Castle CFD Group, L.L.C. v. Kinney

2023 Ohio 2980

• Court: Ohio Court of Appeals
• Decided: August 25, 2023
• Docket: L-22-1245
• Status: Published

Opinion

[Cite as Castle CFD Group, L.L.C. v. Kinney, 2023-Ohio-2980.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Castle CFD Group, LLC Court of Appeals No. L-22-1245

Appellee Trial Court No. CI0202003274

v.

Kristian Kenney, et al. DECISION AND JUDGMENT

Appellants Decided: August 25, 2023

*****

W. Scott Leaman, Jeffrey Helms, Patricia L. Johnson, and Steven Harding, for appellee.

Abbey M. Flynn, for appellants.

SULEK, J.

{¶ 1} Appellants, Kristian Kinney and Don Parks, appeal from the order of the

Lucas County Court of Common Pleas granting summary judgment in favor appellee

Castle CFD Group, LLC (“Castle”). For the reasons that follow, the trial court’s

judgment is affirmed. Factual and Procedural History

{¶ 2} On or about October 24, 2012, Kinney entered into a land contract/contract

for deed with CR Capital Group, LLC (the “Land Contract”) that provided for the sale of

the real property located at 1825 Mansfield Road, Toledo, OH 43613 (the “Property”).

The total purchase price for the Property was $19,750.00, with $750 down, and the

balance accruing interest at the rate of 9.900% per annum. On December 1, 2012,

Kinney executed a promissory note under which she promised to pay lender CR Capital

Group, LLC the amount of $19,000.00 (the “Note”) for the remaining balance due on the

Land Contract.

{¶ 3} On March 13, 2015, CR Capital Group, LLC conveyed the Property to

Castle by way of a quit claim deed. On September 24, 2020, CR Capital Group, LLC

signed a Seller’s Assignment of Land Contract to Castle.

{¶ 4} There was a default in payments under the terms of the Land Contract and

Note. Castle sent notice to Kinney on January 14, 2020, that she had defaulted on

payments due under the terms of the Land Contract and Note. Castle also provided

Kinney an opportunity to cure the default. When she failed to do so, however, Castle

accelerated the loan.

{¶ 5} On October 9, 2020, Castle filed a complaint in foreclosure against Kinney

and any unknown spouse of Kinney, in the Lucas County Common Pleas Court. Nearly a

2. year later, on September 1, 2021, Parks was substituted as a defendant in place of

Kinney’s “unknown spouse.”

{¶ 6} In their answer, Kinney and Parks denied Castle’s allegations that they had

defaulted on the loan and raised several affirmative defenses, including failure to state a

cause of action, failure to make a definite statement upon which relief may be granted,

and lack of jurisdiction. They did not, however, assert the affirmative defense of

“payment.”

{¶ 7} Castle subsequently filed a motion for summary judgment along with the

affidavit of its manager, Victor Narr. Based on his review of Castle’s business records

and his own personal knowledge, Narr established (1) Kinney’s default in payments

under the terms of a land contract for certain real property and an associated promissory

note; and (2) the amount that was due on the loan -- specifically $13,819.74, with interest

at the rate of 9.900% per annum from September 1, 2019, plus costs, advances, and other

charges allowed by law. Narr also authenticated copies of relevant documents, including:

(1) the land contract and the corresponding note, (2) a deed conveying the subject

property from a prior interest holder to Castle, (3) the notice of default that Castle mailed

to Kinney, and (4) the payment history and account figures for the loan.

{¶ 8} Kinney and Parks filed their response to the motion on September 9, 2022,

arguing that they were not in default or in breach of contract. Specifically, they stated

that “all payments have either been made, attempted to be made, or have been sent back

3. to Defendant by Plaintiff or their agents.” They further stated that “Plaintiff has failed to

keep an accurate accounting of payments made by Defendants which is included in the

amount claimed in this Complaint.” Finally, they stated that there was a genuine issue of

material fact as to whether “Plaintiff has included in the balance owed charges that

Defendant would not be responsible for.” They also attached unauthenticated e-mails

that appear to have been sent by Kinney several years prior to the filing of the instant

case. Kinney and Parks did not provide any evidence that was authenticated by affidavit.

{¶ 9} On September 27, 2022, the trial court issued an order granting the motion

for summary judgment in favor of Castle. An Entry and Decree in Foreclosure (in rem)

and Quieting Title was issued by the trial court on November 14, 2022. It is from these

decisions that Kinney and Parks now appeal.

Assignments of Error

{¶ 10} Appellants assert the following assignments of error on appeal:

I. The trial court committed reversible error in granting Appellee’s

motion for summary judgment and holding there were no genuine issues of

material fact.

II. The trial court erred in granting the motion for summary

judgment when there was a genuine issue of material fact regarding charges

assessed by Appellee in the accounting.

4. Analysis

{¶ 11} Kinney and Parks claim in their first assignment of error that the trial court

committed reversible error in granting Castle’s motion for summary judgment and in

holding that there were no genuine issues of material fact. They argue in their second

assignment of error that the trial court erred in granting the motion for summary

judgment, as there was a genuine issue of material fact regarding the charges assessed by

Castle in the accounting. As the issues involved in these two assignments of error

overlap, they will be considered together in this analysis.

{¶ 12} An appellate court reviews de novo a trial court’s decision to grant

summary judgment. Chalmers v. HCR ManorCare, Inc., 2017-Ohio-5678, 93 N.E.3d

1237, ¶ 21 (6th Dist.). Summary judgment will be granted only when “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact,” show that there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a matter of law. Civ.R.

56(C). “The burden of showing that no genuine issue of material fact exists falls upon

the party who moves for summary judgment.” Wright-Patt Credit Union, Inc. v.

Byington, 6th Dist. Erie No. E-12-002, 2013-Ohio-3963, ¶ 9. “[O]nce the movant

supports his or her motion with appropriate evidentiary materials, the nonmoving party

‘may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s

5. response, by affidavit or as otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial.’” Id., quoting Civ.R. 56(E).

{¶ 13} Under Civ.R. 56(C), evidence that may be considered when deciding a

motion for summary judgment includes the “pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any.” “Documents that do not fall into any of those categories may

still be considered in a summary judgment proceeding if they are introduced by a

properly framed affidavit.” Thombre v. Grange Ins. Co., 6th Dist. Lucas No. L-21-1014,

2021-Ohio-3998, ¶ 12. “And, although the Ohio Supreme Court has held that a court

retains discretion to consider evidence that is not specified in Civ.R. 56(C), it may only

exercise that discretion if the opposing party does not object to the improper evidence.”

Id.

{¶ 14} “In a foreclosure case, the amount due and owing on a note can be proven

by a simple averment of the amount owed from a bank employee with personal

knowledge of the debtor’s account unless the debtor refutes the alleged amount with

evidence that he owes a different amount.” Deutsche Bank Natl. Tr. Co. v. Boreman, 6th

Dist. Ottawa No. OT-18-031, 2020-Ohio-3545, ¶ 58 (additional citations omitted). “An

affidavit stating the loan is in default, is sufficient for purposes of Civ.R. 56, in the

absence of evidence controverting those averments.” Bank of New York Mellon v.

Bridge, 2017-Ohio-7686, 97 N.E.3d 1009, ¶ 26 (9th Dist.).

6. {¶ 15} “Once evidence of an obligation is established, the burden is upon the

defendant to prove any payments.” Loudakis v. Loudakis, 2d Dist. Greene No. 92-CA-

30, 1993 WL 155663, *1 (May 10, 1993). “[P]ayment is an affirmative defense to an

action on a debt, and is consistent with the general principle that the burden of proof

should be upon that party who is in the best position to come forward with evidence.” Id.

{¶ 16} “‘Documents submitted in opposition to a motion for summary judgment

[that] are not sworn, certified, or authenticated by affidavit have no evidentiary value and

may not be considered by the court in deciding whether a genuine issue of material fact

remains for trial.’” Thombre v. Grange Ins. Co., 6th Dist. Lucas No. L-21-1014, 2021-

Ohio-3998, ¶ 14, quoting Battaglia v. Conrail, 6th Dist. Lucas No. L-08-1332, 2009-

Ohio-5505, ¶ 42. (Additional quotation omitted.)

{¶ 17} In this case, Castle supported its motion for summary judgment with Narr’s

affidavit, which detailed facts regarding the Land Contract and Note, Kinney’s default,

and the amount due Castle. He also authenticated “true and accurate” copies of the Land

Contract, the Note, the deed conveying the property from a prior interest holder to Castle,

the notice of default that Castle mailed to Kinney, and the payment history and account

figures for the loan.

{¶ 18} The affidavit establishes that Castle is the owner of the Property and the

assignee of the Land Contract. It also includes and authenticates a payment history for

the loan, which demonstrates that Kinney failed to make all of the required payments, and

7. that Kinney’s loan is due for the October 1, 2019 payment and all subsequent payments.

The affidavit further shows that the amount due on the loan is $13,819.74, with interest at

the rate of 9.900% per annum from September 1, 2019, plus costs, advances, and other

charges as allowed by law. Thus, the affidavit establishes both the default and the

amount that is due in this foreclosure action.

{¶ 19} This discharge of Castle’s initial burden triggered the reciprocal burden on

the part of Kinney and Parks to provide some evidence to support their claims that the

loan is not in default and/or to challenge the amount due on the loan. They failed to do

so.

{¶ 20} As evidence that they were not in default on the loan, Kinney and Parks

submitted copies of various e-mails purportedly sent by Kinney to the lender, wherein she

complains of difficulties in making certain payments or in having them improperly

applied to her loan.

{¶ 21} Because Kinney and Parks failed to authenticate the documents submitted

in response to Castle’s motion for summary judgment, they have no evidentiary value

and, therefore, cannot be considered by the court in deciding whether a genuine issue

remains for trial.

{¶ 22} Moreover, insofar as Kinney and Parks assert that the unauthenticated e-

mails demonstrate that they were not in default of the loan, the defense of payment has

been waived.

8. {¶ 23} Ohio law is clear that a defendant must plead the affirmative defense of

payment in its answer, or by amendment under Civ.R. 15, or it waives that defense.

HSBC Mtge. Corp. v. Latona, 10th Dist. Franklin No. 15AP-401, 2016-Ohio-3137, citing

Blackwell v. Internatl. Union, United Auto Workers Local No. 1250, 21 Ohio App.3d

110, 111, 487 N.E.2d 334 (8th Dist.1984), citing Civ.R. 8(C); see also Joseph v. Ohio

Fair Plan Underwriting Assoc., 6th Dist. Lucas No. L-82-004, 1982 WL 6432, *1 (June

4, 1982) (“Civ. R. 8(C) specifically lists payment as an affirmative defense which must

be pled.”) “A party may not rebut a motion for summary judgment by raising a new

affirmative defense in its opposition to summary judgment.” DeFoe v. Schoen Builders,

LLC, 6th Dist. Wood No. WD-18-031, 2019-Ohio-2255, ¶ 40, citing Stanwade Metal

Prods. v. Heintzelman, 158 Ohio App.3d 228, 2004-Ohio-4196, 814 N.E.2d 572, ¶ 22

(11th Dist.); see also Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 320 N.E.2d

668 (1974), syllabus.

{¶ 24} In this case, Kinney and Parks waived the affirmative defense of payment

by failing to raise it in their answer; therefore, they could not raise this defense for the

first time in response to Castle’s motion for summary judgment.

{¶ 25} In sum, the evidence provided by Castle establishes that Kinney is in

default under the terms of the Land Contract and Note, the amount due on the loan, and

all other elements of Castle’s claims. Because Kinney and Parks both (1) waived any

defense of payment and (2) failed to provide any proper evidence showing that there is a

9. genuine issue of material fact, their first and second assignments of error are found not

well-taken.

Conclusion

{¶ 26} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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