U.S. Bank, N.A. v. Howie

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No. 106,415

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

U.S. BANK, N.A.,
Appellee,

v.

JAMES W. HOWIE, DECEASED, et al.
(GEORGIA L. HOWIE),
Appellants.


SYLLABUS BY THE COURT

1.
Interpretation of a statute is a question of law over which appellate courts have
unlimited review.

2.
The provisions of K.S.A. 59-2239(1) establishing time deadlines for making
claims against a decedent's estate do not apply to the enforcement of liens existing at the
date of the decedent's death.

3.
Where there is no factual dispute, appellate review of an order granting summary
judgment is de novo.

4.
Generally, a mortgage is unenforceable when it is not held by the same entity that
holds the promissory note. However, an exception exists where there is an agency
relationship between the holder of the mortgage and the holder of the promissory note.

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5.
Under the facts of this case, the plain language of the mortgage document
provided sufficient and undisputed evidence that the holder of the mortgage was acting as
an agent of the holder of the promissory note.

Appeal from Franklin District Court; ERIC W. GODDERZ, judge. Opinion filed June 8, 2012.
Affirmed.

R. Scott Ryburn, Anderson & Byrd LLP, of Ottawa, for appellants.

JoAnn T. Sandifer, of Husch Blackwell LLP, of St. Louis, Missouri, and Aaron M. Schuckman,
of Millsap & Singer, LLC, of St. Louis, Missouri, for appellee.

Before GREEN, P.J., MALONE and MCANANY, JJ.

MALONE, J.: Georgia L. Howie appeals the district court's decision granting
summary judgment in favor of U.S. Bank, N.A. (U.S. Bank) on U.S. Bank's mortgage
foreclosure petition. Georgia claims that U.S. Bank is barred from foreclosing on the
mortgage for two reasons. First, Georgia argues that the mortgage debt was extinguished
because U.S. Bank had failed to demand payment on the promissory note, signed solely
by her late husband, within the time prescribed under K.S.A. 59-2239(1) after her
husband's death. Second, Georgia argues that the promissory note and associated
underlying debt were irreparably severed from the mortgage because the promissory note
and the mortgage were held by separate entities. We reject each of Georgia's arguments
and affirm the district court's judgment in favor of U.S. Bank.

On September 20, 2005, James W. Howie executed a promissory note (Note) to
U.S. Bank in the amount of $151,600 plus interest. The Note was signed solely by James.
That same day, James and his wife, Georgia Howie, executed a mortgage (Mortgage)
granting a security interest in certain real property (Property) located in Ottawa, Kansas,
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to secure payment of the Note. Under the terms of the Mortgage, the Howies were named
as "Borrower," U.S. Bank was named as "Lender," and Mortgage Electronic Registration
Systems, Inc. (MERS) was named as the mortgagee "acting solely as a nominee for
Lender and Lender's successors and assigns." The Mortgage stated:

"Borrower understands and agrees that MERS holds only legal title to the interests
granted by Borrower in this [Mortgage], but, if necessary to comply with law or custom,
MERS (as nominee for Lender and Lender's successors and assigns) has the right: to
exercise any or all of those interests, including, but not limited to, the right to foreclose
and sell the Property; and to take any action required of Lender including, but not limited
to, releasing and canceling this [Mortgage.]"

James died on February 23, 2008, leaving Georgia as the surviving joint tenant
with right of survivorship in the Property. At some point, Georgia stopped making
payments on the underlying debt and by May 1, 2009, the Note was in default, a fact
which Georgia candidly admits. On October 28, 2009, MERS assigned the Mortgage to
U.S. Bank, and on November 10, 2009, U.S. Bank filed a petition to foreclose the
mortgage. U.S. Bank later clarified that it was pursuing only its in rem remedy to
foreclose the Mortgage against the Property and that it was not seeking a personal
judgment against Georgia under the Note.

On June 2, 2010, Georgia filed a motion for summary judgment. She argued that
she was not personally liable for the debt because she never signed the Note and further
that her husband's estate was not liable under the Note because U.S. Bank had failed to
demand payment within the time prescribed under K.S.A. 59-2239(1) after her husband's
death. She also argued that U.S. Bank could not foreclose against the Property under the
Mortgage because the Note, held by U.S. Bank, and the Mortgage, initially held by
MERS and later assigned to U.S. Bank, had been irreparably severed. U.S. Bank filed a
response to Georgia's motion as well as its own cross-motion for summary judgment.
U.S. Bank argued that K.S.A. 59-2239(1) was inapplicable because the statute expressly
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excludes claims made in relation to liens existing at the time of the decedent's death. U.S.
Bank also argued that the Note and the Mortgage were never severed because MERS held
the Mortgage solely as "nominee" or agent of U.S. Bank.

Following a hearing, the district court denied Georgia's motion for summary
judgment in a memorandum decision filed on February 23, 2011. The district court did
not address Georgia's argument that U.S. Bank failed to timely demand payment on the
Note under K.S.A. 59-2239(1). As to Georgia's argument that the Note and Mortgage
were severed, the district court found that even if there were no agency relationship
between U.S. Bank and MERS such that the Note and Mortgage were severed, any
severance was "cured" by MERS's subsequent assignment of the Mortgage to U.S. Bank,
thereby permitting U.S. Bank to foreclose on the Mortgage. On June 21, 2011, the district
court filed an order granting summary judgment in favor of U.S. Bank on the mortgage
foreclosure petition. Georgia timely appealed the district court's judgment.

The standards for granting summary judgment are well known. When the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, 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, summary judgment is
appropriate. The district court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, the same rules apply; summary judgment must be denied if
reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus
v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).


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DEMAND FOR PAYMENT UNDER K.S.A. 59-2239(1)

Although the district court did not address the issue in ruling on the summary
judgment motions, Georgia renews on appeal her contention that the Mortgage cannot be
foreclosed because the underlying debt was extinguished when U.S. Bank failed to
demand payment on the Note within the time prescribed under K.S.A. 59-2239(1) after
her husband's death. The parties disagree whether the statute is applicable to the facts
herein. Interpretation of a statute is a question of law over which appellate courts have
unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).

K.S.A. 59-2239(1) states:

"All demands, including demands of the state, against a decedent's estate . . .
shall be forever barred from payment unless the demand is presented within the later of:
(a) four months from the date of first publication of notice under K.S.A. 59-2236, and
amendments thereto; or (b) if the identity of the creditor is known or reasonably
ascertainable, 30 days after actual notice was given, except that the provisions of the
testator's will requiring the payment of a demand exhibited later shall control. No creditor
shall have any claim against or lien upon the property of a decedent other than liens
existing at the date of the decedent's death, unless a petition is filed for the probate of the
decedent's will pursuant to K.S.A. 59-2220 and amendments thereto or for the
administration of the decedent's estate pursuant to K.S.A. 59-2219 and amendments
thereto within six months after the death of the decedent and such creditor has exhibited
the creditor's demand in the manner and within the time prescribed by this section, except
as otherwise provided by this section." (Emphasis added.)

Georgia contends that U.S. Bank cannot foreclose its mortgage on the property
because the underlying debt was extinguished when U.S. Bank failed to demand payment
on the Note within the time prescribed under K.S.A. 59-2239(1) after her husband's
death. But K.S.A. 59-2239(1) is inapplicable under the present facts. U.S. Bank has
expressly stated that it is not seeking a money judgment against either James or Georgia
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Howie under the Note, but it is only proceeding against the Property. Moreover, the
record reflects that the Note was not in default when James died on February 23, 2008, so
U.S. Bank had no reason to pursue a claim against James' estate at the time of his death.

As to U.S. Bank's attempt to foreclose the Mortgage, K.S.A. 59-2239(1) provides
that no creditor shall have any claim against or lien upon the property of a decedent
"other than liens existing at the date of the decedent's death," unless a petition is filed for
the probate of the decedent's will or for the administration of the decedent's estate within
6 months after the death of the decedent. The plain language of the statute expressly
exempts liens existing at the date of the decedent's death. The clear purpose of this
exemption is to relieve secured creditors from additional filing obligations where their
claims are already secured by preexisting liens. This purpose would be completely
nullified by requiring secured creditors to petition a probate court for enforcement of
liens within the time prescribed by K.S.A. 59-2239(1). We agree with U.S. Bank that
K.S.A. 59-2239(1) is inapplicable to the facts herein and the provisions of that statute do
not bar U.S. Bank from foreclosing its Mortgage against the Property.

WERE THE NOTE AND MORTGAGE SEVERED?

Georgia next argues that the Mortgage cannot be foreclosed because the Note and
associated underlying debt were irreparably severed from the Mortgage where the Note
was held by U.S. Bank and the Mortgage initially was held by MERS. She contends that
the severance could not be cured by MERS's subsequent assignment of the Mortgage to
U.S. Bank prior to U.S. Bank filing the foreclosure petition. U.S Bank argues that,
because MERS held the Mortgage solely as "nominee" or agent of U.S. Bank, the Note
and Mortgage were never severed and thus U.S. Bank, as present holder of both the Note
and the Mortgage, may foreclose on the Mortgage.

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The district court did not expressly decide whether MERS held the Mortgage
solely as a nominee or agent for U.S. Bank. Instead the district court found that even if
there were no agency relationship between U.S. Bank and MERS such that the Note and
Mortgage were severed, any severance was "cured" by MERS's subsequent assignment of
the Mortgage to U.S. Bank prior to U.S. Bank filing the mortgage foreclosure petition.
The parties agree that the facts relevant to this issue are not in dispute. Where there is no
factual dispute, appellate review of an order granting summary judgment is de novo.
Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).

Generally, a mortgage is unenforceable when it is not held by the same entity that
holds the promissory note. However, an exception exists where there is an agency
relationship between the holder of the mortgage and the holder of the promissory note. In
Landmark Nat'l Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009), the Kansas Supreme
Court discussed the effect of "splitting" a mortgage from the promissory note:

"'The practical effect of splitting the deed of trust [or mortgage] from the promissory note
is to make it impossible for the holder of the note to foreclose, unless the holder of the
deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency
relationship, the person holding only the note lacks the power to foreclose in the event of
default. The person holding only the deed of trust will never experience default because
only the holder of the note is entitled to payment of the underlying obligation. [Citation
omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold
the deed of trust.' [Citation omitted.]" (Emphasis added.) Landmark, 289 Kan. at 540.

Because the parties agree that MERS and U.S. Bank are separate entities, the
dispositive issue in this case is whether MERS, the initial holder of the Mortgage, was
acting as an agent of U.S. Bank, the holder of the Note. If so, then the Mortgage and the
Note were never severed and U.S Bank, as the present holder of both, may foreclose on
the Mortgage. Whether an agency relationship exists is normally a question for the finder
of fact. But here, the only evidence before the district court regarding the existence of an
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agency relationship between MERS and U.S. Bank was the language of the Mortgage
itself, which the parties do not dispute. Because there is no factual dispute, our review of
this issue is unlimited. Kuxhausen, 291 Kan. at 318.

Before turning to the question of the existence of an agency relationship between
MERS and U.S. Bank, a general overview of the MERS mortgage registration system is
in order. In Jackson v. Mortgage Electronic, 770 N.W.2d 487, 490 (Minn. 2009), the
Minnesota Supreme Court described the MERS mortgage registration system as follows:

"MERS is an electronic registration system that was created in the aftermath of the 1993
savings and loan crisis. MERS does not originate, lend, service, or invest in home
mortgage loans. Instead, MERS acts as the nominal mortgagee for the loans owned by its
members. The MERS system is designed to allow its members, which include
originators, lenders, servicers, and investors, to assign home mortgage loans without
having to record each transfer in the local land recording offices where the real estate
securing the mortgage is located. . . .

"MERS was designed to improve the efficiency and profitability of the primary
and secondary mortgage markets. The primary market in the home mortgage industry
largely consists of mortgage loans made to consumers. The loans are evidenced by a
promissory note and secured by a security instrument—typically a mortgage deed or deed
of trust. The originating lender routinely sells the mortgage loans on the secondary
market to investors . . . Once on the secondary market, the loans may be sold several
times or bundled into mortgage-backed securities.

"Traditionally, each mortgage loan transfer on the primary and secondary market
included an assignment of the security instrument that could be recorded in the local land
recording office where the real estate securing the mortgage loan is located. According to
MERS, multiple assignments of the security instrument commonly caused confusion,
delays, and chain-of-title problems. In an effort to streamline the assignment process,
MERS essentially privatized part of the mortgage recording system. Participants in the
mortgage industry can subscribe as members on the MERS system. A loan held by a
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member is registered in the MERS database. Once registered, MERS serves as the
mortgagee of record for all loans in its system. More specifically, MERS is the nominal
mortgagee for the lender and any successors and assigns. When the security instrument is
recorded, the local land records list MERS as the mortgagee.

"The benefit of naming MERS as the nominal mortgagee of record is that when
the member transfers an interest in a mortgage loan to another MERS member, MERS
privately tracks the assignment within its system but remains the mortgagee of record.
According to MERS, this system 'saves lenders time and money, and reduces paperwork,
by eliminating the need to prepare and record assignments when trading loans.'"

We now turn to the dispositive issue of whether MERS, the initial holder of the
Mortgage, was acting as an agent of U.S. Bank, the holder of the Note. In Kansas, an
agency relationship may be created expressly or by implication. In an express agency, the
principal has delegated authority to the agent by words which expressly authorize the
agent to perform a delegable act. An implied agency exists where the principal and the
agent intend to create a relationship whereby when the agent acts on this authority, others
will believe in and rely on the agent's acts. In re Tax Appeal of Scholastic Book Clubs,
Inc., 260 Kan. 528, 535, 920 P.2d 947 (1996). Here, the language of the Mortgage
evidences an express agency between MERS and U.S. Bank because it explicitly
authorizes MERS to act on behalf of U.S. Bank in all situations related to the
enforcement of the Mortgage:

"Borrower understands and agrees that MERS holds only legal title to the interests
granted by Borrower in this [Mortgage], but, if necessary to comply with law or custom,
MERS (as nominee for Lender and Lender's successors and assigns) has the right: to
exercise any or all of those interests, including, but not limited to, the right to foreclose
and sell the Property; and to take any action required of Lender including, but not limited
to, releasing and canceling this [Mortgage.]"

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Although the Mortgage uses the term "nominee" rather than "agent," this
terminology does not alter the character of the relationship between MERS and U.S.
Bank. This is especially true given that the legal definitions of "nominee" and "agent"
overlap. Black's Law Dictionary defines a nominee as "[a] person designated to act in
place of another, [usually] in a very limited way," or "[a] party who holds bare legal title
for the benefit of others . . ." and an agent as "[o]ne who is authorized to act for or in the
place of another; a representative." Black's Law Dictionary 1149, 72 (9th ed. 2009).
Moreover, our Supreme Court has explicitly stated that "[t]he legal status of a nominee
. . . depends on the context of the relationship of the nominee to its principal," implying
that a nominee is a type of agent. (Emphasis added.) Landmark, 289 Kan. at 539.

Georgia acknowledges the language contained in the Mortgage, but she relies on
caselaw to support the proposition that there was no agency relationship between MERS
and U.S. Bank. The primary case on which Georgia relies is Landmark. In Landmark, the
debtor obtained a loan from Landmark National Bank (Landmark), secured by a
mortgage in certain real property. The mortgage was duly recorded in the land records of
Ford County, Kansas. About a year later, the debtor took out a second loan from Millenia
Mortgage Corp. (Millenia), secured by a mortgage in the same real property. The second
mortgage named Millenia as the lender and MERS as the mortgagee acting "solely as
nominee for Lender . . . and Lender's successors and assigns." 289 Kan. at 536. The
second mortgage was also recorded in Ford County. At some subsequent time, the second
mortgage may have been assigned to Sovereign Bank (Sovereign) and Sovereign may
have taken physical possession of the associated promissory note, but the assignment of
the second mortgage was not recorded.

Landmark later filed a petition to foreclose its mortgage. Landmark named the
debtor and Millenia as defendants but did not serve notice of the petition on either MERS
or Sovereign. Since neither of the named defendants answered the petition, default
judgment was entered against them, and the secured property was sold at a sheriff's sale.
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Soon after the sheriff's sale, Sovereign filed an answer to the foreclosure petition,
claiming an interest in the property as Millenia's successor in interest. Sovereign also
filed a motion to set aside the default judgment on the basis that MERS was a
contingently necessary party under K.S.A. 60-219(a). Sovereign maintained that because
Landmark failed to name MERS as a defendant, Sovereign did not receive notice of the
litigation. The district court denied the motion, finding that MERS was not a real party in
interest because MERS served only as an agent for Millenia. The district court further
found that Sovereign was precluded from asserting its rights after the judgment had been
entered because Sovereign had not recorded its interest in the property. 289 Kan. at 532.

On appeal, this court affirmed the district court's judgment in Landmark National
Bank v. Kesler, 40 Kan. App. 2d 325, 192 P.3d 177 (2008), aff'd 289 Kan. 528, 216 P.3d
158 (2009). First, this court agreed with the district court that although the mortgage used
the word "nominee," it was clear that MERS was an agent for Millenia. 40 Kan. App. 2d
at 327-28. Next, this court found that MERS was not a contingently necessary party
under K.S.A. 60-219(a) because MERS did not have a separate interest, apart from its
principal's interest in securing the loan, that would be substantially impaired or impeded
absent its participation in the foreclosure litigation. 40 Kan. App. 2d at 328. This court
specifically noted that MERS did not receive payments on behalf of Millenia or
Sovereign and that under the terms of the mortgage, notices of default on superior liens
were to go to Millenia, not MERS. 40 Kan. App. 2d at 329-30.

Our Supreme Court granted review and considered the same question—whether
the district court abused its discretion in denying the motion to set aside the default
judgment on the basis that MERS was a contingently necessary party. 289 Kan. at 533. In
the context of its discussion concerning whether MERS had an interest that would be
substantially impaired or impeded by its absence from the litigation, the court stated:

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"The relationship that MERS has to Sovereign is more akin to that of a straw man
than to a party possessing all the rights given a buyer . . . . Although MERS asserts that,
under some situations, the mortgage document purports to give it the same rights as the
lender, the document consistently refers only to the rights of the lender, including rights
to receive notice of litigation, to collect payments, and to enforce the debt obligation. The
document consistently limits MERS to acting 'solely' as the nominee of the lender." 289
Kan. at 539-40.

Georgia relies on this language to support her contention that MERS is acting
"solely as a nominee" and not as an agent of U.S. Bank. But it is clear that under this
language, our Supreme Court was discussing the scope of MERS's rights and duties as an
agent to its principal in the context of determining whether MERS was a contingently
necessary party to the foreclosure action. See 289 Kan. at 538-42. Our Supreme Court
ultimately determined that the record failed to show that MERS had a tangible and
independent interest that was prejudiced by its absence from the initial foreclosure action.
289 Kan. at 542. In this unique procedural posture, Landmark does not support Georgia's
contention that MERS is not an agent for lenders such as U.S. Bank. Indeed, Landmark
supports the converse proposition: the fact that MERS has few, if any, rights other than
acting on behalf of the lender to secure the lender's rights where necessary indicates that
MERS is an agent of the lender.

Georgia also cites Mortgage Electronic Registration Systems v. Graham, 44 Kan.
App. 2d 547, 229 P.3d 420 (2010). In Graham, the debtor executed a promissory note in
favor of Countrywide Home Loans, Inc. (Countrywide) secured by a mortgage held by
MERS, "acting solely as nominee for Countrywide." 44 Kan. App. 2d at 549. The debtor
defaulted on the note and MERS, not Countrywide, brought a mortgage foreclosure
action. The district court granted summary judgment to MERS on the foreclosure
petition, and the debtor appealed to this court.

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On appeal, after all parties had submitted their briefs, the debtor filed a letter of
additional authority pursuant to Supreme Court Rule 6.09(b) arguing that under
Landmark, MERS did not have a sufficient interest in the outcome of the mortgage
foreclosure petition, and thus did not have standing to bring the action, because it was not
the holder of the promissory note. 44 Kan. App. 2d at 552-53. MERS responded that
Landmark narrowly stands for the proposition that MERS is not a necessary party
following an entry of default judgment in a mortgage foreclosure action. MERS also
asserted that because the debtor had admitted in the pleadings that MERS acted as an
agent of Countrywide, MERS had standing to bring the foreclosure action. 44 Kan. App.
2d at 553. This court found that, as in Landmark, MERS was acting "solely as nominee"
for the lender and held no interest in the promissory note. 44 Kan. App. 2d at 554.
Because there was no evidence that MERS had suffered any injury by the debtor's failure
to make payments on the promissory note and there was no evidence that MERS had
received permission to act as an agent for the lender, this court held that MERS lacked
standing to bring a foreclosure action. 44 Kan. App. 2d at 554.

A careful reading of Graham suggests that the case is not helpful to Georgia's
position. First, the Graham court primarily relied on Landmark in the context of
determining whether MERS had any interest in the promissory note such that MERS
suffered an injury due to the debtor's default, and not in the context of determining the
exact nature of the relationship between MERS and the lender. Second, to the extent that
the Graham court relied on Landmark's "straw man" characterization of the relationship
between MERS and its lenders, the court stated that "there is no evidence that MERS
received permission to act as an agent for Countrywide"—indicating that if there were
such evidence, the result would have been different. 44 Kan. App. 2d at 554.

The Graham case was not the end of the parties' litigation on the foreclosure of
that particular mortgage. The debtor in Graham filed bankruptcy in the United States
Bankruptcy Court for the District of Kansas. In the bankruptcy proceeding, the debtor
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brought an adversary proceeding for determination of the secured status of the claims of
Countrywide and MERS. See In re Martinez, 444 B.R. 192 (Bankr. D. Kan. 2011). For
the first time in the course of the litigation, the debtor made the argument that the
mortgage was unenforceable because it had been "split" from the promissory note where
MERS held the mortgage and Countrywide held the note—precisely the issue before this
court herein. 444 B.R. at 197.

In rejecting the debtor's argument, the Martinez court thoroughly examined both
Landmark and Graham. While it found the general principles set forth in Landmark to be
correct—i.e., that a "split" between a mortgage and a note renders the mortgage
unenforceable absent an agency relationship between the holder of the mortgage and the
holder of the note—it noted that the Landmark court did not specifically address whether
an agency relationship existed between MERS and the lender. 444 B.R. at 204. The
Martinez court also noted that the Graham court merely held that there was no evidence
in the record that MERS was acting as an agent for Countrywide. 444 B.R. at 204-05.
The Martinez court noted that the lack of evidence in Graham of an agency relationship
was hardly surprising given that the standing issue was first raised after the close of
appellate briefing and given that the debtor had previously insisted that MERS was acting
as an agent of Countrywide. 444 B.R. at 205.

Finally, the Martinez court held that there was sufficient evidence in the record to
establish that MERS was acting as an agent of Countrywide and therefore the mortgage
and note were never split such that the mortgage became unenforceable. The Martinez
court relied primarily on the language of the mortgage—language virtually identical to
the Mortgage clause herein—to find that the debtor was aware of and understood the
relationship between MERS and Countrywide. 444 B.R. at 205. The Martinez court noted
that MERS also provided a copy of its terms and conditions with its lenders as further
evidence of the agency relationship. 444 B.R. at 205-06. As the Martinez court
concluded, based on the legal definitions of the terms it would be difficult to imagine a
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situation in which a party acting as a "nominee" would not also clearly fit within the
definition of an "agent." 444 B.R. at 206 n.51.

We find the reasoning of the Martinez court to be persuasive. Georgia attempts to
distinguish Martinez by arguing there was "considerable evidence" of the agency
relationship between MERS and Countrywide presented in Martinez, whereas here there
was "no evidence" of any agency relationship between MERS and U.S. Bank. While it is
true that there was more evidence of the agency relationship in Martinez, the bankruptcy
court relied primarily on the language of the mortgage—language virtually identical to
the Mortgage clause herein—to find that the debtor was aware of and understood the
relationship between the lender and the mortgagee. We conclude that the plain language
of the Mortgage herein provided sufficient and undisputed evidence that MERS was
acting as an agent of U.S. Bank at all relevant times. Because MERS was acting as an
agent of U.S. Bank, the Mortgage and the Note were never severed and U.S. Bank, as
present holder of both the Note and the Mortgage, was entitled to foreclose on the
Mortgage. Although the district court relied on different grounds in deciding the case, it
reached the correct result and its decision will be upheld even if it relied upon the wrong
ground or assigned erroneous reasons for its decision. Robbins v. City of Wichita, 285
Kan. 455, 472, 172 P.3d 1187 (2007).

Affirmed.