Fed. Home Loan Mtge. v. Zuga

2013 Ohio 2838

• Court: Ohio Court of Appeals
• Decided: June 28, 2013
• Docket: 2012-T-0038
• Status: Published

Opinion

[Cite as Fed. Home Loan Mtge. v. Zuga, 2013-Ohio-2838.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

FEDERAL HOME LOAN MORTGAGE : OPINION CORPORATION, : Plaintiff-Appellee, CASE NO. 2012-T-0038 : - vs - : ELIZABETH ZUGA f.k.a. ELIZABETH BROWN, et al., :

Defendant-Appellant, :

TRUMBULL COUNTY TREASURER, :

Defendant-Appellee. :

Civil Appeal from the Trumbull County Court of Common Pleas. Case No. 2010 CV 02310.

Judgment: Affirmed.

David M. Gaunter, Felty & Lembright Co., L.P.A., 1500 West Third Street, Suite 400, Cleveland, OH 44113 (For Plaintiff-Appellee).

Bruce M. Broyles, 5815 Market Street, Suite 2, Youngstown, OH 44512 (For Defendant-Appellant).

Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Defendant-Appellee).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Elizabeth Zuga, f.k.a. Elizabeth Brown, appeals the judgment of

the Trumbull County Court of Common Pleas granting the motion for summary judgment filed by appellee, Federal Home Loan Mortgage Corporation. For the

following reasons, we affirm the judgment of the trial court.

{¶2} Appellee initiated a foreclosure action against appellant on August 31,

2010. After appellant failed to answer the complaint, appellee filed a motion for default

judgment, which was granted by the trial court. A decree of foreclosure was entered in

favor of appellee on March 15, 2011.

{¶3} Thereafter, appellant filed a motion for relief from judgment, as well as a

motion to stay execution of judgment and cancel the sheriff’s sale. The trial court

granted appellant’s motion for relief from judgment. In its judgment entry, the trial court

reasoned that “there may be a meritorious defense, that the Affidavit underlying the

Default Judgment in this case may be based on information outside the personal

knowledge of the Affiant.” Appellant was granted leave to file an answer to appellee’s

complaint in foreclosure.

{¶4} After appellant filed her answer, appellee moved for summary judgment.

Attached to this motion was the affidavit of Kristen Kerrigan, an employee of Home

Savings & Loan Company of Youngstown (“Home Savings”). In this affidavit, Kerrigan

averred that: (1) she is employed as Assistant Vice President of Home Savings, which

is the servicing agent for the Federal Home Loan Mortgage Corporation for the loan

account of appellant; (2) in the regular performance of her job duties, she is familiar with

business records maintained by Home Savings; (3) she has personally and

independently reviewed the relevant records in connection with making the affidavit and

has personal knowledge of the records; (4) plaintiff exercised the acceleration option

contained in the Promissory Note and Mortgage Deed; and (5) review of the records

2 reveals the copies attached are true and accurate copies of the original instruments.

Attached to Kerrigan’s affidavit was a copy of the note and mortgage.

{¶5} Appellee also attached the affidavit of Brian Blanton, a Collector for Home

Savings. Blanton averred that Home Savings exercised the acceleration option in the

Promissory Note and Mortgage Deed and that he personally sent the required notice by

both regular and certified mail to appellant. This letter, dated February 28, 2009, was

attached to Blanton’s affidavit.

{¶6} After appellee filed its motion for summary judgment, appellant moved for

leave to respond in order to conduct the deposition of Kerrigan. Based upon her

affidavit and deposition testimony, appellant argued that appellee failed to present

evidence that it was the “holder” of the note and, furthermore, that appellee did not

comply with the requirements of the promissory note when enforcing the Notice of

Acceleration.

{¶7} The trial court awarded summary judgment to appellee. A sheriff’s sale

was scheduled for October 18, 2012. Appellant filed a motion to stay the sheriff’s sale.

The trial court entered judgment staying execution of the order of sale pending appeal

on September 26, 2012.

{¶8} This appeal followed. Appellant’s assignment of error for our review

states:

{¶9} “The trial court erred in granting summary judgment to Appellee when

there were genuine issues of material fact still in dispute.”

{¶10} Pursuant to Civil Rule 56(C), summary judgment is proper if:

3 {¶11} (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 party against whom the motion for summary judgment

is made, that conclusion is adverse to that party. Temple v. Wean

United, Inc., 50 Ohio St.2d 317, 327 (1977).

{¶12} To prevail on a motion for summary judgment, the moving party has the

initial burden to affirmatively demonstrate that there is no genuine issue of material fact

to be resolved in the case, relying on evidence in the record pursuant to Civ.R. 56(C).

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Pursuant to Civ.R. 56(C), the evidence

to be considered is limited to the “pleadings, depositions, answers to interrogatories,

written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if

any, timely filed in the action * * *.” If this initial burden is met, the nonmoving party then

bears the reciprocal burden to set forth specific facts which prove there remains a

genuine issue to be litigated, pursuant to Civ.R. 56(E). Id.

{¶13} An appellate court reviews an award of summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Thus, the court of appeals

applies “the same standard as the trial court, viewing the facts in the case in a light most

favorable to the non-moving party and resolving any doubt in favor of the non-moving

party.” Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

{¶14} In a foreclosure action, the party moving for summary judgment must

present evidentiary-quality material demonstrating: (1) The movant is the holder of the

4 note and mortgage, or is a party entitled to enforce the instrument; (2) if the mover is not

the original mortgagee, the chain of assignments and transfers; (3) the mortgage is in

default; (4) all conditions precedent have been met; and (5) the amount of principal and

interest due. Wachovia Bank v. Jackson, 5th Dist. No. 2010-CA-00291, 2011-Ohio-

3203, ¶40-45.

{¶15} To support its motion for summary judgment, appellee attached the

affidavit of Kerrigan. Pursuant to Civ.R. 56(E), affidavits “shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence, and shall

show affirmatively that the affiant is competent to testify to the matters stated in the

affidavit.” Copies of all papers referred to in the affidavit are acceptable if the affidavit

indicated that the copies submitted are true and accurate reproductions of the originals.

{¶16} Below and on appeal, appellant argues that appellee is not the holder of

the note. Appellee was required to prove that it is the current holder of the note and

mortgage in order to establish itself as the real party in interest. Deutsche Bank Natl.

Trust Co. v. Greene, 6th Dist. No. E-10-006, 2011-Ohio-1976, ¶13. If appellee failed to

demonstrate itself as the real party in interest, a genuine issue of material fact remains

and summary judgment is precluded.

{¶17} The holder of an instrument is a “person entitled to enforce” the instrument

under R.C. 1303.31. R.C. 1301.201(B)(21)(a) defines a holder of a negotiable

instrument as “[t]he person in possession of a negotiable instrument that is payable

either to bearer or to an indentified person that is the person in possession.”

{¶18} Here, appellee established that it was the holder of the note and mortgage

prior to the complaint being filed. See, e.g., Fed. Home Loan Mtge. Corp. v.

5 Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017 (holding that standing is required to

present a justiciable controversy and is a jurisdictional requirement). Attached to its

complaint were copies of the note and mortgage, as well as a copy of the recorded

Assignment of Mortgage from Home Savings to appellee, executed July 27, 2009, and

recorded three days thereafter. Furthermore, in both her affidavit and deposition,

Kerrigan indicated that appellee was the holder of both the mortgage and note.

Kerrigan also produced the original note at the deposition for appellant’s inspection.

See U.S. Bank, N.A. v. Adams, 6th Dist. No. E-11-070, 2012-Ohio-6253, ¶18 (“U.S

Bank’s possession of the note was demonstrated by the attachment of a copy of the

note to the complaint and the affidavit, coupled with [an employee’s] statements

concerning U.S. Bank’s possession of the note and mortgage in her affidavit”). After her

review of the original “wet ink” note, Kerrigan reaffirmed each and every line of her

original affidavit attached to appellee’s motion for summary judgment. Therefore, the

burden shifted to appellant to demonstrate the existence of a genuine issue of material

fact in order to avoid summary judgment.

{¶19} Appellant, however, failed to satisfy her reciprocal Dresher burden. To

demonstrate that a genuine issue of material fact remained to be litigated, appellant

cited to both the deposition and affidavit of Kerrigan. Appellant maintained that Kerrigan

never “saw the promissory note in the possession of appellee.” The law, however, does

not require that Kerrigan actually “see” the note in appellee’s possession. Further,

appellant argued that when Kerrigan requested the promissory note, it was received

from a third party—namely, the Bank of New York Mellon. The deposition of Kerrigan

established that the Bank of New York Mellon was merely the custodian, with no

6 interest in the note. This is evidenced by the fact that appellee held possession of both

the note and mortgage at the time the complaint was filed. Appellant has failed to

provide any evidence to demonstrate that a genuine issue of material fact exists

regarding appellee’s status as holder of the note.

{¶20} Next, appellant alleges that appellee is not entitled to summary judgment

because it failed to provide appellant with Notice of Default pursuant to the terms at

paragraph 6(C) of the note, which states:

{¶21} If I am in default, the Note Holder may send me a written notice

telling me that if I do not pay the overdue amount by a certain date,

the Note Holder may require me to pay immediately the full amount

of Principal which has not been paid and all the interest that I owe

on that amount. That date must be at least 30 days after the date

on which the notice is mailed to me or delivered by other means.

{¶22} Appellant acknowledges that she received notice via letter sent by Home

Savings, dated February 28, 2009. Appellee attached a copy of the letter along with the

affidavit of Brian Blanton, a collector for Home Savings, averring that Home Savings

exercised the acceleration option in the Promissory Note and Mortgage Deed and that

he personally sent the required notice by both regular and certified mail to appellant.

Appellant maintains, however, that summary judgment was inappropriate because

Home Savings is merely the servicing agent of the loan, not the holder, and the letter

did not advise her that she is to pay the overdue amount by a certain date. First, we

note that the Assignment of Mortgage from Home Savings to appellee was not executed

until July 27, 2009. Therefore, it was proper for Home Savings, as the holder of the

7 note and mortgage, to send the Notice of Default letter, dated February 28, 2009.

Second, the letter sent to appellant, which was attached to Blanton’s affidavit, is in full

compliance with paragraph 6(C) stated above. See, e.g., GMAC Mtge., L.L.C. v.

Jacobs, 9th Dist. No. 24984, 2011-Ohio-1780, ¶16-18 (upholding summary judgment

award to bank when bank’s affidavit provided that “written notice of default was given in

accordance with the terms of the note and mortgage”). There are no genuine issues of

material fact with regard to whether appellee properly provided appellant with the Notice

of Default pursuant to the terms of the note.

{¶23} Therefore, even when viewing the evidence in a light most favorable to

appellant, we cannot say the trial court erred in granting appellee’s motion for summary

judgment. Appellant’s assignment of error is without merit.

{¶24} The judgment of the Trumbull County Court of Common Pleas is hereby

affirmed.

DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.