Hancock Fed. Credit Union v. Coppus , 2015 Ohio 5312 ( 2015 )

[Cite as Hancock Fed. Credit Union v. Coppus, 2015-Ohio-5312.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
HANCOCK FEDERAL CREDIT
UNION, CASE NO. 13-15-19
PLAINTIFF-APPELLEE,
v.
BRIAN A. COPPUS, ET AL.,
DEFENDANTS-APPELLANTS,
OPINION
-and-
SENECA COUNTY TREASURER, ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Seneca County Common Pleas Court
Civil Division
Trial Court No. 14-CV-0164
Judgment Affirmed
Date of Decision: December 21, 2015
APPEARANCES:
Grace M. Doberdruk for Appellants, Brian Coppus and Ashlee Coppus
Bradley S. Warren for Appellee, Hancock Federal Credit Union
Case No. 13-15-19
WILLAMOWSKI, J.
{¶1} Defendants-appellants, Brian A. Coppus (“Coppus”) and Ashlee
Coppus (“Ashlee”) (collectively “the Coppuses”), bring this appeal from the
judgment of the Common Pleas Court of Seneca County, Ohio, which granted
summary judgment in favor of Plaintiff-appellee, Hancock Federal Credit Union
(“Hancock Federal”), on its complaint for foreclosure. For the reasons that follow,
we affirm the trial court’s judgment.
Factual and Procedural Background
{¶2} Two promissory notes are at issue in this action. We refer to them as
“Note 1” and “Note 2” throughout the opinion.
{¶3} On June 11, 2014, Hancock Federal filed a complaint for foreclosure,
against the Coppuses.1 The complaint alleged that Coppus executed Note 1 to Old
Fort Banking Company (“Old Fort”) on April 24, 2009. Note 1 was secured by a
mortgage on the property that is the subject of this foreclosure action. Note 1 and
its corresponding mortgage were assigned to Hancock Federal in October 2013.
Note 2 was executed directly to Hancock Federal in May 2009. Note 2 was
secured by a mortgage on the same property. Coppus defaulted on the terms of
both promissory notes due to his failure to make payments according to the terms
1
The complaint named other parties as defendants: Seneca County Treasurer, First National Bank of
Pandora, Christina Coppus—former spouse of Coppus, and Unknown Tenant of Coppus. (R. at 2.) First
National Bank of Pandora was dismissed on September 22, 2014. (R. at 44.) Christina Coppus was
dismissed on November 7, 2014. (R. at 49.) Although the other defendants were not dismissed from the
action, only the action against the Coppuses is at issue on this appeal. We have jurisdiction based on the
trial court’s certification under Civ.R. 54(B).
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of the notes. As a result, Hancock Federal requested that the two mortgages on the
property be foreclosed.
{¶4} The Coppuses filed an answer with affirmative defenses. Among
other defenses, the Coppuses alleged that Hancock Federal was not the real party
in interest, lacked standing to bring the claim, and was not entitled to enforce the
mortgage. (R. at 40, ¶ 26.) They further alleged that Hancock Federal “may not
have possession of the original note” and was “not entitled to enforce Note # 1.”
(Id. at ¶ 27, 38.) The Coppuses also filed a partial motion to dismiss alleging that
Hancock Federal lacked standing to sue with respect to Note 1. (R. at 41.) This
motion was denied. (R. at 46.)
{¶5} Hancock Federal then filed a motion for summary judgment. (R. at
48.) Two affidavits were attached to the motion for summary judgment: Affidavit
of Richard Lis (“Lis”) and Affidavit of Greg Harris (“Harris”). Lis, the Chief
Credit Officer for Old Fort, averred that Note 1, in the amount of $137,000.00,
was executed to Old Fort and later assigned to Hancock Federal. (Lis Aff.) At the
time of the assignment, Coppus was in default on the terms of the note, with the
principal balance being $123,049.49 and the total amount due being $127,548.14.
(Id.) Lis attached the following exhibits to his affidavit: a copy of Note 1 (Lis Aff.
Ex. A), a copy of the mortgage (Lis Aff. Ex. B), and a copy of the Assignment
(Lis Aff. Ex. C). In his affidavit, Lis attested that the exhibits were true and
accurate copies of the original documents.
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{¶6} Harris, the Vice President of Real Estate Lending for Hancock
Federal, stated the same facts with respect to Note 1, and attached a copy of Note
1 (Harris Aff. Ex. 1), a copy of Mortgage 1 (Harris Aff. Ex. B), and a copy of the
Assignment of Note 1 to Hancock Federal (Harris Aff. Ex. C), which had been
previously filed with the Seneca County Recorder. He further averred facts with
respect to Note 2, which was executed for the amount of $51,000, and delivered to
Hancock Federal in May 2009. (Harris Aff.) A copy of Note 2 was attached to
the affidavit (Harris Aff. Ex. D), together with a copy of Mortgage 2 (Harris Aff.
Ex. E). Harris stated that a mortgage modification agreement was executed with
respect to Mortgage 2 in January 2010. He attached a copy of the agreement.
(Harris Aff. Ex. F.) Harris attested that all exhibits were “true and accurate”
copies of the original documents. (Harris Aff.) Coppus defaulted on both
mortgages, which caused Hancock Federal to exercise acceleration options and
call the entire unpaid principal balance due and owing under both notes. (Harris
Aff.) The total principal and interest balance was listed as $115,000.00 on Note 1
and $52,065.69 on note 2. (Id.)
{¶7} The Coppuses filed an opposition to motion for summary judgment
(“Opposition”), arguing several reasons why summary judgment should not be
granted. First, they asserted that the loan modification with respect to Mortgage 2
was not enforceable because it “was not recorded with the Seneca County
Recorder as required by R.C. 5301.231.” (R. at 51.) Second, the Coppuses argued
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that the affidavits of Lis and Harris were defective because they never stated that
Lis or Harris “viewed the original note and compared it to the copy attached to the
complaint or their affidavits.” (Id.) Third, the Coppuses alleged that the affidavits
of Lis and Harris “were not made upon personal knowledge because they do not
identify how their job duties make them familiar with the records of this loan.”
(Id.) Fourth, the Coppuses argued that the Affidavits were deficient because they
did not state that Hancock Federal was in possession of the original notes at the
time when the complaint was filed or at the time the motion for summary
judgment was filed. (Id.) Fifth, they argued that Hancock Federal “did not
demonstrate a default” because it failed to attach any payment history to the
affidavits. Lastly, the Coppuses suggested that other remedies should be pursued
as alternatives to foreclosure.
{¶8} Of note, the Coppuses did not deny that they executed Note 1 and
Note 2, that the notes were secured by the mortgages on the property at issue, or
that they were in default and owed money to Hancock Federal. Neither did they
move to strike the affidavits or the exhibits attached. The Coppuses did not assert
that the copies attached to the affidavits were false. No documentary evidence or
affidavits stating facts in dispute were attached to the Opposition, as required by
Civ.R. 56. The only thing attached was an affidavit of the Coppuses’ attorney,
indicating that more discovery was needed “[i]n order to oppose to Plaintiff’s
motion for summary judgment.” (Id., Doberdruk Aff.)
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{¶9} In response to the Coppuses’ challenges to the motion for summary
judgment, Hancock Federal filed a Reply. (R. at 53.) While disagreeing with the
Coppuses that the affidavits were deficient or that additional evidence was
necessary, Hancock Federal attached a supplemental affidavit of Greg Harris, as
well as payment history on the account at issue. (Id.) In the supplemental
affidavit Harris explained his duties and scope of employment at Hancock Federal,
indicating that as a person responsible for originating residential real estate loans
and the head of the collection department, he had first-hand personal knowledge of
how notes and mortgages are drafted, compiled, kept, and enforced by Hancock
Federal. (Supp. Harris Aff.) Harris further attested that Note 1 and Note 2 were in
the physical possession of Hancock Federal. (Id.) He attested that he had
reviewed the original notes, compared them with the copies that were attached to
the motion for summary judgment, and determined that they were exact copies of
the originals. (Id.) Harris similarly attested that the attached payment history was
an exact copy of the original payment history maintained by Hancock Federal in
the ordinary course of business. (Id.) The Coppuses did not object to the
Supplemental Affidavit or the evidence submitted by Hancock Federal with its
Reply.
{¶10} The trial court assigned the summary judgment motion for a hearing
to be held on March 31, 2015, but no transcript of that hearing is before us on
appeal. (R. at 56.) The Parties exchanged additional discovery, including
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Hancock Federal’s responses to a set of requests for admissions, in which
Hancock Federal stated that it was unable to determine the exact date when it
came in physical possession of the “original ink-signed” Note 1. (R. at 60, Resp.
to Req. for Admis. No. 30.)
{¶11} The trial court granted summary judgment to Hancock Federal,
finding that any evidentiary deficiencies alleged by the Coppuses were cured by
the Supplemental Affidavit of Harris and exhibits attached to the Reply. The trial
court further found that R.C. 5301.231, which requires that a mortgage
modification be recorded, does not bar enforcement of the contractual agreement
between the parties.
{¶12} The Coppuses filed the instant appeal in which they allege one
assignment of error as quoted below.
Assignment of Error
THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT WHEN APPELLEE MOVED FOR SUMMARY
JUDGMENT WITH AFFIDAVITS THAT WERE NOT MADE
UPON PERSONAL KNOWLEDGE, THE LOAN
MODIFICATION WAS NOT RECORDED AND WHEN
APPELLEE RESPONDED TO REQUEST FOR ADMISSION NO.
30 THAT APPELLEE WAS NOT CERTAIN THAT IT HAD
POSSESSION OF THE ORIGINAL NOTE WHEN THE
COMPLAINT WAS FILED
Standard of Review
{¶13} The standard for granting summary judgment in Ohio was defined in
Civ.R. 56 as follows.
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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. No evidence or stipulation may be considered
except as stated in this rule. A summary judgment shall not be
rendered unless it appears from the evidence or stipulation, and only
from the evidence or stipulation, 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, that party being
entitled to have the evidence or stipulation construed most strongly
in the party’s favor.
Civ.R. 56(C).
{¶14} The party moving for summary judgment has the initial burden “to
inform the trial court of the basis for the motion, identifying the portions of the
record, including the pleadings and discovery, which demonstrate the absence of a
genuine issue of material fact.” Reinbolt v. Gloor, 146 Ohio App.3d 661, 767
N.E.2d 1197, ¶ 8 (3d Dist.2001); accord Todd Dev. Co., Inc. v. Morgan, 116 Ohio
St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 12. The burden then shifts to the party
opposing the summary judgment. Id. In order to defeat summary judgment, the
nonmoving party may not rely on mere denials but “must set forth specific facts
showing that there is a genuine issue for trial.” Byrd v. Smith, 110 Ohio St.3d 24,
2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R. 56(E).
{¶15} “[B]ecause summary judgment is a procedural device to terminate
litigation, it must be awarded with caution.” Murphy v. Reynoldsburg, 65 Ohio
St.3d 356, 358-359, 604 N.E.2d 138 (1992). The court must thus construe all
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evidence and resolve all doubts in favor of the non-moving party, here the
Coppuses. Id. But if the evidence so construed fails to support the essentials of
the Coppuses’ claims, summary judgment is proper. Welco Industries, Inc. v.
Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993). An appellate
court reviews de novo a trial court’s decision on a motion for summary judgment.
Esber Beverage Co. v. Labatt USA Operating Co., L.L.C., 138 Ohio St.3d 71,
2013-Ohio-4544, ¶ 9.
Analysis
{¶16} Based on the standard outlined above, we review de novo Hancock
Federal’s motion for summary judgment in this foreclosure action. We divide our
discussion according to the three allegations made on appeal by the Coppuses: (1)
that the affidavits in support of summary judgment were insufficient; (2) that there
could have been no default on Note 2 because of failure to record the modification
agreement; and (3) that Admission No. 30 precluded summary judgment.
(1) Sufficiency of Affidavits
{¶17} In order to properly support its motion for summary judgment,
Hancock Federal was required to “point[] to some evidence in the record of the
type listed in Civ.R. 56(C)” that would satisfy the five elements of foreclosure
listed below. HSBC Bank USA v. Beirne, 9th Dist. Medina No. 10CA0113-M,
2012-Ohio-1386, ¶ 9. Those elements are:
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“ * * * (1) the movant is the holder of the note and mortgage, or is a
party entitled to enforce the instrument; (2) if the movant is not the
original mortgagee, the chain of assignments and transfers; (3) the
mortgagor is in default; (4) all conditions precedent have been met;
and (5) the amount of principal and interest due.”
HSBC Mtge. Servs., Inc. v. Watson, 3d Dist. Paulding No. 11-14-03, 2015-Ohio-
221, ¶ 24, quoting Wright-Patt Credit Union, Inc. v. Byington, 6th Dist. Erie No.
E-12-002, 2013-Ohio-3963, ¶ 10. The type of evidence listed in the civil rule
includes, “pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact, if any, timely
filed in the action.” Civ.R. 56(C).
{¶18} In order to satisfy the initial requirement of applying for summary
judgment, Hancock Federal submitted affidavits of Lis and Harris. The affidavits
stated that (1) Hancock Federal was the party entitled to enforce the notes at issue;
(2) Note 1 was assigned to it by Old Fort; and (3) Coppus was in default. The
affidavits further specified (4) what actions had been taken prior to requesting
foreclosure and (5) the amount of principal and interest due. While the two
affidavits supported all elements of the claim, the Coppuses allege that they were
deficient and they did not properly support the motion for summary judgment.
Accordingly, they suggest that Hancock Federal never satisfied its initial burden of
showing the absence of a genuine issue of material fact, and the Coppuses had no
burden to produce evidence in opposition to the motion.
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{¶19} The Coppuses rely on a case from the Fifth District Court of
Appeals, which stated that the affidavits in support of a motion for summary
judgment in a foreclosure action must satisfy certain criteria. Wachovia Bank of
Delaware, N.A. v. Jackson, 5th Dist. Stark No. 2010-CA00291, 2011-Ohio-3203,
¶ 40-57. In particular, according to Jackson, the affidavits “must show” the
following:
1.) the affiant is competent to testify;
2.) the affiant has personal knowledge of the facts, as shown by a
statement of the operant facts sufficient for the court to infer the
affiant has personal knowledge;
3.) the affiant must state he or she was able to compare the copy with
the original and verify the copy is accurate, or explain why this
cannot be done; and
4.) the affidavit must be notarized.
5.) Any documents the affidavit refers to must be attached to the
affidavit or served with the affidavit.
(Capitalization sic.) Id. at ¶ 46-51. Additionally, “[t]he documentary evidence
must be:”
1.) certified copies of recorded documents; or
2.) if business records, must be accompanied by an affidavit attesting
that they are business records kept in the regular course of business;
3.) the affiant must be familiar with the compiling and retrieval of
the records;
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4.) the affiant must state the records are compiled at or near the
occurrence of each event by persons with knowledge of said events;
and
5.) the records must be authenticated by the custodian of the records
or by another witness who has personal knowledge of the records.
Id. at ¶ 52-57.
{¶20} Jackson is not on point for the determination of the instant matter, as
Civ.R. 56 does not require all of the elements listed above. Rather, Civ.R. 56(E),
which specifies the form of affidavits attached in support of summary judgment,
“sets forth three requirements for an affidavit: (1) that it be made on personal
knowledge, (2) that it set forth facts which would be admissible in evidence, and
(3) that it affirmatively show the affiant to be competent to testify to the matters
stated.” State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 466-467, 423
N.E.2d 105 (1981); accord Civ.R. 56(E). Additionally, the rule requires that
“[s]worn or certified copies of all papers or parts of papers referred to in an
affidavit shall be attached to or served with the affidavit.” Civ.R. 56(E); accord
Corrigan at 467.
{¶21} Based upon our review we conclude that the affidavits of Lis and
Harris are based on personal knowledge, set forth facts that would be admissible in
evidence, and affirmatively show that the affiants are competent to testify to the
matters stated in the affidavits. See Corrigan at paragraph two of the syllabus
(holding that “[u]nless controverted by other evidence, a specific averment that an
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affidavit pertaining to business of a board is made upon personal knowledge of the
affiant board chairman satisfies the Civ.R. 56(E) requirement that affidavits
supporting and opposing motions for summary judgment show that the affiant is
competent to testify to the matters stated”); Deutsche Bank Natl. Trust Co. v.
Reynolds, 9th Dist. Summit No. 27192, 2014-Ohio-2372, ¶ 12 (“Generally, ‘a
mere assertion of personal knowledge satisfies the personal knowledge
requirement of Civ.R. 56(E) if the nature of the facts in the affidavit combined
with the identity of the affiant creates a reasonable inference that the affiant has
personal knowledge of the facts in the affidavit.’ ”), quoting Bank One, N.A. v.
Lytle, 9th Dist. Lorain No. 04CA008463, 2004-Ohio-6547, ¶ 13.
{¶22} Additionally, while the rule requires that documents referenced in the
affidavits be sworn or certified copies, the affiant does not need to expressly “state
he or she was able to compare the copy with the original and verify the copy is
accurate, or explain why this cannot be done,” as suggested by Jackson, 5th Dist.
Stark No. 2010-CA00291, 2011-Ohio-3203, at ¶ 49. Rather, “[t]he requirement of
Civ.R. 56(E) that sworn or certified copies of all papers referred to in the affidavit
be attached is satisfied by attaching the papers to the affidavit, coupled with a
statement therein that such copies are true copies and reproductions.” Corrigan,
66 Ohio St.2d 459, 467, 423 N.E.2d 105; Cincinnati Bar Assn. v. Newman, 124
Ohio St.3d 505, 2010-Ohio-928, 924 N.E.2d 359, ¶ 7 (2010), quoting Corrigan id.Lis and Harris expressly stated that each of the documents attached to the
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affidavits was either a “true and accurate copy” or a “true and accurate certified
copy.” (R. at 48, Lis Aff., Harris Aff.) See also Wells Fargo Bank, N.A. v.
Murphy, 7th Dist. Mahoning No. 13 MA 35, 2014-Ohio-2937, ¶ 23 (noting in a
foreclosure action that absent genuine issues, copies were admissible to the same
extent as original documents).
{¶23} To further distinguish the holding of Jackson, we note that in that
case, the defendant expressly disputed whether the foreclosure plaintiff “was the
holder of the note and mortgage.” Jackson at ¶ 14. The defendant had filed an
affidavit, which specifically challenged several of the statements in the plaintiff’s
affidavit submitted in support of its motion for summary judgment. Id. In this
case, however, the Coppuses did not file their own affidavit to dispute the facts as
stated in the affidavits of Lis and Harris. See Murphy at ¶ 24 (distinguishing the
case from Jackson, where “the mortgagor filed an affidavit in opposition to the
bank’s summary judgment motion challenging the bank’s holder status” because
“Murphy did not challenge the authenticity of the copies of the note, mortgage,
and assignments of the mortgage attached to Wells Fargo’s motion for summary
judgment”).
{¶24} Based on the foregoing discussion, we reject the Coppuses’ claim
that the affidavits in support of the motion for summary judgment were deficient
or that they were not based on sufficient knowledge. Therefore, the affidavits
properly supported Hancock Federal’s motion for summary judgment and the
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burden shifted to the Coppuses to “set forth specific facts,” rather than “mere
denials” that would show a genuine issue on any of the elements of the claim.
Byrd, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R.
56(E). As noted above, the Coppuses did not set forth any specific facts to show a
genuine issue of material fact for trial. They did not dispute any of the factual
assertions in Hancock Federal’s affidavits. Instead, they argued that Note 2 was
unenforceable or that more evidence was needed to support summary judgment.
{¶25} To the extent that any more evidence would be required to clarify the
issues challenged by the Coppuses in their Opposition, the trial court correctly
found that Hancock Federal provided sufficient information through its
supplemental affidavit attached to its Reply. The Coppuses did not object to the
use of the supplemental affidavit in the trial court and did not move to strike the
affidavit. Therefore, they forfeited the issue on appeal. See Goldfuss v. Davidson,
79 Ohio St.3d 116, 121, 1997-Ohio-401, 679 N.E.2d 1099 (1997) (recognizing
that failure to timely advise a trial court of possible error, by objection or
otherwise, results in a forfeiture of the issue for purposes of appeal); Murphy, 7th
Dist. Mahoning No. 13 MA 35, 2014-Ohio-2937, ¶ 20 (“A nonmovant’s failure to
object to the form of evidence attached to a movant’s summary judgment motion
results in waiver of any later objection as to the form of that evidence.”).
Furthermore, Civ.R. 56 expressly allows the trial court to consider supplemental
affidavits by stating that “[t]he court may permit affidavits to be supplemented or
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opposed by depositions or by further affidavits.” Civ.R. 56(E); see Walter v.
AlliedSignal, Inc., 131 Ohio App.3d 253, 263, 722 N.E.2d 164 (3d Dist.1999)
(relying on Civ.R. 56(E) in rejecting an argument that the trial court abused its
discretion in considering a supplemental affidavit attached to a reply brief in
support of summary judgment).
{¶26} We address the argument regarding enforceability of Note 2 in the
next section of this opinion.
(2) Failure to Record Modification of Note 2
{¶27} The Coppuses do not submit any law that would support their
argument that Note 2 is not enforceable because of the failure to record the
modification agreement as required by R.C. 5301.231(A). This provision of the
Revised Code states that “modifications or extensions of mortgages or of the debt
secured by mortgages * * * shall be recorded in the office of the county recorder
of the county in which the mortgaged premises are situated and shall take effect at
the time they are delivered to the recorder for record.” R.C. 5301.231(A). It does
not state, however, that failure to record affects enforceability of the note secured
by the mortgage.
{¶28} The Fourth District Court of Appeals rejected an argument that an
unrecorded modification of a loan agreement invalidated the original mortgage in
Community Action Committee of Pike Cty., Inc. v. Maynard, 4th Dist. Pike No.
02CA695, 2003-Ohio-4312, ¶ 8. The court reasoned:
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There is nothing in the statute to indicate that a failure to record the
modification or extension would result in invalidation of the original
mortgage. Rather, the statute indicates that the modification or
extension takes effect when it is delivered for record. Thus, the
natural conclusion is that a modification or extension that is not
recorded is an ineffective extension or modification of the mortgage
and is not secured by the original mortgage. This, however, does not
affect the validity and priority of the original mortgage.
Id.; see also Farmers Prod. Credit Assoc. of Ashland v. Kleinfeld, 9th Dist.
Medina No. C.A. 1408, 1986 WL 840, *3 (Jan. 15, 1986) (finding that an
unrecorded modification of a debt, did not discharge or extinguish the original
debt).
{¶29} Due to the Coppuses’ failure to show that the unrecorded
modification affected enforceability of Note 2, we reject their argument that
summary judgment was improper for noncompliance with R.C. 5301.231.
(3) Admission No. 30
{¶30} The Coppuses next claim that summary judgment was not proper
because Hancock Federal “was not certain that it had possession of the original
note when the complaint was filed.” (Assignment of Error.) In this argument, the
Coppuses rely on the additional discovery that they filed with the trial court one
day before the issuance of the judgment entry granting summary judgment. In
particular, they point to Hancock Federal’s responses to a set of requests for
admissions, in which Hancock Federal stated that it was unable to determine the
exact date when it came in physical possession of the “original ink-signed” Note
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1.2 (R. at 60, Resp. to Req. for Admis. No. 30.) On appeal, the Coppuses argue
that this admission created a genuine issue of material fact on whether Hancock
Federal was entitled to enforce Note 1. (App’t Br. at 11.)
{¶31} We first note that the document at issue was filed with the trial court
the day before the date scheduled for a hearing in this case. It was filed without
any motion or memorandum explaining that it should pertain to the resolution of
the summary judgment motion, and no argument was made on the record with
respect to the admission at issue.3 Therefore, the trial court did not have an
opportunity to address the issue of whether Admission No. 30 created a genuine
question of fact on the element of the claim. “A court of appeals cannot consider
the issue for the first time without the trial court having had an opportunity to
address the issue.” State v. Peagler, 76 Ohio St.3d 496, 501, 668 N.E.2d 489(1996). Therefore, we refuse to find an error on the part of the trial court with
respect to an issue that is raised for the first time on appeal.
{¶32} Additionally, the Coppuses fail to comply with App.R. 16(A)(7),
which requires that an appellant include in his or her brief: “[a]n argument
containing the contentions of the appellant with respect to each assignment of
error presented for review and the reasons in support of the contentions, with
2
Hancock Federal was in possession of the “ink-signed original” of Note 1 at the time of responding to
requests for admissions and at the time of the trial court’s judgment. (R. at 60, Resp. to Req. for Admis.
No. 30.)
3
Hancock Federal indicates in its brief that on March 31, 2015, the trial court heard oral arguments on the
motion for summary judgment. (App’ee Br. at 4.) No transcript of the hearing is available for our review,
however, and we cannot presume that an argument with respect to Admission No. 30 was made during that
hearing.
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citations to the authorities, statutes, and parts of the record on which appellant
relies.” (Emphasis added.) The two-sentence “argument” that Admission No. 30
created a genuine issue of material fact as to whether Hancock Federal was
entitled to enforce Note 1 is not supported by any law requiring possession of the
original note as an element of the claim. Conversely, the Seventh District Court of
Appeals noted that a foreclosure plaintiff does not need to “necessarily prove
physical possession of the note itself,” as other evidence may “establish holder
status and grant a bank summary judgment in foreclosure.” Murphy 7th Dist.
Mahoning No. 13 MA 35, 2014-Ohio-2937, at ¶ 18, 23; see also HSBC Mtge.
Servs., Inc. v. Watson, 3d Dist. Paulding No. 11-14-03, 2015-Ohio-221, ¶ 26
(stating that “[d]emonstrating possession of the note—or alternatively, entitlement
to enforce the note—is a prerequisite to obtaining summary judgment in a
foreclosure action”) (emphasis added); U.S. Bank Natl. Assn. v. Mitchell, 6th
Sandusky No. S-10-043, 2012-Ohio-3732, ¶ 16 (“An assertion of ownership rights
does not indicate entitlement to enforce an instrument, nor does a lack of
ownership necessarily prevent a person from being entitled to enforce an
instrument.”) (Emphasis added); R.C. 1303.31 (listing the persons entitled to
enforce a negotiable instrument).
Conclusion
{¶33} Based on our discussion above, we overrule the assignment of error.
We also reject the suggestion made in the trial court and repeated on appeal,
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although not expressly identified in the assignment of error, that other alternatives
to foreclosure “may” be available and “should be explored.” (R. at 51.) In the
trial court, the Coppuses did not argue that the possibility of alternative remedies
precluded summary judgment. Similarly, on appeal the Coppuses merely recite
the law stating that “ ‘the simple assertion of the elements of foreclosure does not
require, as a matter of law, the remedy of foreclosure.’ ” (App’t Br., quoting First
Natl. Bank of Am. v. Pendergrass, 6th Dist. Erie No. E-08-048, 2009-Ohio-3208, ¶
22, and PHH Mtge. Corp. v. Barker, 190 Ohio App.3d 71, 82, 2010-Ohio-5061,
940 N.E.2d 662, ¶ 35.) They fail, however, to make any argument that the trial
court abused its discretion in ordering foreclosure instead of an alternative remedy.
{¶34} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellants in the particulars assigned and
argued. The judgment of the Common Pleas Court of Seneca County, Ohio, is
therefore affirmed.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
/hlo
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