[Cite as CitiMortgage, Inc. v. Teofilo, 2016-Ohio-437.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
CitiMortgage, Inc. successor by merger Court of Appeals No. E-14-110 to ABN AMRO Mortgage Group, Inc. Trial Court No. 2013-CV-0297 Appellee
v.
Greg Teofilo and Rhonda Zahel aka Rhonda A. Zahel, et al. DECISION AND JUDGMENT
Appellant Decided: February 5, 2016
*****
Mia L. Conner, for appellee.
Greg Teofilo, pro se.
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from a summary judgment entered by the Erie County
Court of Common Pleas in a foreclosure action filed by plaintiff-appellee, CitiMortgage,
Inc. successor by merger to ABN AMRO Mortgage Group, Inc. (“CitiMortgage”),
against pro se defendant-appellant, Greg Teofilo, and others. {¶ 2} This is a companion case to CitiMortgage, Inc. v. Teofilo, 6th Dist. Erie No.
E-14-094, 2016-Ohio-334. (“CitiMortgage I.”) The facts and issues of the two cases are
nearly identical, they simply involve two separate parcels of property.
{¶ 3} The undisputed facts of this case are as follows. On November 9, 2001,
appellant and defendant Rhonda Zahel, borrowed $52,000 from ABN AMRO Mortgage,
Group, Inc. (“ABN”), for the purchase of property located on Cement Street in Castalia,
Ohio, and executed a promissory note for that amount. The promissory note identified
ABN as the lender. Under the “Borrower’s Promise to Pay” section of the note, the
borrowers (appellant and Zahel) “understand * * * [t]he Lender or anyone who takes this
Note by transfer and who is entitled to receive payments under this Note is called the
‘Note Holder.’” The promissory note was secured by a mortgage on the property in favor
of ABN. The mortgage was recorded with the Erie County Recorder on November 15,
2001.
{¶ 4} On September 1, 2007, ABN and CitiMortgage, Inc. merged, with
CitiMortgage, Inc. being named the successor corporation.
{¶ 5} On April 22, 2013, appellee filed a complaint in foreclosure against
appellant, Zahel, and others. The complaint alleged that appellee was in possession of
the promissory note that was secured by the recorded mortgage, that under the terms of
the note appellee was due $44,530.79 plus interest of 6.75 percent per year from
October 1, 2011, that defendants were in default under the terms of the note, that appellee
had performed all conditions precedent to acceleration of the debt and that appellee had
2. accelerated the debt. Appellee therefore asserted that it was entitled to a decree
foreclosing the mortgage and ordering the property sold. Attached to the complaint were
copies of the note, mortgage and certificate of merger. In his answer, appellant asserted
that appellee had no standing to file the instant action because it was not the owner of the
mortgage which, appellant asserted, had been sold to Freddie Mac.
{¶ 6} On July 7, 2014, appellee filed a motion for summary judgment. Appellee
asserted that pursuant to its merger with ABN, it was the holder of the note and mortgage
and was therefore the real party in interest with standing to bring the foreclosure action.
Appellee supported its motion with the affidavit of Pamela McLaughlin, one of its vice
presidents of document control. McLaughlin stated that in that capacity, she was
authorized to execute the affidavit on behalf of CitiMortgage, that she has access to
appellee’s business records and that the affidavit was based on her personal knowledge
and review of those records. McLaughlin stated that loan records are compiled and
recorded by appellee in the course of its regularly conducted business activities, that
those records are made at or near the time of occurrence of each act or event affecting the
account by persons with knowledge of the act or event, and that such records are kept,
maintained, and relied upon in the course of ordinary and regularly conducted business
activities.
{¶ 7} McLaughlin stated that the business records of appellee relating to
appellant’s loan that she reviewed and relied upon in making the affidavit included the
note, mortgage and appellee’s electronic servicing system. McLaughlin then stated that
3. appellee’s records contain a note executed by appellant in the amount of $52,000, secured
by a mortgage on property located on Cement Street in Castalia, Ohio, and that appellee
has the right to foreclose because it holds the note and is the servicer for the loan. Copies
of the note, mortgage and merger documents were attached to the affidavit and
McLaughlin attested to their authenticity. McLaughlin stated that appellant had defaulted
under the terms of the note and mortgage, that appellant’s default had not been cured, and
that the loan balance had been accelerated making the entire balance due and owing
under the terms of the loan documents. As a result of appellant’s default and acceleration
of the debt, McLaughlin attested that appellant owed, as of June 20, 2014, the principal
sum of $44,530.79, plus interest of 6.75 percent per year from October 1, 2011. Based on
this affidavit, appellee asserted it was entitled to judgment as a matter of law.
{¶ 8} In response to appellee’s summary judgment motion, appellant continued to
assert that appellee was not entitled to judgment because Freddie Mac, not appellee,
owned the mortgage.
{¶ 9} On July 25, 2014, the lower court filed a judgment entry granting appellee
summary judgment on its foreclosure action. Appellant now challenges that judgment
through the following assignments of error.
Assignment of Error Number 1
The trial court erred in granting summary judgment to CitiMortgage,
Inc. by finding that all necessary parties have been properly served.
4. Assignment of Error Number 2
The trial court erred in granting summary judgment for the plaintiff,
CitiMortgage, Inc. when there still exists a genuine issue of material fact,
therefore plaintiff/appellee should not have been entitled to judgment as
matter of law pursuant to Ohio Law Civ.R. 56(C). The evidence shows that
Freddie Mac purchased the loan from ABN AMRO on November 30, 2001.
Assignment of Error Number 3
The trial court erred in not allowing appellant to obtain discovery,
production of documents, or requests for admission within this case
pursuant to Ohio Rules of Civil Procedure Title V Discovery Rule 26-37.
Assignment of Error Number 4
The trial court erred not dismissing this case for lack of standing.
{¶ 10} Appellant’s assignments of error, and the issues raised therein, are the same
as those he raised in CitiMortgage I. They simply involve a loan and mortgage on a
different piece of property with different dates and amounts. Again, appellant asserts
that appellee had no standing to file the foreclosure case against him and that the court
erred in denying his discovery motions. Based on our holding in CitiMortgage I, we find
appellant’s assignments of error not well-taken.
5. {¶ 11} On consideration whereof, the court finds that substantial justice has been
done the party complaining and the judgment of the Erie County Court of Common Pleas
is affirmed. Appellant is 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.
Mark L. Pietrykowski, J.
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[Cite as CitiMortgage, Inc. v. Teofilo, 2016-Ohio-437.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
CitiMortgage, Inc. successor by merger Court of Appeals No. E-14-110 to ABN AMRO Mortgage Group, Inc. Trial Court No. 2013-CV-0297 Appellee
v.
Greg Teofilo and Rhonda Zahel aka Rhonda A. Zahel, et al. DECISION AND JUDGMENT
Appellant Decided: February 5, 2016
*****
Mia L. Conner, for appellee.
Greg Teofilo, pro se.
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from a summary judgment entered by the Erie County
Court of Common Pleas in a foreclosure action filed by plaintiff-appellee, CitiMortgage,
Inc. successor by merger to ABN AMRO Mortgage Group, Inc. (“CitiMortgage”),
against pro se defendant-appellant, Greg Teofilo, and others. {¶ 2} This is a companion case to CitiMortgage, Inc. v. Teofilo, 6th Dist. Erie No.
E-14-094, 2016-Ohio-334. (“CitiMortgage I.”) The facts and issues of the two cases are
nearly identical, they simply involve two separate parcels of property.
{¶ 3} The undisputed facts of this case are as follows. On November 9, 2001,
appellant and defendant Rhonda Zahel, borrowed $52,000 from ABN AMRO Mortgage,
Group, Inc. (“ABN”), for the purchase of property located on Cement Street in Castalia,
Ohio, and executed a promissory note for that amount. The promissory note identified
ABN as the lender. Under the “Borrower’s Promise to Pay” section of the note, the
borrowers (appellant and Zahel) “understand * * * [t]he Lender or anyone who takes this
Note by transfer and who is entitled to receive payments under this Note is called the
‘Note Holder.’” The promissory note was secured by a mortgage on the property in favor
of ABN. The mortgage was recorded with the Erie County Recorder on November 15,
2001.
{¶ 4} On September 1, 2007, ABN and CitiMortgage, Inc. merged, with
CitiMortgage, Inc. being named the successor corporation.
{¶ 5} On April 22, 2013, appellee filed a complaint in foreclosure against
appellant, Zahel, and others. The complaint alleged that appellee was in possession of
the promissory note that was secured by the recorded mortgage, that under the terms of
the note appellee was due $44,530.79 plus interest of 6.75 percent per year from
October 1, 2011, that defendants were in default under the terms of the note, that appellee
had performed all conditions precedent to acceleration of the debt and that appellee had
2. accelerated the debt. Appellee therefore asserted that it was entitled to a decree
foreclosing the mortgage and ordering the property sold. Attached to the complaint were
copies of the note, mortgage and certificate of merger. In his answer, appellant asserted
that appellee had no standing to file the instant action because it was not the owner of the
mortgage which, appellant asserted, had been sold to Freddie Mac.
{¶ 6} On July 7, 2014, appellee filed a motion for summary judgment. Appellee
asserted that pursuant to its merger with ABN, it was the holder of the note and mortgage
and was therefore the real party in interest with standing to bring the foreclosure action.
Appellee supported its motion with the affidavit of Pamela McLaughlin, one of its vice
presidents of document control. McLaughlin stated that in that capacity, she was
authorized to execute the affidavit on behalf of CitiMortgage, that she has access to
appellee’s business records and that the affidavit was based on her personal knowledge
and review of those records. McLaughlin stated that loan records are compiled and
recorded by appellee in the course of its regularly conducted business activities, that
those records are made at or near the time of occurrence of each act or event affecting the
account by persons with knowledge of the act or event, and that such records are kept,
maintained, and relied upon in the course of ordinary and regularly conducted business
activities.
{¶ 7} McLaughlin stated that the business records of appellee relating to
appellant’s loan that she reviewed and relied upon in making the affidavit included the
note, mortgage and appellee’s electronic servicing system. McLaughlin then stated that
3. appellee’s records contain a note executed by appellant in the amount of $52,000, secured
by a mortgage on property located on Cement Street in Castalia, Ohio, and that appellee
has the right to foreclose because it holds the note and is the servicer for the loan. Copies
of the note, mortgage and merger documents were attached to the affidavit and
McLaughlin attested to their authenticity. McLaughlin stated that appellant had defaulted
under the terms of the note and mortgage, that appellant’s default had not been cured, and
that the loan balance had been accelerated making the entire balance due and owing
under the terms of the loan documents. As a result of appellant’s default and acceleration
of the debt, McLaughlin attested that appellant owed, as of June 20, 2014, the principal
sum of $44,530.79, plus interest of 6.75 percent per year from October 1, 2011. Based on
this affidavit, appellee asserted it was entitled to judgment as a matter of law.
{¶ 8} In response to appellee’s summary judgment motion, appellant continued to
assert that appellee was not entitled to judgment because Freddie Mac, not appellee,
owned the mortgage.
{¶ 9} On July 25, 2014, the lower court filed a judgment entry granting appellee
summary judgment on its foreclosure action. Appellant now challenges that judgment
through the following assignments of error.
Assignment of Error Number 1
The trial court erred in granting summary judgment to CitiMortgage,
Inc. by finding that all necessary parties have been properly served.
4. Assignment of Error Number 2
The trial court erred in granting summary judgment for the plaintiff,
CitiMortgage, Inc. when there still exists a genuine issue of material fact,
therefore plaintiff/appellee should not have been entitled to judgment as
matter of law pursuant to Ohio Law Civ.R. 56(C). The evidence shows that
Freddie Mac purchased the loan from ABN AMRO on November 30, 2001.
Assignment of Error Number 3
The trial court erred in not allowing appellant to obtain discovery,
production of documents, or requests for admission within this case
pursuant to Ohio Rules of Civil Procedure Title V Discovery Rule 26-37.
Assignment of Error Number 4
The trial court erred not dismissing this case for lack of standing.
{¶ 10} Appellant’s assignments of error, and the issues raised therein, are the same
as those he raised in CitiMortgage I. They simply involve a loan and mortgage on a
different piece of property with different dates and amounts. Again, appellant asserts
that appellee had no standing to file the foreclosure case against him and that the court
erred in denying his discovery motions. Based on our holding in CitiMortgage I, we find
appellant’s assignments of error not well-taken.
5. {¶ 11} On consideration whereof, the court finds that substantial justice has been
done the party complaining and the judgment of the Erie County Court of Common Pleas
is affirmed. Appellant is 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.
Mark L. Pietrykowski, J. _______________________________ JUDGE Stephen A. Yarbrough, J. _______________________________ James D. Jensen, P.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.sconet.state.oh.us/rod/newpdf/?source=6.
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