Deutsche Bank Natl. Trust Co. v. Unknown Spouse of Wolfe

2024 Ohio 2940

• Court: Ohio Court of Appeals
• Decided: August 1, 2024
• Docket: 2024 CA 00001
• Status: Published

Opinion

[Cite as Deutsche Bank Natl. Trust Co. v. Unknown Spouse of Wolfe, 2024-Ohio-2940.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

DEUTSCHE BANK NATIONAL TRUST : JUDGES: COMPANY, AS TRUSTEE FOR : Hon. John W. Wise, P.J. AMERIQUEST MORTGAGE : Hon. Craig R. Baldwin, J. SECURITIES INC., ASSET-BACKED : Hon. Andrew J. King, J. PASS-THROUGH CERTIFICATES, : SERIES 2005-R7 : : Plaintiff-Appellee : : -vs- : : UNKNOWN SPOUSE, IF ANY OF : Case No. 2024 CA 00001 ROBERT A. WOLFE, ET AL. : : Defendants : : and : : ANITA GRAF AND NEIL MORGAN : : Intervenors-Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2021CV00170

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 1, 2024

APPEARANCES:

For Plaintiff-Appellee For Intervenors-Appellants

BRIAN E. CHAPMAN BRUCE M. BROYLES 3962 Red Bank Road 752 Luke Chute Road Cincinnati, OH 45227 Waterford, OH 45786 Fairfield County, Case No. 2024 CA 00001 2

King, J.

{¶ 1} Intervenors-Appellants, Anita Graf and Neil Morgan, appeal the November

28, 2023 judgment entry of the Court of Common Pleas of Fairfield County, Ohio, granting

summary judgment to Plaintiff-Appellee, Deutsche Bank National Trust Company, as

Trustee for Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through

Certificates, Series 2005-R7. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On June 17, 2005, Robert A. Wolfe executed a promissory note secured by

a mortgage encumbering property located at 795 Blue Valley Road in Lancaster, Ohio.

Appellee is the holder of the note.

{¶ 3} On January 20, 2021, appellee mailed a letter of intent to accelerate the

mortgage to Wolfe due to the note being in default. The letter was sent to a separate

address given by Wolfe.

{¶ 4} On April 29, 2021, appellee filed a complaint in foreclosure against Wolfe

and the unknown spouse, if any, of Wolfe. After the filing, appellee was informed that

Wolfe had passed away on December 8, 2019. On July 21, 2021, appellee added Wolfe's

unknown heirs as defendants.

{¶ 5} On September 7, 2021, appellants filed a motion to intervene to assert their

interest in the property by virtue of an unrecorded land contract they had with Wolfe.

Appellants supplemented their motion on October 12, 2021. By judgment entry file

October 21, 2021, the trial court granted the motion.

{¶ 6} On June 22, 2023, appellee filed a motion to dismiss Wolfe since he had

passed away prior to the filing of the complaint and a motion for default judgment against Fairfield County, Case No. 2024 CA 00001 3

the unknown heirs of Wolfe for failure to answer. On the same date, appellee also filed

a motion for summary judgment against appellants, claiming no genuine issues of

material facts as it held the note and the note was in default. By an order filed June 30,

2023, the trial court dismissed Wolfe as a defendant.

{¶ 7} On August 22, 2023, appellants filed a response to the summary judgment

motion, claiming appellee did not send Wolfe notice of default to the property address as

required under the terms of the note unless notified by Wolfe of an address change.

{¶ 8} On October 4, 2023, appellee filed a supplemental affidavit of Juliana

Thurab, Contract Management Coordinator for appellee's servicer, attesting that on

November 21, 2018, Wolfe informed the loan servicer that he did not live at the Blue

Valley address and provided an address on East Main Street in Lancaster, Ohio. A record

of the address change was attached. Wolfe also stated he no longer takes care of the

payment and appellants are the "owners" and he wanted to remove his name. The

service provider offered suggestions on what to do (refinance or assumption). The record

indicates nothing was done.

{¶ 9} By in rem judgment entry filed November 28, 2023, the trial court granted

appellee's motion for default judgment against the unknown heirs, granted the motion for

summary judgment against appellants after finding no genuine issues of material fact to

exist, and issued a decree in foreclosure on the property.

{¶ 10} Appellants filed an appeal with the following assignment of error:

I Fairfield County, Case No. 2024 CA 00001 4

{¶ 11} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

WHEN THERE EXISTS A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE

REGARDING WHETHER APPELLEE FULFILLED THE CONDITIONS PRECEDENT."

I

{¶ 12} In their sole assignment of error, appellants claim the trial court erred in

granting summary judgment to appellee. We disagree.

{¶ 13} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Regarding summary judgment, the Supreme Court stated the following in State

ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447 (1996):

Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (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 nonmoving party, that conclusion is adverse to the party

against whom the motion for summary judgment is made. State ex. rel.

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d

466, 472, 364 N.E.2d 267, 274. Fairfield County, Case No. 2024 CA 00001 5

{¶ 14} In Leech v. Schumaker, 2015-Ohio-4444, ¶ 13 (5th Dist.), this court

explained the following:

It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial.

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). The standard for granting summary judgment is

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party

seeking summary judgment, on the ground that the nonmoving party cannot

prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its

initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving

party must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

no evidence to support the nonmoving party's claims. If the moving party

fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial and, if the

nonmovant does not so respond, summary judgment, if appropriate, shall Fairfield County, Case No. 2024 CA 00001 6

be entered against the nonmoving party." The record on summary

judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.

{¶ 15} As an appellate court reviewing summary judgment motions, we stand in

place of the trial court and review the issues de novo, under the same standards and

evidence as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

{¶ 16} Appellants argue genuine issues of material fact exist as to whether

appellee fulfilled the conditions precedent. Appellants argue appellee failed to provide

notice of default per the terms of the note. In support, appellants quote the following

language of paragraph 8 of the promissory note: "any notice that must be given to me

[Wolfe] under this Note will be given by delivering it or by mailing it by first class mail to

me at the Property Address above or at a different address if l give the Note Holder a

notice of my different address." Appellants argue notice was not sent to the property

address.

{¶ 17} The supplemental affidavit of Juliana Thurab with an attached record of the

loan servicing notes shows Wolfe informed the note holder over the telephone that his

address was 1570 East Main Street instead of the Blue Valley Road address. The notice

of default was sent to the East Main Street address. There is no requirement in the note

that the address change needs to be in writing.

{¶ 18} Also in support, appellants cite to paragraph 15 of the mortgage agreement

that states: Fairfield County, Case No. 2024 CA 00001 7

All notices given by Borrower or Lender in connection with this

Security Instrument must be in writing. . . . The notice address shall be the

Property Address unless Borrower has designated a substitute notice

address by notice to Lender. Borrower shall promptly notify Lender of

Borrower's change of address. If Lender specifies a procedure for reporting

Borrower's change of address, then Borrower shall only report a change of

address through that specified procedure.

{¶ 19} The requirement that all notices given by Borrower or Lender must be in

writing is found under the mortgage agreement, not the default notice paragraph in the

note, and the mortgage provision contemplates that the Lender can specify a different

procedure to report a change of address other than in writing. Although a different

procedure is not specifically delineated in the mortgage document, appellee accepted

Wolfe's change of address over the telephone and documented it in the loan servicing

notes.

{¶ 20} To properly support a motion for summary judgment in a foreclosure action,

a plaintiff must present evidentiary quality materials establishing: (1) 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) the

mortgagor is in default; (4) all conditions precedent have been satisfied; and (5) the

amount of principal and interest due. Wachovia Bank of Delaware, N.A. v. Jackson, 2011-

Ohio-3203, ¶ 40-45 (5th Dist.). Fairfield County, Case No. 2024 CA 00001 8

{¶ 21} The record demonstrates appellee has presented evidentiary quality

materials establishing these factors. See Affidavit of Status Account filed June 16, 2023,

and Supplemental Affidavit filed October 4, 2023. Appellee is the holder of the note and

mortgage of which Wolfe is the named borrower under the note and named mortgagor

under the mortgage agreement. Wolfe was in default of the note and appellee sent the

required notices to the address provided by Wolfe. The purported land contract was never

recorded, nor was a refinance or assumption ever executed by Wolfe to appellants.

{¶ 22} Upon review, we do not find any genuine issues of material fact to exist and

therefore find the trial court did not err in granting summary judgment to appellee.

{¶ 23} The sole assignment of error is denied.

{¶ 24} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By King, J.

Wise, P.J. and

Baldwin, J. concur.