[Cite as U. S. Bank N.A. v. Baginski, 2013-Ohio-4773.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
U.S. BANK N.A. : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : DIANNE M. BAGINSKI, ET AL. : Case No. 13 CA 7 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 10CV000485
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 28, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PHILLIP BARRAGATE D. DIANNE MARIE BAGINSKI ASHLYN HEIDER Pro Se 4805 Montgomery Road 19661 Mallet/Sparrow Roads Suite 320 Salesville, OH 43778 Norwood, OH 45212 Guernsey County, Case No. 13 CA 7 2
Farmer, J.
{¶1} On November 1, 2010, appellee, U.S. Bank N.A., as Trustee for the
Registered Holders of Structured Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 2005-SCI, filed a foreclosure complaint against appellant, Dianne M.
Baginski, for failure to pay on a note secured by a mortgage.
{¶2} On November 28, 2012, appellee filed a motion for summary judgment.
Appellant filed a motion for summary judgment on December 18, 2012. By entry filed
January 18, 2013, the trial court granted appellee's motion and denied appellant's. A
final judgment entry was filed on February 1, 2013.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT JUDGE ERRED IN GRANTING THE PLAINTIFF
DEFAULT FEES AT A RATE OF 10% OF THE REGULAR PAYMENTS."
II
{¶5} "THE TRIAL COURT JUDGE ERRED IN GRANTING THE PLAINTIFF
INSURANCE PREMIUMS."
III
{¶6} "THE TRIAL JUDGE ERRED IN AWARDING TO THE PLAINTIFF
ESCROW ITEMS NOT ITEMIZED."
IV
{¶7} "THE TRIAL JUDGE ERRED IN ACCEPTING THE APPELLEES CLAIM
THAT THE LOAN WAS ACCELERATED." Guernsey County, Case No. 13 CA 7 3
V
{¶8} "THE TRIAL COURT ERRED BY DISMISSING THE REQUEST OF
SPOUSE FOR JURY TRIAL SUA SPONTE."
VI
{¶9} "THE TRIAL COURT DID NOT APPLY TENDERED PAYMENTS TO THE
ACCOUNT OR ALLEGED DEBT. 1321.58 D."
{¶10} Preliminarily, we note the gravamen of any appeal is the judgment entry
appealed from. The judgment entry appealed in this case is the trial court's February 1,
2013 final judgment entry which is consistent with the summary judgment rulings from
the trial court's January 18, 2013 order granting appellee's motion for summary
judgment and denying appellant's motion for summary judgment. Therefore the issues
raised by this appeal are to be reviewed under a summary judgment standard.
{¶11} 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, 1996-Ohio-211:
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 Guernsey County, Case No. 13 CA 7 4
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.
{¶12} 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
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35 (1987).
I, IV, V, VI
{¶13} These assignments of error challenge the determination that appellee had
standing to pursue the action, default fees, specific interpretations of the acceleration
clauses, right to a jury trial, and unapplied tendered payments. As we noted in our
ruling on appellee's notice of suggestion of mootness and request to dismiss filed
August 19, 2013, these issues are deemed moot given the pay off of the debt by
appellant on June 21, 2013 and the release of the mortgage by appellee on August 13,
2013.
{¶14} Assignments of Error I, IV, V, and VI are dismissed.
II, III
{¶15} These assignments of error claim the award of insurance premiums
advanced by appellee and the award of escrow amounts to appellee constitute error.
We disagree.
{¶16} Both parties filed motions for summary judgment. Appellee's November
28, 2012 motion sought a final resolution regarding appellee's standing and appellant's Guernsey County, Case No. 13 CA 7 5
default, and a claim for reimbursement of insurance premiums advanced because of
appellant's failure to insure the premises. Attached to the motion is the affidavit of
Harrison Whittaker, an employee of appellee's servicing agent, OCWEN Loan Servicing,
LLC, wherein Mr. Whittaker averred to the following in pertinent part:
16. Proof of Hazard Insurance was not provided by Defendant for
the dates of April 1, 2004-April 1, 2009; therefore, lender placed insurance
was obtained and charged to the account of Defendant. The dwelling
coverage on the lender placed policy was based on the dwelling of the
retail policy that Defendant obtained. See Exhibit E.
17. Proof of Hazard Insurance was provided by Defendant for the
period of May 1, 2009-May 1, 2010, so the lender placed insurance policy
was cancelled and $1,325.00 was refunded to the escrow account of
Defendant on May 18, 2009. However, that policy was then cancelled
effective June 15, 2010 and no proof of current insurance was provided.
Therefore, a lender placed insurance policy was again obtained and
assessed to the account of Defendant.
18. On October 4, 2010, a letter was mailed to Defendant which
requested that the Declaration page of any hazard insurance policy that
Defendant purchased from 2004-present be sent as proof of insurance
and that upon such showing, Defendant account would be refunded. No
additional proof of insurance was provided by Defendant. Guernsey County, Case No. 13 CA 7 6
19. Payments have not been made as required by the terms and
conditions of the Promissory Note and Mortgage, and by reason thereof,
the Note and Mortgage are in default as prayed for in Plaintiff's Complaint.
25. There is presently due thereon the sum of $62,292.63 plus
interest at the Note rate of 7.75% from February 1, 2010 plus sums
advanced by Plaintiff pursuant to the terms of the Mortgage for real estate
taxes, hazard insurance premiums, and property protection; and that said
account is in default of payment as alleged in Plaintiff's Complaint.
{¶17} Appellant did not respond to the specifics of the affidavit as cited above,
but filed a motion for summary judgment on December 18, 2012, specifically
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[Cite as U. S. Bank N.A. v. Baginski, 2013-Ohio-4773.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
U.S. BANK N.A. : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : DIANNE M. BAGINSKI, ET AL. : Case No. 13 CA 7 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 10CV000485
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 28, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PHILLIP BARRAGATE D. DIANNE MARIE BAGINSKI ASHLYN HEIDER Pro Se 4805 Montgomery Road 19661 Mallet/Sparrow Roads Suite 320 Salesville, OH 43778 Norwood, OH 45212 Guernsey County, Case No. 13 CA 7 2
Farmer, J.
{¶1} On November 1, 2010, appellee, U.S. Bank N.A., as Trustee for the
Registered Holders of Structured Asset Securities Corporation, Mortgage Pass-Through
Certificates, Series 2005-SCI, filed a foreclosure complaint against appellant, Dianne M.
Baginski, for failure to pay on a note secured by a mortgage.
{¶2} On November 28, 2012, appellee filed a motion for summary judgment.
Appellant filed a motion for summary judgment on December 18, 2012. By entry filed
January 18, 2013, the trial court granted appellee's motion and denied appellant's. A
final judgment entry was filed on February 1, 2013.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT JUDGE ERRED IN GRANTING THE PLAINTIFF
DEFAULT FEES AT A RATE OF 10% OF THE REGULAR PAYMENTS."
II
{¶5} "THE TRIAL COURT JUDGE ERRED IN GRANTING THE PLAINTIFF
INSURANCE PREMIUMS."
III
{¶6} "THE TRIAL JUDGE ERRED IN AWARDING TO THE PLAINTIFF
ESCROW ITEMS NOT ITEMIZED."
IV
{¶7} "THE TRIAL JUDGE ERRED IN ACCEPTING THE APPELLEES CLAIM
THAT THE LOAN WAS ACCELERATED." Guernsey County, Case No. 13 CA 7 3
V
{¶8} "THE TRIAL COURT ERRED BY DISMISSING THE REQUEST OF
SPOUSE FOR JURY TRIAL SUA SPONTE."
VI
{¶9} "THE TRIAL COURT DID NOT APPLY TENDERED PAYMENTS TO THE
ACCOUNT OR ALLEGED DEBT. 1321.58 D."
{¶10} Preliminarily, we note the gravamen of any appeal is the judgment entry
appealed from. The judgment entry appealed in this case is the trial court's February 1,
2013 final judgment entry which is consistent with the summary judgment rulings from
the trial court's January 18, 2013 order granting appellee's motion for summary
judgment and denying appellant's motion for summary judgment. Therefore the issues
raised by this appeal are to be reviewed under a summary judgment standard.
{¶11} 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, 1996-Ohio-211:
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 Guernsey County, Case No. 13 CA 7 4
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.
{¶12} 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
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35 (1987).
I, IV, V, VI
{¶13} These assignments of error challenge the determination that appellee had
standing to pursue the action, default fees, specific interpretations of the acceleration
clauses, right to a jury trial, and unapplied tendered payments. As we noted in our
ruling on appellee's notice of suggestion of mootness and request to dismiss filed
August 19, 2013, these issues are deemed moot given the pay off of the debt by
appellant on June 21, 2013 and the release of the mortgage by appellee on August 13,
2013.
{¶14} Assignments of Error I, IV, V, and VI are dismissed.
II, III
{¶15} These assignments of error claim the award of insurance premiums
advanced by appellee and the award of escrow amounts to appellee constitute error.
We disagree.
{¶16} Both parties filed motions for summary judgment. Appellee's November
28, 2012 motion sought a final resolution regarding appellee's standing and appellant's Guernsey County, Case No. 13 CA 7 5
default, and a claim for reimbursement of insurance premiums advanced because of
appellant's failure to insure the premises. Attached to the motion is the affidavit of
Harrison Whittaker, an employee of appellee's servicing agent, OCWEN Loan Servicing,
LLC, wherein Mr. Whittaker averred to the following in pertinent part:
16. Proof of Hazard Insurance was not provided by Defendant for
the dates of April 1, 2004-April 1, 2009; therefore, lender placed insurance
was obtained and charged to the account of Defendant. The dwelling
coverage on the lender placed policy was based on the dwelling of the
retail policy that Defendant obtained. See Exhibit E.
17. Proof of Hazard Insurance was provided by Defendant for the
period of May 1, 2009-May 1, 2010, so the lender placed insurance policy
was cancelled and $1,325.00 was refunded to the escrow account of
Defendant on May 18, 2009. However, that policy was then cancelled
effective June 15, 2010 and no proof of current insurance was provided.
Therefore, a lender placed insurance policy was again obtained and
assessed to the account of Defendant.
18. On October 4, 2010, a letter was mailed to Defendant which
requested that the Declaration page of any hazard insurance policy that
Defendant purchased from 2004-present be sent as proof of insurance
and that upon such showing, Defendant account would be refunded. No
additional proof of insurance was provided by Defendant. Guernsey County, Case No. 13 CA 7 6
19. Payments have not been made as required by the terms and
conditions of the Promissory Note and Mortgage, and by reason thereof,
the Note and Mortgage are in default as prayed for in Plaintiff's Complaint.
25. There is presently due thereon the sum of $62,292.63 plus
interest at the Note rate of 7.75% from February 1, 2010 plus sums
advanced by Plaintiff pursuant to the terms of the Mortgage for real estate
taxes, hazard insurance premiums, and property protection; and that said
account is in default of payment as alleged in Plaintiff's Complaint.
{¶17} Appellant did not respond to the specifics of the affidavit as cited above,
but filed a motion for summary judgment on December 18, 2012, specifically
challenging whether appellee was the proper party to sue:
Defendant Dianne Baginski's collateral file was lost so there is no
way to determine if an allonge was attached to her original note, because
that original note is gone. Since Plaintiff is not the original lender the
Plaintiff is not entitled to a judgment of foreclosure as a matter of law.
Furthermore, the note indorsed in blank by allonge directly
contradicts the note attached [to] the complaint in this case. Since the
note attached to the complaint is missing a page the allonge would not be
sufficient to negotiate the note to the Plaintiff because a complete version
of Dianne Baginski's note does not exist. In addition, since the trust does Guernsey County, Case No. 13 CA 7 7
not have Defendant Dianne Baginski's original note that is evidence that
her note and mortgage never became part of the trust res.
{¶18} Appellant further argued:
Furthermore, Plaintiff's attempt to substitute a different note not
only runs afoul of Schwartzwald but is doubtful veracity because the note
produced at the deposition came from Ocwen's records and not the
records of the trust's custodian. Defendant Dianne Baginski respectfully
requests that the Court grant summary judgment in her favor.
{¶19} Appellant never contested the default, amount due, acceleration,
insurance reimbursement, or fees claimed via the affidavit of Mr. Whittaker. There is no
affirmative response to Mr. Whittaker's paragraph no. 25 cited above. We note
appellant did file a motion to strike Mr. Whittaker's affidavit on January 15, 2013,
contesting his personal knowledge of appellee's records. However, Mr. Whittaker was
an employee of OCWEN Loan Servicing, LLC, the servicing agent and attorney-in-fact
for appellee.
{¶20} Given our limited review with the pay off of the debt, we find no genuine
issues of material fact on the issues argued under these assignments of error as the
trial court granted judgment in accordance with paragraph no. 25 of the affidavit.
{¶21} Assignments of Error II and III are denied. Guernsey County, Case No. 13 CA 7 8
{¶22} The judgment of the Court of Common pleas of Guernsey County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
______________________________ Hon. Sheila G. Farmer
______________________________ Hon. W. Scott Gwin
______________________________ Hon. Patricia A. Delaney
SGF/sg 903 [Cite as U. S. Bank N.A. v. Baginski, 2013-Ohio-4773.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
U.S. BANK N.A. : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DIANNE M. BAGINSKI, ET AL. : : Defendant-Appellant : CASE NO. 13 CA 7
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Guernsey County, Ohio is affirmed. Costs
to appellant Dianne M. Baginski.
_______________________________ Hon. Sheila G. Farmer
_______________________________ Hon. W. Scott Gwin
_______________________________ Hon. Patricia A. Delaney