Fifth Third Mtge. Co. v. Wizzard

2013 Ohio 3084

• Court: Ohio Court of Appeals
• Decided: July 15, 2013
• Docket: CA2012-11-226
• Status: Published

Opinion

[Cite as Fifth Third Mtge. Co. v. Wizzard, 2013-Ohio-3084.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

FIFTH THIRD MORTGAGE CO., :

Plaintiff-Appellee, : CASE NO. CA2012-11-226

: OPINION - vs - 7/15/2013 :

MAUREEN WIZZARD, et al., :

Defendants-Appellants. :

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2011-12-4264

Nicholas M. Smith, P.O. Box 165028, Columbus, Ohio 43216-5028, for plaintiff-appellee, Fifth Third Mortgage Company

Worrell A. Reid, 6718 Loop Road, #2, Centerville, Ohio 45459, for defendants-appellants, Maureen Wizzard and Maureen C. Reid-Wizzard, Trustee of the Reid-Wizzard Family Trust

Cassaundra L. Edwards, 10655 Springfield Pike, Cincinnati, Ohio 45215, for defendant, Providence Manor Home Owners Association

HENDRICKSON, P.J.

{¶ 1} Defendants-appellants, Maureen Wizzard (Wizzard) and Maureen C. Reid-

Wizzard, Trustee of the Reid-Wizzard Family Trust, appeal from a decision of the Butler

County Court of Common Pleas granting summary judgment and a decree of foreclosure in

favor of plaintiff-appellee, Fifth Third Mortgage Company (Fifth Third). For the reasons Butler CA2012-11-226

discussed below, we affirm the judgment of foreclosure.

I. FACTS

{¶ 2} On February 7, 2005, Wizzard executed a promissory note in favor of Fifth

Third in the principal amount of $185,000. Wizzard also executed a mortgage that secured

the note and encumbered the property located at 7310 Ridge Meadow Court in West

Chester, Ohio. On December 15, 2006, Wizzard transferred title of the Ridge Meadow

property to herself, as trustee of the Reid-Wizzard Family Trust.

{¶ 3} On December 7, 2011, Fifth Third filed a complaint in foreclosure. In its

complaint, Fifth Third alleged that it was the holder of the note secured by the mortgage on

the Ridge Meadow property and that the note had been defaulted on in the amount of

$171,584.16, together with interest at the rate of 6 percent per annum from December 1,

2010. Fifth Third further alleged that it had a valid first lien on the property and it sought to 1 have the mortgage foreclosed, the property sold, and the proceeds distributed. Wizzard,

individually and as trustee, filed an answer setting forth several defenses to the action,

including that the mortgage was "invalidly executed," that Fifth Third failed "to give the

notices required by the terms of the note," and that Fifth Third failed to give her the

"opportunity to cure default."

{¶ 4} On April 10, 2012, Fifth Third filed a motion for summary judgment, arguing that

Wizzard was delinquent in making payments on the note and that $171,584.16 plus interest

was due and owed. In support of its motion, Fifth Third attached the affidavit of Chris

Roscoe, an authorized signer of Fifth Third Bank, the loan servicing agency for Fifth Third.

Roscoe averred that Wizzard had defaulted under the terms of the note and mortgage by

failing to make her monthly installment payments, that the debt had been lawfully

1. In its complaint, Fifth Third also asserted it had a valid second mortgage on the property in the amount of $140,000. The trial court ordered the second mortgage released after confirmation of the sale of the property. -2- Butler CA2012-11-226

accelerated, and that the total due under the note was the principal sum of $171,584.16 plus

interest. Attached to Roscoe's affidavit where copies of the note and mortgage.

{¶ 5} Wizzard filed multiple memoranda in opposition. Essentially, Wizzard argued

that the mortgage was invalidly executed as it was not acknowledged in the presence of a

notary. Wizzard contended that this made the mortgage "defective" and therefore invalid as

to the subsequent lienholder—herself as trustee for the Reid-Wizzard Family Trust. Wizzard

stated that "the Trustee of the Trust is an intervening owner, who took for valuable

consideration, and without notice of [Fifth Third's] defectively executed mortgage." In support

of her argument, Wizzard averred in an affidavit, "[w]hen the mortgage attached to [Fifth

Third's] complaint was filed, the notary, Robert E. Shepherd, was not present, nor was he at

the closing."

{¶ 6} Wizzard also argued that Fifth Third could not enforce the mortgage as it had

not complied with the terms of the note and mortgage by providing notice of default and the

opportunity to cure the default prior to acceleration of the debt. In support of her argument,

Wizzard averred that she "did not receive a notice of default and [was not] given an

opportunity to cure the default prior to the filing of this foreclosure action."

{¶ 7} Fifth Third replied to Wizzard's memoranda in opposition, arguing that it had

complied with the terms of the note and mortgage by mailing the notice of default to Wizzard.

As evidence that notice of default was provided to Wizzard, Fifth Third attached the affidavit

of Ben Heckort, an affidavit analyst, who attested that on September 26, 2011, notice of

default was sent to Wizzard at the Ridge Meadow property. Attached to Heckort's affidavit

was the September 26, 2011 notice of default.

{¶ 8} Fifth Third also argued that the mortgage was enforceable against Wizzard.

First, Fifth Third argued that the mortgage had been properly notarized by Robert E.

Shepherd. In support of its position, it submitted the affidavit of Shepherd, who averred that -3- Butler CA2012-11-226

he "never notarized any document when [he] was not present for the signature, [which]

includes the [subject] mortgage executed by Wizzard and notarized by [him] on February 7,

2005." Second, Fifth Third argued that even if the mortgage had been executed outside the

presence of the notary, the mortgage was still enforceable against Wizzard, the signor of the

mortgage, absent an allegation of fraud, which Wizzard did not allege.

{¶ 9} A hearing on Fifth Third's motion for summary judgment was held on July 17,

2012. Two days later, the trial court issued a decision granting summary judgment and a

decree of foreclosure in Fifth Third's favor. Wizzard, individually and as trustee, appealed,

setting forth two assignments of error.

II. ANALYSIS

{¶ 10} Prior to addressing the merits of Wizzard's assignments of error, we must first

address Fifth Third's contention that Wizzard's appeal should be dismissed as the record

before this court is incomplete. Fifth Third argues that Wizzard's failure to include in the

record a transcript from the July 17, 2012 hearing on the motion for summary judgment is

fatal to her appeal.

{¶ 11} Generally, the duty to provide a transcript for appellate review falls upon the

appellant. Chapman v. Chapman, 12th Dist. Clermont No. CA95-01-003, 1996 WL 12873, *1

(Jan. 16, 1996). "When portions of the transcript necessary for resolution of the assigned

errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as

to those assigned errors, the court has no choice but to presume the validity of the lower

court's proceedings, and affirm." (Internal quotations omitted.) Id., quoting Knapp v.

Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). However, in the present case, the

July 17, 2012 hearing was not an evidentiary hearing, but merely a hearing to allow oral

argument on a matter already briefed and presented to the trial court. Therefore, as this

court's review of a trial court's ruling on a motion for summary judgment is de novo, we find it -4- Butler CA2012-11-226

appropriate to review the merits of Fifth Third's motion for summary judgment in the context

of Wizzard's assigned errors. See Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio

App.3d 393, 2010-Ohio-1945, ¶ 14 (12th Dist.). Accordingly, we hereby deny Fifth Third's

request to dismiss this appeal.

{¶ 12} Assignment of Error No. 1:

{¶ 13} THE TRIAL COURT'S JUDGMENT ENTRY AND DECREE IN

FORECLOSURE, GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, WAS

INCORRECT AS A MATTER OF LAW AS THE EVIDENCE CREATED A TRIABLE ISSUE

OF FACT RELATING TO THE ENFORCEABILITY OF PLAINTIFF'S MORTGAGE, AND THE

NATURE OF DEFENDANT'S TITLE IN HER CAPACITY AS TRUSTEE.

{¶ 14} In Wizzard's first assignment of error, she argues the trial court erred in granting

summary judgment to Fifth Third because a genuine issue of material fact exists as to

whether the mortgage she executed was properly acknowledged by a notary. In support of

her argument, Wizzard notes that there are "dueling affidavits" between herself and

Shepherd as to whether Shepherd witnessed the execution of her mortgage. Wizzard

asserts that because a genuine issue of material fact exists as to whether the mortgage was

properly executed, a genuine issue of material fact must necessarily exist regarding whether

the mortgage is valid as to "Maureen Wizzard, Trustee of the Reid-Wizzard Family Trust, * * *

a bona fide purchaser for value" who "took without notice of the defectively executed

mortgage."

{¶ 15} This court's review of a trial court's ruling on a motion for summary judgment is

de novo. Grizinski, 2010-Ohio-1945 at ¶ 14. "De novo review means that this court uses the

same standard that the trial court should have used, and we examine the evidence to

determine whether as a matter of law no genuine issues exist for trial." Morris v. Dobbins

Nursing Home, 12th Dist. Clermont No. CA2010-12-102, 2011-Ohio-3014, ¶ 14, citing Brewer -5- Butler CA2012-11-226

v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383 (8th Dist.1997). Summary judgment is

appropriate when there are no genuine issues of material fact to be litigated, the moving

party is entitled to judgment as a matter of law, and reasonable minds can come to only one

conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); U.S. Bank

v. Fitzgerrel, 12th Dist. Clermont No. CA2011-09-063, 2012-Ohio-4522, ¶ 10.

{¶ 16} To prevail on a motion for summary judgment, the moving party must be able to

point to evidentiary materials that show there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio

St.3d 280, 293 (1996). The nonmoving party must then present evidence that some issue of

material fact remains to be resolved. Id. "A dispute of fact can only be considered 'material'

if it affects the outcome of the litigation." Fitzgerrel at ¶ 11.

{¶ 17} After reviewing the record, including the exhibits and affidavits attached to Fifth

Third's motion for summary judgment, we find that Fifth Third has established its right to relief

in foreclosure as a result of Wizzard's default in payment under the terms of the note.

Wizzard's contention that summary judgment is inappropriate because a genuine issue of

material fact exists regarding whether the subject mortgage was properly acknowledged by a

notary is without merit as she failed to present any evidence in support of her argument.

{¶ 18} R.C. 5301.01(A) requires that a mortgage be signed by the mortgagor and that

"[t]he signing shall be acknowledged by the * * * mortgagor * * * before a * * * notary public * *

* who shall certify the acknowledgement and subscribe the official's name to the certificate of

acknowledgement." A mortgage that is not properly executed in accordance with the

requirements of R.C. 5301.01, "is not entitled to record under Section 5301.25, Revised

Code, * * * where there is a failure to follow the statutory requirements in that * * * the signing

by one mortgagor is not in fact acknowledged before a notary public." Citizens Natl. Bank in

Zanesville v. Denison, 165 Ohio St. 89 (1956), paragraph two of the syllabus. See also Mtge. -6- Butler CA2012-11-226

Electronic Registration Sys. v. Odita, 159 Ohio App.3d 1, 2004-Ohio-5546, ¶ 10 (10th Dist.).

{¶ 19} Although Wizzard asserts that the mortgage held by Fifth Third is invalid as it

was not "acknowledged in the presence of a notary," she has presented no evidence in

support of this contention. The affidavit submitted by Wizzard merely attests that "[w]hen the

mortgage attached to [Fifth Third's] complaint was filed, the notary, Robert E. Shepherd, was

not present, nor was he at the closing." (Emphasis added.) R.C. 5301.01(A) does not

require that the notary be present at "closing" or that he be present when the mortgage is

"filed." Rather, the statute only required that Shepherd actually witness and acknowledge

Wizzard's signing of the mortgage document. Wizzard, therefore, has not presented

evidence demonstrating that a material dispute of fact exists which would preclude judgment

in favor of Fifth Third.

{¶ 20} Furthermore, even if we construed Wizzard's affidavit to mean that Shepherd

was not present at the time the mortgage was "signed," Wizzard's affidavit does not present

a genuine issue of material fact that would preclude summary judgment. "[I]t is well-

established that a 'party's unsupported and self-serving assertions, offered by way of

affidavit, standing alone and without corroborating materials under Civ.R. 56, will not be

sufficient to demonstrate material issues of fact.'" Hillstreet Fund III, L.P. v. Bloom, 12th Dist.

Butler No. CA2009-07-178, 2010-Ohio-2961, ¶ 10, quoting TJX Cos., Inc. v. Hall, 183 Ohio

App.3d 236, 2009-Ohio-3372, ¶ 30 (8th Dist.).

{¶ 21} Accordingly, Wizzard's first assignment of error is overruled.

{¶ 22} Assignment of Error No. 2:

{¶ 23} THE TRIAL COURT'S ORDER GRANTING PLAINTIFF'S MOTION FOR

SUMMARY JUDGMENT WAS INCORRECT AS A MATTER OF LAW AS THE EVIDENCE

CREATE[D] A TRIABLE ISSUE OF FACT RELATING TO WHETHER OR NOT

DEFENDANTS WERE GIVEN NOTICE AND AN OPPORTUNITY TO CURE THE DEFAULT. -7- Butler CA2012-11-226

{¶ 24} In her second assignment of error, Wizzard argues the trial court erred in

granting summary judgment to Fifth Third because genuine issues of material fact exist as to

whether she received notice of default and was given an opportunity to cure the default prior

to acceleration of the debt. At issue are several provisions of the note and mortgage entered

into between the parties.

{¶ 25} Subsection 6(B) of the note advises Wizzard that if she "do[es] not pay the full

amount of each monthly payment on the date it is due, [s]he will be in default." Pursuant to

subsection 6(C) of the note, if Wizzard is 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 the 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.

In providing notice of default, section 7 of the note provides that, "[u]nless applicable law

requires a different method, any notice that must be given to me 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 I give the Note Holder a notice of my different address." (Emphasis

added.)

{¶ 26} Section 15 of the mortgage states in pertinent part that "[a]ll notices given by

Borrower or Lender in connection with this Security Instrument must be in writing. Any notice

to Borrower in connection with this Security Instrument shall be deemed to have been given

to Borrower when mailed by first class mail or when actually delivered to Borrower's notice

address if sent by other means." (Emphasis added.) Furthermore, with respect to

acceleration of the debt, Section 22 of the mortgage provides as follows:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument * * *. The -8- Butler CA2012-11-226

notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non- existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, costs of title evidence.

(Emphasis added.)

{¶ 27} "Where prior notice of default and/or acceleration is required by a provision in a

note or mortgage instrument, the provision of notice is a condition precedent." First Financial

Bank v. Doellman, 12th Dist. Butler No. CA2006-02-029, 2007-Ohio-222, ¶ 20. Accordingly,

"[u]nder Ohio law, 'a foreclosure action brought by a lender who has failed to comply with the

notice terms embodied in the note executed between the parties may be dismissed.'" U.S.

Bank Natl. Assn. as Trustee c/o GMAC Mtge., L.L.C. v. Weber, 10th Dist. Franklin No. 12AP-

107, 2012-Ohio-6024, ¶ 10, quoting Wells Fargo Bank, N.A. v. Walker, 10th Dist. Franklin

No. 09AP-947, 2010-Ohio-3698, ¶ 9.

{¶ 28} In its decision, the trial court found that "the sums due under the Note were

accelerated in accordance with the terms of the Note and Mortgage." The court thus found

that Fifth Third had met its burden of demonstrating that it had satisfied all conditions

precedent to acceleration and foreclosure. We find that the evidence submitted to the trial

court supported the court's determination that Wizzard was properly notified of the default

and was given the opportunity to cure such default prior to the foreclosure action being filed.

-9- Butler CA2012-11-226

{¶ 29} Through affidavits of its employees, Fifth Third averred that Wizzard "defaulted

under the Note and Mortgage and [she] has failed to cure the default. All requirements

necessary to accelerate the loan have been met, and the loan has been accelerated." It

further averred that a notice of default letter, dated September 26, 2011, was "addressed to *

* * Wizzard at 7310 Ridge Meadow Court, West Chester, Ohio." The September 26, 2011

letter addressed to Wizzard, which was properly attached to the affidavit of Heckort, stated,

in relevant part, the following:

As of the date of this letter, you are in default on your mortgage loan * * * for failing to make monthly scheduled payments. The amount past due on your mortgage loan is $16,758.63. This past due amount includes any payment which is scheduled to become due within the next 30 days. Such payment must also be paid in accordance with the terms of your mortgage loan. In order to cure this default we must receive the past due amount within 30 days from the date of this letter. * * *

Failure to pay the past due amount herein will result in acceleration of your loan and the foreclosure of the property. Upon acceleration your total obligation will be immediately due and payable without further written demand. Fifth Third Bank is entitled to collect all expenses incurred in pursuing the remedies provided in this letter, including reasonable attorney fees and cost. You will have the right to reinstate after acceleration and the right to assert in the foreclosure proceedings any defense to the acceleration and foreclosure.

This letter satisfied the "notice of default" provisions set forth in the note and mortgage.

{¶ 30} Furthermore, although Wizzard argues that she never "received" the notice of

default, compliance with the notice provisions of the note and mortgage did not hinge upon

Wizzard's actual receipt of the notice of default. See Weber, 2012-Ohio-6024 at ¶ 14 (finding

that a mortgage provision that notice "shall be deemed to have been given to Borrower when

mailed by first class mail" meant that the mortgagee complied with the terms of the notice

requirement when mailing the notice of default to the Borrower); LSF6 Mercury REO Invests.

Trust Series 2008-1 c/o Vericrest Financial, Inc. v. Locke, 10 Dist. Franklin No. 11AP-757,

- 10 - Butler CA2012-11-226

2012-Ohio-4499, ¶ 15 (finding that where the mortgage explicitly provided that notice of

default would be deemed "given to" the borrower "when mailed by first class mail," the

"rebuttable presumption afforded by the mailbox rule is inapplicable because the contract

between the parties clearly provides that notice by regular mail is completed 'when mailed'").

{¶ 31} Subsection 7 of the note and section 15 of the mortgage required notice to be

delivered or mailed by first class mail to the property address or other address provided by

the borrower. Pursuant to Section 7 of the mortgage, notice "shall be deemed to have been

given to Borrower when mailed by first class mail." As noted above, Fifth Third submitted

affidavit evidence that the notice of default was mailed to Wizzard pursuant to the terms of

the note and mortgage. Wizzard did not submit contrary evidence on this issue. Accordingly,

Wizzard's second assignment of error is overruled.

III. CONCLUSION

{¶ 32} Based upon this court's de novo review of the record, we find that Fifth Third

has demonstrated that there is no genuine issue as to any material fact and that it is entitled

to judgment as a matter of law.

{¶ 33} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.

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