[Cite as BAC Home Loans Servicing, L.P. v. Untisz, 2013-Ohio-993.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
BAC HOME LOANS SERVICING, LP, : OPINION f.k.a. COUNTRYWIDE HOME LOANS SERVICING, L.P., : CASE NO. 2012-G-3072 Plaintiff-Appellee, :
- vs - :
JOHN M. UNTISZ, et al., :
Defendant-Appellant. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 10F000333.
Judgment: Affirmed.
Rose Marie Lynn Fiore and James S. Wertheim, McGlinchey Stafford PLLC, 25550 Chagrin Boulevard, Suite 406, Cleveland, OH 44122 (For Plaintiff-Appellee).
David N. Patterson, 33579 Euclid Avenue, Willoughby, OH 44094-3199 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, John M. Untisz, appeals the judgment of the Geauga County
Court of Common Pleas granting the motion for summary judgment of appellee, BAC
Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P. (“BAC”), on
its complaint for foreclosure and on appellant’s complaint to quiet title. For the following
reasons, we affirm. {¶2} On July 15, 2008, appellant purchased residential property in Geauga
County. Appellant signed a promissory note, and he granted a mortgage on the
property to American Midwest Mortgage Corporation (“American Midwest”). The
mortgage was assigned from American Midwest to Mortgage Electronic Registration
Systems, Inc. (“MERS”); this assignment was recorded on July 21, 2008.
Subsequently, the mortgage was assigned from MERS to Bank of America, N.A. (“Bank
of America”), successor by merger to BAC; this assignment was recorded on March 4,
2010.
{¶3} BAC filed a complaint in foreclosure on March 25, 2010, alleging a default
under the note and demanding enforcement of the mortgage. Appellant, acting pro se,
filed an answer.
{¶4} Appellant then recorded documents with the Geauga County Recorder’s
Office. The documents are titled as follows: (1) Appointment of Superseding Successor
Trustee; (2) Affidavit of John Untisz; (3) Qualified Written Request; (4) Notice of Right to
Cancel; (5) Notice of Lender’s Default; (6) Modification of Mortgage Note; and (7)
Release of Lien and Full Reconveyance.
{¶5} A week after filing such documents in the recorder’s office, appellant filed
a separate quiet title action against BAC, MERS, and American Midwest seeking a
declaration from the trial court that Bank of America has no interest in the property and
that the note has a zero balance.
{¶6} The trial court consolidated the foreclosure and quiet title action.
{¶7} After consolidation, movants, BAC, MERS, and American Midwest, filed a
motion for summary judgment as to both the foreclosure and quiet title action. In its
2 motion, movants attached an affidavit averring the above documents were deceptively
recorded by appellant, as the mortgage was never modified to appoint appellant as
successor trustee or superseding successor trustee. Further, the note had not been
modified to an indebtedness of zero dollars nor had it been “fully satisfied by
consideration tendered January 16, 2011.” BAC maintains that appellant’s obligation
under the note and mortgage remains outstanding and unsatisfied. In such motion,
movants specifically requested to strike the above documents filed by appellant with the
recorder.
{¶8} With respect to the foreclosure action, appellant, in his brief in opposition
to BAC’s motion for summary judgment1, maintains that MERS does not have capacity
to “obtain an interest, to transfer or assign any interest and/or to foreclose.” Appellant
argues that there is no real party in interest as required by law and that he is not in
default because BAC cannot produce the original note.
{¶9} With respect to the quiet title action, appellant states he commenced such
action because BAC failed to provide him with “true, complete, and accurate documents
showing proper title, ownership, holding, or otherwise of the original note and
mortgage.” BAC maintains that the recorded documents are not improper clouds on the
title.
{¶10} In a March 13, 2012 judgment entry, the trial court found the following:
{¶11} [T]he defense of the mortgagor in this case revolved principally
around a claim that the Plaintiff had no right to enforce the note or
1. BAC had originally filed a motion for summary judgment, which related solely to its foreclosure complaint; however, per the trial court’s judgment entry of December 21, 2011, the parties filed a supplemental motion, which addressed both the foreclosure action and appellant’s quiet title action.
3 otherwise foreclose. However, the Summary Judgment motion and
attachments thereto clearly reveal that Plaintiff was the real party in
interest at the time that the matter was filed and further that the
mortgage has been assigned to Plaintiff.
{¶12} The trial court also found that the original promissory note was made
available to appellant for inspection. Further, the trial court dismissed appellant’s quiet
title action and ordered the documents filed by appellant to be removed from the public
record.
{¶13} Appellant filed a timely notice of appeal and asserts the following
assignment of error:
{¶14} “Reviewing the Appellee’s Motion for Summary Judgment de novo, the
record is clear and convincing that the trial court erred to the prejudice of Appellant by
granting Appellee’s Motion for Summary Judgment in favor of Appellee on the
foreclosure Complaint and against Appellant on the quiet title counterclaims and third
party complaint.”
{¶15} Pursuant to Civil Rule 56(C), summary judgment is proper if:
{¶16} (1) No genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to
but one conclusion, and viewing such evidence most strongly in
favor of the party against whom the motion for summary judgment
is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327 (1977).
4 {¶17} To prevail on a motion for summary judgment, the moving party has the
initial burden to affirmatively demonstrate that there is no genuine issue of material fact
to be resolved in the case, relying on evidence in the record pursuant to Civ.R. 56(C).
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If this initial burden is met, the
nonmoving party then bears the reciprocal burden to set forth specific facts which prove
there remains a genuine issue to be litigated, pursuant to Civ.R. 56(E). Id.
{¶18} An appellate court reviews an award of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Thus, the court of appeals
applies “the same standard as the trial court, viewing the facts in the case in a light most
favorable to the non-moving party and resolving any doubt in favor of the non-moving
party.” Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶19} A party seeking foreclosure on a mortgage must establish: (1) execution
and delivery of the note and mortgage, (2) valid recording of the mortgage, (3) that it is
the current holder of the note and mortgage, (4) default, and (5) the amount owed.
Perpetual Fed. Sav. Bank v. TDS2 Property Mgt., LLC, 10th Dist. No. 09AP-285, 2009-
Ohio-6774, ¶19.
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[Cite as BAC Home Loans Servicing, L.P. v. Untisz, 2013-Ohio-993.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
BAC HOME LOANS SERVICING, LP, : OPINION f.k.a. COUNTRYWIDE HOME LOANS SERVICING, L.P., : CASE NO. 2012-G-3072 Plaintiff-Appellee, :
- vs - :
JOHN M. UNTISZ, et al., :
Defendant-Appellant. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 10F000333.
Judgment: Affirmed.
Rose Marie Lynn Fiore and James S. Wertheim, McGlinchey Stafford PLLC, 25550 Chagrin Boulevard, Suite 406, Cleveland, OH 44122 (For Plaintiff-Appellee).
David N. Patterson, 33579 Euclid Avenue, Willoughby, OH 44094-3199 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, John M. Untisz, appeals the judgment of the Geauga County
Court of Common Pleas granting the motion for summary judgment of appellee, BAC
Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P. (“BAC”), on
its complaint for foreclosure and on appellant’s complaint to quiet title. For the following
reasons, we affirm. {¶2} On July 15, 2008, appellant purchased residential property in Geauga
County. Appellant signed a promissory note, and he granted a mortgage on the
property to American Midwest Mortgage Corporation (“American Midwest”). The
mortgage was assigned from American Midwest to Mortgage Electronic Registration
Systems, Inc. (“MERS”); this assignment was recorded on July 21, 2008.
Subsequently, the mortgage was assigned from MERS to Bank of America, N.A. (“Bank
of America”), successor by merger to BAC; this assignment was recorded on March 4,
2010.
{¶3} BAC filed a complaint in foreclosure on March 25, 2010, alleging a default
under the note and demanding enforcement of the mortgage. Appellant, acting pro se,
filed an answer.
{¶4} Appellant then recorded documents with the Geauga County Recorder’s
Office. The documents are titled as follows: (1) Appointment of Superseding Successor
Trustee; (2) Affidavit of John Untisz; (3) Qualified Written Request; (4) Notice of Right to
Cancel; (5) Notice of Lender’s Default; (6) Modification of Mortgage Note; and (7)
Release of Lien and Full Reconveyance.
{¶5} A week after filing such documents in the recorder’s office, appellant filed
a separate quiet title action against BAC, MERS, and American Midwest seeking a
declaration from the trial court that Bank of America has no interest in the property and
that the note has a zero balance.
{¶6} The trial court consolidated the foreclosure and quiet title action.
{¶7} After consolidation, movants, BAC, MERS, and American Midwest, filed a
motion for summary judgment as to both the foreclosure and quiet title action. In its
2 motion, movants attached an affidavit averring the above documents were deceptively
recorded by appellant, as the mortgage was never modified to appoint appellant as
successor trustee or superseding successor trustee. Further, the note had not been
modified to an indebtedness of zero dollars nor had it been “fully satisfied by
consideration tendered January 16, 2011.” BAC maintains that appellant’s obligation
under the note and mortgage remains outstanding and unsatisfied. In such motion,
movants specifically requested to strike the above documents filed by appellant with the
recorder.
{¶8} With respect to the foreclosure action, appellant, in his brief in opposition
to BAC’s motion for summary judgment1, maintains that MERS does not have capacity
to “obtain an interest, to transfer or assign any interest and/or to foreclose.” Appellant
argues that there is no real party in interest as required by law and that he is not in
default because BAC cannot produce the original note.
{¶9} With respect to the quiet title action, appellant states he commenced such
action because BAC failed to provide him with “true, complete, and accurate documents
showing proper title, ownership, holding, or otherwise of the original note and
mortgage.” BAC maintains that the recorded documents are not improper clouds on the
title.
{¶10} In a March 13, 2012 judgment entry, the trial court found the following:
{¶11} [T]he defense of the mortgagor in this case revolved principally
around a claim that the Plaintiff had no right to enforce the note or
1. BAC had originally filed a motion for summary judgment, which related solely to its foreclosure complaint; however, per the trial court’s judgment entry of December 21, 2011, the parties filed a supplemental motion, which addressed both the foreclosure action and appellant’s quiet title action.
3 otherwise foreclose. However, the Summary Judgment motion and
attachments thereto clearly reveal that Plaintiff was the real party in
interest at the time that the matter was filed and further that the
mortgage has been assigned to Plaintiff.
{¶12} The trial court also found that the original promissory note was made
available to appellant for inspection. Further, the trial court dismissed appellant’s quiet
title action and ordered the documents filed by appellant to be removed from the public
record.
{¶13} Appellant filed a timely notice of appeal and asserts the following
assignment of error:
{¶14} “Reviewing the Appellee’s Motion for Summary Judgment de novo, the
record is clear and convincing that the trial court erred to the prejudice of Appellant by
granting Appellee’s Motion for Summary Judgment in favor of Appellee on the
foreclosure Complaint and against Appellant on the quiet title counterclaims and third
party complaint.”
{¶15} Pursuant to Civil Rule 56(C), summary judgment is proper if:
{¶16} (1) No genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to
but one conclusion, and viewing such evidence most strongly in
favor of the party against whom the motion for summary judgment
is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327 (1977).
4 {¶17} To prevail on a motion for summary judgment, the moving party has the
initial burden to affirmatively demonstrate that there is no genuine issue of material fact
to be resolved in the case, relying on evidence in the record pursuant to Civ.R. 56(C).
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If this initial burden is met, the
nonmoving party then bears the reciprocal burden to set forth specific facts which prove
there remains a genuine issue to be litigated, pursuant to Civ.R. 56(E). Id.
{¶18} An appellate court reviews an award of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Thus, the court of appeals
applies “the same standard as the trial court, viewing the facts in the case in a light most
favorable to the non-moving party and resolving any doubt in favor of the non-moving
party.” Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶19} A party seeking foreclosure on a mortgage must establish: (1) execution
and delivery of the note and mortgage, (2) valid recording of the mortgage, (3) that it is
the current holder of the note and mortgage, (4) default, and (5) the amount owed.
Perpetual Fed. Sav. Bank v. TDS2 Property Mgt., LLC, 10th Dist. No. 09AP-285, 2009-
Ohio-6774, ¶19.
{¶20} Here, movants attached the evidence necessary to establish each
element for foreclosure. Movants attached a copy of the mortgage and note executed
by appellant, which demonstrates it was recorded in Geauga County; the Mortgage
Assignment from American Midwest to MERS dated July 15, 2008; and the Mortgage
Assignment from MERS to BAC, dated February 22, 2010. Movants also attached an
affidavit of Angelica Williams, assistant secretary of BAC, who averred that she is the
custodian of the business records and has personal knowledge of the facts contained in
5 the affidavit. Ms. Williams averred that she examined the loan histories of appellant;
that appellant has been in default since October 2009; and that appellant owed the
principal balance of $166,273.74, plus interest at the rate of 6.500% per annum from
September 1, 2009, until paid, plus late charges and, pursuant to the mortgage, all
sums advanced for the payment of real estate taxes and assessments, insurance
premiums, and property protection. Pursuant to Dresher, supra, therefore, the burden
shifted to appellant to set forth specific facts that would create a genuine issue for trial.
{¶21} Although on appeal and in his response to summary judgment, appellant
asserts the “alleged ‘assignments’ in the instant matter were and remain fraudulent, in
both law and equity,” he failed to provide any evidence to support or buttress this
assertion. Therefore, appellant has failed to meet his burden under Dresher.
Accordingly, we conclude the trial court did not err in granting movants’ summary
judgment on the complaint for foreclosure.
{¶22} We also find the trial court did not err in granting movants’ summary
judgment on appellant’s complaint to quiet title. After filing several documents in the
recorder’s office with respect to the property in question, appellant filed a complaint
seeking to have the alleged cloud removed and title to the property quieted. Appellant
based his allegations on the documents he recorded, which were executed solely by
appellant.
{¶23} R.C. 5303.01 governs an action to quiet title and states, “[a]n action may
be brought by a person in possession of real property, by himself or tenant, against any
person who claims an interest therein adverse to him, for the purpose of determining
such adverse interest.”
6 {¶24} In their motion for summary judgment, movants established there was no
genuine issue of material fact that the documents recorded by appellant, and signed
solely by appellant, were false and have no legal effect. Movants attached the affidavit
of Susan Reynolds of Bank of America. Ms. Reynolds averred that she has access to
Bank of America’s business records relating to the July 15, 2008 loan made to
appellant, including the mortgage and note. Her affidavit also avers that Bank of
America “did not consent to the execution or recordation of any of the documents
recorded by [appellant] with the Geauga County Recorder’s Office on June 3, 2011
relating to [appellant’s] attempt to modify documents entered into with [Bank of
America]”; that “[Bank of America] is not a signatory to any of the documents [appellant]
recorded with the [recorder’s] office”; that the “mortgage had not been modified to
appoint [appellant] as Successor Trustee or Superseding Successor Trustee”; and that
the note had not been satisfied.
{¶25} In his response, appellant did not provide any evidence to set forth
specific facts that prove there remains a genuine issue to be litigated, pursuant to Civ.R.
56(E). Appellant merely stated that “the evidence conclusively shows” the recorded
documents are not improper clouds. Appellant claims the quiet title was commenced
because movants failed to provide appellant with documentation demonstrating “proper
title, holding, or otherwise ownership of the original note and mortgage.” Movants,
however, attached the proper documentation to their motion for summary judgment.
{¶26} Even when construed in a light most favorable to the nonmoving party, we
find there to be no genuine issue of material fact and that the trial court did not err in
granting movants’ motion for summary judgment as to the quiet title action.
7 Furthermore, the trial court did not err in striking the documents filed by appellant with
the county recorder.
{¶27} Appellant’s assignment of error is without merit.
{¶28} The judgment of the Geauga County Court of Common Pleas is hereby
affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.