Third Fed. S. & L. Assn. of Cleveland v. Formanik , 2016 Ohio 7478 ( 2016 )

[Cite as Third Fed. S. & L. Assn. of Cleveland v. Formanik, 2016-Ohio-7478.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103649
THIRD FEDERAL SAVINGS & LOAN ASSOCIATION
OF CLEVELAND
PLAINTIFF-COUNTERCLAIM
DEFENDANT/APPELLEE
vs.
RONALD S. FORMANIK, ET AL.
DEFENDANTS-COUNTERCLAIM
PLAINTIFFS/APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-10-738704
BEFORE: E.A. Gallagher, P.J., Stewart, J. and Laster Mays, J.
RELEASED AND JOURNALIZED: October 27, 2016
ATTORNEY FOR APPELLANTS
Kathleen Amerkhanian
Kryszak & Associates Co., L.P.A.
5330 Meadow Lane Court, Suite A
Sheffield Village, Ohio 44035
ATTORNEYS FOR APPELLEE
Jessica M. Wilson
Dean K. Hegyes
Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A.
P.O. Box 3969
30455 Solon Road
Solon, Ohio 44139
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendants-counterclaim plaintiffs/appellants, Ronald Formanik
(“Formanik”) and Vicki Formanik (collectively, the “Formaniks”), appeal the trial court’s
judgment in favor of plaintiff-counterclaim defendant/appellee Third Federal Savings &
Loan Association of Cleveland (“Third Federal”) on the Formaniks’ claims for breach of
implied contract, breach of the covenant of good faith and fair dealing, a violation of R.C.
1345.031(B)(12) and “wrongful foreclosure” arising out of Third Federal’s filing of a
foreclosure action following Formanik’s alleged default on a bridge loan he had obtained
from Third Federal. The Formaniks argue that the trial court erred in finding that Third
Federal did not breach the terms of the bridge loan and that the parties’ course of
performance did not give rise to an implied contract that extended the maturity date of the
bridge loan. The Formaniks further argue that the trial court erred in finding that Third
Federal did not act in bad faith in refusing to accept interest-only payments after the loan
was allegedly in default and refusing to remove negative information from Formanik’s
credit report regarding the loan. Finally, the Formaniks contend that the trial court erred
in concluding that Third Federal had not engaged in unlawful “mortgage flipping” and
that their claim for “wrongful attempted foreclosure” is not cognizable under Ohio law.
{¶2} For the reasons that follow, we affirm the trial court’s judgment.
Factual and Procedural Background
{¶3} In August 2007, Formanik obtained a bridge loan from Third Federal,
executing a note payable to Third Federal for the principal amount of $113,000. The
purpose of the bridge loan was to provide funds for the Formaniks’ down payment on a
new home in North Royalton and was secured by a mortgage on the Formaniks’
then-residence in Middleburg Heights. 1 Under the terms of the note, the principal
balance and accrued interest were due on the maturity date, September 1, 2008, with
interest accruing on the outstanding principal balance at the rate of 7.75 percent per year
until maturity.2
{¶4} With respect to what constitutes a default and the remedies available to the
lender upon default, the note provides, in relevant part:
If this note is secured by real estate of a residence that is personal property,
the existence of a default and your remedies for such a default will be
determined by applicable law, by the terms of any such separate instrument
creating the security interest and, to the extent not prohibited by law and not
contrary to the terms of the separate security instrument, by the “Default”
and “Remedies” paragraphs herein.
No default or remedy provisions are specified in the mortgage.3
1
The Middleburg Heights property was a duplex. The Formaniks resided in one half of the
property and rented out the other half of the property.
The note also specified a “post maturity” interest rate to be paid “on the unpaid balance of
2
[the] note owing after maturity, and until paid in full” of 3 percent above the note rate. However, it
does not appear that Third Federal applied this post-maturity interest rate to Formanik’s account. In
its foreclosure complaint, Third Federal sought judgment against Formanik in the amount of
$64,983.60 plus interest at the rate of 7.75 percent per annum from July 2, 2010.
The mortgage states that “[a]ll terms, conditions, and covenants” contained
3
in a “master mortgage” on the property recorded on February 18, 2005, are
incorporated by reference “as fully and to the same extent as if set forth and
{¶5} Under the terms of the note, the borrower is in default if he “fail[s] to make a
payment on time or in the amount due.” The note provides that upon default, the lender
“may demand immediate payment of all [the borrower] owe[s] [the lender] under this
note (principal, accrued unpaid interest and other accrued charges)” and “may use any
remedy” available to the lender “under state or federal law.” The note further provides:
“by waiving [its] right to declare an event to be a default, [the lender] does not waive [its]
right to later consider the event as a default if it continues or happens again.”
{¶6} Further, pursuant to the note’s “waiver” provision, the borrower agrees:
WAIVER. I give up my rights to require you to do certain things. I will
not require you to:
(1) demand payment of amounts due (presentment);
(2) obtain official certification of nonpayment (protest); or
(3) give notice that amounts due have not been paid (notice of dishonor). *
**
The note also states, in relevant part:
PAYMENTS: Each payment I make on this note will first reduce the
amount I owe you for charges which are neither interest nor principal. The
remainder of each payment will then reduce accrued unpaid interest, and
then unpaid principal. If you and I agree to a different application of
payments, we will describe our agreement on this note. I may prepay a part
of, or the entire balance of this loan without penalty, unless we specify to
the contrary on the note. Any partial prepayment will not excuse or reduce
any later scheduled payment until this note is paid in full (unless, when I
make the prepayment, you and I agree in writing to the contrary). * * *
contained herein.” However, the “master mortgage” is not part of the record. The
mortgage further provides that “[i]f for any reason the Master Mortgage Form shall
not be deemed a part of this Security Instrument, then this two (2) page
instrument, together with any and all attachments, shall stand by itself as a
mortgage given as security to Lender * * * for the payment and performance
obligations of each Borrower under the Loan * * * .”
OBLIGATIONS INDEPENDENT. * * * You may sue me alone, or
anyone else who is obligated on this note, or any number of us together, to
collect this note. You may do so without any notice that it has not been
paid (notice of dishonor). * * * If you give up any of your rights, with or
without notice, it will not affect my duty to pay this note. * * * I agree that
you may at your option extend this note or the debt represented by this note,
or any portion of the note or debt, from time to time without limit or notice
and for any term without affecting my liability for payment of the note. * *
*
{¶7} Formanik testified that it was his understanding that he was required to
make monthly interest-only payments on the note until its maturity date and then pay off
the principal balance when the note matured on September 1, 2008. From September
2007 through August 2008, the Formaniks made monthly interest-only payments on the
bridge loan. Vicki Formanik made each payment by bringing the payment into a local
Third Federal branch. In addition, in late 2007, after the Formaniks sold a lot they had
owned, Formanik paid $48,000 towards the principal balance. As of the September 1,
2008 maturity date, a principal balance of approximately $65,000 remained due on the
note.
{¶8} Formanik testified that in August 2008, as the maturity date approached, he
received two or three letters from Third Federal reminding him that “the principal was
coming due” on the bridge loan. The Formaniks had not yet sold their Middleburg
Heights home 4 and lacked the funds to pay off the note. The Formaniks, therefore,
failed to pay the $65,000 principal balance due on the maturity date, September 1, 2008.
{¶9} After the maturity date passed, Third Federal continued to send monthly
statements to Formanik for interest-only payments on the bridge loan. It made no
demand for the payment of the past due principal balance. Formanik testified that in
2009, when the Formaniks refinanced the $221,000 mortgage on their North Royalton
home, Third Federal made no mention of the expired maturity date on the bridge loan.
The Formaniks continued to make, and Third Federal continued to accept, interest-only
payments on the bridge loan without incident until February 2010.
{¶10} In February 2010, when Vicki Formanik went to her local Third Federal
branch and attempted to make an interest-only payment on the bridge loan, the bank teller
informed her that she could not accept the payment because the account had been frozen.
Third Federal also rejected an interest payment tendered by the Formaniks in March 2010.
{¶11} Notwithstanding its rejection of the Formaniks’ tendered interest payments,
in March 2010, the Formaniks began receiving collection calls from Third Federal and
Third Federal also sent several letters to Formanik, demanding payment of the $814.20
“amount due” — i.e., the total of the two months of interest-only payments that Third
Formanik testified that the Middleburg Heights property was not listed for sale until June
4
2009 — nine months after the maturity date of the bridge loan — because a decision had been made
to “rehabilitate” the property prior to listing it for sale and he made “extensive repairs” to the
property.
Federal had rejected — stating that his loan was “seriously delinquent” and threatening
foreclosure if the loan was not made current. Third Federal made no demand for the
payment of the outstanding principal balance and did not provide any notice of default on
the note.
{¶12} Marlo Blackman, a legal analyst on Third Federal’s foreclosure team,
testified that Third Federal’s monthly billing statements and demand letters are
automatically generated by its systems, signed by the appropriate representative and sent
out to its customers. Blackman could not explain why the letters and statements
generated by Third Federal’s automated system for the bridge loan showed only interest
as having been due. She testified that there was no agreement between Third Federal
and Formanik that Third Federal would not initiate foreclosure proceedings so long as he
continued making interest-only payments on the bridge loan.
{¶13} In April 2010, Formanik received a “past due notice” and demand letter
listing a “total amount due” of $1,242. He began communicating with Third Federal
collections department representative Tim Flynn regarding the bridge loan.5 Formanik
testified that Flynn told him his account had been “frozen” because the loan was not paid
off by the maturity date. As a result of the account “freeze” (and the nonpayment of
interest resulting from the “freeze”), the account was reported on Formanik’s credit report
as delinquent. Formanik testified that he requested a short-term extension of the bridge
The Formaniks testified that Vicki Formanik spoke with Flynn regarding the bridge loan in
5
March 2010, but there is no information in the record as to what transpired during those discussions.
loan (originally a 90-day extension, then later, a 12-month extension) from Third Federal.
He also requested that Third Federal remove the delinquency reference from his credit
report, claiming that it was not accurate. On April 20, 2010, Formanik received a letter
from Flynn requesting “workout documentation” to “aid [Third Federal] in developing a
workout solution tailored to your specific situation.”
{¶14} In May 2010, Formanik sent a letter to Third Federal president Mark
Stefanski challenging the bank’s authority to refuse payments on invoices it had sent and
indicating that he thought Third Federal’s collection practices were “abusive.” On May
17, 2010, Third Federal sent Ronald Formanik a “past due notice” listing a “total amount
due” of $1656, representing unpaid interest for February through May 2010. The
Formaniks promptly tendered the past due interest and Third Federal accepted the
payment. Third Federal also accepted the Formaniks’ interest-only payments for June
2010 and July 2010.
{¶15} Formanik, a vice-president credit audit functional manager at PNC Bank
with 32 years of experience in the banking industry, claimed that the delinquency reported
by Third Federal on his credit report rendered him “unbankable.” In support of his
claim, Formanik introduced printouts of various “alerts” he had received in connection
with a credit report monitoring service to which he subscribed, reporting “potentially
negative information” that had been posted to his credit report relating to his Third
Federal account. These “alerts” indicated that in May 2010 Experian and TransUnion
had reported that Formanik’s account with Third Federal was “90 past due,” with
Experian reporting a “current balance” of $64,983 on the account. 6 Blackman
acknowledged that although the delinquency on Formanik’s account related to the
matured bridge loan, it was a delinquency in the monthly interest payments that Third
Federal had initially reported to the credit reporting agencies. Formanik testified that
after the negative information appeared on his credit report, he was turned down for
overdraft protection on a free checking account (in July 2010), denied a car loan on a
vehicle for his daughter (in May 2010), rejected for credit from GE Money Bank (in
October 2010) and had to make a security deposit before utilities could be placed in his
name after a tenant moved out (in October 2010). Formanik introduced “rejection
letters” from each of these creditors in support of his claim.
{¶16} Formanik testified that Flynn had told him verbally that Third Federal’s
loan committee had denied his request for a loan extension. However, in June 2010,
Ronald Formanik received a letter from Deborah Hand, Third Federal’s Collections
Manager, indicating that Third Federal “did not deny the extension request but sought to
6
No current balance was listed on the alert related to TransUnion. Formanik also introduced
printouts of (1) select information that appeared under the “home” or “score” tab on Experian’s
website, listing his credit score and credit summary as of various dates, (2) an “alert” from January
2011 that Experian had reported the “payment status” on Formanik’s Third Federal account as “bank
adjustment/deed in lieu of foreclosure/bank liquidation” and (3) a freecreditreport.com summary “as
of February 19, 2012” listing information from all three credit reporting agencies regarding the Third
Federal account. According to the February 19, 2012 summary, all three credit reporting agencies
listed the “Account Status” as “[c]losed”; however, Experian listed “Payment Status” as “[p]aid, was
a repossession”; Equifax listed the “Payment Status” as “[p]ays account as agreed” and TransUnion
listed the “Payment Status” as “[r]epossession” and $427.00 as “past due.” Experian and Equifax
also reported the account as having been past due 30, 60 and 90 days in March, April and May 2010,
respectively.
offer one of two possible solutions”: (1) conversion of the bridge loan into a home equity
loan or (2) a deed-in-lieu of foreclosure. As to Formanik’s request that Third Federal
delete the negative information on his credit report, Third Federal refused, stating that
“[a]s the account still contains a maturity date of September 2008, the trade line is
reporting accurately.”
{¶17} Ronald Formanik declined Third Federal’s “solutions.” He testified that he
was actively marketing the property to sell it and that because Third Federal had begun
accepting his payments again and “hadn’t stepped up any collection efforts,” he did not
further inquire if there were any other terms on which Third Federal would grant him a
loan extension. Blackman testified that Third Federal never received all of the
documents necessary to approve any extension or “work out” at that time.
{¶18} After accepting interest-only payments on the bridge loan for June and July
2010, Third Federal once again refused the Formaniks’ tendered interest payments for
August and September 2010 because the loan was placed in foreclosure status. In each
instance, Third Federal returned the check to Formanik and gave him a “non-monetary
receipt” to evidence the fact that he had attempted to make a payment but that it had been
refused.
{¶19} After Third Federal refused the August and September 2010 payments,
Formanik contacted Blackman and explained to her what had occurred. Formanik
claimed that because the bridge loan was reported as a delinquency on his credit report,
he could not obtain financing from other lenders to pay off the bridge loan. Formanik
again requested that Third Federal agree to a short-term extension of the bridge loan and
remove the delinquency from his credit report so that he could “refinance someplace else”
and “pay [the bridge loan] off in full.” Blackman spoke with Hand, her manager, about
Formanik’s request for an extension. Third Federal thereafter offered Formanik a 90-day
extension of the bridge loan; however, it would not agree to delete the negative
information from his credit report. Ronald Formanik declined Third Federal’s offer,
indicating that, without the deletion of the negative credit report information, “[a] 90-day
extension does nothing for me.” He testified that he needed a longer extension of the
bridge loan because “it would take time for my credit to heal.”7
7
Although the Formaniks claim that Third Federal’s inaccurate reporting of
Formanik’s account status made it “impossible” for the Formaniks to refinance the
principal obligation under the bridge loan with another lender, they offered no
evidence — beyond Formanik’s assertions that he was “unbankable” — that they
had, in fact, attempted to refinance the bridge loan with another lender and had
been denied credit to refinance the loan based on the information reported by Third
Federal. When asked whether the delinquencies impacted his ability to refinance,
Formanik stated only, “[A]bsolutely. I talked to a mortgage broker that worked
with my realtor, explained what was going on and he wouldn’t even take an
application - - .” At that point, Third Federal’s counsel objected to Formanik’s
testimony, and he offered no further testimony regarding the issue. None of the
credit denial letters offered into evidence involved a denial of credit related to an
effort to refinance the bridge loan. Unlike the unsecured credit card debt, auto
loan and utilities that were the subject of Formanik’s denial letters, any refinancing
of the bridge loan would have been secured by a mortgage on the Middleburg
Heights property. Further, the credit denial letters the Formaniks offered into
evidence identified multiple reasons for the creditors’ decision to deny credit — a
number of which were unrelated to any delinquency reported by Third Federal.
Nor do the documents suggest that the Formaniks were unable to obtain any new
credit during this period. Indeed, the “alerts” indicate that “CHASE was listed as a
new account” on Formanik’s credit report as reported by Equifax on June 4, 2010.
{¶20} On October 8, 2010, Third Federal filed a foreclosure action based on
Formanik’s default on the note secured by the Middleburg Heights property. The
Formaniks filed an answer and counterclaim, asserting a laundry list of affirmative
defenses and counterclaims for breach of implied contract, breach of the covenant of
good faith and fair dealing, violation of R.C. 1345.031(B)(12) and wrongful foreclosure.
The Formaniks claimed that an implied contract to extend the maturity date of the bridge
loan arose, based on the parties’ course of dealing, when Third Federal continued to
accept interest-only payments from the Formaniks after the loan’s maturity date and that
Third Federal breached this agreement in February 2010 when it “arbitrarily began to
refuse to accept” the Formaniks’ interest payments. The Formaniks further alleged that
Third Federal’s actions in (1) refusing to accept their interest payments while
simultaneously sending letters urging them to make interest payments and (2) failing to
remove negative information from Formanik’s credit report were not in good faith and
caused the Formaniks to go into default, resulting in a wrongful foreclosure. In addition,
the Formaniks alleged that Third Federal’s offer to convert the bridge loan into a home
equity loan constituted unlawful “mortgage flipping” in violation of R.C.
1345.031(B)(12). The Formaniks sought to recover in excess of $25,000 in
compensatory damages, punitive damages, attorney fees and costs on their counterclaims.
Third Federal filed a reply, acknowledging that automated letters had been generated by
its systems and that its agents had discussed with the Formaniks “various options seeking
a solution to [Formanik’s] failure to pay their contractual obligation * * * as agreed,” but
denying the remaining allegations of the Formaniks’ counterclaim and asserting that the
Formaniks’ claims were barred by the statute of frauds.
{¶21} After the foreclosure action was filed, the Formaniks sold the Middleburg
Heights property. Although the Formaniks had originally listed the property at $300,000
in June 2009, they sold the property for $160,000 in December 2010. The Formaniks
claimed that Third Federal’s actions forced them to sell the Middleburg Heights property
at a price that was well below its fair market value in order to pay off the bridge loan and
avoid foreclosure.
{¶22} The Formaniks used the proceeds of the sale to pay off the bridge loan and
Third Federal voluntarily dismissed its foreclosure complaint, leaving only the
Formaniks’ counterclaims for trial.
{¶23} The Formaniks’ counterclaims were tried to a magistrate. On September
28, 2012, the magistrate issued his decision, ruling against the Formaniks on their
counterclaims. The magistrate found that (1) Third Federal had no obligation to extend,
modify or replace the bridge loan, (2) the course of dealing between the parties did not
create an implied contract that extended the term of, or otherwise modified, the note, (3)
the terms of the note were controlling, (4) Formanik had waived any requirement that
Third Federal demand payment or declare a default on the note and (5) Formanik had
defaulted on the note when he failed to pay off the principal balance by the maturity date.
The magistrate also found that, considering the totality of the circumstances, including
that Third Federal had offered Formanik an extension of the loan and had made other
efforts to find a solution to the Formaniks’ inability to pay off the bridge loan, Third
Federal had not acted in bad faith in accepting interest-only payments from the Formaniks
for a period of time and was “entitled to enforce the original loan documents as written.”
With respect to the Formaniks’ “mortgage flipping” claim, the magistrate concluded that
Third Federal had not violated R.C. 1345.031(B)(12) because a new mortgage loan was
never executed, and the magistrate found no legal authority to support a claim for
wrongful foreclosure under Ohio law.
{¶24} On October 11, 2012, the Formaniks filed an “objection to magistrate’s
decision/motion for leave to file supplemental objection.” Although titled an
“objection,” the filing did not contain specific objections to any of the magistrate’s
findings of fact or conclusions of law. Rather, defense counsel requested an extension of
the deadline to file objections to the magistrate’s decision, asserting that he had not
promptly received the magistrate’s decision and had “not yet had time to throughly review
the decision” with the Formaniks. He further asserted that the Formaniks were awaiting
the preparation of the trial transcript that they needed to “frame their objections.”
{¶25} In January 2013, the trial transcript was filed with the trial court and the
Formaniks’ trial counsel filed a motion to withdraw. The trial court granted counsel’s
motion to withdraw and granted the Formaniks leave until February 27, 2013, to file
supplemental objections to the magistrate’s decision. The Formaniks did not timely file
supplemental objections. On September 24, 2013, the trial court adopted the
magistrate’s decision and entered judgment in favor of Third Federal on the Formaniks’
counterclaims.
{¶26} On October 24, 2013, the Formaniks appealed the trial court’s judgment and
filed a motion for relief from judgment under Civ.R. 60(B). In its Civ.R. 60(B) motion,
the Formaniks requested that the trial court vacate its September 24, 2013 judgment,
allow the Formaniks a reasonable period of time to file their objections to the magistrate’s
decision and issue a final judgment after considering those objections. This court issued
a limited remand for the trial court to consider the Formaniks’ Civ.R. 60(B) motion. On
remand, the trial court denied the motion. This court then reversed the trial court’s
denial of the Civ.R. 60(B) motion, vacated the judgment and remanded the matter for
consideration of the Formaniks’ supplemental objections to the magistrate’s decision.
Third Fed. S&L Assn. of Cleveland v. Formanik, 8th Dist. Cuyahoga Nos. 100562 and
100810, 2014-Ohio-3234 (“Formanik I”).
{¶27} After the case was remanded, the Formaniks filed supplemental objections,
asserting that (1) Third Federal breached an implied contract created by the parties’
course of dealing; (2) the note’s waiver provisions did not apply because Third Federal’s
actions “constituted an implied modification of the note”; (3) Third Federal’s reporting of
“false delinquencies” prevented the Formaniks’ performance and, therefore, constituted a
breach of the original note; (4) the magistrate erred in concluding that Third Federal’s
conduct was reasonable and did not constitute bad faith; (5) the magistrate erred in
finding that Third Federal did not violate R.C. 1345.031(B)(12); and (6) the magistrate
erred in failing to recognize a claim for “wrongful foreclosure” or “wrongful attempted
foreclosure” under Ohio law.
{¶28} On September 25, 2015, the trial court overruled the Formaniks’
supplemental objections. Following an independent review of the record, the trial court
determined that the parties’ course of conduct did not give rise to an implied contract.
The trial court further found that because Third Federal could have reported the entire
principal balance as being delinquent, “which would have had an even larger impact on
the Formaniks’ attempts to refinance,” Third Federal’s reported “false delinquencies”
relating to the interest-only payments rejected by Third Federal did not prevent the
Formaniks from performing under the note. With respect to the Formaniks’ bad faith
claim, the trial court noted that Third Federal had no obligation to accept interest-only
payments after the maturity date, that “a lender’s decision to enforce its contract rights is
not considered an act of bad faith” and that although Third Federal’s conduct in issuing
interest only invoices and then refusing to accept interest only payments “isn’t an example
of best practices,” it did not constitute “bad faith.” Finally, the trial court agreed with the
magistrate’s determinations that because no replacement loan was made, Third Federal
did not violate R.C. 1345.031(B)(12) and that Ohio law does not recognize an
independent cause of action for wrongful foreclosure.
{¶29} The Formaniks appealed the trial court’s decision and we remanded the case
to the trial court for an entry of final judgment. On July 29, 2016, the trial court issued a
final judgment in favor of Third Federal on the Formaniks’ counterclaims. The
Formaniks have raised the following four assignments of error for review:
Assignment of Error I:
The trial court erred as a matter of law in finding that Third Federal did not
breach the original terms of its contract with the Formaniks, and also erred
as a matter of law in finding that Third Federal did not breach the terms of
the contract as modified by the parties’ course of performance, which
consisted of Third Federal issuing invoices for interest-only payments, and
the Formaniks’ payment on those invoices, for nearly two years after the
expiration of the original maturity date.
Assignment of Error II:
The trial court erred as a matter of law and fact when it found that
Plaintiff-Appellee Third Federal’s conduct was reasonable and did not
constitute “bad faith.”
Assignment of Error III:
The trial court erred as a matter of law in failing to find a violation of Ohio
Consumer Sales Practices Act due to evidence of Third Federal’s practice
of “mortgage flipping.”
Assignment of Error IV:
The trial court erred when it declined to recognize a claim for “wrongful
foreclosure” or “wrongful attempted foreclosure.”
Law and Analysis
Standard of Review
{¶30} The standard of review on appeal from a decision of a trial court adopting a
magistrate’s decision is whether the trial court abused its discretion. Agnew v.
Muhammad, 8th Dist. Cuyahoga No. 100599, 2014-Ohio-3419, ¶ 15, citing Butcher v.
Butcher, 8th Dist. Cuyahoga No. 95758, 2011-Ohio-2550, ¶ 7. Under an abuse of
discretion standard, the trial court’s decision will be reversed only if it is unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140 (1983). “‘A decision is unreasonable if there is no sound reasoning process
that would support that decision.’” Ockunzzi v. Smith, 8th Dist. Cuyahoga No. 102347,
2015-Ohio-2708, ¶ 9, quoting AAAA Ents. Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d 597 (1990). An abuse of
discretion may also be found where the trial court “‘applies the wrong legal standard,
misapplies the correct legal standard, or relies on clearly erroneous findings of fact.’”
Ockunzzi at ¶ 9, quoting Thomas v. Cleveland, 176 Ohio App. 3d 401, 2008-Ohio-1720,
892 N.E.2d 454, ¶ 15 (8th Dist.).
Breach of Contract
{¶31} In their first assignment of error, the Formaniks argue that the parties’
course of conduct created a new implied contract that modified the terms of the original
note, pursuant to which Third Federal agreed to accept interest-only payments and not
collect on the principal balance due until the Formaniks sold the Middleburg Heights
property. They further argue that Third Federal breached that implied contract when it
refused to accept Formanik’s interest-only payments, reported delinquencies on his
account to credit reporting agencies and initiated foreclosure proceedings and that the
trial court “erred as a matter of law” in concluding otherwise. We disagree.
{¶32} As this court stated in Formanik I, “[a] contract can be modified when there
is clear and convincing evidence of the parties’ mutual intent to modify the contract
through their course of dealing.” Formanik I, 2014-Ohio-3234, at ¶ 13, citing Westgate
Ford Truck Sales, Inc. v. Ford Motor Co., 2012-Ohio-1942, 971 N.E.2d 967, ¶ 24-25 (8th
Dist.); see also RotoSolutions, Inc. v. Crane Plastics Siding, L.L.C., 10th Dist. Franklin
Nos. 13AP-1 and 13AP-52, 2013-Ohio-4343, ¶ 19 (“‘[A]n oral modification of a written
contract can be enforceable notwithstanding a provision in the contract requiring
modifications to be in writing where * * * the parties have engaged in a course of conduct
in conformance with the oral modification and where the party seeking to enforce the oral
modification would suffer injury if the modification were deemed invalid.’”), quoting
Exact Software N. Am., Inc. v. Infocon Sys., Inc., N.D.Ohio No. 3:03CV7183, 2004 U.S.
Dist. LEXIS 7580 (Apr. 16, 2004); Miller Lakes Community Servs. Assn. v. Schmitt, 9th
Dist. Wayne No. 15AP0010, 2016-Ohio-339, ¶ 18, 30 (“‘Parties may implicitly modify an
agreement by their actions. A continued, different, course of performance between
parties manifests a modification of the original agreement.’”), quoting St. Marys v.
Auglaize Cty. Bd. of Commrs., 115 Ohio St. 3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶
39; Kwikcolor Sand v. Fairmount Minerals, Ltd., 8th Dist. Cuyahoga No. 96717,
2011-Ohio-6646, ¶ 20-22 (where it was undisputed that the parties orally agreed to
modify contract’s pricing schedule and operated under the modified pricing schedule for
more than a year, plaintiff waived the contract’s no-oral modification provision and the
parties were contractually bound to the modified pricing structure). Even contracts that
are required by the statute of frauds to be in writing can be modified orally “when the
parties to the written agreement act upon the terms of the oral agreement.” Formanik I at
¶ 13, citing 200 W. Apts. v. Foreman, 8th Dist. Cuyahoga No. 66107, 1994 Ohio App.
LEXIS 4081 (Sept. 15, 1994); see also 3637 Green Rd. Co. v. Specialized Component
Sales Co., 8th Dist. Cuyahoga No. 103599, 2016-Ohio-5324, ¶ 21-25, 30-35 (substantial,
competent credible evidence supported the trial court’s conclusion that commercial
landlord waived lease’s no-oral-modification and written waiver provisions by its
subsequent course of conduct, resulting in an enforceable oral agreement to reduce the
rent due under the lease, where the landlord’s records showed that landlord “invoiced”
monthly rent at reduced rate and tenant “paid” monthly rent at reduced rate leaving a zero
balance due on the account).8
{¶33} The Formaniks contend that Third Federal’s actions in (1) invoicing and
accepting interest-only payments for 17 months after the note’s maturity date; (2) again
invoicing and accepting interest-only payments in June and July 2010 after initially
refusing Formanik’s interest-only payments in February and March 2010; (3) reporting
delinquencies of Formanik’s interest-only payments to the credit reporting agencies; and
(4) in failing to mention the delinquency on the principal of the bridge loan when it
refinanced the Formaniks’ mortgage on their North Royalton home in 2009 was evidence
of its intent to modify the terms of the note. In support of their argument, the Formaniks
rely on this court’s decision in Automated Solutions Corp. v. Paragon Data Sys., 167
Ohio App. 3d 685, 2006-Ohio-3492, 856 N.E.2d 1008 (8th Dist.). In that case, a
hardware contractor and software contractor contracted to work on a project for the
8
In Formanik I, this court held that Third Federal had waived its statute of frauds defense by
failing to raise it at trial. Formanik I, 2014-Ohio-3234, at ¶ 13.
Chicago Tribune (the “Tribune”) to provide the Tribune with hand-held computerized
inventory devices (the “building contract”). Id. at ¶ 2. Under the terms of the building
contract, the software contractor had 180 days to complete the development of certain
software. However, the Tribune had express authority to alter the project’s time lines.
Id. at ¶ 23-25. Development of the software took longer than expected because the
Tribune requested numerous changes to the software, resulting in delays and
continuances. Id. at ¶ 23. The parties executed a letter agreement amending certain
provisions of the building contract, including establishing new deadlines for the software
contractor’s performance. Id. at ¶ 5-6.
{¶34} In the litigation that followed, the hardware contractor claimed that the
software contractor had breached their contract when it missed the original 180-day
deadline set forth in the building contract. Id. at ¶ 21-22. In affirming the trial court’s
judgment in favor of the software contractor, this court held that the hardware contractor
had presented no evidence to support its assertion that the software contractor had failed
to meet the contract deadlines as modified by the Tribune, that “by failing to complain of
or exercise its rights under the contract at the time the deadlines were allegedly
breached,” the hardware contractor “waived its rights to enforce those deadlines” and that
the letter agreement was “a clear and unequivocal acceptance that the 180-day deadline
[had] passed and that the parties changed the terms of the agreement.” Id. at ¶ 27.
{¶35} Automated Solutions does not warrant reversal of the trial court’s decision in
this case. First, in Automated Solutions, this court rejected the appellant’s challenges to
the trial court’s factual findings based on the evidence that was presented in that case.
Here, the Formaniks ask us to overturn the trial court’s factual findings based on the
evidence presented. Second, in Automated Solutions, there was a letter of agreement
signed by the parties in which they expressly agreed to modify the terms of their original
agreement. The Formaniks have not claimed that they ever had any discussions with
Third Federal, prior to April 2010, about extending the maturity date of the loan and have
not identified any other type of “clear, unequivocal, decisive act” by Third Federal that
would mandate a finding that — so long as the Formaniks continued to make timely
interest-only payments — Third Federal waived its right to enforce Formanik’s obligation
to pay the principal balance, was estopped from enforcing Formanik’s obligation to pay
the principal balance, or otherwise did not intend that Formanik would pay off the
principal balance until they sold the Middleburg Heights property. Further, unlike in
Automated Solutions, in which there was no provision in the contract at issue that any
waiver of a breach of the agreement shall not be deemed a waiver of any subsequent
breach, id. at ¶ 30, in this case the note expressly provided that “[b]y waiving [its] right to
declare an event to be a default, [Third Federal] does not waive [its] right to later consider
the event as a default if it continues or happens again” and that Third Federal “may at [its]
option extend this note or the debt represented by this note, or any portion of the note or
debt, from time to time without limit or notice and for any term without affecting
[Formanik’s] liability for payment of the note.”
{¶36} Whether a written contract has been modified by a course of dealing is a
question of fact for the trier of fact. Westgate Ford Truck Sales, 2012-Ohio-1942, 971
N.E.2d 967, at ¶ 2. In this case, after considering all the evidence, the trial court found
that that the conduct of the parties did not rise to the level of creating an enforceable
implied contract and that there was otherwise no agreement, implied or otherwise,
between the parties to extend the maturity date of the bridge loan and adopted the
magistrate’s decision reaching the same conclusion. Following a thorough review of the
record, we cannot say that the trial court abused its discretion in doing so.
{¶37} Although there is evidence of facts in the record from which it might be
inferred that the parties had an implied agreement to extend the maturity date of the
bridge loan (for at least some period of time) — for example, Third Federal’s actions in
sending out invoices for interest-only payments and delinquency notices for interest-only
payments after the maturity date had passed, its acceptance of interest-only payments for
more than a year after the maturity date had passed, its reporting of account delinquencies
as interest-only delinquencies (as opposed to reporting the principal balance due as
delinquent) and the stated purpose of the bridge loan, i.e., “to fund the purchase of a new
residence”9 — that is not the only conclusion that could be reasonably drawn from the
evidence presented.
9
The Formaniks argue that because the loan was a “bridge loan,” the parties “intended” that it
would be “paid off from the sale proceeds of the first home.” The Formaniks further argue that
“when the property did not sell as quickly as was hoped, the maturity date was extended by the
unequivocal acts of both parties to the contract.” However, as noted above, the Formaniks did not
list the Middleburg Heights property for sale until June 2009 — nine months after the maturity date of
{¶38} Even if the parties’ actions in invoicing, submitting and accepting
interest-only payments had constituted a course of performance that impliedly extended
the maturity date of the bridge loan until February 2010 when Third Federal “froze” the
account or August 2010 (after Third Federal invoiced and accepted its last interest
payment), there is no evidence in the record to support the Formaniks’ claim that Third
Federal had agreed to extend the bridge loan — so long as the Formaniks continued to
make timely interest payments — until the Formaniks sold the Middleburg Heights
property. Rather, the parties’ actions support the conclusion that there was no such
agreement. Formanik testified that, beginning in April 2010, he made several requests
for an extension of the bridge loan from Third Federal. Third Federal, in turn, offered
him several options for refinancing the bridge loan, including a 90-day extension, which
he declined. Formanik also claimed to have made several unsuccessful attempts to
refinance the bridge loan elsewhere.
{¶39} The trial court’s decision is supported by competent, credible evidence.
Based on the record before us, we cannot say that the trial court abused its discretion in
adopting the magistrate’s decision in this case.
{¶40} The Formaniks further argue that even if the parties’ course of performance
did not modify the terms of the note, the trial court still erred in ruling against them on
their breach of contract claim because Third Federal’s practice of refusing their
the bridge loan. It is unclear from the record whether Third Federal knew that the Formaniks had not
listed the Middleburg Heights property for sale before the maturity date on the bridge loan had passed.
interest-only payments and then reporting delinquencies in the interest-only payments to
credit reporting agencies “sabotag[ed]” their ability to perform under the note and thereby
prevented their performance, constituting a breach of the contract between the parties.
Once again, we disagree.
{¶41} A party to a contract who prevents performance on the part of an adverse
party cannot rely on that nonperformance to claim a breach. See, e.g., Fabrication
Group L.L.C. v. Willowick Partners L.L.C., 11th Dist. Lake No. 2011-L-141,
2012-Ohio-4460, ¶ 45, citing Suter v. Farmers Fertilizer Co., 100 Ohio St. 403, 126 N.E.
304 (1919); see also FDIC v. Traversari, 11th Dist. Geauga No. 2008-G-2859,
2010-Ohio-2406, ¶ 22 (“‘It is an implied condition of every contract that one party will
not prevent or impede performance by the other. If he does prevent or impede
performance, whether by his prior breach or other conduct, he may not then insist on
performance by the affected party, and he cannot maintain an action for nonperformance
if the promises are interdependent.’”), quoting Fed. Natl. Mtge. Assn. v. Banks, 2d Dist.
Montgomery No. 11667, 1990 Ohio App. LEXIS 638, *8-9 (Feb. 20, 1990); Ambrosia
Coal & Constr. Co. v. C.B.G., 7th Dist. Mahoning No. 94 C.A. 199, 1996 Ohio App.
LEXIS 1888, *6-7 (“A party who prevents performance or his own part or on the part of
the adverse party, cannot take advantage of such noncompliance or non-performance by
the party obligated to perform under the contract.”). This, however, is not that case.
{¶42} Although Blackman acknowledged that Third Federal did not properly
report the delinquency on Formanik’s account to the credit reporting agencies,10 i.e., that
Third Federal reported the delinquency as a failure to timely make installment monthly
payments from February-May 2010, rather than a failure to timely pay a principal balance
due of approximately $65,000 from September 1, 2008, these reporting errors (and any
subsequent failure by Third Federal to remove the “false delinquencies” from his credit
reports) did not have prevented Formanik’s performance under the note. The
“performance” at issue here was Formanik’s obligation to timely pay the principal
balance that was due on September 1, 2008. Any reporting errors by Third Federal in the
spring of 2010 could not have prevented Formanik’s performance a year-and-a-half
earlier in September 2008. Accordingly, Third Federal’s reporting of “false
delinquencies” could not have prevented Formanik’s performance under the note and,
therefore, could not have constituted a breach of the note.
{¶43} The Formaniks’ first assignment of error is overruled.
Implied Duty of Good Faith and Fair Dealing
{¶44} In their second assignment of error the Formaniks argue that the trial court
committed reversible error when it concluded that Third Federal’s conduct was
Formanik did not introduce his full credit reports from the time period at
10
issue into evidence at trial. Rather, he introduced copies of “alerts” and other
select information from or relating to his credit reports. See discussion supra.
Accordingly, it is not entirely clear from the record what information Third Federal
reported to each of the three credit reporting agencies, what each of those credit
agencies, in turn, reported regarding Formanik’s account and how, if at all, that
impacted his creditworthiness.
“reasonable” and did not constitute “bad faith.” The Formaniks contend that in
erroneously reporting delinquencies concerning the interest-only payments the Formaniks
tendered to it and refusing to correct those erroneously reported delinquencies, Third
Federal “created a significant obstacle to the Formaniks’ performance,” thereby breaching
its implied duty of good faith and fair dealing.
{¶45} A duty of good faith and fair dealing is implied in every contract. See, e.g.,
Kirkwood v. FSD Dev. Corp., 8th Dist. Cuyahoga No. 95280, 2011-Ohio-1098, ¶ 9.
“‘Good faith’ is a compact reference to an implied undertaking not to take opportunistic
advantage in a way that could not have been contemplated at the time of drafting, and
which therefore was not resolved explicitly by the parties.’” Ed Schory & Sons v. Francis,
75 Ohio St. 3d 433, 443-444, 662 N.E.2d 1074 (1998), quoting Kham & Nate’s Shoes No.
2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357-1358 (7th Cir.1990). It does not,
however, “supplant” the express terms of the contract. Gator Dev. Corp. v. VHH, Ltd.,
1st Dist. Hamilton No. C-080193, 2009-Ohio-1802, ¶ 24.
“‘Good faith performance or enforcement of a contract emphasizes
faithfulness to an agreed common purpose and consistency with the
justified expectations of the other party.’ * * * [B]ad faith may consist of
inaction, or may be the ‘abuse of a power to specify terms, [or] interference
with or failure to cooperate in the other party’s performance.’” Littlejohn v.
Parrish, 163 Ohio App. 3d 456, 2005-Ohio-4850, 839 N.E.2d 49, ¶ 26,
quoting Restatement of the Law 2d, Contracts, Section 205, Comments a
and d (1981). Whether parties have acted in good faith and have “deal[t]”
fairly and “reasonably with each other”
or have breached that obligation and acted in bad faith is a question of fact. Littlejohn at
¶ 28.
{¶46} The covenant of good faith and fair dealing is part of a contract claim. A
breach of the covenant of good faith and fair dealing “does not stand alone as a separate
claim from breach of contract.” Stancik v. Deutsche Natl. Bank, 8th Dist. Cuyahoga No.
102019, 2015-Ohio-2517, ¶ 46 (“Outside of the insurance context * * * the breach of this
duty does not exist as a separate cause of action from a breach of contract claim.”); see
also Pappas v. Ippolito, 177 Ohio App. 3d 625, 2008-Ohio-3976, 895 N.E.2d 610, ¶ 57
(8th Dist.) (“‘Parties to a contract are bound toward one another by standards of good
faith and fair dealing. However, this does not stand for the proposition that breach of
good faith exists as a separate claim. Instead, good faith is part of a contract claim and
does not stand alone.’”), quoting Dawson v. Blockbuster, Inc., 8th Dist. Cuyahoga No.
86451, 2006-Ohio-1240, ¶ 35; Gianetti v. Teakwood, Ltd., 10th Dist. Franklin No.
15AP-413, 2016-Ohio-213, ¶ 35 (“‘[A] claim for breach of contract subsumes the
accompanying claim for breach of the duty of good faith and fair dealing.’”), quoting
Krukrubo v. Fifth Third Bank, 10th Dist. Franklin No. 07AP-270, 2007-Ohio-7007, ¶ 19.
{¶47} On these facts, for the same reasons the Formaniks failed to establish that
Third Federal breached its contract with Formanik by allegedly precluding his
performance under the note, they also failed to establish a breach of the duty of good faith
and fair dealing. See, e.g., Ed Schory & Sons, 75 Ohio St. 3d at 443-444, 662 N.E.2d
1074 (bank’s decision to enforce parties’ agreements as written and not lend additional
funds to developer could not be considered an act of bad faith; “‘[a]lthough courts often
refer to the obligation of good faith that exists in every contractual relation, * * * this is
not an invitation to the court to decide whether one party ought to have exercised
privileges expressly reserved in the document’”), quoting Kham & Nate’s Shoes, 908 F.2d
at 1357.
{¶48} Accordingly, the Formaniks’ second assignment of error is overruled.11
Claim under Ohio Consumer Sales Practices Act for “Mortgage Flipping”
{¶49} In their third assignment of error, the Formaniks contend that the trial court
erred in failing to find a violation of the Ohio Consumer Sales Practices Act due to
evidence of attempted “mortgage flipping” by Third Federal when it offered to refinance
the bridge loan after the maturity date expired.
{¶50} R.C. 1345.031(A) prohibits “suppliers” from committing an
“unconscionable act or practice concerning a consumer transaction in connection with a
residential mortgage.” Under R.C. 1345.031(B)(12), such “unconscionable” acts or
practices include:
Knowingly or intentionally engaging in the act or practice of “flipping” a
mortgage loan. “Flipping” a mortgage loan is making a mortgage loan that
refinances an existing mortgage loan when the new loan does not have
reasonable, tangible net benefit to the consumer considering all of the
11
We by no means condone Third Federal’s conduct in this case. Although
the trial court acknowledged that Third Federal’s conduct in invoicing Formanik for
interest-only payments, refusing to accept those interest-only payments, and then
reporting his account as delinquent due to the “nonpayment” of payments it refused
“isn’t an example of best practices,” it is much more than that. The fact that Third
Federal could have properly reported the entire principal balance as past due does
not excuse its conduct in preventing the Formaniks from making interest-only
payments and then reporting those payments as delinquent. However, based on
the record here, we cannot state that the trial court abused its discretion in
concluding that such conduct did not provide grounds for relief on the particular
claims asserted by the Formaniks.
circumstances, including the terms of both the new and refinanced loans,
the cost of the new loan, and the consumer’s circumstances. This
provision applies regardless of whether the interest rate, points, fees, and
charges paid or payable by the consumer in connection with the refinancing
exceed any thresholds specified in any section of the Revised Code.
(Emphasis added.)
{¶51} The trial court found that Third Federal did not violate R.C.
1345.031(B)(12) because a new mortgage loan was never made. We agree. R.C.
1345.031(B)(12) requires that a “new” replacement mortgage loan be “made” before a
violation can occur. Accordingly, the Formaniks’ third assignment of error lacks merit
and is overruled.
Claim for “Wrongful Foreclosure”
{¶52} In their fourth and final assignment of error, the Formaniks claim that the
trial court erred in concluding that there is no distinct claim for “wrongful foreclosure” or
“wrongful attempted foreclosure” under Ohio law. Once again, we disagree.
{¶53} Although the Formaniks contend that “Ohio courts appear to recognize
claims for ‘wrongful foreclosure’” because “numerous claims for ‘wrongful foreclosure’
have been brought by litigants,” they have not cited a single Ohio case in which a plaintiff
has prevailed on a claim of wrongful foreclosure or that identifies what the elements of
such a claim might be. Simply because a claim is referenced in a case as having been
brought by a litigant does not mean that that claim has been recognized under Ohio law.
See Ogle v. BAC Home Loans Servicing LP, 924 F. Supp. 2d 902, 914 (S.D.Ohio 2013)
(“‘Wrongful foreclosure’ in Ohio ‘describes not a discrete claim with specific elements
but a collection of challenges to a foreclosure action.’”), quoting Hammond v. Citibank,
N.A., S.D. Ohio No. 2:10-CV-1071, 2011 U.S. Dist. LEXIS 109818, *40-41 (Sept. 27,
2011); Wells Fargo Bank, N.A. v. Favino, N.D. Ohio No. 1:10 CV 571, 2011 U.S. Dist.
LEXIS 35618, *35-36 (Mar. 31, 2011) (granting defendant’s motion to dismiss wrongful
foreclosure claim because “it cannot be a cause of action, only an affirmative defense”);
but see 69 Ohio Jur.3d Mortgages § 328 (“In general, an action at law by the mortgagor
against the mortgagee may be maintained to recover damages for a wrongful foreclosure
— that is, a foreclosure without right, which would ordinarily be invalid irrespective of
the manner in which it is executed. The action does not lie where at least a prima facie
breach of a condition in the mortgage agreement by the mortgagor has been alleged.”);
First Fed. S. & L. Assn. v. Perry’s Landing, Inc., 11 Ohio App. 3d 135, 147, 463 N.E.2d
636 (6th Dist.) (where mortgagor executed a land installment contract for conveyance of
mortgaged property, which triggered a due-on-sale clause, mortgagor’s claim that
mortgagee should be equitably estopped from enforcing its rights under the due-on-sale
clause and foreclosing on the mortgaged property did not given rise to a claim for
damages for wrongful foreclosure by the mortgagor against the mortgagee; although
equitable estoppel issues would be resolved by the trier of fact, the court held that
“damages for wrongful foreclosure cannot logically be sought by raising the defense of
equitable estoppel whether the same is successfully invoked or not”).12 Furthermore, in
In Corbett v. Beneficial Ohio, Inc., S.D. Ohio No. 3:11-cv-339, 2013 U.S. Dist. LEXIS
12
15053, *8 (Feb. 1, 2013), the United States District Court for the Southern District of Ohio observed
that “[s]everal other states recognize freestanding claims of wrongful foreclosure and, despite the
this case, given that Third Federal did not foreclose on the Middleburg Heights property,
any such claim the Formaniks might have would necessarily be limited to a claim for
attempted “wrongful foreclosure.”
{¶54} We need not decide this issue because even assuming Ohio recognized an
independent cause of action for attempted wrongful foreclosure, we would find no error
by the trial court in ruling against the Formaniks on that claim because the Formaniks did
not establish that Third Federal’s attempted foreclosure of the Middleburg Heights
property was “wrongful.” The same allegations that formed the basis for the Formaniks’
breach of contract claim — i.e., the parties’ course of performance in invoicing,
submitting and accepting interest-only payments after the maturity date and Third
Federal’s alleged prevention of performance in later rejecting interest-only payments and
reporting deficiencies in interest-only payments to the credit reporting agencies — formed
the basis for its “wrongful foreclosure” claim. The Formaniks have not alleged that there
was some defect, fraud or irregularity in the foreclosure process (or attempted foreclosure
process) or in the events leading up to the foreclosure proceeding that entitled them to
relief separate and apart from their contract claim against Third Federal. There was no
statement in Hammond, Ohio’s stance on this issue appears to be somewhat unsettled.” It certified
two questions to the Ohio Supreme Court: (1) “Does Ohio recognize a freestanding cause of action for
‘wrongful attempted foreclosure?’” and (2) “If so, what are the elements of such a claim, and what
damages are available.” Id. at *9. The court originally agreed to address these questions. Corbett
v. Beneficial Ohio, Inc., 135 Ohio St. 3d 1310, 2013-Ohio-1622, 986 N.E.2d 28. However, after the
parties filed a joint motion to withdraw the certified questions, the court granted the motion and
dismissed the case. Corbett v. Beneficial Ohio, Inc., 136 Ohio St. 3d 1436, 2013-Ohio-2685, 989
N.E.2d 1048.
dispute that Formanik failed to pay off the principal balance when due, constituting an
event of default under the express terms of the note, and that the note was secured by a
mortgage on the Middleburg Heights property. As detailed above, the record supports
the trial court’s conclusions that Third Federal did not breach the note, that the parties did
not, by their course of performance, enter into an implied contract to extend the maturity
date and that Third Federal was entitled to enforce Formanik’s obligations under the note.
Accordingly, the Formaniks’ fourth assignment of error is overruled.
{¶55} Judgment affirmed.
It is ordered that appellants pay appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas 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.
_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MELODY J. STEWART, J., and
ANITA LASTER MAYS, J., CONCUR