Fifth Third Mtge Co. v. Fantine

2015 Ohio 4260

• Court: Ohio Court of Appeals
• Decided: October 9, 2015
• Docket: 15-CA-5
• Status: Published

Opinion

[Cite as Fifth Third Mtge Co. v. Fantine, 2015-Ohio-4260.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

FIFTH THIRD MORTGAGE COMPANY JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 15-CA-5 JEFFREY A. FANTINE AKA JEFFREY ADRIAN FANTINE, ET AL. OPINION Defendant-Appellant

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 2014-CV-00425

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 9, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

HARRY J. FINKLE IV. MARC E. DANN HARRY W. CAPPEL GRACE M. DOBERDRUK BRITTANY L. GRIGGS PAUL B. BELLAMY Graydon Head & Ritchey LLP The Dann Law Firm 1900 Fifth Third Center P.O. Box 6031040 511 Walnut Street Cleveland, Ohio 44103 Cincinnati, Ohio 45202-3157 Fairfield County, Case No. 15-CA-5 2

Hoffman, J.

{¶1} Defendant-appellants Jeffrey A. Fantine appeals the January 9, 2015

Judgment Entry entered by the Fairfield County Court of Common Pleas, which granted

summary judgment in favor of plaintiff-appellee Fifth Third Mortgage Company (“Fifth

Third”) and entered a decree of foreclosure.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 13, 2005, Appellant executed a promissory note and mortgage

deed with Fifth Third in the amount of $69,300, for real property located at 123 Behrens

Court, Lancaster, Fairfield County, Ohio. The mortgage was filed with the Fairfield

County Recorder on May 17, 2005, and recorded thereafter.

{¶3} On March 1, 2010, following a period of delinquency, Appellant entered

into a loan modification agreement with Fifth Third. Appellant again became delinquent

on the loan in September, 2013. On June 6, 2014, Fifth Third filed a complaint, seeking

judgment on the Note and foreclosure of the mortgage. On July 2, 2014, Appellant filed

a pro se document captioned “Motion for Additional Time in which to Answer or

Respond to Plaintiff’s Complaint.” Fifth Third filed a motion for default judgment on

September 5, 2014. Appellant filed a pro se response on September 11, 2014. Via

Entry filed October 20, 2014, the trial court denied Fifth Third’s motion for default

judgment.

{¶4} Thereafter, Fifth Third filed a motion for summary judgment on December

3, 2014. In support of the motion, Fifth Third attached the Affidavit of Kimberly Hoff, the

Affidavit Analyst for Fifth Third Bank and the loan servicer for Fifth Third Mortgage

Company; a copy of the Note; a copy of the mortgage; a copy of the loan modification Fairfield County, Case No. 15-CA-5 3

agreement; and a copy of the default notice addressed to Appellant. Appellant did not

file a memorandum in opposition to the motion for summary judgment.

{¶5} Via Judgment Entry filed January 9, 2015, the trial court granted Fifth

Third’s motion for summary judgment, and entered a decree of foreclosure.

{¶6} It is from this judgment entry Appellant appeals, raising the following

assignments of error:

{¶7} "I. IT WAS ERROR FOR THE TRIAL COURT TO GRANT FIFTH THIRD

MORTGAGE COMPANY A DECREE OF FORECLOSURE WHEN THE LOAN

MODIFICATION AGREEMENT WAS NOT FILED OF RECORD WITH THE FAIRFIELD

COUNTY RECORDER'S OFFICE PURSUANT TO THE MANDATORY TERMS OF

§R.C. 53.231.

{¶8} "II. IT WAS ERROR FOR THE TRIAL COURT TO GRANT FIFTH THIRD

MORTGAGE COMPANY A DECREE OF FORECLOSURE WHEN THE MORTGAGE

COMPANY FAILED TO PRODUCE ANY BUSINESS RECORDS THAT WOULD

SUPPORT A HISTORY OF PAYMENT DELINQUENCY AND DEFAULT AND

PROVIDE A DOCUMENTARY SUMMARY FOR THAT CALCULATION OF THE

DOLLAR AMOUNT SOUGHT IN THE UNDERLYING FORECLOSURE ACTION."

Summary Judgment

{¶9} Civ. R. 56 states in pertinent part:

{¶10} “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 of material fact and that the moving party is entitled to Fairfield County, Case No. 15-CA-5 4

judgment as a matter of law. No evidence or stipulation may be considered except as

stated in this rule. A summary judgment shall not be rendered unless it appears from

the evidence or stipulation, and only from the evidence or stipulation, that reasonable

minds can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being entitled to

have the evidence or stipulation construed mostly strongly in the party's favor. A

summary judgment, interlocutory in character, may be rendered on the issue of liability

alone although there is a genuine issue as to the amount of damages.”

{¶11} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

733 N.E.2d 1186 (6th Dist.1999).

{¶12} When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d

1243. Fairfield County, Case No. 15-CA-5 5

{¶13} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party's claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996). Once the moving party meets its initial burden, the burden shifts to the

nonmoving party to set forth specific facts demonstrating a genuine issue of material

fact does exist. Id. The non-moving party may not rest upon the allegations and denials

in the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791

(12th Dist.1991).

I

{¶14} In his first assignment of error, Appellant contends the trial court erred in

entering a decree of foreclosure when the loan modification agreement was not filed of

record pursuant to R.C. 5301.231. We disagree.

{¶15} R.C. 5301.23 provides, “All properly executed mortgages shall be

recorded in the office of the county recorder of the county in which the mortgaged

premises are situated and shall take effect at the time they are delivered to the recorder

for record.” R.C. 5301.23(A).

{¶16} In Ohio, the “failure or success of recording an instrument has no effect on

its validity as between the parties to that instrument.” Bank of New York Mellon v.

Loudermilk, 5th Dist. Fairfield No.2012–CA–30, 2013–Ohio–2296, citing Bank One, N.A.

v. Dillon, 9th Dist. No. 04CA008571, 2005–Ohio–1950, ¶ 9. “The purpose of the

recording statutes is to put other lien holders on notice and to prioritize the liens.” Id., Fairfield County, Case No. 15-CA-5 6

citing GMAC Mtge. Corp. v. McElroy, 5th Dist. No.2004–CA–00380, 2005–Ohio–2837, ¶

16.

{¶17} In support of his position, Appellant cites Community Action Commt. of

Pike Cty., Inc. v. Maynard, 4th Dist. Pike No. 02CA695, 2003-Ohio-4312, 2003 WL

21949715, ¶ 8–10, for the proposition an unrecorded mortgage modification is

ineffective. We find Appellant’s reliance on Maynard is misplaced. While the Fourth

District Court of Appeals concluded a mortgage modification which is not recorded is an

ineffective modification, it did so in the context of a mortgage modification's

effectiveness as to the priority of lienholders. Id. Although R.C. 5301.231(A), as a

recording statute, affects the rights of third parties as to the priority of mortgage liens, it

has no effect on the underlying obligation as between the parties. See, GMAC Mtge.

Corp. v. McElroy, 5th Dist. Stark No. 2004–CA–00380, 2005-Ohio-2837, ¶ 16, citing

Sidle v. Maxwell, 4 Ohio St. 236, 238 (1854) and Gossard v. Hillman, 4th Dist. Jackson

No. 478 (May 16, 1984).

{¶18} Based upon the foregoing, we find the lack of recording of the loan

modification agreement does not provide a defense for Appellant. The trial court

properly granted summary judgment in favor of Fifth Third and did not err in entering the

decree of foreclosure.

{¶19} Appellant’s first assignment of error is overruled.

II

{¶20} In his second assignment of error, Appellant maintains the trial court erred

in entering a decree of foreclosure when Fifth Third failed to produce business records

which support a history of payment delinquency and default, and failed to provide Fairfield County, Case No. 15-CA-5 7

documentary evidence supporting the calculation of the dollar amount sought.

Specifically, Appellant argues Hoff’s affidavit fails to adequately establish the amount

due on the loan and the trial court should not have entered a decree of foreclosure

based upon Fifth Third’s failure to provide a “payment history.”

{¶21} There is no requirement that a party seeking a foreclosure submit a

payment history to demonstrate entitlement to summary judgment. Deutsche Bank Natl.

Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013–Ohio–1657, ¶ 40. Rather, an

affidavit establishing a loan is in default is sufficient to demonstrate entitlement to

summary judgment where there is no evidence controverting the affiant's averments.

See e .g. Cent. Mortg. Co. v. Elia, 9th Dist. Summit No. 25505, 2011–Ohio3188, ¶ 7.

{¶22} Fifth Third submitted Kimberly Hoff’s affidavit in support of its motion for

summary judgment. In her affidavit, Hoff averred Appellant was in default under the

terms of the Note, the mortgage, and the loan modification agreement as the result of

“his failure to make all required payments.” Hoff Affidavit, para. 11. Additionally, Hoff

stated the amount due and payable on the account was “$66,982.93 plus interest at the

rate of 6.625% from September 1, 2013, plus court costs, advances, and other charges

allowed by the Note and Mortgage and Ohio law.” Id. at para. 13. Hoff added, “The

default has not been cured.” Id.

{¶23} Appellant did not dispute the evidentiary quality of the affidavit and did not

provide evidence which would controvert Hoff's averments regarding the status or

balance of the account.

{¶24} In Wachovia Bank v. Jackson, 5th Dist. Stark No.2010–CA–00291, 2011–

Ohio–3203, this Court held in order to properly support a motion for summary judgment Fairfield County, Case No. 15-CA-5 8

in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1)

The movant is the holder of the note and mortgage, or is a party entitled to enforce the

instrument; (2) if the movant is not the original mortgagee, the chain of assignments and

transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met;

and (5) the amount of principal and interest due. Id. ¶ 40–45.

{¶25} Fifth Third, via the Hoff affidavit, provided evidence to satisfy all the

foregoing criteria. We, therefore, find Fifth Third set forth sufficient evidence to support

its motion for summary judgment. And, because Appellant failed to meet his reciprocal

burden of submitting evidence which would create a genuine issue of material fact for

trial, we conclude the trial court did not err in granting summary judgment in favor of

Fifth Third as a matter of law, and entering the decree of foreclosure.

{¶26} Appellant further submits Fifth Third failed to establish its damages due to

a lack of proper documentation. We disagree.

{¶27} Ohio courts have held “an averment of outstanding indebtedness made in

the affidavit of a bank loan officer with personal knowledge of the debtor's account is

sufficient to establish the amount due and owing on the note, unless the debtor refutes

the averred indebtedness with evidence that a different amount is owed.” JPMorgan

Chase Bank, N.A. v. Salazar, 6th Dist. Lucas No. L–13–1038, 2014–Ohio–1002, ¶ 13;

Natl. City Bank v. TAB Holdings, Ltd. 6th Dist. Erie No. E–10–060, 2011–Ohio–3715, ¶

12.

{¶28} We find Hoff’s affidavit was sufficient to establish Fifth Third’s damages.

{¶29} Appellant’s second assignment of error is overruled. Fairfield County, Case No. 15-CA-5 9

{¶30} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur