## Facts

- Bryan L. Good bought residential property in Elkhart, Indiana and executed an electronic promissory note to Synergy Mortgage Group, Inc., secured by a mortgage naming MERS as nominee for the lender.
- Good stopped making loan payments in 2011.
- MERS, as nominee for Synergy, assigned the mortgage to Wells Fargo Bank, N.A., and the assignment was recorded.
- Wells Fargo filed a foreclosure action seeking to enforce the mortgage and the electronic promissory note.
- The electronic note was drafted as an electronic “transferable record” and stated that the “Note Holder” and the “authoritative copy” would be identified through a registry, and that only the copy controlled by the registry-identified Note Holder could be the authoritative copy.
- Wells Fargo moved for summary judgment, asserting it could enforce the electronic note because it controlled the authoritative copy, relying primarily on a Wells Fargo vice-president’s affidavit and a MERS certificate.
- Wells Fargo did not submit evidence from the note-holder registry identifying Wells Fargo as the Note Holder, showing the authoritative copy’s location, or describing a reliable system tracking transfers of interests in the electronic note.
- The trial court granted partial summary judgment that Wells Fargo was entitled to enforce the note, tried remaining issues in a bench trial, and entered a foreclosure judgment for Wells Fargo.
- Good appealed, challenging the partial summary judgment and the foreclosure judgment.

## Issues

1. Whether Wells Fargo established, at summary judgment, that it was legally entitled to enforce the electronic promissory note.
2. Whether Wells Fargo’s evidence satisfied 15 U.S.C. § 7021 and the note’s terms requiring proof of “control” of the electronic note’s authoritative copy through a reliable transfer-tracking system.

## Decision

- The Court of Appeals of Indiana reversed the partial summary judgment and the resulting foreclosure judgment and remanded.
- The court held Wells Fargo failed to prove, as a matter of law, that it had “control” of the electronic note’s authoritative copy as required by 15 U.S.C. § 7021 and the note’s registry-based control provisions.
- The affidavit and MERS certificate were insufficient without evidence tying Wells Fargo’s claimed status to the registry and the system required to establish control.
- Because Wells Fargo did not meet its summary-judgment burden on entitlement to enforce the note, the foreclosure judgment based on that determination could not stand.

## Legal Principles

- A party seeking to enforce an electronic promissory note structured as a “transferable record” must prove “control” consistent with 15 U.S.C. § 7021.
- “Control” requires evidence that a reliable system for evidencing transfers of interests establishes the enforcing party as the person to whom the transferable record was issued or transferred.
- When the note’s terms require identification of the Note Holder and authoritative copy through a registry, proof of enforcement rights must connect the enforcing party to that registry-based designation and control of the authoritative copy.
- On summary judgment, the moving party must present evidence showing no genuine issue of material fact and entitlement to judgment as a matter of law; conclusory statements not supported by the required control/registry proof are inadequate.

## Conclusion

The court reversed the foreclosure because Wells Fargo’s summary-judgment submissions did not establish statutory and contractual “control” of the electronic note’s authoritative copy, requiring remand for further proceedings on whether Wells Fargo could enforce the electronic note.


Good v. Wells Fargo Bank, N.A., 18 N.E.3d 618 (Ind. Ct. App. 2014)