APPELLANT v. BANK FOR THE BENEFIT OF THE SECURITYHOLDERS OF THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST APPELLEE (2012)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Appellant Charles Hicks appeals the Jefferson Circuit Court's summary judgment in favor of U.S. Bank. The circuit court found there was no genuine issue regarding any material fact upon which U.S. Bank based its claim against Hicks, nor any regarding his defenses.   Finding no error, we affirm.

Facts

On September 13, 2002, Hicks executed a note and mortgage in favor of National City Mortgage Company (National), relative to his Jefferson County property.   On June 20, 2006, National assigned the mortgage to Mortgage Electronic Registration Systems, Inc., which then assigned the mortgage to U.S. Bank on Oct. 15, 2009.   National indorsed the note itself directly to U.S. Bank. The mortgage contains a provision authorizing the mortgage holder to accelerate all payments due under the note upon Hicks's default.

Hicks, having failed to make a payment on the note since July 2009, was already in default when U.S. Bank acquired the mortgage.   Consequently, U.S. Bank brought foreclosure proceedings in Jefferson Circuit Court on Oct. 26, 2009, pursuant to the terms of the mortgage.   Attached to the complaint was a copy of the original note memorializing the mortgage agreed to by Hicks.   This copy did not reflect the entire series of transactions resulting in U.S. Bank's ownership of the note and mortgage, only that U.S. Bank was in possession of the original note.

Hicks's answer to the complaint included the defense that because the note was not made payable to U.S. Bank, it was not the real party in interest and, citing Kentucky Rule(s) of Civil Procedure (CR) 17.01, asserted that U.S. Bank could not prevail on its claim.   Hicks moved to dismiss the claim based on these grounds.   U.S. Bank responded by submitting all the documentation related to the loan and the assignments of the note and mortgage.

The circuit court referred the motion and response to a master commissioner for consideration and recommendation.   The master commissioner, having examined all the documentation, concluded that U.S. Bank “owns the debt in question, and that it is entitled to proceed with its collection.”

U.S. Bank then moved for summary judgment on March 29, 2010, attaching to its motion not only the series of assignments documenting U.S. Bank's ownership, but also supplementing that documentation with another copy of the note to which an allonge ^Double was affixed showing the indorsement of the note from National to U.S. Bank. Summary judgment was granted to U.S. Bank on Aug 18, 2010, because the circuit court determined there were no genuine issues of material fact upon which Hicks' defense could succeed.   This appeal followed.

Standard of Review

We must apply a standard of review that has been repeatedly stated as follows:

The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.   Kentucky Rules of Civil Procedure (CR) 56.03․  “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.”  Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991).   Summary “judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.”  Steelvest, 807 S.W.2d at 480, citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985).   Consequently, summary judgment must be granted “[o]nly when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor․  “ Huddleston v. Hughes, Ky.App., 843 S.W.2d 901, 903 (1992).

Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).

Analysis

Hicks argues there is a genuine issue of material fact which could change the outcome of the decision.   That fact, he says in his brief, is “[w]hether the allonge was so firmly affixed to the Note as to become part of it at the time the Complaint was filed․  “ (Appellant's brief, p. 4).   His theory is that if the allonge was not so affixed, only National had standing at the time the complaint was filed to pursue collection of the note itself.

We start by noting there was no genuine issue of material fact regarding U.S. Bank's standing to pursue an action on the mortgage.  Braden v. Republic–Vanguard Life Ins. Co., 657 S.W.2d 241, 243 (Ky.1983) (citing CR 17.01 and explaining rights of mortgage holder are independent of rights of beneficiary of the contract secured by that mortgage).   Furthermore, there is no genuine issue of material fact that when U.S. Bank moved for summary judgment, as well as when it was granted, U.S. Bank was the owner of the note as well.

Finally, U.S. Bank also presented proof that it was the owner of the note, and that the allonge indorsing the note to U.S. Bank was affixed thereto, at the time U.S. Bank filed the complaint.   Hicks denied that evidence but could not refute it with any of his own evidence.

There were no genuine issues of material fact at the time summary judgment was granted and U.S. Bank was entitled to that judgment as a matter of law.   Therefore, we affirm.

ALL CONCUR.

ACREE, JUDGE: