[Cite as CitiMortgage, Inc. v. Guarnieri, 2013-Ohio-4913.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99504
CITIMORTGAGE, INC. PLAINTIFF-APPELLEE
vs.
WILLIAM T. GUARNIERI, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-704677
BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 7, 2013 FOR APPELLANT
William T. Guarnieri, pro se 10711 Greenhaven Parkway Brecksville, Ohio 44141
FOR APPELLEES
Attorneys for Citimortgage, Inc. Edward G. Bohnert Reimer Arnovitz Chernek & Jeffrey Co., L.P.A. 30455 Solon Road Solon, Ohio 44139 Harry W. Cappel John C. Greiner Graydon Head & Ritchey, L.L.P. 1900 Fifth Third Center 511 Walnut Street Cincinnati, Ohio 45202
Attorneys for State of Ohio, Bureau of Employment Services Mike DeWine Ohio Attorney General 30 East Broad Street, 17th Floor Columbus, Ohio 43215
Donn D. Rosenblum Assistant Attorney General Collections Enforcement Section 150 East Gay Street, 21st Floor Columbus, Ohio 43215
For Theresa L. Guarnieri Theresa L. Guarnieri, pro se 370 South Green Road South Euclid, Ohio 44121 FRANK D. CELEBREZZE, JR., P.J.:
{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant, William T. Guarnieri, appeals the entry of summary
judgment in favor of plaintiff-appellee, CitiMortgage, Inc., in its foreclosure action.
After a careful review of the record and relevant case law, we affirm the trial court’s
judgment.
I. Factual and Procedural History
{¶3} On April 14, 2008, appellant executed a note in the amount of $135,000 in
favor of Ohio U.S. Mortgage Corp. The note was secured by a mortgage on the property
located at 10711 Greenhaven Parkway, Brecksville, Ohio, in favor of Mortgage
Electronic Registration Systems, Inc. (“MERS”), as nominee for Ohio U.S. Mortgage
Corp. and its successors, executed on the same day. In December 2008, appellant
defaulted on his repayment obligations as the borrower under the note and mortgage.
{¶4} On September 14, 2009, MERS assigned the mortgage to CitiMortgage. As
provided in the note and mortgage, CitiMortgage exercised its option to accelerate the
balance due on the note. The principal due was $134,461.04 plus interest from
November 1, 2008.
{¶5} On September 22, 2009, CitiMortgage filed an action against appellant
seeking judgment on the note and foreclosure on the mortgage. CitiMortgage attached a
copy of the mortgage and note to its complaint. Attached to the note is an allonge containing an executed specific endorsement from the original lender, Ohio U.S.
Mortgage Corp., to CitiMortgage.
{¶6} On August 31, 2010, CitiMortgage moved for summary judgment arguing
that, as holder of the note and assignee of the mortgage at issue, it was entitled to
judgment as a matter of law. Following numerous attempts to resolve this matter in
mediation, appellant was granted leave to file a brief in opposition to CitiMortgage’s
motion for summary judgment on February 7, 2012. On January 17, 2013, the magistrate
issued its decision granting summary judgment in favor of CitiMortgage. On February
11, 2013, the magistrate’s decision was adopted in full by the common pleas court.
{¶7} Appellant now brings this timely appeal, pro se, raising one assignment of
error for review, which contains two separate issues:
I. The Cuyahoga County Court of Common Pleas erred in granting summary judgment where there remained issues of fact. There was insufficient testimony (evidence), to establish how the Plaintiff obtained the promissory note and mortgage and there was pending discovery requests directed to the Plaintiff.
II. Law and Analysis
A. Summary Judgment
{¶8} Appellant first argues that the trial court erred in granting summary judgment
in favor of CitiMortgage.
{¶9} We review summary judgment rulings de novo, applying the same standard as
the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We accord no deference to the trial court’s decision and independently review
the record to determine whether summary judgment is appropriate.
{¶10} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party.
{¶11} On a motion for summary judgment, the moving party carries an initial
burden of setting forth specific facts that demonstrate its entitlement to summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the
moving party fails to meet this burden, summary judgment is not appropriate; if the
moving party meets this burden, summary judgment is appropriate only if the nonmoving
party fails to establish the existence of a genuine issue of material fact. Id. at 293.
{¶12} To properly support a motion for summary judgment in a foreclosure action,
a plaintiff must present “evidentiary quality materials” establishing: (1) that the plaintiff
is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2)
if the plaintiff is not the original mortgagee, the chain of assignments and transfers; (3)
that the mortgagor is in default; (4) that all conditions precedent have been met; and (5)
the amount of principal and interest due. See, e.g., United States Bank, N.A. v. Adams,
6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10. {¶13} In challenging the trial court’s judgment, appellant’s argument focuses
solely on his contention that the affidavit attached to CitiMortgage’s summary judgment
motion “failed to demonstrate that the [relevant] mortgage and promissory note were
assigned [to CitiMortgage].” In support of his argument, appellant relies on First Union
Natl. Bank v. Hufford, 146 Ohio App.3d 673, 767 N.E.2d 1206 (3d Dist.2001). In
Hufford, the Third District found that summary judgment in favor of plaintiff, First Union
National Bank, was improper based on its failure to present documentation evidencing
that it had been assigned the note and mortgage from the original payee on the note and
lender on the mortgage, First Union Home Equity Bank, N.A., Charlotte, North Carolina.
The court explained that, “other than [First Union National Bank’s] inferences and bald
assertions, the record contains no clear statement or documentation * * * of a transfer of
the note or mortgage [from the original lender].” For the following reasons, we find the
evidentiary material submitted in the case at hand to be distinguishable from those
materials discussed in Hufford.
{¶14} In the case sub judice, CitiMortgage’s motion for summary judgment was
supported by the affidavit of Dan Berra, a foreclosure analyst for CitiMortgage. In his
affidavit, Berra stated he had personal knowledge of appellant’s loan account and that the
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[Cite as CitiMortgage, Inc. v. Guarnieri, 2013-Ohio-4913.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99504
CITIMORTGAGE, INC. PLAINTIFF-APPELLEE
vs.
WILLIAM T. GUARNIERI, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-704677
BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 7, 2013 FOR APPELLANT
William T. Guarnieri, pro se 10711 Greenhaven Parkway Brecksville, Ohio 44141
FOR APPELLEES
Attorneys for Citimortgage, Inc. Edward G. Bohnert Reimer Arnovitz Chernek & Jeffrey Co., L.P.A. 30455 Solon Road Solon, Ohio 44139 Harry W. Cappel John C. Greiner Graydon Head & Ritchey, L.L.P. 1900 Fifth Third Center 511 Walnut Street Cincinnati, Ohio 45202
Attorneys for State of Ohio, Bureau of Employment Services Mike DeWine Ohio Attorney General 30 East Broad Street, 17th Floor Columbus, Ohio 43215
Donn D. Rosenblum Assistant Attorney General Collections Enforcement Section 150 East Gay Street, 21st Floor Columbus, Ohio 43215
For Theresa L. Guarnieri Theresa L. Guarnieri, pro se 370 South Green Road South Euclid, Ohio 44121 FRANK D. CELEBREZZE, JR., P.J.:
{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant, William T. Guarnieri, appeals the entry of summary
judgment in favor of plaintiff-appellee, CitiMortgage, Inc., in its foreclosure action.
After a careful review of the record and relevant case law, we affirm the trial court’s
judgment.
I. Factual and Procedural History
{¶3} On April 14, 2008, appellant executed a note in the amount of $135,000 in
favor of Ohio U.S. Mortgage Corp. The note was secured by a mortgage on the property
located at 10711 Greenhaven Parkway, Brecksville, Ohio, in favor of Mortgage
Electronic Registration Systems, Inc. (“MERS”), as nominee for Ohio U.S. Mortgage
Corp. and its successors, executed on the same day. In December 2008, appellant
defaulted on his repayment obligations as the borrower under the note and mortgage.
{¶4} On September 14, 2009, MERS assigned the mortgage to CitiMortgage. As
provided in the note and mortgage, CitiMortgage exercised its option to accelerate the
balance due on the note. The principal due was $134,461.04 plus interest from
November 1, 2008.
{¶5} On September 22, 2009, CitiMortgage filed an action against appellant
seeking judgment on the note and foreclosure on the mortgage. CitiMortgage attached a
copy of the mortgage and note to its complaint. Attached to the note is an allonge containing an executed specific endorsement from the original lender, Ohio U.S.
Mortgage Corp., to CitiMortgage.
{¶6} On August 31, 2010, CitiMortgage moved for summary judgment arguing
that, as holder of the note and assignee of the mortgage at issue, it was entitled to
judgment as a matter of law. Following numerous attempts to resolve this matter in
mediation, appellant was granted leave to file a brief in opposition to CitiMortgage’s
motion for summary judgment on February 7, 2012. On January 17, 2013, the magistrate
issued its decision granting summary judgment in favor of CitiMortgage. On February
11, 2013, the magistrate’s decision was adopted in full by the common pleas court.
{¶7} Appellant now brings this timely appeal, pro se, raising one assignment of
error for review, which contains two separate issues:
I. The Cuyahoga County Court of Common Pleas erred in granting summary judgment where there remained issues of fact. There was insufficient testimony (evidence), to establish how the Plaintiff obtained the promissory note and mortgage and there was pending discovery requests directed to the Plaintiff.
II. Law and Analysis
A. Summary Judgment
{¶8} Appellant first argues that the trial court erred in granting summary judgment
in favor of CitiMortgage.
{¶9} We review summary judgment rulings de novo, applying the same standard as
the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We accord no deference to the trial court’s decision and independently review
the record to determine whether summary judgment is appropriate.
{¶10} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party.
{¶11} On a motion for summary judgment, the moving party carries an initial
burden of setting forth specific facts that demonstrate its entitlement to summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the
moving party fails to meet this burden, summary judgment is not appropriate; if the
moving party meets this burden, summary judgment is appropriate only if the nonmoving
party fails to establish the existence of a genuine issue of material fact. Id. at 293.
{¶12} To properly support a motion for summary judgment in a foreclosure action,
a plaintiff must present “evidentiary quality materials” establishing: (1) that the plaintiff
is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2)
if the plaintiff is not the original mortgagee, the chain of assignments and transfers; (3)
that the mortgagor is in default; (4) that all conditions precedent have been met; and (5)
the amount of principal and interest due. See, e.g., United States Bank, N.A. v. Adams,
6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10. {¶13} In challenging the trial court’s judgment, appellant’s argument focuses
solely on his contention that the affidavit attached to CitiMortgage’s summary judgment
motion “failed to demonstrate that the [relevant] mortgage and promissory note were
assigned [to CitiMortgage].” In support of his argument, appellant relies on First Union
Natl. Bank v. Hufford, 146 Ohio App.3d 673, 767 N.E.2d 1206 (3d Dist.2001). In
Hufford, the Third District found that summary judgment in favor of plaintiff, First Union
National Bank, was improper based on its failure to present documentation evidencing
that it had been assigned the note and mortgage from the original payee on the note and
lender on the mortgage, First Union Home Equity Bank, N.A., Charlotte, North Carolina.
The court explained that, “other than [First Union National Bank’s] inferences and bald
assertions, the record contains no clear statement or documentation * * * of a transfer of
the note or mortgage [from the original lender].” For the following reasons, we find the
evidentiary material submitted in the case at hand to be distinguishable from those
materials discussed in Hufford.
{¶14} In the case sub judice, CitiMortgage’s motion for summary judgment was
supported by the affidavit of Dan Berra, a foreclosure analyst for CitiMortgage. In his
affidavit, Berra stated he had personal knowledge of appellant’s loan account and that the
attached note and mortgage were true and accurate copies of the original instruments.
While Berra does not specifically aver that the mortgage and note were assigned to
CitiMortgage, the attached copies of the note, the mortgage, and the recorded assignment
of the mortgage were sufficient to demonstrate that CitiMortgage was assigned the mortgage on September 14, 2009, and subsequently recorded the assignment with the
Cuyahoga County Recorder’s office on September 18, 2009. Furthermore, the allonge
attached to the note contained a specific endorsement from Ohio U.S. Mortgage Corp. to
CitiMortgage, thereby evidencing the transfer of the note to CitiMortgage prior to the
time the complaint for foreclosure was filed in this matter.
{¶15} Thus, the evidence offered by CitiMortgage demonstrates a clear chain of
assignments from the original lender, Ohio U.S. Mortgage Corp., to CitiMortgage and
established CitiMortgage’s right to enforce the note as the holder of the instrument. See
R.C. 1303.31. Accordingly, unlike the evidentiary material presented in Hufford, the
documentary evidence attached to CitiMortgage’s motion for summary judgment
sufficiently evidenced the assignment of the mortgage and note to CitiMortgage. See
Countrywide Home Loans Servicing, L.P. v. Shifflet, 3d Dist. Marion No. 9-09-31,
2010-Ohio-1266, ¶ 12-16.
{¶16} Because appellant failed to present any evidence raising genuine issues of
material fact pertaining to the elements necessary for a successful foreclosure action, we
find the trial court did not err in granting summary judgment in favor of CitiMortgage.
B. Civ.R. 56(F)
{¶17} Appellant next argues that the trial court erred in granting summary
judgment in favor of CitiMortgage while requests for discovery were pending.
{¶18} When a party finds itself having to respond to a summary judgment motion
before adequate discovery is completed, the proper remedy is to move the trial court to delay judgment under Civ.R. 56(F). Maschari v. Tone, 103 Ohio St.3d 411,
2004-Ohio-5342, 816 N.E.2d 579; Drake Constr. Co. v. Kemper House Mentor, Inc., 170
Ohio App.3d 19, 2007-Ohio-120, 865 N.E.2d 938 (11th Dist.); Alexander v. Tullis, 11th
Dist. Portage No. 2005-P-0031, 2006-Ohio-1454 (stating that when discovery is not yet
complete and a party files a motion for summary judgment, the nonmoving party’s
remedy is to move the trial court to delay judgment under Civ.R. 56(F)). When a party
fails to file a motion pursuant to Civ.R. 56(F), that party fails to preserve its right on
appeal, and a trial court does not err in determining the summary judgment motion.
Taylor v. XRG, Inc., 10th Dist. Franklin No. 06AP-839, 2007-Ohio-3209, ¶ 17;
Maschari, supra (upholding decision to grant summary judgment prior to the completion
of discovery where the nonmoving party failed to file a Civ.R. 56(F) motion for a
continuance); Tullis, supra (upholding the trial court’s grant of summary judgment where
the nonmoving party failed to file a Civ.R. 56(F) motion).
{¶19} The record here is devoid of any indication that appellant attempted to
comply with Civ.R. 56(F); nor does his status as a pro se litigant excuse him from
complying with the same rules with which represented parties must comply. Because
appellant did not avail himself of the remedies Civ.R. 56(F) provides, any discovery he
lacked does not present a basis to reverse the trial court’s judgment.
{¶20} Accordingly, appellant’s assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and PATRICIA A. BLACKMON, J., CONCUR