U.S. Bank Natl. Assn., as Trustee v. Michaels

2023 Ohio 4320

• Court: Ohio Court of Appeals
• Decided: November 30, 2023
• Docket: 112636
• Status: Published

Opinion

[Cite as U.S. Bank Natl. Assn., as Trustee v. Michaels, 2023-Ohio-4320.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

U.S. BANK NATIONAL ASSOCIATION, : AS TRUSTEE, : Plaintiff-Appellee, : No. 112636 v. : HANNIE R. MICHAELS, ET AL., : Defendants-Appellants.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 30, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-933881

Appearances:

McGlinchey Stafford PLLC and Stefanie L. Deka; Sikora Law LLC and Alexander E. Goetsch, for appellee.

Randolph R. Roth, for appellants.

SEAN C. GALLAGHER, J.:

Defendants-appellants Hannie R. Michaels and Sally Ayyad appeal

the decision of the trial court that granted the motion for summary judgment of plaintiff-appellee U.S. Bank National Association, as Trustee1 (hereafter “U.S. Bank

N.A.”) and entered an in rem judgment and decree of foreclosure. Upon review, we

affirm.

On August 2, 2006, Hannie R. Michaels a.k.a. Hannie Michaels

(“Michaels”) obtained a loan from First Horizon Home Loan Corporation, which

was evidenced by a note executed by Michaels and a mortgage executed by Michaels

and Sally Ayyad (collectively “appellants”). The mortgage was originally recorded

on August 3, 2006. The mortgage was rerecorded on November 29, 2006, to correct

the legal description for the property as provided in Exhibit A thereto. No other

modifications were made.

In June 2020, U.S. Bank N.A. filed a complaint in foreclosure on the

property. After the complaint was twice amended, a third amended complaint was

filed on July 28, 2021, which alleged Michaels was in default on the note and sought

foreclosure of the mortgage. The appellants filed a joint answer to the complaint

and a counterclaim. The counterclaim was dismissed.

On July 27, 2022, U.S. Bank N.A. filed a motion for summary

judgment with supporting exhibits. Appellants filed affidavits opposing the motion

without any briefing. Appellants averred in their affidavits that they “did not execute

the Mortgage attached as Exhibit B to Plaintiff’s Motion for Summary Judgment in

this case.” Exhibit B was the rerecorded mortgage to correct the legal description.

1 The full name of the plaintiff-appellee is U.S. Bank National Association, as

Trustee under the Pooling and Servicing Agreement dated as of October 1, 2006, GSAMP Trust 2006-HE7, Mortgage Pass-Through Certificates Series 2006-HE7. A magistrate’s decision was issued on November 29, 2o22.

Consistent with the evidence, the magistrate determined in part as follows:

Plaintiff has set forth evidence establishing all of the elements [of foreclosure.] See Affidavit of Derrick Raleigh, Exhibit 1 to Plaintiff’s Motion for Summary Judgment docketed on July 22, 2022. Plaintiff was both the holder of the Note and the assignee of the Note and the assignee of the Mortgage at the time the Complaint was filed. Specifically, Plaintiff is a holder in possession of the original Note with the allonges attached and the assignee of the Mortgage and is entitled to enforce them both. Defendant Hannie R. Michaels aka Hannie Michaels executed and delivered the Note and Defendants Hannie R. Michaels and Sally Ayyad executed and delivered the Mortgage. Defendant Hannie Michaels defaulted on the loan. Plaintiff sent a notice of default via first class mail to Hannie R. Michaels aka Hannie Michaels at the Property address and the default was not cured. See Exhibit E of the Affidavit of Derrick Raleigh attached to Plaintiff’s Motion for Summary Judgment.

Plaintiff accelerated the balance due and established the amount due by Civ.R. 56 evidence. See Affidavit of Derrick Raleigh, Exhibit 1 to Plaintiff’s Motion for Summary Judgment.

***

Defendants do not explain or offer any argument related to their averment that they did not execute Exhibit B (actually Exhibit 1-B). Nor did Defendants * * * assert in their Answer to the Third Amended Complaint that they did not sign the Mortgage.

The magistrate proceeded to engage in a legal analysis and

determined in part that the signature on the mortgage is presumed valid pursuant

to R.C. 1303.36, that the mortgage is deemed valid pursuant to R.C. 5301.07(C)

because the mortgage has been of record for more than four years from the date of

recording of the instrument, and that the mortgage is valid because it is a purchase

money mortgage. The magistrate also recognized that the mortgage recorded on

August 2, 2006, included a notarial acknowledgment confirming appellants executed the mortgage on that date and that the mortgage as executed by appellants

described the property by street address, even before the re-recording. Finding no

genuine issue of material fact, the magistrate granted U.S. Bank N.A.’s motion for

summary judgment and entered an in rem judgment and decree of foreclosure.

On December 14, 2022, appellants filed objections to the magistrate’s

decision. On March 21, 2023, the trial court issued an order adopting the

magistrate’s decision over appellants’ objections. The trial court found that the

appellants’ objections were untimely because they were not filed within 14 days of

the filing of the magistrate’s decision on November 29, 2022, as required pursuant

to Civ.R. 53(D)(3)(b). The trial court further stated that “contrary to Defendants’

objection, the Magistrate does set forth specific findings of fact and conclusions of

law” and “Plaintiff has set forth evidence establishing all of the elements of

foreclosure as set forth in Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist.

Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 17.” The trial court entered an “in rem

judgment in favor of Plaintiff in the sum of $115,488.22, plus interest at the rate of

9.00000 percent per annum, from September 1, 2008” and ordered the property to

be foreclosed unless the sums were fully paid within three days of the adoption of

the magistrate’s decision.

Appellants timely appealed. Under their sole assignment of error,

appellants claim the trial court erred in granting U.S. Bank N.A.’s motion for

summary judgment. We review summary judgment rulings de novo, applying the same

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). Under Civ.R. 56, summary judgment is appropriate when no

genuine issue exists as to any material fact and, in viewing the evidence most

strongly in favor of the nonmoving party, reasonable minds can reach only one

conclusion that is adverse to the nonmoving party, entitling the moving party to

judgment as a matter of law.

In a motion for summary judgment, the moving party carries an

initial burden of identifying specific facts in the record that demonstrate their

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.

Summary judgment is appropriate if the nonmoving party fails to meet this burden.

Id.

In challenging the trial court’s decision in this case, appellants raise

several issues, but they do not develop all their arguments within their brief.

Further, as the trial court observed, the appellants failed to timely object to the

magistrate’s decision in this case.

Under Civ.R. 53(D)(3)(b)(i), written objections to a magistrate’s

decision are to be filed “within fourteen days of the filing of the decision * * *.” In this case, the record shows the objections were filed after 14 days had elapsed.

Although appellants referenced a magistrate’s order of November 30, 2022, that was

issued to reflect the motion for summary judgment was granted as set forth in the

magistrate’s decision. Appellants were required to comply with the time

requirements of Civ.R. 53(D) and timely appeal from the magistrate’s decision that

was journalized on November 29, 2022. Therefore, appellants have arguably waived

the issues presented and they have not raised plain error on appeal. See Fifth Third

Bank v. Hrivnak, 8th Dist. Cuyahoga No. 112350, 2023-Ohio-2490, ¶ 14-15.

Nevertheless, even if we consider appellants’ arguments in the

context of reviewing the summary-judgment ruling, appellants largely present bald

assertions and they fail to develop their arguments. For instance, appellants claim

that the evidence submitted by U.S. Bank N.A. in support of its motion was woefully

deficient, but within their argument, they do not point to any specific deficiencies in

support of this claim. Appellants assert in the statement of facts section of their brief

that the mortgage is unenforceable because of the expired note that supports it. Not

only was this argument not raised before the trial court, but even if U.S. Bank N.A.

were barred from proceeding on the note, U.S. Bank N.A. still has the right to pursue

a foreclosure action on the mortgage. See U.S. Bank Natl. Assn. v. O’Malley,

2019-Ohio-5340, 150 N.E.3d 532, ¶ 23 (8th Dist.), appeal not accepted, 158 Ohio

St.3d 1523, 2020-Ohio-3018, 145 N.E.3d 314; see also U.S. Bank Natl. Assn. v.

Robinson, 8th Dist. Cuyahoga No. 105067, 2017-Ohio-5585, ¶ 11. Appellants also purport to “claim an affirmative defense that the

signatures on Plaintiff’s exhibits are not valid” and that “Hannie Michaels did not

execute the Mortgage attached as Exhibit 1-B” to the motion for summary judgment.

In their affidavits opposing plaintiff’s motion for summary judgment, appellants

essentially asserted that they did not execute the rerecorded mortgage. However,

they never denied executing the mortgage as originally recorded, and because they

never specifically denied in the pleadings that they executed the mortgage, the

validity of the signatures is admitted pursuant to R.C. 1303.36(A). Additionally, the

record shows that the mortgage as originally recorded adequately described the

property and included the property’s street address, which was a sufficient legal

description of property subject to the mortgage. See Williams v. Schneider, 2018-

Ohio-968, 109 N.E.3d 124, ¶ 119 (8th Dist.), citing ABN AMRO Mtge. Group, Inc. v.

Jackson, 159 Ohio App.3d 551, 558-559, 2005-Ohio-297, 824 N.E.2d 600 (2d Dist.);

In re Bunn, 578 F.3d 487, 490 (6th Cir.2009).

Appellants have provided no authority for invalidating the document

merely because it was rerecorded with a corrected legal description attached as

Exhibit A to the mortgage. It is not the role of an appellate court to flush out

underdeveloped arguments on behalf of one of the parties. See State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, citing

State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78

(O’Donnell, J., concurring in part and dissenting in part), quoting Carducci v.

Regan, 714 F.2d 171, 177 (D.C.Cir.1983). Furthermore, as pointed out in appellee’s brief, even if there was a defect in the mortgage, it has been held that “‘a defectively

executed conveyance of an interest in land is valid as between the parties thereto, in

the absence of fraud.’” Basil v. Vincello, 50 Ohio St.3d 185, 188, 553 N.E.2d 602

(1990), quoting Citizens Natl. Bank v. Denison, 165 Ohio St. 89, 95, 133 N.E. 2d 329

(1956); Naso v. Daniels, 8 Ohio App.2d 42, 48, 220 N.E.2d 829 (3d Dist.1964).

We are not persuaded by any other argument raised by appellants.

We have thoroughly reviewed the entire record and find that U.S. Bank N.A. met its

initial burden of identifying specific facts in the record to demonstrate their

entitlement to summary judgment. Because appellants have failed to point to

evidence of specific facts in the record demonstrating the existence of a genuine

issue of material fact for trial, we find summary judgment was properly granted in

favor of U.S. Bank N.A.

For the foregoing reasons, appellants’ assignment of error is

overruled.

Judgment affirmed.

It is ordered that appellee recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and MARY J. BOYLE, J., CONCUR