appointment of a receiver, which was granted in November 2016. Crossing has also appealed that decision. See U.S. Bank National Assn. v. Courthouse Crossing Acquisitions LLC , 2d Dist. Montgomery No. 27331, 2017 WL 6550470.

{¶ 5} In November 2016, Crossing filed a motion to dismiss the complaint, based on alleged lack of jurisdiction. The trial court overruled this motion in January 2017. Subsequently, U.S. Bank filed a motion for summary judgment in March 2017. The motion was supported by the affidavit of Dmitry Sulsky, asset manager of LNR Partners, which was the special servicer for the loan held by U.S. Bank. On April 5, 2017, the trial court granted Crossing's motion for an extension of time under Civ.R. 56(F), and extended the time for responding to May 22, 2017. Crossing filed a brief in response to the summary judgment motion on May 22, 2017. The brief was supported by the affidavit of Crossing's counsel, who identified various documents obtained in discovery as well as excerpts from a form 8-K that had been filed with the Securities and Exchange Commission ("SEC").

{¶ 6} In mid-June 2017, the trial court granted U.S. Bank's Motion for Summary Judgment. The court then filed a judgment entry issuing a foreclosure decree on July 29, 2017. This appeal followed.

II. Alleged Error in Rendering Summary Judgment

{¶ 7} Crossing's sole assignment of error states that:

The Trial Court Erred as a Matter of Law When It Granted U.S. Bank's Motion for Summary Judgment.

{¶ 8} Under this assignment of error, Crossing contends that the trial court erred in rending summary judgment in favor of U.S. Bank because there were genuine issues of material fact concerning whether U.S. Bank is a holder of the Crossing promissory note. Crossing's argument is based on the existence of a Pooling and Servicing Agreement ("PSA") that pertained to the Series 2006-C1 Trust ("Trust").

{¶ 9} According to Crossing, the PSA required the Depositor (identified as GE Commercial Mortgage Corporation, or "GE") to assign various loans, including Crossing's loan, to the Trust. Crossing further notes that an entity called German American Capital Corporation ("GACC") "purportedly" sold Crossing's loan to GE. Crossing states that U.S. Bank failed to produce any evidence that the original lender, Deutsche Bank Mortgage Capital, LLC ("Deutsche"), sold its rights in the note and mortgage to GACC, so that GACC then had rights to sell to GE. Based on these alleged facts, Crossing argues that there are genuine issues of material fact concerning the chain of title. The trial court rejected this argument, noting that Crossing was not a party to the assignments of the notes and mortgage, and lacked standing to challenge their validity.

{¶ 10} "A trial court may grant a moving party summary judgment pursuant to Civ. R. 56 if there are no genuine issues of material fact remaining to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor." Smith v. Five Rivers MetroParks , 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist.1999), citing Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). "We review decisions granting summary judgment de novo, which means that we apply the same standards as the trial court." (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co. , 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

{¶ 11} When a mortgagor defaults, a mortgagee "may elect among separate and independent remedies to collect the debt secured by a mortgage." (Citations omitted.) Deutsche Bank Natl. Tr. Co. v. Holden , 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d 1243, ¶ 21. These remedies include: (1) suits seeking personal judgments against mortgagors to recover amounts due on promissory notes, without resorting to the property that has been mortgaged; (2) actions to enforce mortgages, which are for the mortgagee's excusive benefit and for those claiming under the mortgagee; and (3) "based on the property interest created by the mortgagor's default on the mortgage, the mortgagee may bring a foreclosure action to cut off the mortgagor's right of redemption, determine the existence and extent of the mortgage lien, and have the mortgaged property sold for its satisfaction." (Citations omitted.) Id. at ¶ 22-24.

{¶ 12} The case before us involves the third remedy, which is a foreclosure action asking that the property be sold. However, a " 'foreclosure proceeding is the enforcement of a debt obligation,' * * * and the debt is established by the note." Id. at ¶ 27, quoting Wilborn v. Bank One Corp. , 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, at ¶ 17. In Holden , the court concluded that a bank could proceed in foreclosure against a debtor who had been discharged from any obligation on a promissory note in bankruptcy proceedings, so long as the bank could prove that "it is the party entitled to enforce the note-regardless of whether it can obtain a personal judgment on it against the [obligors]." Holden at ¶ 27.

{¶ 13} " 'To properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due.' " Nationstar Mtge., L.L.C. v. West , 2d Dist. Montgomery Nos. 25813, 2014-Ohio-735, 2014 WL 820008, ¶ 16, quoting Wright-Patt Credit Union, Inc. v. Byington , 6th Dist. Erie No. E-12-002, 2013-Ohio-3963, 2013 WL 5211503, ¶ 10. (Other citations omitted.)

{¶ 14} U.S. Bank presented such materials, by authenticating the various documents attached to the complaint. The promissory note, which is dated February 23, 2006, was originally entered into by Deutsche and Crossing. It required Crossing to pay Deutsche and Deutsche's "successors and/or assigns" $12,700,000. Doc. # 51, March 20, 2017 Sulsky Affidavit, Ex. 1, Promissory Note, p. 1. The payments were to be made in various installments, with the balance of the "principal sum and all accrued and unpaid interest" to be paid on March 1, 2016. Id.

{¶ 15} The promissory note also referenced an open-end leasehold mortgage and security agreement which was being used to secure the obligations evidenced in the promissory note. Id. at p. 2. Consistently, the mortgage and security agreement referenced the promissory note. See Sulsky Affidavit, ¶ 6-7 and Ex. 2 attached to the affidavit, p. 2.

{¶ 16} Another Sulsky affidavit, attached to U.S. Bank's motion for appointment of a receiver, stated that U.S. Bank was the owner and holder of the promissory note, the mortgage and security agreement, and an assignment of rents and leases that were attached to the Complaint and that Crossing had executed on February 23, 2006, to secure the $12,700,000 loan. October 7, 2016 Affidavit of Dmitry Sulsky, ¶ 2-3, attached to Doc. # 7 in 2d Dist. Montgomery App. Case No. 27331, and identifying the copies of the note and mortgage attached to the Complaint.

{¶ 17} Sulsky further stated in his summary judgment affidavit that after the note was delivered to Deutsche, it was first assigned and transferred by Deutsche to LaSalle Bank National Association ("LaSalle"), as trustee for the Trust, pursuant to an allonge that was attached to the note. Doc. # 51, March 20, 2017 Sulsky Affidavit, ¶ 4-5. LaSalle then assigned and transferred the note to Wells Fargo Bank, N.A. ("Wells Fargo"), as trustee for the Trust, again through an allonge. Id. at ¶ 5. Finally, Wells Fargo assigned and transferred the note to U.S. Bank, through an allonge. Id. Copies of the note and the allonges were attached both to the complaint and summary judgment motion, and the note was in U.S. Bank's possession at these times.

{¶ 18} Sulsky further stated that the original mortgage for the Crossing property was recorded on February 24, 2006, with the Montgomery County, Ohio Recorder's Office. March 20, 2017 Sulsky Affidavit, ¶ 7, and Ex. 2 to the Sulsky Affidavit. Consistent with the above assignments and transfers of the note, Deutsche assigned the mortgage to LaSalle; LaSalle then assigned the mortgage to Wells Fargo; and finally, Wells Fargo assigned the mortgage to U.S. Bank. These assignments were recorded, respectively, on April 10, 2006, July 22, 2008, and October 8, 2009, and were attached to the Complaint and to Sulsky's affidavit. March 20, 2017 Sulsky Affidavit, ¶ 8; Complaint, Exs. C-E; Sulsky Affidavit, Exs. 3-5.

{¶ 19} The UCC-1 financing statements, which were also assigned and transferred, with the final transfer being to U.S. Bank, were identified and attached both to the Complaint and to Sulsky's affidavit. March 20, 2017 Sulsky Affidavit, ¶ 10-15; Complaint, Ex. F; Sulsky Affidavit, Ex. 6.

{¶ 20} In the case before us, no one disputes that the promissory note was a negotiable instrument. Under R.C. 1303.31(A), the parties entitled to enforce a negotiable instrument are: "(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."

{¶ 21} A "holder" " 'means either of the following: (a) If the instrument is payable to the bearer, a person who is in possession of the instrument; (b) If the instrument is payable to an identified person, the identified person when in possession of the instrument.' " Flagstar Bank, F.S.B. v. Richison , 3d Dist. Union No. 14-12-01, 2012-Ohio-3198, 2012 WL 2877403, ¶ 15, quoting R.C. 1301.01(T)(1)(a) and (b). In this case, U.S. Bank was a "holder," because it was in possession of a negotiable instrument that was made payable to an identified person (U.S. Bank).

{¶ 22} Crossing concedes that U.S. Bank is in possession of the original note and allonges. Crossing Brief, p. 7. However, Crossing contends that U.S. Bank is not entitled to enforce the note because of defects in the chain of title. In this regard, Crossing relies on the fact that the "Note and Mortgage were purportedly part of a securitization whereby New York investment bankers and commercial banks pooled together large numbers of commercial mortgage loans, where the loans were to be sold to a depositor, and this depositor was to then deposit the mortgage loans in the common law trust * * *." (Emphasis added.) Id. at p.9.

{¶ 23} As an initial point, "purported" facts are not facts for purposes of summary judgment. In opposing summary judgment, Crossing submitted only the affidavit of its attorney, who identified various documents and photos of documents he had obtained. Some documents, including a copy of an unsigned allonge, were obtained when the attorney reviewed U.S. Bank's trust file. Other documents were excerpts from "Form 8-K related to GE Commercial Mortgage Corporation, Series 2006-C1 from the Securities Exchange Commission." Doc. # 57, Affidavit of Nicholas R. Oleski, ¶ 4. The excerpts included parts of a Pooling and Services Agreement and a Mortgage Loan Purchase and Sale Agreement between GE and GACC. Id. at ¶ 5-6, referring to Exs. F and G.

{¶ 24} Ex. E is designated by Oleski's affidavit as the SEC certification page, but it contains some additional pages. One of these pages is entitled "Current Report"

and is dated March 23, 2006. The report indicates that on March 23, 2006, a series of mortgage-based pass-through certificates were issued based on a PSA that was dated March 1, 2006. The parties to the PSA were GE, Wachovia Bank, National Association, LNR Partners, Inc., and LaSalle Bank, National Association. These parties were designated, respectively, as the depositor or registrant, the servicer, the special servicer, and trustee.

{¶ 25} According to the report, the certificates "evidence in the aggregate the entire beneficial interest in a trust fund * * * consisting primarily of 145 commercial or multifamily mortgage loans * * * having an aggregate principal balance as of the Cut-Off Date of approximately $1,608,803,744." Ex. E, p. 4, Item 8.01. Among the properties listed in the Mortgage Loan Schedule for the Series 2006-C1 Trust is Courthouse Crossing, 10 Ludlow Street. See Ex. G attached to the Oleski Affidavit, Mortgage Loan and Purchase Agreement, and Ex. A attached to the Mortgage Loan and Purchase Agreement, p.1.

{¶ 26} The point of Crossing's argument is that the chain of title is defective because it does not include the entities mentioned in the PSA and does not follow the chain of assignments that the PSA contemplates. One might glean from this a variety of possibilities, including that the registrant (GE) may have incorrectly represented assets that were not actually in the fund at the time of the SEC submission; that the entities involved may not have complied with the PSA and may not have transferred the assets into the fund as required by the document; that the loans were not actually transferred into the trust yet, but were later transferred; or that the loans had been conveyed at some point to the trust.

{¶ 27} None of the materials submitted by Crossing offer any illumination concerning these possibilities, or perhaps others, except two letters. The first is a letter dated February 28, 2006, from Deutsche (the original lender) to LaSalle, sending LaSalle the original promissory note for the Crossing loan. The second is a letter dated May 15, 2006, from a legal assistant for Deutsche to LaSalle, transmitting the necessary assignments for the Crossing loan documents, including the mortgage, assignment of rents, and UCC-3 filings. These documents indicate a direct transmission of the pertinent materials, including the promissory note, from Deutsche to LaSalle, all of which supports U.S. Bank's position concerning the transfer of the promissory note. And, there is nothing indicating otherwise.

{¶ 28} As was noted, the trial court rejected Crossing's argument based on existing authority in this district. See Doc. # 61, Decision, Order and Entry Granting Plaintiff's Motion for Summary Judgment, p. 9 and fn. 26, citing Bank of New York Mellon v. Clancy , 2d Dist. Montgomery No. 25823, 2014-Ohio-1975, 2014 WL 1887719.

{¶ 29} In Clancy , the party challenging the validity of a note and mortgage argued that the mortgage had been conveyed in violation of a trust. Id. at ¶ 10. We concluded that "even if the mortgage had been conveyed in violation of the trust, courts in Ohio have held that 'because a debtor is not a party to the assignment of a note and mortgage, the debtor lacks standing to challenge their validity.' " Id. at ¶ 33, quoting Deutsche Bank Natl. Trust Co. v. Whiteman , 10th Dist. Franklin No. 12AP-536, 2013-Ohio-1636, 2013 WL 1749665, ¶ 16 ; which in turn, cited LSF6 Mercury REO Invests. Trust Series 2008-1 c/o Vericrest Fin., Inc. v. Locke , 10th Dist. Franklin No. 11AP-757, 2012-Ohio-4499, 2012 WL 4502457, ¶ 28-29. We also cited Bank of New York Mellon Trust Co. v. Unger , 8th Dist. Cuyahoga No. 97315, 2012-Ohio-1950, 2012 WL 1567192, ¶ 35 ; and HSBC Bank USA v. Sherman , 1st Dist. Hamilton No. C-120302, 2013-Ohio-4220, 2013 WL 5436540, ¶ 21.

{¶ 30} We noted that the reasoning in these cases was "that the 'mortgage assignments did not alter the [debtors'] obligations under the note or mortgage. [The plaintiff] filed the foreclosure complaint based on the [debtors'] default under the note and mortgage, not because of the mortgage assignments. The [debtors'] default exposed them to foreclosure regardless of the party who actually proceeds with foreclosure. The [debtors], therefore, failed to show they suffered or will suffer any injury, the injury is traceable to the mortgage, and it is likely a favorable decision will remedy the injury.' " Clancy at ¶ 34, quoting Unger at ¶ 35.

{¶ 31} In Unger , the court also rejected the debtors' contention that because they did not know the identity of the true holder, they might have to make multiple payments to multiple parties who could seek foreclosure. Id. at ¶ 38. The court stated that "[c]ontrary to this assertion, [the debtors] are not at risk of paying twice because a creditor must establish the right to the note based on possession and proper chain of assignment. * * * Furthermore, 'if a maker makes a payment to a "person entitled to enforce", the obligation is satisfied on a dollar for dollar basis, and the maker never has to pay that amount again.' " Id. , quoting In re Veal , 450 B.R. 897, 911, n. 22 (B.A.P. 9th Cir.2011). (Other citation omitted.)

{¶ 32} We have also made the same observations. See Deutsche Bank Tr. Co. Americas v. Ziegler , 2d Dist. Montgomery No. 26287, 2015-Ohio-1586, 2015 WL 1876178, ¶ 37 (noting that ownership of note (as opposed to entitlement to enforce) is not a debtor's concern); West , 2d Dist. Montgomery Nos. 25813, 25837, 2014-Ohio-735, 2014 WL 820008, at ¶ 29 (commenting that a person may be entitled to enforce a note even where the person is not the owner); Wells Fargo Bank, N.A. v. Scott , 2d Dist. Montgomery No. 26552, 2015-Ohio-3269, 2015 WL 4873000, ¶ 17 (borrower lacks standing to challenge validity of assignment of note and mortgage unless, for example, the note prohibits assignment); Nationstar Mtge., L.L.C. v. Willis , 2d Dist. Miami No. 2014-CA-36, 2016-Ohio-4721, 2016 WL 3573880, ¶ 42 (debtors who are not parties to mortgage assignment lack standing to challenge its validity).

{¶ 33} By virtue of its possession of the original note, U.S. Bank was a party entitled to enforce the note. To the extent that any of the materials Crossing submitted are relevant (and that is questionable), they indicate that Deutsche also assigned the mortgage to LaSalle, the apparent original named trustee of the Trust. LaSalle then assigned the mortgage to Wells Fargo, who then assigned it to U.S. Bank in July 2009. The mortgage to U.S. Bank was recorded in October 2009 with the Montgomery County Recorder. Thus, U.S. Bank was in possession of the original note, and the mortgage in its favor had also been recorded. These events occurred before the foreclosure action was filed, and U.S. Bank's status remained unchanged when summary judgment was granted.

{¶ 34} Crossing argues that we should no longer apply our decision in Clancy because the Tenth District Court of Appeals has allegedly overruled a line of cases that the court had relied on in Whiteman , 10th Dist. Franklin No. 12AP-536, 2013-Ohio-1636, 2013 WL 1749665. Crossing contends that the Tenth District Court of Appeals has now held that defendants have standing to challenge the validity of transfers of notes or assignments of mortgages. The cited case is U.S. Bank Natl. Assn. v. George , 2015-Ohio-4957, 50 N.E.3d 1049 (10th Dist.) ( George I ), which allegedly overruled Locke , 10th Dist. Franklin No. 11AP-757, 2012-Ohio-4499, 2012 WL 4502457 ).

{¶ 35} As a preliminary point, we note that the three judges on the panel in George I are not the same judges who were on the panel in Locke ; one judge in George I also disagreed that Locke needed to be overruled in its entirety. George I at ¶ 45 (Dorrian, J., concurring in judgment only). Thus, only two judges concurred in the decision to overrule a case decided by a prior panel. The Supreme Court of Ohio has indicated that "schisms have developed in districts as different panels announce conflicting opinions on identical issues of law, leaving litigants to guess which decision controls." McFadden v. Cleveland State Univ. , 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, ¶ 15. The court has stressed that "[a]ppellate courts are duty-bound to resolve conflicts within the district through en banc proceedings." In re J.J. , 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, ¶ 18.

{¶ 36} As an example of the "schism" problem, subsequent decisions from the Tenth District Court of Appeals conflict with George I . See Logansport Savs. Bank, FSB v. Shope , 10th Dist. Franklin No. 15AP-148, 2016-Ohio-278, 2016 WL 373722, ¶ 17 (stating that " 'any violation of the pooling and services agreement is irrelevant in light of [mortgagee's] standing based on its possession of the promissory note,' " and that whether a violation of the pooling and servicing agreement was violated is irrelevant to a bank's standing as holder of a note) (Citations omitted.); Deutsche Bank Natl. Tr. Co. v. Sopp , 2016-Ohio-1402, 62 N.E.3d 863, ¶ 19 (10th Dist.) (trial court precluded mortgagor in foreclosure case from raising compliance with pooling agreement because he was not a party to the agreement. The court of appeals agreed, stating that "insofar as appellant is contending that Deutsche was not a valid holder of the note based on any non-compliance with or violation of a pooling and servicing agreement, we agree with the trial court that such argument is without merit.") As a result, the position of the Tenth District Court of Appeals is unclear.

{¶ 37} Putting this point aside, in George I , the Tenth District Court of Appeals reversed a summary judgment for a bank, due to "unexplained discrepancies" between the copy of a note attached to the complaint and a note that was attached to an affidavit filed in support of summary judgment. Id. at ¶ 34. In the course of its holding, which Judge Dorrian described as "dicta," the majority concluded that "a maker of a note or mortgagor who is facing enforcement at law on the note or enforcement in equity on the mortgage has a personal stake in challenging whether a person claiming to be entitled to enforce such a note or a mortgage has been duly transferred or assigned rights under either or both instruments, regardless of whether or not the challenger is in privity with the person claiming the right to enforce." Id. at ¶ 26.

{¶ 38} In concluding that a debtor may so challenge a note's assignment, the majority stated that " Locke's holding is based in part on a line of federal court decisions that * * * has been modified by the Sixth Circuit Court of Appeals." George I , 2015-Ohio-4957, 50 N.E.3d 1049, at ¶ 27 and fn.5, citing Livonia Properties Holdings, L.L.C. v. 12840-12976 Farmington Rd. Holdings, L.L.C. , 717 F.Supp.2d 724 (E.D.Mich.2010), aff'd , 399 Fed.Appx. 97 (6th Cir.2010). The case that allegedly modified Livonia Properties was Slorp v. Lerner, Sampson & Rothfuss , 587 Fed.Appx. 249 (6th Cir. 2014). George I at ¶ 27.

{¶ 39} In Slorp , the Sixth Circuit Court of Appeals considered federal and state claims brought by a debtor, who alleged that a law firm, an employee of the firm, and a bank, had committed unfair and deceptive debt collection practices by filing an illegitimate foreclosure action in state court against the debtor. Id. at 252-253. After the district court dismissed the complaint and refused to let the debtor file an amended complaint for RICO violations, the debtor appealed. Id. at 253. The district court's dismissal was based on the conclusion that the debtor lacked standing to challenge validity of a mortgage assignment because he was not a party. Id.

{¶ 40} The Sixth Circuit first concluded that the debtor had Article III (federal question) standing because his injury was allegedly caused by improper mortgage foreclosure, not by the false assignment of the mortgage, and this was cognizable based on violations of the Fair Debt Practices Collection Act, a federal statute. Id. at 253-254. Concerning the debtor's Ohio state claims like fraud, violation of the Ohio Consumer Sales Practices Act ("CSPA"), and conspiracy, the court noted that its prior decision in Livonia Properties had been interpreted too broadly and that the court should "clarify the circumstances under which a mortgagor can challenge the validity of an assignment that purports to assign the mortgagee's interest in the mortgage to another entity." Slorp at 254,.

{¶ 41} The court then stated that the "type of standing" discussed in Livonia Properties "is a common-law analogue of statutory standing, wholly unrelated to Article III standing. It is entirely a creature of state contract law and is assessed in conjunction with the merits of the claim, not as a threshold issue." Id. The court agreed with the general statement in Livonia Properties that a party to an assignment lacks standing to challenge the assignment, but noted that it had "quickly limited the scope of that rule, clarifying that a non-party homeowner may challenge the validity of an assignment to establish the assignee's lack of title, among other defects." Id. at 255, citing Livonia Properties, 399 Fed.Appx at 102. (Other citation omitted.)

{¶ 42} In addition, the Sixth Circuit Court of Appeals distinguished Livonia Properties on this basis:

Livonia Properties also does not govern Slorp's standing to assert the statutory claims that he alleged in his complaint. Livonia Properties discusses the defenses that are available to homeowners who face foreclosure-i.e., the circumstances in which a homeowner may impede foreclosure by attacking the assignment of the mortgage. See 399 Fed.Appx. at 102-03 (relying in large part on 6A C.J.S. Assignments § 132, which is captioned "Defenses"). That opinion says nothing about when a homeowner may bring suit to seek redress for fraudulent or deceptive acts in connection with a foreclosure.

Slorp , 587 Fed.Appx. at 256.

{¶ 43} Ultimately, the Sixth Circuit Court of Appeals concluded that the debtor had statutory standing to bring state law claims for falsification, etc., based on the wording of the relevant Ohio statutes ("the CSPA, Ohio Rev.Code §§ 1345.02 and 1345.03 ; falsification in violation of Ohio Rev.Code § 2921.13 ; and civil conspiracy to commit falsification"). Id. at 256-257. The court found no merit to these claims, although it did conclude that the district court erred in refusing to let the debtor amend his complaint to allege RICO violations. Id. at 257-266. The case was, therefore, remanded so the debtor could amend the complaint. Id. at 266.

{¶ 44} Whether Slorp actually "modified" Livonia Properties is questionable, particularly in light of later decisions and comments by the Sixth Circuit Court of Appeals. As one example, the Sixth Circuit Court of Appeals subsequently considered a foreclosure situation involving facts more closely akin to the case before us. See Jones v. Select Portfolio Servicing, Inc. , 672 Fed.Appx. 526 (6th Cir.2016). In Jones , the plaintiff brought a declaratory judgment action in federal court against a lender, Wells Fargo, and a loan servicer, Select Portfolio Servicing, Inc., in an attempt to reverse the foreclosure of his home. Id. at 528.

{¶ 45} The original lender had assigned the deed of trust to Wells Fargo as trustee for a Series 2004-FF8 Trust in 2013, which was several years after the loan documents were executed. The original lender also transferred the promissory note to Wells Fargo. Id. Because records indicated that the original lender was inactive and had surrendered its corporate status prior to the 2013 transfer, the plaintiff argued that the original lender could not have properly assigned the deed in 2013. In addition, the plaintiff claimed that the deed's assignment violated the terms of a pooling and service agreement governing a trust that included the loan on his home. Id. After the district court dismissed the case, the plaintiff appealed to the Sixth Circuit Court of Appeals.

{¶ 46} Among other things, the district court had held that Wells Fargo had standing to foreclose because it had possession of the note. The district court further held that the plaintiff lacked standing to challenge the validity of the deed assignment. Id. at 529.

{¶ 47} On appeal, the plaintiff made the same arguments about the ability to transfer the deed and the violation of the pooling services agreement. However, the court of appeals rejected both arguments. Jones , 672 Fed.Appx. at 531-534. Concerning the note, the court stated that "even assuming Jones's allegations are true, they fail to support a cognizable claim that Wells Fargo lacked standing to foreclose on the Property, since they do not refute Wells Fargo's possession of the Note at the time of the Property's foreclosure." Id. at 531-532. Likewise, in the case before us, there is no dispute that U.S. Bank had possession of the note when the complaint was filed and when summary judgment was granted in its favor.

{¶ 48} The court of appeals further stated that "to the extent Jones suggests that Wells Fargo's acquisition of the Note itself was wrongful, we find his claim similarly unviable: as discussed, a holder of a note endorsed in blank is entitled to enforce its terms, regardless of whether it is in 'wrongful possession' of the instrument." (Citation omitted.) Id. at 532.

{¶ 49} As an additional matter, the Sixth Circuit Court of Appeals concluded that the plaintiff lacked standing to raise challenges to the lender's ability to enforce the note based on defects in the deed assignment and compliance with the pooling service agreement. Id. at 533. In this regard, the court stated that "[t]he district court correctly recognized that, in general, borrowers who are not a party or intended third party beneficiary to a mortgage assignment or pooling and service agreement lack contractual standing to challenge these instruments or agreements." (Citations omitted.) Id.

{¶ 50} Although the plaintiff in Jones raised the prior decision in Slorp , the Sixth Circuit Court of Appeals described Slorp as a situation "where a panel of this court allowed an Ohio homeowner to raise a claim of fraud in connection with the assignment of his mortgage." Jones , 672 Fed.Appx. at 533. The court acknowledged that it had recognized exceptions to the general rule prohibiting attack of third-party contracts, but concluded that no exceptions applied to the plaintiff. Notably, the court stated that:

As acknowledged in Livonia , [399 Fed.Appx. 97,] a loan obligor may, in limited circumstances, have standing to contest a loan assignment based on the "nonassignability of the instrument, assignee's lack of title, [or a] prior revocation of the assignment." 399 Fed.Appx. at 102 (citing 6A C.J.S., Assignments § 132 (2010) ). Courts recognize such exceptions so that the obligor can protect herself from paying a debt twice. Id. (citing C.J.S., supra , § 132 ). But the key to applying these exceptions is a "genuine claim" that the entity seeking to enforce the loan is not its rightful owner. See id. Merely alleging flaws or technical defects in an assignment or a pooling and service agreement isn't enough.

Jones , 672 Fed.Appx. at 533.

{¶ 51} Finally, the court commented on the "unusual set of circumstances" in the Ohio foreclosure proceedings in Slorp , which included false executions of an assignment of mortgage and the dismissal of the foreclosure action after the debtor had noticed the deposition of the individual involved in the false assignment. Id. at 534. Because the debtors' allegations in Jones bore "little resemblance to these circumstances," the court was "unpersuaded that Slorp supports deviating from the general contractual standing rule * * *." Id. As a result, the court affirmed the dismissal of the plaintiff's claims. Id.

{¶ 52} Similarly, in DAGS II, LLC v. Huntington Nat. Bank , 616 Fed.Appx. 830, 836 (6th Cir.2015), the Sixth Circuit rejected a debtor's claim that was based on an assignment between its lender and another party. The court reiterated that "absent some claim that the Plaintiffs may be on the hook for double payment, this is precisely what courts do not permit." Id. These decisions are consistent with our prior decision in Clancy . See Clancy , 2d Dist. Montgomery No. 25823, 2014-Ohio-1975, 2014 WL 1887719, at ¶ 33.

{¶ 53} The Seventh District Court of Appeals has also distinguished George I and Slorp because "they did not involve an argument concerning the pooling and servicing agreement. Rather, they involved problems with the note or assignment themselves." U.S. Bank Natl. Assn. v. Crow , 7th Dist. Mahoning No. 15-MA-0113, 2016-Ohio-5391, 2016 WL 4382693, ¶ 70. We agree. As was noted by Judge Dorrian in George I , the majority's statements about standing were dicta, because the only issue before the court was whether genuine issues of material fact existed in a situation where the bank had submitted different versions of a note and the testimony of witnesses contradicted each other. George I , 2015-Ohio-4957, 50 N.E.3d 1049, at ¶ 39-44 (Dorrian, J., concurring in judgment only).

{¶ 54} Moreover, although the bank in George I asserted that it had attached a full copy of the promissory note to rectify the problem, the court of appeals found no copy of the note in the record. George I at ¶ 6-7. A representative of the plaintiff could not explain the discrepancy, and also testified that he thought an entity other than the plaintiff held the note. Id. at ¶ 30. The court, therefore, held that the bank was not entitled to summary judgment because it failed to submit evidentiary quality material to support its claim that it was the current holder of the note and mortgage. Id. at ¶ 17 -18 and 29-31.

{¶ 55} In contrast, Crossing admits that U.S. Bank possessed the note, and there is no dispute about the fact that the mortgage assignments, ending in an assignment to U.S. Bank, were properly recorded. Accordingly, even if the majority's comments in George I were not dicta, they simply do not apply in this case.

{¶ 56} On reconsideration in George II , the majority did tangentially mention pooling agreements. As was noted, the majority rejected the bank's argument that it was a non-holder in possession, which had previously been deemed waived. George II , 2016-Ohio-7788, 66 N.E.3d 788, at ¶ 2. The conclusion that summary judgment was still not warranted was based on the lack of evidence of a certificate of merger between two of the involved entities, and because the merged entity had endorsed the note to a party other than the foreclosing bank prior to the merger, meaning that the successor by merger may not have had the ability to subsequently endorse the note. Id. at ¶ 12 -13 and 25.

{¶ 57} During the course of its discussion, the majority commented that it did "not adhere to holdings that purport to prevent foreclosure defendants from pointing out that a plaintiff's proof falls short of establishing an entitlement to enforce." Id. at ¶ 14. As examples of such holdings, the majority cited several out-of-state federal district court cases, primarily from Minnesota, which held that persons who are not parties to pooling and servicing agreements do not have standing to challenge those agreements. Id. at ¶ 14, fn.2.

{¶ 58} As in George I , Judge Dorrian concurred in the judgment only. Her reasoning this time was that the bank had waived the nonholder in possession argument by failing to assert it. Id. at ¶ 35 (Dorrian, J., concurring in judgment only). Judge Dorrian then stated that she was writing to address part of the majority opinion that she found "particularly troubling in light of prior analyses by this court and well-reasoned precedent from other courts." Id. at ¶ 36. The troubling point related to the majority comments, as related above, about standing.

{¶ 59} In this regard, Judge Dorrian stated that:

I disagree with the majority's assessment of the effect of the holding [in the cases noted in footnote 2]. A homeowner's lack of standing to challenge a trust agreement (also known as a pooling and servicing agreement or PSA) does not impede the homeowner from attacking a bank's entitlement to enforce the note. Statutes-not trust agreements-set forth the criteria a bank must prove to demonstrate that it is the person entitled to enforce the note. See R.C. 1301.201(B)(21) ; 1303.21; 1303.22; 1303.31. Consequently, whether a trust agreement is valid, and whether the bank complied with the trust agreement, have no relevance in the determination of whether the bank is the person entitled to enforce the note.

George II , 2016-Ohio-7788, 66 N.E.3d 788, at ¶ 37 (Dorrian, J., concurring in judgment only).

{¶ 60} Judge Dorrian also commented that:

Furthermore, the majority's rejection of the cited holding contravenes well-reasoned law. See Dauenhauer v. Bank of N.Y. Mellon , 562 Fed.Appx. 473, 480 (6th Cir.2014) ("Courts have consistently rejected borrowers' requests to have mortgage assignments and foreclosures invalidated due to non-compliance with Pooling and Servicing Agreement provisions, based on borrowers' lack of standing."); U.S. Bank Natl. Assn. v. Aguilar-Crow , 7th Dist. No. 15 MA 0113, 2016-Ohio-5391 [2016 WL 4382693], ¶ 67 ("Various courts have concluded a debtor lacks 'standing' to challenge whether the transfer of the mortgage loan to the trust complied with the pooling and servicing agreement."); HSBC Bank USA Natl. Assocs. v. Sherman , 1st Dist. No. C-120302, 2013-Ohio-4220 [2013 WL 5436540], ¶ 21 ("But [the homeowner] is not a beneficiary under the PSA and has no right to claim that [the bank] failed to comply with the terms of the PSA.").

George II , 2016-Ohio-7788, 66 N.E.3d 788, at ¶ 38 (Dorrian, J., concurring in judgment only).

{¶ 61} Finally, Judge Dorrian again remarked that, as with George I , rejection of the cited holding of the federal district courts was not necessary to resolve the issue before the court. Id. at ¶ 39. We agree. And, as mentioned earlier, if the Tenth District Court of Appeals wished to overrule existing contrary authority, it should have done so pursuant to an en banc panel of the court. McFadden , 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, at ¶ 15 ;

In re J.J. , 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, at ¶ 18. Again, this did not occur, and the majority's comments in George I and II are dicta.

{¶ 62} As a final point, a panel of the Tenth District Court of Appeals had already apparently attempted to limit (not overrule) Locke and Whiteman in Bank of Am., N.A. v. Pasqualone , 10th Dist. Franklin No. 13AP-87, 2013-Ohio-5795, 2013 WL 6869954. There, the court explained that "in cases where R.C. Chapter 1303 applies, a debtor may challenge the assignment of a note (by negotiation * * * or transfer* * *) if such challenge fits the criteria of a denial, defense or claim in recoupment as outlined in R.C. 1303.36 or 1303.35." (Footnotes omitted.) Id. at ¶ 35, purportedly limiting Whiteman , 10th Dist. Franklin No. 12AP-536, 2013-Ohio-1636, 2013 WL 1749665, ¶ 16, Locke , 10th Dist. Franklin No. 11AP-757, 2012-Ohio-4499, 2012 WL 4502457, ¶ 28-29, and JPMorgan Chase Bank, N.A. v. Romine , 10th Dist. Franklin No. 13AP-58, 2013-Ohio-4212, 2013 WL 5435639, ¶ 13. Thus, debtors are not without some avenues of attack.

{¶ 63} We discussed Pasqualone in Ziegler , 2d Dist. Montgomery No. 26287, 2015-Ohio-1586, 2015 WL 1876178, and concluded that even if the debtors could challenge the note's assignment, their alleged "meritorious defenses" under Civ.R. 60(B) did not meet the criteria for "a denial, defense or recoupment claim found in R.C. 1303.35 or 1303.36." Id. at ¶ 46, citing Pasqualone at ¶ 36. The same reasoning applies here. There is no indication in the record that Crossing's arguments fit within R.C. 1303.35 or R.C. 1303.36. Crossing did not make such arguments in the trial court and has not mentioned these statutes on appeal.

{¶ 64} In the past, we have also held that a nonholder of a note who possesses a note may enforce a note and mortgage. Wells Fargo Bank, N.A. v. TIC Acropolis, L.L.C. , 2d Dist. Greene Nos. 2015-CA-32, 2015-CA-33, 2016-Ohio-142, 2016 WL 197090, ¶ 33. In TIC , we agreed with the bank that a mortgage assignment and omnibus agreement were sufficient to allow the bank standing to bring a foreclosure action, as a non-holder, even if the allonge in question was insufficient to negotiate the note. Id. at ¶ 33 -35.

{¶ 65} Quoting LaSalle Bank Natl. Assn. v. Brown , 2014-Ohio-3261, 17 N.E.3d 81 (2d Dist.), we stated that:

"[A] person need not be a 'holder' of the instrument in order to be entitled to enforce it. Instead, a person can be a nonholder in possession of the instrument who has the rights of a holder. This status can be bestowed in various ways. As was noted in the case of In re Veal , 450 B.R. 897 (9th Dist.Ariz. BAP2011) :
'Non-UCC law can bestow this type of status; such law may, for example, recognize various classes of successors in interest such as subrogees or administrators of decedent's estates. See Comment to UCC § 3-301. More commonly, however, a person becomes a nonholder in possession if the physical delivery of the note to that person constitutes a "transfer" but not a "negotiation." Compare UCC § 3-201 (definition of negotiation) with UCC § 3-203(a) (definition of transfer). Under the UCC, a "transfer" of a negotiable instrument "vests in the transferee any right of the transferor to enforce the instrument." UCC § 3-203(b). As a result, if a holder transfers the note to another person by a process not involving an Article 3 negotiation-such as a sale of notes in bulk without individual indorsement of each note-that other person (the transferee) obtains from the holder the right to enforce the note even if no negotiation takes place and, thus, the transferee does not become an Article 3 "holder." See Comment 1 to UCC § 3-203.' "

TIC at ¶ 33, quoting Brown at ¶ 36.

{¶ 66} Consistent with this discussion, R.C. 1303.22 provides that:

(A) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.
(B) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a direct or indirect transfer from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.

{¶ 67} In the case before us, Crossing signed a note and a mortgage agreement with Deutsche. Both the note and mortgage reference each other. See Note, Section 2, page 2; Open-End Leasehold Mortgage and Security Agreement, p. 2.

{¶ 68} Article XIII (Remedies) of the mortgage stated as follows:

13.1 Remedies Available. If an Event of Default Occurs, then Mortgagee may, at its option, exercise any or all of the following rights or remedies, either successively or concurrently, all of which shall be cumulative, including:
(a) Acceleration. Declare any or all of the Debt to be immediately due and payable.
(b) Entry. Either in person or by agent, with or without bringing any proceeding, or by a receiver and without regard to the adequacy of its security, enter upon and take possession of the Mortgaged Property.
* * *
(e) Foreclosure. Commence an action to foreclose this Mortgage or to specifically enforce its provisions with respect to any of the Debt and sell or cause to be sold the Mortgaged Property in accordance with Applicable Law in one or more parcels. Mortgagee may bid the Debt and all other obligations secured by the Mortgage in a foreclosure sale hereunder.
(f) Judicial Remedies. Proceed by suit, at law or in equity, to enforce the payment of the Debt or other obligations of Mortgagor under this Mortgage or the other Loan Documents and to have the Mortgaged Property sold under the judgment or decree of a court of competent jurisdiction.
(g) Other Remedies. Exercise any other right or remedy available under the Loan Documents, at law or in equity.

Open-End Leasehold Mortgage and Security Agreement at p. 23, attached to the Foreclosure Complaint as Ex. B and authenticated by the Sulsky Affidavit, ¶ 6-7.

{¶ 69} Further, on March 8, 2006, Deutsche Bank, the original mortgagor, assigned the mortgage and security agreement to LaSalle Bank, as Trustee for the Trust. Deutsche assigned all of its rights and interest in the agreement, "[t]ogether with the bonds or notes or obligations described in said Mortgage and Assignment of Leases, * * * and any and all other related security instruments which secure the indebtedness and/or obligations secured by said Mortgage and Assignment of Leases." (Emphasis added.) Ex. C, pp. 1-2, attached to the Complaint and authenticated by the Sulsky Affidavit, ¶ 9. This assignment was filed with the Montgomery County recorder on April 10, 2006, and evidenced an intention to transfer the right to enforce the note, even if "negotiation" had not occurred (although it had).

{¶ 70} Subsequently, on June 30, 2008, LaSalle, as Trustee for the Trust, executed a similar assignment to Wells Fargo Bank, N.A., and the assignment was recorded on July 22, 2008. See Ex. D attached to the Complaint and authenticated by the Sulsky Affidavit, ¶ 9. Finally, Wells Fargo executed a similar assignment to U.S. Bank on July 6, 2009, and the assignment was recorded on October 8, 2009. See Ex. E attached to the Complaint and authenticated by the Sulsky Affidavit, ¶ 9.

{¶ 71} Consequently, under the reasoning in TIC , even if U.S. Bank had been a nonholder, it possessed the note, which had been transferred to it, as well as the rights under the mortgage, and had the right to enforce the note.

{¶ 72} In arguing that the trial court erred in rendering summary judgment in U.S. Bank's favor, Crossing also contends that genuine issues of material fact exist because a "closing binder" in U.S. Bank's file contained an allonge from the original lender, Deutsche, that was blank. Oleski Affidavit at ¶ 5 and Ex. D attached to the affidavit. Crossing further notes that a "custodial file checklist" for the closing memorandum on the Crossing/Deutsche loan referenced an "[a]llonge in blank." See Ex. B attached to the Oleski Affidavit. According to Crossing, the existence of a blank allonge creates a genuine issue of material fact because of "discrepancies" between this and the allonge that was later specifically endorsed by Deutsche to LaSalle. We disagree as to the relevance of this fact.

{¶ 73} The content of the "checklist" is hearsay, and Crossing failed to provide any evidence in compliance with Civ.R. 56(C) to explain the content. See, e.g., E.W. v. T.P. , 6th Dist. Lucas Nos. L-11-1301, L-11-1302, 2012-Ohio-5805, 2012 WL 6096578, ¶ 13 ("Unauthenticated notes, reports, or letters are not admissible within any of the hearsay rule exceptions to prove the truth of the information contained in such documents.") Crossing was given an extension of time to reply to summary judgment in the trial court and clearly had time to conduct discovery and submit admissible evidence.

{¶ 74} Even if this were otherwise, the fact that Deutsche possessed a blank allonge that identified it as an "assignor" is irrelevant. The copy of the allonge in the file identifies Deutsche as the assignor and is not signed. The space for the assignee is also blank. Oleski Affidavit, Ex. D.

{¶ 75} The original promissory note that Crossing signed was made payable to the order of Deutsche, and was payable on demand or at a definite time, which made it a negotiable instrument under R.C. 1303.03(A). "A promise or order that is payable to order is payable to the identified person." R.C. 1303.10(C). "An instrument, when specially indorsed, becomes payable to the identified person and may be negotiated only by the indorsement of that person." R.C. 1303.25(A).

{¶ 76} To further negotiate the promissory note, Deutsche would have had to endorse the note and transfer possession. " 'Negotiation' means a voluntary or involuntary transfer of possession of an instrument by a person other than the issuer to a person who by the transfer becomes the holder of the instrument." R.C. 1303.21(A). "Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder." R.C. 1303.21(B).

{¶ 77} Deutsche could accomplish this by endorsing the note to bearer or by endorsing it to a specific party, and, in either instance, transferring possession. See R.C. 1303.10(D) ; R.C. 1303.24 ; R.C. 1303.25 ; R.C. 1303.21(B).

{¶ 78} An allonge is a method of endorsing a note, and is defined as "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." Chase Home Fin., LLC v. Fequiere , 119 Conn.App. 570, 577, fn.7, 989 A.2d 606 (Conn.App.2010), quoting Black's Law Dictionary (9th Ed. 2009). However, " '[a]n indorsement on an allonge is valid even though there is sufficient space on the instrument for an indorsement.' " HSBC Bank USA v. Thompson , 2d Dist. Montgomery No. 23761, 2010-Ohio-4158, 2010 WL 3451130, ¶ 65, quoting 1990 official comments for UCC 3-204, which is the analogous statute to R.C. 1303.24.

{¶ 79} In view of the above discussion, the fact that a blank allonge, unsigned by Deutsche as an assignor, existed and/or was possessed by Deutsche or any other party at some point, is irrelevant. Deutsche was the original payee on the promissory note, and the only way the note could have been negotiated thereafter was for Deutsche to sign the allonge as assignor and make it payable to bearer or to an identified party. An unsigned allonge was meaningless, and from that perspective, it matters not whether the file contained one or one hundred unsigned copies of the allonge.

{¶ 80} Theoretically, a third party could have filled in its own name as the assignee, and could have forged the signature of an individual authorized to endorse promissory notes on Deutsche's behalf. However, Crossing presented no evidence that such an unlikely event occurred. Instead, the properly substantiated evidence indicates that Deutsche endorsed the note to LaSalle, who then endorsed it to Wells Fargo. In turn, Wells Fargo endorsed the note to U.S. Bank, and also transferred possession of the note. Accordingly, we find no merit in Crossing's argument pertaining to the allonge.

{¶ 81} Based on the preceding discussion, Crossing's sole assignment of error is overruled.

III. Conclusion

{¶ 82} Crossing's sole assignment of error having been overruled, the judgment of the trial court is affirmed.

HALL, P.J. and TUCKER, J., concur.

      Unless designated otherwise, the docket references are to the current case, which is 2d Dist. Montgomery No. 27648.

      In Richison , the court noted that "R.C. 1301.01 was repealed by 2011 Am.H.B. No. 9, effective June 29, 2011. That act amended the provisions of R.C. 1301.01 and renumbered that section so that it now appears at R.C. 1301.201." Richison , 3d Dist. Union No. 14-12-01, 2012-Ohio-3198, 2012 WL 2877403 at ¶ 15, fn.1. Because R.C. 1301.201 only applies to transactions entered on or after June 29, 2011, the court applied R.C. 1301.01, noting that "the R.C. 1301.201(B)(21)(a) definition of 'holder' is substantially similar to the R.C. 1301.01(T)(1)(a) and (b) definition of 'holder.' " Id. Like Richison , the transaction here occurred in 2009, prior to the amendment, so we will use the definition of "holder" in R.C. 1301.01(T)(1)(a) and (b). Again, the definitions are similar.

      The affidavit contains two paragraphs that are labeled "4." We are quoting the second paragraph 4.

      A motion for reconsideration in George was denied in 2016. See U.S. Bank Natl. Assn. v. George , 2016-Ohio-7788, 66 N.E.3d 788 (10th Dist.) (George II ).

      The Supreme Court of Ohio has also said that a panel that decides a case may review en banc applications under App.R. 26 and decide if en banc panel consideration is warranted. State v. Forrest , 136 Ohio St.3d 134, 2013-Ohio-2409, 991 N.E.2d 1124, ¶ 14. Loc.R. 15 of the Tenth District Court of Appeals follows this procedure by allowing the more recent panel in conflicting cases to decide if a conflict exists, and the panel is required to issue a decision finding no conflict. For an example of this procedure in the Tenth District Court of Appeals, see Frash v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 14AP-932, 2016-Ohio-3134, 2016 WL 2984473, ¶ 24.
      There is no indication in George I or II that en banc applications were filed or that decisions on this point were issued. In fact, the subject is not mentioned. Loc.R. 15 also requires a unanimous finding by the reviewing panel that no conflict exists. If even one member of the reviewing panel finds that a conflict exists, the entire en banc panel must consider the issue. Id. Notably, App.R. 26(A)(2)(b) also permits a majority of the en banc court to order en banc consideration sua sponte. Consequently, even if an en banc application is not filed, a court of appeals can resolve its own conflicts. One would assume that if a panel overrules a prior decision of another panel, a conflict would be found and an en banc decision would be issued that would assist litigants and other courts in determining what rules of law should be followed. This would be particularly important where a court of appeals subsequently issues other conflicting decisions.

      Subsequently, the Sixth Circuit Court of Appeals affirmed a summary judgment rendered in favor of the defendants on the RICO claims, noting its prior statement that "Slorp's claim would 'vanish' if defendant Bank of America was found to be a legitimate mortgagee." Slorp v. Lerner, Sampson & Rothfuss , 690 Fed.Appx. 905, 906 (6th Cir.2017), quoting Slorp , 587 Fed.Appx. at 264. The court then stated that "[t]he district court found Bank of America was a legitimate mortgagee, and we agree with its reasoning and result." Id.

      Although Jones involved Tennessee law, the pertinent law regarding transfer of notes is consistent with Ohio law. Jones, 672 Fed.Appx. at 532 (indicating that a "holder" of note is entitled to enforce it, even if in wrongful possession).

      On reconsideration, the majority also rejected the bank's argument that it was a nonholder in possession, which was an argument the majority had previously deemed waived. George II , 2016-Ohio-7788, 66 N.E.3d 788, ¶ 2 (10th Dist.). This decision was based on lack of evidence in the record. Id. at ¶ 12 -13 and 25. Judge Dorrian again concurred in judgment only, as she concluded that the bank had waived this issue. Id. at ¶ 32 (Dorrian, J., concurring in judgment only).

      We say "purportedly limited" because, like George I and II , Pasqualone was a decision of only two judges. See Pasqualone , 10th Dist. Franklin No. 13AP-87, 2013-Ohio-5795, 2013 WL 6869954. In that case, one panel member commented that limiting the court's prior holdings was unnecessary. Id. at ¶50 (Sadler, J., concurring separately). In view of the conflicting views expressed, it is unclear whether any of these cases (Whiteman , Locke , Romaine , Pasqualone , or George I or II ) represents the current law in the Tenth District Court of Appeals. Crossing has suggested that if we choose not to overrule our prior decision in Clancy , we should certify a conflict. Under the circumstances, there would be no way to discern exactly what to certify or whether any conflict potentially exists.