MorEquity, Inc. v. Gombita

125 N.E.3d 300, 2018 Ohio 4860
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedDecember 6, 2018
DocketNo. 106594
StatusPublished
Cited by9 cases

This text of 125 N.E.3d 300 (MorEquity, Inc. v. Gombita) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MorEquity, Inc. v. Gombita, 125 N.E.3d 300, 2018 Ohio 4860 (Ohio Super. Ct. 2018).

Opinion

EILEEN T. GALLAGHER, J.:

{¶ 1} Defendants-appellants, Anthony Gombita, et al. ("appellants"), appeal from the trial court's judgment granting summary judgment and a decree of foreclosure in favor of plaintiff-appellee, MorEquity, Inc. Appellants raise the following assignments of error:

1. The trial court erred to the prejudice of appellants by granting appellee's motion for summary judgment even though appellee failed to prove that it satisfied all conditions precedent mandated by the National Housing Act of 1934 ( 12 U.S.C. 1701 et seq. ) and 42 U.S.C. 3534(a).
2. Reviewing appellee's motion for summary judgment de novo, the record is clear and convincing that the trial court erred to the prejudice of appellants by granting the appellee's motion for summary judgment.
3. The trial court erred to the prejudice of appellants by granting appellee's motion for summary judgment based upon the presence of genuine issues of material fact regarding appellee's failure to provide sufficient evidence of entitlement to foreclosure and damages.

{¶ 2} After careful review of the record and relevant case law, we affirm the trial court's judgment.

I. Procedural and Factual History

{¶ 3} On January 22, 2004, appellants executed a note payable to Wilmington Finance, a division of AIG Federal Savings Bank in the principal amount of $140,000. To secure payment of the note, appellants executed a mortgage on real property located in Euclid, Ohio (the "property") in favor of Wilmington Finance, a division of AIG Federal Savings Bank (the "mortgage"). The mortgage was recorded in the Cuyahoga County Recorder's Office on January 27, 2004.

{¶ 4} The note contains an undated allonge, which specifically endorses the note from Wilmington Finance to MorEquity. A second allonge attached to the note contains an endorsement in blank that is signed by a representative of MorEquity. On January 29, 2004, Wilmington Finance assigned the mortgage to MorEquity. The assignment of the mortgage was recorded on June 18, 2004.

{¶ 5} On January 21, 2012, appellants entered into a Home Affordable Modification Agreement. The agreement modified *304certain terms of the loan and reflected an unpaid principal balance of $132,870.82.

{¶ 6} On March 17, 2017, MorEquity commenced this foreclosure action as a result of appellants' default under the terms of the note and mortgage due to nonpayment. The complaint did not seek a personal judgment against appellants because the note was discharged in bankruptcy proceedings. Rather, MorEquity sought to enforce its security interest and recover from the sale of the property the remaining principal amount due. Appellants filed an answer and raised numerous defenses.

{¶ 7} On August 9, 2017, MorEquity filed a motion for summary judgment. MorEquity asserted that "as provided in the Note and Mortgage, Plaintiff has an absolute legal right, upon default, to accelerate and call due the balance due thereon." Attached to its motion was the affidavit of Yvonne Aguirre, a document execution specialist at Nationstar Mortgage L.L.C. ("Nationstar"). Aguirre averred that (1) Nationstar is the authorized loan servicer for MorEquity, Inc.; (2) she has personal knowledge of the facts set forth in her affidavit based upon a review of Nationstar's business records and her knowledge of Nationstar's procedures for creating those records; (3) MorEquity had possession of the note when the foreclosure complaint was filed; (4) appellants had defaulted on the note; (5) Nationstar mailed appellants a letter on October 29, 2015, that notified them of the default and their right to cure; (6) the appellants failed to cure the default; and (7) appellants owed $115,457.78 on the principal balance, plus interest, as of August 1, 2015. Attached to Aguirre's affidavit were verified and authenticated copies of the note, the mortgage, assignments of the mortgage, the loan modification agreement, the demand letter and notice of acceleration sent to appellants, and appellants' payment history.

{¶ 8} On September 8, 2017, appellants filed a brief in opposition to summary judgment, arguing that MorEquity (1) failed to comply with U.S. Department of Housing and Urban Development ("HUD") regulations prior to initiating the foreclosure action, (2) failed to present sufficient evidence that it had standing to enforce the note and mortgage, and (3) failed to submit any specific evidence of compensable damages.

{¶ 9} On October 18, 2017, a magistrate granted MorEquity's motion for summary judgment and issued a decision with findings of fact and conclusions of law. The magistrate's decision provides, in relevant part:

There is no genuine issue as to any material fact, and that reasonable minds can come to but one conclusion which is adverse to the Defendants, Anthony R. Gombita and Rhonda Gombita, and that Plaintiff is entitled to judgment as a matter of law, and therefore Plaintiff's motion for summary judgment is granted.

{¶ 10} On November 1, 2017, appellants filed objections to the magistrate's decision. On November 13, 2017, the trial court denied the appellants' objections and adopted the magistrate's decision granting summary judgment in favor of MorEquity.

{¶ 11} Appellants now appeal the trial court's judgment.

II. Law and Analysis

A. Standard of Review

{¶ 12} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law and (3) viewing the evidence most strongly *305in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party.

{¶ 13} On a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate its entitlement to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, the nonmoving party has the reciprocal burden to point to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial. Id. at 293, 662 N.E.2d 264. Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id.

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Bluebook (online)
125 N.E.3d 300, 2018 Ohio 4860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morequity-inc-v-gombita-ohctapp8cuyahog-2018.