[Cite as Fifth Third Bank v. Martinez, 2025-Ohio-1893.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
FIFTH THIRD BANK, NATIONAL ASSOCIATION FKA, FIFTH THIRD BANK SUCCESSOR BY MERGER TO FIFTH THIRD MORTGAGE CASE NO. 13-24-44 COMPANY,
PLAINTIFF-APPELLEE,
V.
WILLIAM J. MARTINEZ,
DEFENDANT-APPELLANT, OPINION AND JUDGMENT ENTRY -AND-
SENECA COUNTY TREASURER,
DEFENDANT-APPELLEE.
Appeal from Seneca County Common Pleas Court Trial Court No. 24CV0085
Judgment Affirmed
Date of Decision: May 27, 2025
APPEARANCES:
Gene P. Murray for Appellant
Benjamin M. Rodriguez for Appellee Case No. 13-24-44
WALDICK, P.J.
{¶1} Defendant-appellant, William J. Martinez (“Martinez”), brings this
appeal from the October 21, 2024, judgment of the Seneca County Common Pleas
Court awarding summary judgment to defendant-appellee Fifth Third Bank. On
appeal, Martinez argues that by filing an answer denying the allegations in the
complaint, he had satisfied his burden to defeat a summary judgment motion. For
the reasons that follow, we affirm the judgment of the trial court.
Background
{¶2} On March 20, 2024, Fifth Third Bank filed a “Complaint in
Foreclosure” against Martinez. On May 28, 2024, Martinez filed an answer denying
Fifth Third’s claims.
{¶3} On September 3, 2024, Fifth Third filed a motion for summary
judgment and decree of foreclosure, attaching numerous evidentiary documents in
support. For example: Fifth Third filed a copy of the note and mortgage executed
by Martinez; Fifth Third filed evidence that Martinez was in default; Fifth Third
produced evidence that Martinez owed $31,304.13; and Fifth Third produced
evidence that it provided Martinez with notice and opportunity to cure the default
prior to acceleration. Because Martinez had not cured the default, Fifth Third sought
foreclosure.
-2- Case No. 13-24-44
{¶4} On September 23, 2024, Martinez filed a response to Fifth Third’s
motion for summary judgment claiming that although he had some issues with late
payments in the past, he had resumed making timely payments. These statements
were unsworn and contained in the body of his two-page memorandum in response.
Martinez did not attach any evidentiary materials whatsoever to his memorandum
in response.
{¶5} On October 21, 2024, the trial court filed a judgment entry granting
Fifth Third’s motion for summary judgment. It is from this judgment that Martinez
appeals, asserting the following assignments of error for our review.
First Assignment of Error
The trial court erred by deciding there was no genuine issues as to any material fact, because it is a material fact that although there had been in the distant past a few late payments regarding his mortgage, Defendant-Appellant had quickly resumed making timely mortgage payments to Plaintiff-Appellee Fifth Third Bank, which the bank had accepted and was continuing to accept, in forbearance of proceeding with foreclosure, pursuant to the good faith reliance upon same by the Defendant-Appellant, to his detriment, resulting in the denial of the Defendant-Appellant’s fundamental and substantial rights to Due Process of law and Equal Protection of the laws, and the denial of his rights under the doctrines of promissory and equitable estoppel.
-3- Case No. 13-24-44
Second Assignment of Error
The Defendant-Appellant put at issue every genuine material fact in this case by denying the claims and assertions in the Plaintiff- Appellee’s Complaint. Accordingly, for Due Process of Law and Equal Protection of the Laws, in the interests of justice, the Defendant-Appellant should not have had his denials in this case to be summarily dismissed.
{¶6} Due to the nature of the discussion and disposition, we elect to address
the assignments of error together.
First and Second Assignments of Error
{¶7} In his assignments of error, Martinez makes various arguments
contending that the trial court erred by granting summary judgment in favor of Fifth
Third Bank.
Standard of Review
{¶8} Appellate courts conduct a de novo review of trial court decisions
granting a motion for summary judgment. Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105 (1996). Thus, this Court must conduct an independent review of the
evidence and arguments that were before the trial court without deference to the trial
court’s decision. Tharp v. Whirlpool Corp., 2018-Ohio-1344, ¶ 23 (3d Dist.).
Civ.R. 56(C) provides, in relevant part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any
-4- Case No. 13-24-44
material fact and that the moving party is entitled to judgment as a matter of law.
{¶9} “When seeking summary judgment on grounds that the non-moving
party cannot prove its case, the moving party 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 an essential
element of the non-moving party’s claims.” Lundeen v. Graff, 2015–Ohio–4462, ¶
11 (10th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). “Once the
moving party meets its initial burden, the nonmovant must set forth specific facts
demonstrating a genuine issue for trial.” Id., citing Dresher at 293.
{¶10} “Trial courts should award summary judgment with caution, being
careful to resolve doubts and construe evidence in favor of the nonmoving party.”
Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 (1992). “Nevertheless, summary
judgment is appropriate where a plaintiff fails to produce evidence supporting the
essentials of [her] claim.” Id., citing Wing v. Anchor Media, Ltd. of Texas, 59 Ohio
St.3d 108 (1991), paragraph three of the syllabus.
Analysis
{¶11} In his brief, Martinez makes numerous arguments contending that the
trial court erred by granting summary judgment in favor of Fifth Third Bank. He
contends that there were genuine issues of material fact, he contends that his due
-5- Case No. 13-24-44
process rights were violated, and he contends that Fifth Third Bank was unjustly
enriched. He attempts to frame this case as one of material facts in dispute and a
deprivation of rights. However, this case is simply about Civil Rule 56(C), and what
constitutes “evidence” to defeat a well-supported motion for summary judgment.
{¶12} In this case, after Martinez filed an answer denying the allegations in
Fifth Third Bank’s complaint, Fifth Third filed a motion for summary judgment.
Fifth Third attached evidentiary materials to its motion for summary judgment
establishing, inter alia, that it was the holder of the note and mortgage, that Martinez
was in default, and that Fifth Third had complied with all applicable laws and
regulations.
{¶13} Martinez filed a motion in response containing no evidentiary
materials. He claimed in the motion that “although there had been in the distant past
a few late payments regarding his mortgage . . . [he] had quickly resumed making
monthly mortgage payments.” However, Martinez did not file an affidavit or any
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[Cite as Fifth Third Bank v. Martinez, 2025-Ohio-1893.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
FIFTH THIRD BANK, NATIONAL ASSOCIATION FKA, FIFTH THIRD BANK SUCCESSOR BY MERGER TO FIFTH THIRD MORTGAGE CASE NO. 13-24-44 COMPANY,
PLAINTIFF-APPELLEE,
V.
WILLIAM J. MARTINEZ,
DEFENDANT-APPELLANT, OPINION AND JUDGMENT ENTRY -AND-
SENECA COUNTY TREASURER,
DEFENDANT-APPELLEE.
Appeal from Seneca County Common Pleas Court Trial Court No. 24CV0085
Judgment Affirmed
Date of Decision: May 27, 2025
APPEARANCES:
Gene P. Murray for Appellant
Benjamin M. Rodriguez for Appellee Case No. 13-24-44
WALDICK, P.J.
{¶1} Defendant-appellant, William J. Martinez (“Martinez”), brings this
appeal from the October 21, 2024, judgment of the Seneca County Common Pleas
Court awarding summary judgment to defendant-appellee Fifth Third Bank. On
appeal, Martinez argues that by filing an answer denying the allegations in the
complaint, he had satisfied his burden to defeat a summary judgment motion. For
the reasons that follow, we affirm the judgment of the trial court.
Background
{¶2} On March 20, 2024, Fifth Third Bank filed a “Complaint in
Foreclosure” against Martinez. On May 28, 2024, Martinez filed an answer denying
Fifth Third’s claims.
{¶3} On September 3, 2024, Fifth Third filed a motion for summary
judgment and decree of foreclosure, attaching numerous evidentiary documents in
support. For example: Fifth Third filed a copy of the note and mortgage executed
by Martinez; Fifth Third filed evidence that Martinez was in default; Fifth Third
produced evidence that Martinez owed $31,304.13; and Fifth Third produced
evidence that it provided Martinez with notice and opportunity to cure the default
prior to acceleration. Because Martinez had not cured the default, Fifth Third sought
foreclosure.
-2- Case No. 13-24-44
{¶4} On September 23, 2024, Martinez filed a response to Fifth Third’s
motion for summary judgment claiming that although he had some issues with late
payments in the past, he had resumed making timely payments. These statements
were unsworn and contained in the body of his two-page memorandum in response.
Martinez did not attach any evidentiary materials whatsoever to his memorandum
in response.
{¶5} On October 21, 2024, the trial court filed a judgment entry granting
Fifth Third’s motion for summary judgment. It is from this judgment that Martinez
appeals, asserting the following assignments of error for our review.
First Assignment of Error
The trial court erred by deciding there was no genuine issues as to any material fact, because it is a material fact that although there had been in the distant past a few late payments regarding his mortgage, Defendant-Appellant had quickly resumed making timely mortgage payments to Plaintiff-Appellee Fifth Third Bank, which the bank had accepted and was continuing to accept, in forbearance of proceeding with foreclosure, pursuant to the good faith reliance upon same by the Defendant-Appellant, to his detriment, resulting in the denial of the Defendant-Appellant’s fundamental and substantial rights to Due Process of law and Equal Protection of the laws, and the denial of his rights under the doctrines of promissory and equitable estoppel.
-3- Case No. 13-24-44
Second Assignment of Error
The Defendant-Appellant put at issue every genuine material fact in this case by denying the claims and assertions in the Plaintiff- Appellee’s Complaint. Accordingly, for Due Process of Law and Equal Protection of the Laws, in the interests of justice, the Defendant-Appellant should not have had his denials in this case to be summarily dismissed.
{¶6} Due to the nature of the discussion and disposition, we elect to address
the assignments of error together.
First and Second Assignments of Error
{¶7} In his assignments of error, Martinez makes various arguments
contending that the trial court erred by granting summary judgment in favor of Fifth
Third Bank.
Standard of Review
{¶8} Appellate courts conduct a de novo review of trial court decisions
granting a motion for summary judgment. Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105 (1996). Thus, this Court must conduct an independent review of the
evidence and arguments that were before the trial court without deference to the trial
court’s decision. Tharp v. Whirlpool Corp., 2018-Ohio-1344, ¶ 23 (3d Dist.).
Civ.R. 56(C) provides, in relevant part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any
-4- Case No. 13-24-44
material fact and that the moving party is entitled to judgment as a matter of law.
{¶9} “When seeking summary judgment on grounds that the non-moving
party cannot prove its case, the moving party 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 an essential
element of the non-moving party’s claims.” Lundeen v. Graff, 2015–Ohio–4462, ¶
11 (10th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). “Once the
moving party meets its initial burden, the nonmovant must set forth specific facts
demonstrating a genuine issue for trial.” Id., citing Dresher at 293.
{¶10} “Trial courts should award summary judgment with caution, being
careful to resolve doubts and construe evidence in favor of the nonmoving party.”
Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 (1992). “Nevertheless, summary
judgment is appropriate where a plaintiff fails to produce evidence supporting the
essentials of [her] claim.” Id., citing Wing v. Anchor Media, Ltd. of Texas, 59 Ohio
St.3d 108 (1991), paragraph three of the syllabus.
Analysis
{¶11} In his brief, Martinez makes numerous arguments contending that the
trial court erred by granting summary judgment in favor of Fifth Third Bank. He
contends that there were genuine issues of material fact, he contends that his due
-5- Case No. 13-24-44
process rights were violated, and he contends that Fifth Third Bank was unjustly
enriched. He attempts to frame this case as one of material facts in dispute and a
deprivation of rights. However, this case is simply about Civil Rule 56(C), and what
constitutes “evidence” to defeat a well-supported motion for summary judgment.
{¶12} In this case, after Martinez filed an answer denying the allegations in
Fifth Third Bank’s complaint, Fifth Third filed a motion for summary judgment.
Fifth Third attached evidentiary materials to its motion for summary judgment
establishing, inter alia, that it was the holder of the note and mortgage, that Martinez
was in default, and that Fifth Third had complied with all applicable laws and
regulations.
{¶13} Martinez filed a motion in response containing no evidentiary
materials. He claimed in the motion that “although there had been in the distant past
a few late payments regarding his mortgage . . . [he] had quickly resumed making
monthly mortgage payments.” However, Martinez did not file an affidavit or any
other evidentiary materials to support his claim. Rather, he relied on his blanket
denials in his answer and in his responsive motion itself.
{¶14} Generally, unsupported conclusory assertions are not sufficient to
meet the nomovant’s burden to set forth specific facts to show that a genuine issue
of material fact exists. Knab v. Washington Cnty. Bd. of Commrs., 2024-Ohio-1569,
¶ 39 (4th Dist.). Further, it is well-settled “that resting on mere allegations against a
-6- Case No. 13-24-44
motion for summary judgment . . . is insufficient.” Jackson v. Alert Fire and Safety
Equipment, Inc. 58 Ohio St.3d 48, 52 (1991).
{¶15} Here, Fifth Third filed a well-supported motion for summary
judgment, shifting the burden to Martinez to provide evidence that would establish
a genuine issue of material fact. Martinez provided no evidence to meet his burden
to defeat summary judgment, since documents that are not sworn, certified, or
authenticated by way of affidavit have no evidentiary value. Knab at ¶ 40.
Therefore, we find that the trial court properly granted summary judgment in favor
of Fifth Third Bank. Martinez’s arguments to the contrary are not-well taken, and
where they are not entirely irrelevant to the disposition, they are overruled.
Accordingly, his first and second assignments of error are overruled.
Conclusion
{¶16} Having found no error prejudicial to Martinez in the particulars
assigned and argued, the judgment of the Seneca County Common Pleas Court is
affirmed.
ZIMMERMAN and WILLAMOWSKI, J.J., concur.
/jlm
-7- Case No. 13-24-44
JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
Juergen A. Waldick, Judge
William R. Zimmerman, Judge
John R. Willamowski, Judge
DATED: /jlm
-8-