Bank of Am. v. Curtin

Ohio Court of Appeals

Bank of Am. v. Curtin

2014 Ohio 5379

CourtOhio Court of Appeals

DecidedDecember 8, 2014

Docket2013-P-0082

StatusPublished

Cited by5 cases

This text of 2014 Ohio 5379 (Bank of Am. v. Curtin) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bank of Am. v. Curtin, 2014 Ohio 5379 (Ohio Ct. App. 2014).

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Opinion

[Cite as Bank of Am. v. Curtin, 2014-Ohio-5379.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

BANK OF AMERICA, N.A. SUCCESSOR : OPINION BY MERGER TO BAC HOME LOANS SERVICING, LP, fka COUNTRYWIDE : HOME LOANS SERVICING, LP, CASE NO. 2013-P-0082 : Plaintiff-Appellee, : - vs - : LINDA S. CURTIN, et al., : Defendants-Appellants. :

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2011 CV 01447.

Judgment: Affirmed.

Adam R. Fogelman, Lerner, Sampson & Rothfuss, L.P.A., 120 East Fourth Street, 8th Floor, P.O. Box 5480, Cincinnati, OH 45201 (For Plaintiff-Appellee).

Linda S. Curtin and Christopher S. Klima, Pro se, 1065 Gaynelle Avenue, Streetsboro, OH 44241 (Defendants-Appellants).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Linda S. Curtin, appeals the Order and Journal Entry

of the Portage County Court of Common Pleas, granting summary judgment in favor of

plaintiff-appellee, Bank of America, N.A., in this foreclosure action.1 The issues before

1. We note that Curtin and co-defendant, Christopher S. Klima, are both identified as appellants on the Notice of Appeal, although the appellate brief only identifies Curtin as an appellant. this court are whether a lender must comply with federal regulations regarding notice

where the mortgage/loan is not federally insured and such regulations are not

incorporated into the mortgage/loan documents; and whether an officer of the

successor-in-interest to the original lender may authenticate business records created

by the original lender. For the following reasons, we affirm the judgment of the court

below.

{¶2} On November 7, 2011, Bank of America filed a Complaint in Foreclosure

against Linda S. Curtin, Christopher S. Klima, Curtin’s and Klima’s unknown spouses,

and the City of Streetsboro. The Complaint alleged that Bank of America was in

possession of a Note executed by Curtin for the sum of $130,397.75 and secured by a

Mortgage on property located at 1065 Gaynelle Avenue, Streetsboro, Ohio. The

Complaint further alleged that the Note was in default and the debt accelerated.

{¶3} On January 9, 2012, Curtin and Klima filed their Answer, contesting the

default of the Note and Bank of America’s entitlement to foreclose the equity of

redemption.

{¶4} On January 17, 2012, the City of Streetsboro filed its Answer, asserting a

judgment lien against Curtin in the amount of $456.63.

{¶5} On July 30, 2013, Bank of America filed a Motion for Summary Judgment.

{¶6} In support of its Motion for Summary Judgment, Bank of America

submitted the Affidavit of Tara M. Bradley, an “officer” of Bank of America. Bradley

testified, based on business records attached to the Affidavit, that Curtin “defaulted on

the note by failing to make payments due for July 1, 2011, or any subsequent

installments”; “[t]he indebtedness has been accelerated”; Curtin and Klima were “served

2 with notice of their default and notice of plaintiff’s intent to accelerate by letter”; and

“[t]he balance due on said loan [is] in the principal sum of $130,397.75 plus interest at

6.5000% per annum from June 1, 2011.”

{¶7} On August 16, 2013, Curtin filed her Brief in Opposition to Plaintiff’s

Motion for Summary Judgment. As attested by the Affidavit attached in support, Curtin

“signed [the] original Note with America’s Wholesale Lender and Mortgage with

Mortgage Electronic Registration Systems, Inc.,” and she did not recognize “the officer

or other authorized agent associated with” Bank of America. Curtin further testified that

she never received notice of default, notice of acceleration of the debt, or an opportunity

to cure the default.

{¶8} On September 3, 2013, the trial court issued an Order and Journal Entry,

granting Bank of America’s Motion for Summary Judgment against Curtin and Klima.

{¶9} In a separate Entry Granting Summary Judgment and Decree in

Foreclosure, the trial court ordered the sale of the subject property and acknowledged

the City of Streetsboro’s interest in the proceeds “which interest is junior in priority to

plaintiff’s interest.”

{¶10} On October 3, 2013, Curtin and Klima filed a Notice of Appeal. On

appeal, Curtin raises the following assignments of error:

{¶11} “[1.] The Trial Court erred in granting summary judgment to the

Plaintiff/Appellee Bank of America, N.A., when there were genuine issues of material

fact remaining as to whether all contractual and statutory conditions precedent to

foreclosure were satisfied and the Bank was not entitled to summary judgment as a

matter of law.”

3 {¶12} “[2.] The Trial Court erred when it granted summary judgment to the

Plaintiff/Appellee Bank of America, N.A., when the Bank’s Affidavit failed to meet

required evidentiary and summary judgment standards.”

{¶13} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” 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 that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “Under this standard, the reviewing court

conducts an independent review of the evidence before the trial court and renders a

decision de novo, i.e., as a matter of law and without deference to the conclusions of

the lower court.” (Citation omitted.) U.S. Bank Natl. Assn. v. Martz, 11th Dist. Portage

No. 2013-P-0028, 2013-Ohio-4555, ¶ 10.

{¶14} In the first assignment of error, Curtin argues that Bank of America failed,

as a matter of law, to demonstrate that “it has satisfied all conditions precedent by

failing to show it complied with the notice of default and notice prior to acceleration

requirements of the mortgage or that it made personal contact with Curtin prior to

initiation of this foreclosure action.” Appellant’s Brief at 9.

{¶15} Curtin relies on notice provisions contained in the Code of Federal

Regulations: 24 C.F.R. 201.50(a) (“[b]efore taking action to accelerate the maturity of

4 the loan, the lender or its agent shall contact the borrower and any co-maker or co-

signer, either in a face-to-face meeting or by telephone, to discuss the reasons for the

default and to seek its cure”) and (b) (“the lender shall provide the borrower with written

notice that the loan is in default and that the loan maturity is to be accelerated * * * by

certified mail”); 24 C.F.R. 203.604(b) (“[t]he mortgagee must have a face-to-face

interview with the mortgagor, or make a reasonable effort to arrange such a meeting,

before three full monthly installments due on the mortgage are unpaid”).

{¶16} Curtin’s reliance on federal regulations is misplaced. This court, and

others, have recognized that compliance with federal regulations is only required when

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