M&T Bank v. Woods

2017 Ohio 8500

• Court: Ohio Court of Appeals
• Decided: November 8, 2017
• Docket: 17 CAE 07 0050
• Status: Published

Opinion

[Cite as M&T Bank v. Woods, 2017-Ohio-8500.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

M&T BANK : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JO E. WOODS, ET AL. : : Defendants-Appellees : Case No. 17 CAE 07 0050 : and : : LISE M. LOGSDON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 16 CV E 10 0618

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 8, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MATTHEW J. RICHARDSON SUSAN N. HAYES P.O. Box 165028 5878 North High Street Columbus, OH 43216-5028 Worthington, OH 43085 Delaware County, Case No. 17 CAE 07 0050 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Lise M. Logsdon, appeals the June 28, 2017

decision of the Court of Common Pleas of Delaware County, Ohio, granting summary

judgment to Plaintiff-Appellee, M&T Bank, and issuing a decree in foreclosure.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On June 4, 2002, appellant and Jo E. Woods became the record owners

of property located on Center Village Road in Galena, Ohio.

{¶ 3} On June 27, 2006, Jo E. Woods, as "Borrower," executed a note with

appellee. Appellant signed the note as "Owner" (non-borrower), and agreed to be

legally bound by the terms of the note secured by a mortgage on the subject property.

Both parties purportedly signed the mortgage and it was duly recorded on July 12,

2006.

{¶ 4} On June 17, 2013, appellant and Jo E. Woods executed a mortgage on

the subject property with Peoples Bank, duly recorded on July 3, 2013. A subordination

agreement was signed on April 19, 2013, purportedly making appellee's mortgage

subordinate to the Peoples Bank mortgage.

{¶ 5} On December 14, 2015, Jo E. Woods quitclaimed her interest in the

property to appellant.

{¶ 6} On October 7, 2016, appellee filed a complaint for foreclosure against

appellant and others to recover monies due and owing on the note. The complaint

acknowledged Jo E. Woods's obligations under the note had been discharged under

bankruptcy. Appellee was seeking to enforce its security interest and foreclose on the

property. Delaware County, Case No. 17 CAE 07 0050 3

{¶ 7} On October 24, 2016, appellant filed an answer and denied her signature

was on the mortgage and asserted the affirmative defense of fraudulent signature.

{¶ 8} On May 2, 2017, appellee filed a motion for summary judgment against

appellant, claiming no genuine issues of material fact to exist. Appellee also requested

default against non-answering defendants, including Mortgage Electronic Registration

System, Inc., as nominee for Peoples Bank. In support of its motion, appellee

submitted the affidavit of a Banking Officer who attested to the documents and averred

payments had not been made per the terms of the note and mortgage and a notice of

default was sent to "Borrower" on April 20, 2016. Per the terms of the loan, appellee

had accelerated the account, making the entire balance due ($33,176.28 plus interest).

{¶ 9} On May 16, 2017, appellant filed a memorandum in opposition to the

motion for summary judgment, claiming she did not sign the note and the mortgage did

not bear her signature. In support, appellant submitted her affidavit wherein she

averred she is the owner of the subject property, and in June 2006, she believed she

could not have physically signed the mortgage due to her health. Appellant had been

diagnosed with MS, Trigeminal Neuralgia, and Sjogrens Syndrome. Appellant also

contested the priority of appellee's mortgage because of the mortgage with Peoples

Bank in 2013.

{¶ 10} On June 12, 2017, appellee filed a reply, claiming appellant did not have

standing to contest lien priority, and the challenge to her signature was self-serving.

Appellee pointed out appellant did not specifically deny signing the mortgage, but stated

she believed she could not have physically signed it. Appellant did not present any Delaware County, Case No. 17 CAE 07 0050 4

medical evidence to support her assertion, and did not conduct discovery relative to the

notary who notarized the signatures to the mortgage.

{¶ 11} By in rem judgment entry filed June 28, 2017, the trial court granted

appellee's motion for summary judgment, granted default against non-answering

defendants, and issued a decree in foreclosure.

{¶ 12} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 13} "THE JUDGE ERRED AS A MATTER OF LAW IN GRANTING

APPELLEE M&T BANK'S MOTION FOR SUMMARY JUDGMENT WHERE ISSUES OF

FACT REMAINED."

{¶ 14} Preliminarily, we note this case is before this court on the accelerated

calendar which is governed by App.R. 11.1. Subsection (E), determination and

judgment on appeal, provides in pertinent part: "The appeal will be determined as

provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the

statement of the reason for the court's decision as to each error to be in brief and

conclusionary form."

{¶ 15} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983). Delaware County, Case No. 17 CAE 07 0050 5

{¶ 16} This appeal shall be considered in accordance with the aforementioned

rules.

{¶ 17} In her sole assignment of error, appellant claims genuine issues of

material fact existed and therefore the trial court erred in granting summary judgment to

appellee. We disagree.

{¶ 18} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (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 nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is

made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.

{¶ 19} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same Delaware County, Case No. 17 CAE 07 0050 6

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35, 506 N.E.2d 212 (1987).

{¶ 20} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:

It is well established the party seeking summary judgment bears

the burden of demonstrating that no issues of material fact exist for trial.

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

L.Ed.2d 265(1986). The standard for granting summary judgment is

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a

party seeking summary judgment, on the ground that the nonmoving party

cannot prove its case, 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 the

essential element(s) of the nonmoving party's claims. The moving party

cannot discharge its initial burden under Civ.R. 56 simply by making a

conclusory assertion the nonmoving party has no evidence to prove its

case. Rather, the moving party must be able to specifically point to some

evidence of the type listed in Civ.R. 56(C) which affirmatively

demonstrates the nonmoving party has no evidence to support the

nonmoving party's claims. If the moving party fails to satisfy its initial

burden, the motion for summary judgment must be denied. However, if

the moving party has satisfied its initial burden, the nonmoving party then Delaware County, Case No. 17 CAE 07 0050 7

has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts

showing there is a genuine issue for trial and, if the nonmovant does not

so respond, summary judgment, if appropriate, shall be entered against

the nonmoving party." The record on summary judgment must be viewed

in the light most favorable to the opposing party. Williams v. First United

Church of Christ (1974), 37 Ohio St.2d 150.

{¶ 21} To properly support a motion for summary judgment in a foreclosure

action, a plaintiff must present evidentiary quality materials establishing: (1) the plaintiff

is the holder of the note and mortgage, or is a party entitled to enforce the instrument;

(2) if the plaintiff is not the original mortgagee, the chain of assignments and transfers;

(3) the mortgagor is in default; (4) all conditions precedent have been satisfied; and (5)

the amount of principal and interest due. Wachovia Bank of Delaware, N.A. v. Jackson,

5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶ 40-45.

{¶ 22} In support of its May 2, 2017 motion for summary judgment, appellee

presented the affidavit of Banking Officer Sandy Korbut attesting to these issues at ¶ 5-

10, with the subject note and mortgage bearing appellant's signatures and the April 20,

2016 notice of default to Jo E. Woods attached.

{¶ 23} In her appellate brief at 7-8, appellant argues because of her MS, she

would have been unable to sign the mortgage in June 2006, she never received any

funds from the loan therefore the mortgage was not supported by any consideration to

her, and she never received notice of the terms and of the default. She argues these

issues raise "issues of conflicting facts and inferences." Delaware County, Case No. 17 CAE 07 0050 8

{¶ 24} In her May 16, 2017 memorandum in opposition to the motion for

summary judgment, appellant argued she did not sign the note and the signature on the

mortgage is not hers. A review of the note evidences Jo E. Woods signed the note as

"Borrower" and appellant signed the note as an "Owner" on June 27, 2006. In signing

the note, appellant agreed she did not have the right to obtain loans under the note and

agreed "only to be legally bound by the terms of this Agreement relating to the

Mortgage, to the Mortgaged Property, and to insurance on the Mortgage Property. The

Owner's liability is limited to the Owner's interest in the Mortgaged Property." In

exchange, Jo E. Woods, co-owner of the subject property at the time, received loan

proceeds from appellee.

{¶ 25} Appellant's signature appears on the mortgage, also signed on June 27,

2006. In her affidavit filed May 16, 2017, appellant averred "I do not believe I could

have physically signed the mortgage being foreclosed * * * or at a minimum would not

have understood or been able to acknowledge that I signed it." The signature was

authenticated by a notary, Roger Rill. This same notary authenticated appellant's

signature on the note. The contents of the acknowledgments comply with R.C. 147.53.

{¶ 26} A self-serving affidavit that is not corroborated by any evidence is

insufficient to establish the existence of an issue of material fact. Wells Fargo Bank v.

Blough, 4th Dist. Washington No. 08CA49, 2009-Ohio-3672, ¶ 18. " 'To conclude

otherwise would enable the nonmoving party to avoid summary judgment in every case,

crippling the use of Civ.R. 56 as a means to facilitate "the early assessment of the

merits of claims, pre-trial dismissal of meritless claims and defining and narrowing

issues for trial." ' " Hooks v. Ciccolini, 9th Dist. Summit No. 20745, 2002 WL 1023172, Delaware County, Case No. 17 CAE 07 0050 9

*2 (May 15, 2002), quoting Bank One, N.A. v. Burkey, 9th Dist. Lorain No. 99CA7359,

2000 WL 763341, *5 (June 14, 2000) (Slaby, P.J., dissenting).

{¶ 27} In her affidavit, appellant did not deny signing the mortgage, but believed

she could not have signed it given her physical condition. She did not corroborate her

belief with any evidentiary quality evidence from a doctor, family member, or friend

attesting to her inability to write her name in June 2006. She also did not present any

evidence from the notary to refute the acknowledgment of her signature.

{¶ 28} We find appellant's self-serving affidavit is not sufficient to preclude

summary judgment.

{¶ 29} As for consideration, although appellant did not personally receive loan

proceeds, the then co-owner of the subject property, Jo E. Woods, did.

{¶ 30} Notice of default on the note was sent to Jo E. Woods as "Borrower" as

set forth in the note and Korbut's affidavit at ¶ 9. The mortgage at ¶ 30 states: "If 2 or

more persons sign this mortgage, all of them will be, individually and together, liable

under it, and, except to the extent required by applicable law, we can send or deliver

any notice concerning it to any of them, and the notice will be effective for all of them."

The note includes a similar provision at ¶ 29.

{¶ 31} Appellant's argument relative to lien priority is not a factor in appellee's

ability to foreclose on the property. Appellee had a valid lien on the property and named

Peoples Bank's nominee as a defendant who failed to answer or otherwise defend.

{¶ 32} We find appellant has not met her reciprocal burden outlined in Civ.R.

56(E) to set forth specific facts showing there is a genuine issue for trial. Delaware County, Case No. 17 CAE 07 0050 10

{¶ 33} Upon review, we find the trial court did not err in granting summary

judgment to appellee.

{¶ 34} The sole assignment of error is denied.

{¶ 35} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Wise, John, J. concur.

EEW/sg 103 Delaware County, Case No. 17 CAE 07 0050 11

Hoffman, P.J., concurring

{¶36} I generally concur in the majority’s analysis and disposition of Appellant’s

sole assignment of error.

{¶37} I write separately only to state my disagreement with the categorical

proposition of law a self-serving affidavit which is not corroborated by any evidence is

insufficient to establish the existence of an issue of material fact. Nevertheless, under

the unique circumstances of this case, I agree with the majority Appellant has failed to

present sufficient evidence of a genuine dispute as to the material fact concerning her

signature.

________________________________ HON. WILLIAM B. HOFFMAN