NOT TO BE PUBLISHED

OPINION

DIXON, Judge.

In August 2006, Appellants, Marc and Elizabeth Clark executed an adjustable rate note in favor of Encore Credit Corporation to secure a loan in the principal amount of $221,000. The loan was secured by a mortgage lien against the Clark's home in Bowling Green, Kentucky. This lien was memorialized in a mortgage, executed in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Encore. In June 2008, the mortgage was assigned to LaSalle Bank, National Association, as trustee for Certificate Holders of Bear Stearns Asset-Backed Securities I LLC, Asset-Backed Certificates Series 2006-HE( ("LaSalle"). Subsequently, in October 2008, the Clarks entered into a Loan Modification Agreement with EMC Mortgage Corporation, acting as servicer on behalf of LaSalle. Under the terms of the Modification Agreement, the Clarks and EMC, on behalf of LaSalle, agreed to increase the principal amount of the loan to $230,031.50 and to change the interest rate.

Beginning in February 2010, the Clarks ceased making payments on the loan. It is undisputed that no payments have been made since that time. In December 2012, U.S. Bank filed an action in the Warren Circuit Court seeking to foreclose on the Clarks' property and seeking a judgment in the amount of $225,500.96 (the unpaid principal due on the loan), plus interest, costs and attorney's fees. U.S Bank attached to the complaint a copy of the note, an allonge endorsing the note from Encore to U.S. Bank, the Loan Modification Agreement, the Mortgage and the Assignment of Mortgage to La Salle.1 In March 2013, the Clarks filed their answer in which they did not dispute their default on the loan nor the amount owed, but rather defended that U.S. Bank had not proven it was the holder of their note and/or mortgage. The Clarks also asserted a counterclaim seeking damages for U.S. Bank's failure to provide them with a loan modification under the Home Affordable Modification Program ("HAMP"), fraud in the inducement, and violations of the Truth in Lending Act ("TILA"). U.S. Bank thereafter moved for and was granted partial summary judgment on February 27, 2014, on the Clarks' counterclaim. That order was not appealed.

In April 2014, almost sixteen months after U.S. Bank's complaint was filed, the Clarks served U.S. Bank with interrogatories and requests for production of documents. The Clarks apparently agreed to stay U.S. Bank's time to respond to the discovery requests so that the parties could pursue settlement negotiations. Said negotiations proved unsuccessful and U.S. Bank thereafter served its responses and objections to the requests in October 2014.

In December 2014, U.S. Bank filed a motion for summary judgment and order of sale. The Clarks filed an initial response to the motion, again arguing that U.S. Bank lacked standing and was not the real party in interest. The Clarks also asserted therein that they needed additional discovery time. After U.S. Bank filed its reply in support of its motion for summary judgment, the Clarks filed a "Further Response" to the motion, reiterating their arguments about standing and discovery, and attaching an affidavit setting forth various complaints about their failure to obtain a loan modification and speculating that "robo-signing" may have occurred in conjunction with the loan.

On February 2, 2015, the trial court held a hearing on U.S. Bank's motion for summary judgment and thereafter issued an order granting the motion and ordering the sale of the Clarks' property. The trial court therein also denied the Clark's request for additional discovery. This appeal ensued.

Our 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." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56.03. The trial court must view the record "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 v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id.

The Clarks argue that the trial court erred in granting summary judgment because there exists numerous issues of material fact. Specifically, they contend that U.S. Bank did not have the right to file the foreclosure proceeding because it was not the holder of their note and/or mortgage and thus did not have standing. Further, the Clarks argue that because U.S. Bank is the trustee for Certificate holders of Bear Stearns Asset-Backed Securities I LLC, Asset-Backed Certificates Series 2006-HE, in order to be the real party in interest, it was required to prove that the Clarks' mortgage and note were placed into those trusts in a manner mandated by the applicable Pooling and Servicing Agreement.2 Finally, the Clarks believe that the allonge endorsing the mortgage loan to U.S. Bank is suspect and not proper documentation that U.S. Bank is the real party in interest. CR 17.01, provides, in pertinent part, that "[e]very action shall be prosecuted in the name of the real party in interest, but a personal representative . . . may bring an action without joining the party or parties for whose benefit it is prosecuted. Nothing herein, however, shall abrogate or take away an individual's right to sue." In Harris v. Jackson, 192 S.W.3d 297, 303 (Ky. 2006), our Supreme Court held that "[t]he real party in interest is one who is entitled to the benefits of the action upon the successful termination thereof. See also Stuart v. Richardson, 407 S.W.2d 716, 717 (Ky. 1966); Brandon v. Combs, 666 S.W.2d 755, 759 (Ky. App. 1983). A real party in interest then, is a person, or entity, which wins, or loses, dependent upon the resolution of the questions." Accordingly, the benchmark for standing is "a judicially recognizable interest in the subject matter." City of Louisville v. Stock Yards Bank & Trust, Co., 843 S.W.2d 327, 328 (Ky. 1992). The interest of a party must be a present or substantial interest as distinguished from a mere expectancy. Ashland v. Ashland F.O.P. No. 3, Inc., 888 S.W.2d 667, 668 (Ky. 1994); see also Plaza B.V. v. Stephens, 913 S.W.2d 319, 322 (Ky. 1996). Finally, "[t]he issue of standing must be decided on the facts of each case." Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 202 (Ky. 1989). A determination of whether U.S. Bank is the real party in interest hinges upon whether it was the holder of the note and requires an examination of the applicable provisions of Kentucky's Uniform Commercial Code, KRS Chapter 355.

Generally, in foreclosure cases, the real party in interest is the current holder of the note and/or mortgage. A holder is defined as "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." KRS 355.1-201(2)(u)(1). A party lawfully in possession of the original note is entitled to enforce such note. Stevenson v. Bank of America, 359 S.W.3d 466, 470 (Ky. App. 2011). The record herein reflects that U.S. Bank has proven that it is lawfully in possession of the note on the Clarks' property. A copy of the note, an allonge indorsing the note from Encore to U.S. Bank, the Loan Modification Agreement, the Mortgage and the Assignment of Mortgage to La Salle were attached to the December 20, 2012, complaint. Further, U.S. Bank's agent-in-fact, JP Morgan Chase Bank, N.A., which is the servicer of the loan and is authorized to act on behalf of U.S. Bank, has physical possession of the note and allonge. Thus, U.S. Bank is clearly the holder of the note and is entitled to enforce it.

Notwithstanding that U.S. Bank is the holder of the note as defined by KRS 355.1-201(2)(u)(1), the Clarks have raised numerous claims regarding U.S. Bank's compliance with the terms of servicing and pooling agreements, the validity of the allonge, and U.S. Bank's membership in MERS. We are of the opinion that these arguments are nothing more than an attempt to delay enforcement of a judgment in U.S. Bank's favor.

Citing only to cases from other jurisdictions, the Clarks maintain that for U.S. Bank to have standing to file the foreclosure proceeding, it was required to prove that the Clark's mortgage was placed into the trust for which U.S. Bank is a trustee, and also that Bank of America was the previous trustee and acquired the mortgage through merger with LaSalle. See U.S. Bank v. Ibanez, 941 N.E.2d 40 (Mass. 2011); Anderson v. Burson, 35 A.3d 452 (Md. 2011); Bank of America, N.A. v. Miller, 956 N.E.2d 319 (Ohio App. 2011). The Clarks' argument fails to recognize, however, contrary to the cited case law, Kentucky law requires only that the foreclosing party be the holder of the note creating the debt. U.S. Bank is the holder of their note as defined by KRS chapter 355 and is therefore the real party in interest in this action. See Stevenson, 359 S.W.3d at 470; Croushore v. B.A.C. Home Loans Servicing, L.P., 381 S.W.3d 331, 332 (Ky. App. 2012). As such, it has the right to enforce both the note and the mortgage lien against the Clark's property. Id.

Next, the Clarks contend that U.S. Bank failed to prove that it complied with the Service and Pooling Agreements ("PSA") that govern the trusts of which it is the trustee. The Clarks cite to Wells Fargo Bank, N.A. v. Erobobo, 972 N.Y.S.2d 147 (N.Y. 2013), wherein the trial court found an issue of fact as to whether the purported assignment of the property owner's note and mortgage to Wells Fargo violated certain provisions of the PSA governing the trust, and was therefore void. Again, however, the Clarks fail to acknowledge that said decision was overruled in Wells Fargo Bank, N.A. v. Erobobo, 127 A.D.3d 1176 (N.Y. App. 2015), wherein the appellate court specifically ruled that borrowers do not generally have standing to challenge a bank or lending company's possession or status as assignee of the note and mortgage based on purported noncompliance with certain provisions of the PSA. Furthermore, even if the Clarks did have standing to challenge U.S. Bank's alleged non-compliance with the PSA, such argument is irrelevant as U.S. Bank has established that it is the holder of the note.

Finally, the Clarks challenge the sufficiency of the allonge in arguing that U.S. Bank did not provide documentation showing that it "acquire[d] the mortgage loan through the two (2) previous trusts." The allonge that indorsed the note to U.S. Bank is signed by a representative and provides:

As U.S. Bank points out, because the note was negotiated directly to it from Encore, any arguments regarding the other two trusts are irrelevant. Further, KRS 355.3-308 provides that "the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings." The Clarks did not assert in their answer that the signature on the allonge was invalid or that the individual who signed it lacked the authority to do so. As such, the allonge is presumed valid in the absence of evidence to the contrary.

Based upon our review of the record, we conclude that there was sufficient evidence supporting the trial court's finding that U.S. Bank was the real party in interest and had standing to bring this action. In the absence of any other genuine issues of material fact, U.S. Bank was entitled to judgment as a matter of law.

The Clarks have also raised two issues regarding the trial court's failure to grant them additional discovery time as well as its failure to allow them adequate time to present their arguments during the summary judgment hearing. We find no merit in either.

It is well-settled that "[i]t is not necessary to show that the respondent has actually completed discovery, but only that respondent has had an opportunity to do so." Hartford Insurance Group v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628, 630 (Ky. App. 1979). Furthermore, "foreclosure actions are generally ones where the facts are known to all parties." Suter v. Mazyck, 226 S.W.3d 837, 842 n.4 (Ky. App. 2007). Despite having been served with U.S. Bank's discovery responses in September 2014, the Clarks did not raise any objections to the sufficiency of the answers until after U.S. Bank filed its motion for summary judgment the following December. Finally, with respect to the hearing, while CR 56.03 requires that the parties be "heard," it does not require the trial court to conduct a full oral argument to both parties satisfaction. The Clarks had more than sufficient opportunity to set forth their arguments in the two responses they filed to U.S. Bank's motion for summary judgment. From a review of the video of the hearing it is clear that the trial court was frustrated that the Clarks had made no attempt at payment since 2010. However, the trial court further stated that it was convinced from the evidence of record that U.S. Bank was the holder of the Clarks' note which they had admittedly defaulted on and, as such, was entitled to a judgment and order of sale.

The order of the Warren Circuit Court granting summary judgment is affirmed.

ALL CONCUR