[Cite as State Bank & Trust Co. v. Shoop, 2015-Ohio-5310.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
The State Bank & Trust Company Court of Appeals No. L-15-1064
Appellee Trial Court No. CI0201402032
v.
Melanie J. Shoop, et al. DECISION AND JUDGMENT
Appellant Decided: December 18, 2015
*****
James A. Hammer and Maria A. Sidiq Steiner, for appellee.
Bryan D. Thomas, for appellant.
SINGER, J.
{¶ 1} Appellant, Melanie Shoop, appeals from the February 24, 2015 judgment of
the Lucas County Court of Common Pleas finding appellee was entitled to foreclosure of
the judgment lien as a matter of law. For the reasons which follow, we affirm. A. First Assignment of Error.
THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
MOTION FOR SUMMARY JUDGMENT ON FEBRUARY 24, 2015 AS
APPELLANT IS ENTITLED TO THOSE PROTECTIONS AFFORDED
BY R.C. 2329.66, AS SUFFICIENT EVIDENCE HAS BEEN
SUBMITTED THAT THE REAL PROPERTY IN DISPUTE IN THE
INSTANT MATTER FALLS WITHIN THE CURRENT HOMESTEAD
EXEMPTION AMOUNT, THAT THIS REAL PROPERTY IS HER
PERSONAL RESIDENCE, AND, THUS, CAN BE HELD EXEMPT
FROM SALE TO SATISFY A JUDGMENT OR ORDER.
B. Second Assignment of Error.
GENUINE ISSUES OF MATERIAL FACT REMAINED WITH
RESPECT TO THE SUFFICIENCY AND/OR VALIDITY OF THE
AFFIDAVIT OF GREG RITCHEY, AS THE SAME FAILED TO
COMPORT WITH THE REQUIREMENTS OF Civ.R. 56(E).
{¶ 2} On April 3, 2014, appellee, The State Bank & Trust Company, filed a
complaint in foreclosure against appellant and other parties having an interest in the
property at 2055 Cherrylawn Drive, Toledo, Ohio. Appellee asserted in its complaint that
it has a judgment lien interest in the property by virtue of a judgment rendered against
2. appellant on January 31, 2008, which was revived on October 7, 2013, and remains
unpaid. Therefore, appellee sought foreclosure of the judgment lien and sale of the
property to satisfy the judgment. In its attached documentation, appellee indicated that
the property was owner occupied.
{¶ 3} The case was transferred to mediation until the magistrate determined the
property at issue did not appear to be appellant’s residence. Appellant was ordered to
provide evidence that the residence was occupied and her intentions regarding retaining
or surrendering the real estate or the case would be returned to the trial docket.
{¶ 4} Approximately four months later, appellee moved for summary judgment
stating that appellant had not filed any evidentiary documents. Appellee attached the
affidavit of its collections and resource recovery officer, who attested that the judgment
lien had not been satisfied. Appellant opposed the motion for summary judgment arguing
that she was entitled to protection from foreclosure pursuant to R.C. 2329.66(A), the
homestead exemption, and that appellee’s affidavit was invalid or insufficient. The trial
court found the judgment lien was valid and that appellee was entitled to foreclose on the
lien and sale of the home to satisfy the judgment lien.
{¶ 5} On appeal, appellant argues in her first assignment of error that the trial
court erred as a matter of law by granting summary judgment because there was a
material question of fact as to whether the homestead exemption applies in this case.
{¶ 6} The appellate court reviews the grant of summary judgment under a de novo
standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000),
3. citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Applying the requirements of Civ.R. 56(C), we uphold summary judgment when it is
clear
(1) that there is no genuine issue as to any material fact; (2) that the moving
party is entitled to judgment as a matter of law; and (3) 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, who is
entitled to have the evidence construed most strongly in his favor. Harless
v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46
(1978).
{¶ 7} Appellant asserts that she uses this property as her primary residence. She
argues that an irrebutable presumption arose that the property is used as her primary
residence when service was issued by ordinary mail to her at the Cherrylawn address.
{¶ 8} Appellee argues a different address was listed for appellant in the complaint
and the Cherrylawn address was listed as the address of an unknown tenant. Appellant
never objected to the addresses listed in the complaint. Furthermore, the certified mail
services of the complaint at both addresses were returned unclaimed and service was
made by ordinary mail on appellant at the address listed in the complaint. Finally,
appellant argues that appellee failed to present any evidence that she uses the premises as
her primary residence.
4. {¶ 9} Appellant was specifically directed to produce evidence that she used this
property as her personal residence. Furthermore, when the issue was raised in the
summary judgment motion, the burden was on appellant to produce evidence that this
property was her primary residence and establish that the homestead exemption was
applicable in this case. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).
{¶ 10} Because appellant failed to submit any evidence that the Cherrylawn
address is her personal residence, we find that there was no material question of fact at
issue and the trial court properly granted summary judgment in favor of appellee.
Appellant’s first assignment of error is not well-taken.
{¶ 11} In her second assignment of error, appellant argues that the affidavit of the
bank employee was invalid or insufficient because it was vague and overbroad.
Appellant argues that the affiant only asserted his title and did not indicate that he had
personal knowledge of appellant’s account. Furthermore, she argues that the affiant was
not competent to testify because the affidavit does not indicate that the affiant inspected
the account of appellant.
{¶ 12} Appellant raised this issue in her memorandum in opposition to appellee’s
motion for summary judgment, but the trial court did not address the issue in its
judgment. Therefore, we must presume that the trial court overruled appellant’s
objections. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d
217, 223, 631 N.E.2d 150 (1994) (citation omitted).
5. {¶ 13} Pursuant to Civ.R. 56(E), an affidavit attached to a motion for summary
judgment motion must: “(1) * * *be made on personal knowledge; (2) * * * set forth
facts which would be admissible in evidence, and (3) * * * affirmatively show the affiant
to be competent to testify to the matters stated.” First Natl. Bank of Am. v. Pendergrass,
6th Dist. Erie No. E-08-048, 2009-Ohio-3208, ¶ 32. In the case of financial account
information, it is sufficient if an affiant states that he has personal knowledge of the
account because of his position, that he has access to the account, and that he actually
examined the account. Discover Bank v. Combs, 4th Dist. Pickaway No. 11CA25, 2012-
Ohio-3150, ¶ 14.
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[Cite as State Bank & Trust Co. v. Shoop, 2015-Ohio-5310.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
The State Bank & Trust Company Court of Appeals No. L-15-1064
Appellee Trial Court No. CI0201402032
v.
Melanie J. Shoop, et al. DECISION AND JUDGMENT
Appellant Decided: December 18, 2015
*****
James A. Hammer and Maria A. Sidiq Steiner, for appellee.
Bryan D. Thomas, for appellant.
SINGER, J.
{¶ 1} Appellant, Melanie Shoop, appeals from the February 24, 2015 judgment of
the Lucas County Court of Common Pleas finding appellee was entitled to foreclosure of
the judgment lien as a matter of law. For the reasons which follow, we affirm. A. First Assignment of Error.
THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
MOTION FOR SUMMARY JUDGMENT ON FEBRUARY 24, 2015 AS
APPELLANT IS ENTITLED TO THOSE PROTECTIONS AFFORDED
BY R.C. 2329.66, AS SUFFICIENT EVIDENCE HAS BEEN
SUBMITTED THAT THE REAL PROPERTY IN DISPUTE IN THE
INSTANT MATTER FALLS WITHIN THE CURRENT HOMESTEAD
EXEMPTION AMOUNT, THAT THIS REAL PROPERTY IS HER
PERSONAL RESIDENCE, AND, THUS, CAN BE HELD EXEMPT
FROM SALE TO SATISFY A JUDGMENT OR ORDER.
B. Second Assignment of Error.
GENUINE ISSUES OF MATERIAL FACT REMAINED WITH
RESPECT TO THE SUFFICIENCY AND/OR VALIDITY OF THE
AFFIDAVIT OF GREG RITCHEY, AS THE SAME FAILED TO
COMPORT WITH THE REQUIREMENTS OF Civ.R. 56(E).
{¶ 2} On April 3, 2014, appellee, The State Bank & Trust Company, filed a
complaint in foreclosure against appellant and other parties having an interest in the
property at 2055 Cherrylawn Drive, Toledo, Ohio. Appellee asserted in its complaint that
it has a judgment lien interest in the property by virtue of a judgment rendered against
2. appellant on January 31, 2008, which was revived on October 7, 2013, and remains
unpaid. Therefore, appellee sought foreclosure of the judgment lien and sale of the
property to satisfy the judgment. In its attached documentation, appellee indicated that
the property was owner occupied.
{¶ 3} The case was transferred to mediation until the magistrate determined the
property at issue did not appear to be appellant’s residence. Appellant was ordered to
provide evidence that the residence was occupied and her intentions regarding retaining
or surrendering the real estate or the case would be returned to the trial docket.
{¶ 4} Approximately four months later, appellee moved for summary judgment
stating that appellant had not filed any evidentiary documents. Appellee attached the
affidavit of its collections and resource recovery officer, who attested that the judgment
lien had not been satisfied. Appellant opposed the motion for summary judgment arguing
that she was entitled to protection from foreclosure pursuant to R.C. 2329.66(A), the
homestead exemption, and that appellee’s affidavit was invalid or insufficient. The trial
court found the judgment lien was valid and that appellee was entitled to foreclose on the
lien and sale of the home to satisfy the judgment lien.
{¶ 5} On appeal, appellant argues in her first assignment of error that the trial
court erred as a matter of law by granting summary judgment because there was a
material question of fact as to whether the homestead exemption applies in this case.
{¶ 6} The appellate court reviews the grant of summary judgment under a de novo
standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000),
3. citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Applying the requirements of Civ.R. 56(C), we uphold summary judgment when it is
clear
(1) that there is no genuine issue as to any material fact; (2) that the moving
party is entitled to judgment as a matter of law; and (3) 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, who is
entitled to have the evidence construed most strongly in his favor. Harless
v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46
(1978).
{¶ 7} Appellant asserts that she uses this property as her primary residence. She
argues that an irrebutable presumption arose that the property is used as her primary
residence when service was issued by ordinary mail to her at the Cherrylawn address.
{¶ 8} Appellee argues a different address was listed for appellant in the complaint
and the Cherrylawn address was listed as the address of an unknown tenant. Appellant
never objected to the addresses listed in the complaint. Furthermore, the certified mail
services of the complaint at both addresses were returned unclaimed and service was
made by ordinary mail on appellant at the address listed in the complaint. Finally,
appellant argues that appellee failed to present any evidence that she uses the premises as
her primary residence.
4. {¶ 9} Appellant was specifically directed to produce evidence that she used this
property as her personal residence. Furthermore, when the issue was raised in the
summary judgment motion, the burden was on appellant to produce evidence that this
property was her primary residence and establish that the homestead exemption was
applicable in this case. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).
{¶ 10} Because appellant failed to submit any evidence that the Cherrylawn
address is her personal residence, we find that there was no material question of fact at
issue and the trial court properly granted summary judgment in favor of appellee.
Appellant’s first assignment of error is not well-taken.
{¶ 11} In her second assignment of error, appellant argues that the affidavit of the
bank employee was invalid or insufficient because it was vague and overbroad.
Appellant argues that the affiant only asserted his title and did not indicate that he had
personal knowledge of appellant’s account. Furthermore, she argues that the affiant was
not competent to testify because the affidavit does not indicate that the affiant inspected
the account of appellant.
{¶ 12} Appellant raised this issue in her memorandum in opposition to appellee’s
motion for summary judgment, but the trial court did not address the issue in its
judgment. Therefore, we must presume that the trial court overruled appellant’s
objections. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d
217, 223, 631 N.E.2d 150 (1994) (citation omitted).
5. {¶ 13} Pursuant to Civ.R. 56(E), an affidavit attached to a motion for summary
judgment motion must: “(1) * * *be made on personal knowledge; (2) * * * set forth
facts which would be admissible in evidence, and (3) * * * affirmatively show the affiant
to be competent to testify to the matters stated.” First Natl. Bank of Am. v. Pendergrass,
6th Dist. Erie No. E-08-048, 2009-Ohio-3208, ¶ 32. In the case of financial account
information, it is sufficient if an affiant states that he has personal knowledge of the
account because of his position, that he has access to the account, and that he actually
examined the account. Discover Bank v. Combs, 4th Dist. Pickaway No. 11CA25, 2012-
Ohio-3150, ¶ 14.
{¶ 14} In this case, the affidavit stated that the affiant is the
Collections & Resources Recovery Officer with Rurban Operations Center,
owner of The State Bank & Trust Company. In such job position, affiant
has custody of personal knowledge of the accounts of said financial
institution, and specifically the account of Defendant, Melanie J. Shoop.
{¶ 15} Upon a review of the affidavit, we find that while there was an obvious
typographical error, the affiant did indicate his position with the bank, that he had
personal knowledge of the account, and that he specifically had knowledge of appellant’s
account. Therefore, we find appellant’s second assignment of error not well-taken.
6. {¶ 16} Having found that the trial court did not commit error prejudicial to
appellant, the judgment of the Lucas County Court of Common Pleas is affirmed.
Appellant is ordered to pay the court costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
7.