Bank of New York v. Wahle , 2012 Ohio 6152 ( 2012 )

[Cite as Bank of New York v. Wahle, 2012-Ohio-6152.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
BANK OF NEW YORK MELLON, fka The C.A. No. 26313
Bank of New York as successor in interest
to JP Morgan Chase Bank NA as Trustee for
Structured Asset Mortgage Investments II
Inc. Bear Stearns ALT-A Trust 2005-3, APPEAL FROM JUDGMENT
Mortgage Pass-Through Certificates, Series ENTERED IN THE
2005-3 COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV 2010 03 2074
v.
JOSEPH F. WAHLE, et al.
Appellant
DECISION AND JOURNAL ENTRY
Dated: December 28, 2012
MOORE, Presiding Judge.
{¶1} Defendant-Appellant, Joseph F. Wahle, appeals from the January 26, 2012
judgment entry of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} Plaintiff-Appellee, The Bank of New York Mellon (“Bank of New York”), filed a
complaint in foreclosure against Mr. Wahle alleging that he defaulted upon his mortgage note
and owed $156,568.45 plus interest at the rate of 5.8750% per year from October 1, 2009. Mr.
Wahle filed an answer pro se requesting that the case be referred to mediation, but did not deny
the allegations set forth in the complaint, or allege any affirmative defenses.
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{¶3} Bank of New York filed a motion for summary judgment arguing that Mr.
Wahle’s answer did not deny the allegations set forth in the foreclosure complaint, and that no
genuine issues of material fact existed, entitling the bank to judgment as a matter of law. Mr.
Wahle retained counsel, filed an amended answer denying the allegations in the complaint, and
moved for an extension of time to respond to the motion for summary judgment.
{¶4} Later, Bank of New York filed a supplemental motion for summary judgment
arguing that Mr. Wahle’s general denials and affirmative defenses cannot withstand summary
judgment.
{¶5} Mr. Wahle filed a memorandum in opposition to Bank of New York’s motions for
summary judgment contending that genuine issues of material fact existed as to (1) the amount
and status of the delinquency, and (2) whether Mr. Wahle was accepted into a loan modification
program. Further, after the dispositive motion deadline of October 18, 2010, Mr. Wahle filed a
notice of submission of evidentiary materials and reservation of rights, and a notice of deposition
duces tecum to China Brown.
{¶6} In response, Bank of New York filed motions to strike Mr. Wahle’s notice of
submission of evidentiary materials and reservation of rights, to quash his notice of deposition
duces tecum, and for a protective order. Mr. Wahle then requested that the trial court compel
China Brown to appear at the deposition.
{¶7} On November 30, 2010, the trial court (1) granted Bank of New York’s motions
to strike, quash, and for a protective order, (2) denied Mr. Wahle’s motion to compel, and (3)
granted Bank of New York’s motion for summary judgment. Mr. Wahle moved for
reconsideration, which was denied.
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{¶8} After two unsuccessful attempted appeals were dismissed, the trial court issued a
final appealable order on January 26, 2012. Mr. Wahle timely appealed and raised three
assignments of error for our consideration.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
SUMMARY JUDGMENT IN FAVOR OF [] BANK OF NEW YORK, WHERE
THERE EXISTED A GENUINE ISSUE OF MATERIAL FACT.
{¶9} In his first assignment of error, Mr. Wahle argues that the trial court erred in
granting summary judgment because genuine issues of material fact existed as to the claimed
delinquency on the loan. Specifically, Mr. Wahle argues that he (1) denied the amount due, (2)
tendered a payment of $1,000.00 as acceptance into a loan modification program, and (3)
disputed the amount of foreclosure fees and costs.
{¶10} In response, Bank of New York contends that no genuine issue of material fact
existed because (1) general denials of the amount due are insufficient to withstand summary
judgment, (2) Mr. Wahle’s tendered payment of $1,000.00 is not relevant because it was
rejected, and (3) there is no evidence of a loan modification.
{¶11} An appellate court reviews an award of summary judgment de novo. Grafton v.
Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). It applies the same standard as the trial court,
viewing the facts of the case in the light most favorable to the non-moving party and resolving
any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7,
12 (6th Dist.1983). Pursuant to Civ.R. 56(C), summary judgment is proper if:
(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
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such evidence most strongly in the favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The moving party bears the initial
burden of informing the trial court of the basis for the motion and pointing to parts of the record
that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280,
292-93 (1996). Specifically, the moving party must support its motion by pointing to some
evidence in the record indicated in Civ.R. 56(C). Id. Once this burden is satisfied, the non-
moving party bears the burden of offering specific facts to show a genuine issue for trial. Id. at
293; Civ.R. 56(E).
{¶12} Civ.R. 56(C) provides that, in reviewing a motion for summary judgment, the
court should review “the pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact[.]” Further, when affidavits
are submitted in support of or in opposition to motions for summary judgment, Civ.R. 56(E)
provides that the affidavits “shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of
papers referred to in an affidavit shall be attached to or served with the affidavit.”
{¶13} Here, Bank of New York submitted the following evidence in support of its
supplemental motion for summary judgment: (1) the affidavit of China Brown, Vice President of
Loan Documentation of Wells Fargo Bank N.A. as servicing agent for Bank of New York, (2) a
signed copy of the adjustable rate note, (3) an allonge to the promissory note transferring all
rights to Bank of New York, (4) a copy of the signed mortgage, (5) a notice letter to Mr. Wahle
advising that he must bring his loan current by January 19, 2010, in order to avoid acceleration
of his mortgage note, and (6) a copy of Mr. Wahle’s mortgage loan payment history.
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{¶14} In support of his memorandum in opposition, Mr. Wahle attached an affidavit
averring that: (1) on February 28, 2010, he tendered a $1,000.00 check to America’s Servicing
Company toward his mortgage payment, (2) on March 9, 2010, he received a letter from
America’s Servicing Company returning the $1,000.00 check and informing him that his loan
was already in foreclosure, (3) on April 7, 2010, he received a letter from Lerner, Sampson &
Rothfuss claiming that he owed $2,393 in estimated fees and costs for the foreclosure, (4) he
denies owing the amounts alleged in the complaint, (5) on March 17, 2010, he received a letter
from Bank of New York inviting him to enter a loan modification program, (6) on August 16,
2010, the trial court instructed him to submit all necessary paperwork for the loan modification
program within fourteen days, and (7) on August 26, 2010, he submitted all appropriate
documents.
{¶15} Mr. Wahle also submitted (1) a copy of the returned check, (2) a copy of the
March 9, 2010 letter returning the check and informing him that his loan is in “a [f]oreclosure
status,” (3) a copy of the April 7, 2010 reinstatement letter estimating foreclosure fees and costs,
and (4) a copy of the March 17, 2010 letter advising him of the federal government’s Home
Affordable Modification Program with instructions on how to apply.
{¶16} Based upon the evidence in the record, we conclude that Bank of New York met
its Dresher burden and that no genuine issue of material fact exists to be litigated at trial.
{¶17} First, there are no genuine issues of material fact with regard to the amount due
and owing on the mortgage loan. The record indicates that Bank of New York submitted the
affidavit of China Brown, vice president of loan documentation of Wells Fargo Bank, N.A., the
servicing agent for Bank of New York. In her affidavit, Ms. Brown averred that she has custody
of the accounts of the bank including Mr. Wahle’s account. Further, Ms. Brown averred that
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Bank of New York is the holder of the note and mortgage which is the subject of this foreclosure
action. As evidence of ownership, Bank of New York attached a copy of the signed note and
mortgage, along with a copy of an assignment of the mortgage from Mortgage Electronic
Registration Systems, Inc., to Bank of New York. Ms. Brown also averred that Mr. Wahle
defaulted on his mortgage loan and was served with notice of his default, along with notice of
Bank of New York’s intent to accelerate the mortgage. As evidence of Mr. Wahle’s default on
the loan, Bank of New York attached a copy of his payment history. Additionally, as evidence
of notice of default and acceleration, Bank of New York attached a copy of the letter sent to Mr.
Wahle in December of 2009. Finally, Ms. Brown averred that Mr. Wahle owed $156,568.45,
with interest from October 1, 2009, at 5.875 percent per year, as may be adjusted per terms of the
note, and advances for taxes, insurance, and expenses for protecting the property.
{¶18} In Charter One Mtge. Corp. v. Keselica, 9th Dist. No. 04CA008426, 2004-Ohio-
4333, this Court addressed a similar situation where the appellant denied the amount due and
owing on her mortgage loan. We concluded that “[t]he affidavits submitted by Charter One are
adequate to establish the amount owed by [the] [a]ppellant. * * * [The] [a]ppellant did not
submit any evidence controverting the sum Charter One claimed was due.” Id. at ¶ 11.
{¶19} Here, similar to Charter One Mtge. Corp., Mr. Wahle merely alleged in his
affidavit that he “[denies] [owing] the amounts alleged by [Bank of New York] in their
complaint[,]” however, he failed to submit any evidence controverting the amount that Bank of
New York claimed was due and owing. The statement in Mr. Wahle’s affidavit mirrors the
general denial set forth in his amended answer, which, pursuant to Civ.R. 56, cannot be relied
upon to defeat summary judgment. As such, there is no genuine issue of material fact as to this
matter.
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{¶20} Second, there are no genuine issues of material fact with regard to whether Mr.
Wahle’s $1,000.00 payment was improperly rejected, or whether he was accepted into a loan
modification program. The record indicates that Mr. Wahle received a letter dated December 20,
2009, notifying him of his default and that the loan would be accelerated if he failed to bring it
current by January 19, 2010. Further, the letter advised that he must pay $2,501.59, plus any
additional monthly payments, late charges and other charges that come due after the date of the
notice, on or before January 19, 2010. This letter does not extend an offer to Mr. Wahle
regarding a loan modification program. On February 28, 2010, Mr. Wahle tendered a check to
the loan servicing company in the amount of $1,000.00, which was returned to him in a letter
dated March 9, 2010, because his loan was in a “[f]oreclosure status[.]” Mr. Wahle contends that
the March 9, 2010 letter indicated that a foreclosure action had already been filed, creating a
genuine issue of material fact. However, the letter clearly does not advise Mr. Wahle that a
foreclosure action had already been filed, and does not improperly reject his $1,000.00 payment.
The payment he tendered did not cure the default.
{¶21} In addition, Mr. Wahle received a letter dated March 17, 2010, advising him
about the federal government’s Home Affordable Modification Program. The letter explains
how to apply to the program in order to find out if he meets the qualifications, but does not
extend any type of offer. Finally, there is no evidence in the record that Mr. Wahle met the
qualifications for the Home Affordable Modification Program, or that he was accepted into the
program. As such, there is no genuine issue of material fact as to this matter.
{¶22} Third, there are no genuine issues of material fact with regard to the estimated
fees and costs set forth in the April 7, 2010 letter from Lerner, Sampson & Rothfuss. Mr. Wahle
contends that, had Bank of New York accepted his $1,000.00 payment and forestalled the
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foreclosure as “promised” in the loan modification, the cost of filing the foreclosure complaint
would have been avoided. As stated above, there is no evidence in the record that Mr. Wahle’s
$1,000.00 payment was improperly rejected, or that Mr. Wahle was accepted into a loan
modification program. As such, there is no genuine issue of material fact as to this matter.
{¶23} Therefore, even viewing the evidence in a light most favorable to Mr. Wahle, we
cannot say that the trial court erred in granting Bank of New York’s motion for summary
judgment.
{¶24} Mr. Wahle’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED []
[MR.] WAHLE [] HIS RIGHTS SET FORTH IN THE SUMMIT COUNTY
COURT OF COMMON PLEAS LOCAL RULE 7.14 AND OHIO CIVIL RULE
56(C).
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED []
[MR.] WAHLE [] HIS RIGHTS UNDER OHIO CIVIL RULE 30(B)(5).
{¶25} Because Mr. Wahle’s second and third assignments of error are interrelated, we
discuss them together. In his second assignment of error, Mr. Wahle argues that, pursuant to
Summit County Loc.R. 7.14(C), and Civ.R. 56(C), he was permitted to submit additional
evidentiary materials up to one day prior to the non-oral hearing. Specifically, Mr. Wahle argues
that he should have been able to supplement his response to summary judgment with an
opposing affidavit after taking the deposition of China Brown, Bank of New York’s alleged
“corporate representative.” In his third assignment of error, Mr. Wahle argues that the trial court
erred when it denied his motion to compel which prevented him from deposing China Brown.
We find both of these assignments of error without merit.
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{¶26} Summit County Loc.R. 7.14(C) provides, in relevant part, that:
(1) A party opposing a motion for summary judgment made pursuant to Civil
Rule 56 may file a brief in opposition with accompanying evidentiary materials
(as permitted by Civil Rule 56(C)[)] within fourteen days of service of the motion.
The movant may file a reply brief in support of the motion within ten (10) days of
service of the brief in opposition. The movant’s reply brief shall not refer to or
include any additional evidentiary materials without agreement of the parties or
leave of the Court. Additional reply briefs may only be filed with leave of the
Court only upon a showing of good cause.
(Emphasis added.) Further, Civ.R. 56(C) provides, in relevant part, that:
The motion shall be served at least fourteen days before the time fixed for
hearing. The adverse party, prior to the day of hearing, may serve and file
opposing affidavits. Summary Judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the
action, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. * * *
(Emphasis added.) Here, Mr. Wahle argues that, based upon the language in Civ.R. 56(C), he
should have been able to file an opposing affidavit “one day prior to the day of hearing.” See
Civ.R. 56(C). In addition, Mr. Wahle admitted that his opposing affidavit would have been
based upon the testimony of China Brown, a Bank of New York employee whom he attempted
to depose by way of Civ.R. 30(B)(5). However, because Mr. Wahle’s notice of deposition was
improperly served upon China Brown, thus precluding him from taking her deposition, we
decline to further address his notion that the Civil Rules allow him to serve evidentiary materials
one day prior to the hearing on a motion for summary judgment.
{¶27} Civ.R. 30(A) states that “[a]fter commencement of the action, any party may take
the testimony of any person, including a party, by deposition upon oral examination. The
attendance of a witness deponent may be compelled by the use of subpoena as provided by
Civ.R. 45. The attendance of a party deponent may be compelled by the use of notice of
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examination as provided by division (B) of this rule. * * *” Further, Civ.R. 30(B)(5) provides
that:
A party, in the party’s notice, may name as the deponent a public or private
corporation, a partnership, or an association and designate with reasonable
particularity the matter on which examination is requested. The organization so
named shall choose one or more of its proper employees, officers, agents or other
persons duly authorized to testify on its behalf. The persons so designated shall
testify as to matters known or available to the organization. Division (B)(5) does
not preclude taking a deposition by any other procedure authorized in these rules.
{¶28} Here, Mr. Wahle attempted to take the deposition of China Brown, an employee
of Wells Fargo Bank, NA, by issuing a notice of deposition duces tecum pursuant to Civ.R.
30(B)(5). However, because Ms. Brown is a “witness deponent,” her attendance must be
compelled through a subpoena as provided in Civ.R. 45. Civ.R. 30(B)(5) clearly states that a
party may name as its deponent “a public or private corporation, a partnership, or an
association,” and then, “[t]he organization so named shall choose one or more of its proper
employees, officers, agents or other person duly authorized to testify on its behalf.” Mr. Wahle
could have properly issued a subpoena, pursuant to Civ.R. 45, compelling Ms. Brown to attend a
deposition. Instead, Mr. Wahle incorrectly attempted to compel her attendance through a notice
of deposition via Civ.R. 30(B)(5), which only allows him to name a corporate entity, and then,
the corporate entity must choose the individual who will testify on its behalf. As such, the trial
court did not err in denying Mr. Wahle’s motion to compel, and granting Bank of New York’s
Motion for Summary Judgment.
{¶29} Mr. Wahle’s second and third assignments of error are overruled.
III.
{¶30} In overruling Mr. Wahle’s three assignments of error, the judgment of the Summit
County Court of Common Pleas is affirmed.
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Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
DICKINSON, J.
CONCURS.
BELFANCE, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
JACK W. MORRISON, JR., Attorney at Law, for Appellant.
SCOTT A. KING and TERRY W. POSEY, JR., Attorneys at Law, for Appellee.