Fifth Third Mtge Co. v. Fantine , 2015 Ohio 4260 ( 2015 )


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  • [Cite as Fifth Third Mtge Co. v. Fantine, 2015-Ohio-4260.]
    COURT OF APPEALS
    FAIRFIELD COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    FIFTH THIRD MORTGAGE COMPANY                                 JUDGES:
    Hon. W. Scott Gwin, P.J.
    Plaintiff-Appellee                                   Hon. William B. Hoffman, J.
    Hon. Sheila G. Farmer, J.
    -vs-
    Case No. 15-CA-5
    JEFFREY A. FANTINE AKA
    JEFFREY ADRIAN FANTINE, ET AL.
    OPINION
    Defendant-Appellant
    CHARACTER OF PROCEEDING:                               Appeal from the Fairfield County Court of
    Common Pleas, Case No. 2014-CV-00425
    JUDGMENT:                                              Affirmed
    DATE OF JUDGMENT ENTRY:                                October 9, 2015
    APPEARANCES:
    For Plaintiff-Appellee                                 For Defendant-Appellant
    HARRY J. FINKLE IV.                                    MARC E. DANN
    HARRY W. CAPPEL                                        GRACE M. DOBERDRUK
    BRITTANY L. GRIGGS                                     PAUL B. BELLAMY
    Graydon Head & Ritchey LLP                             The Dann Law Firm
    1900 Fifth Third Center                                P.O. Box 6031040
    511 Walnut Street                                      Cleveland, Ohio 44103
    Cincinnati, Ohio 45202-3157
    Fairfield County, Case No. 15-CA-5                                                       2
    Hoffman, J.
    {¶1}    Defendant-appellants Jeffrey A. Fantine appeals the January 9, 2015
    Judgment Entry entered by the Fairfield County Court of Common Pleas, which granted
    summary judgment in favor of plaintiff-appellee Fifth Third Mortgage Company (“Fifth
    Third”) and entered a decree of foreclosure.
    STATEMENT OF THE FACTS AND CASE
    {¶2}    On May 13, 2005, Appellant executed a promissory note and mortgage
    deed with Fifth Third in the amount of $69,300, for real property located at 123 Behrens
    Court, Lancaster, Fairfield County, Ohio. The mortgage was filed with the Fairfield
    County Recorder on May 17, 2005, and recorded thereafter.
    {¶3}    On March 1, 2010, following a period of delinquency, Appellant entered
    into a loan modification agreement with Fifth Third. Appellant again became delinquent
    on the loan in September, 2013. On June 6, 2014, Fifth Third filed a complaint, seeking
    judgment on the Note and foreclosure of the mortgage. On July 2, 2014, Appellant filed
    a pro se document captioned “Motion for Additional Time in which to Answer or
    Respond to Plaintiff’s Complaint.” Fifth Third filed a motion for default judgment on
    September 5, 2014. Appellant filed a pro se response on September 11, 2014. Via
    Entry filed October 20, 2014, the trial court denied Fifth Third’s motion for default
    judgment.
    {¶4}    Thereafter, Fifth Third filed a motion for summary judgment on December
    3, 2014. In support of the motion, Fifth Third attached the Affidavit of Kimberly Hoff, the
    Affidavit Analyst for Fifth Third Bank and the loan servicer for Fifth Third Mortgage
    Company; a copy of the Note; a copy of the mortgage; a copy of the loan modification
    Fairfield County, Case No. 15-CA-5                                                     3
    agreement; and a copy of the default notice addressed to Appellant. Appellant did not
    file a memorandum in opposition to the motion for summary judgment.
    {¶5}   Via Judgment Entry filed January 9, 2015, the trial court granted Fifth
    Third’s motion for summary judgment, and entered a decree of foreclosure.
    {¶6}   It is from this judgment entry Appellant appeals, raising the following
    assignments of error:
    {¶7}   "I. IT WAS ERROR FOR THE TRIAL COURT TO GRANT FIFTH THIRD
    MORTGAGE COMPANY A DECREE OF FORECLOSURE WHEN THE LOAN
    MODIFICATION AGREEMENT WAS NOT FILED OF RECORD WITH THE FAIRFIELD
    COUNTY RECORDER'S OFFICE PURSUANT TO THE MANDATORY TERMS OF
    §R.C. 53.231.
    {¶8}   "II. IT WAS ERROR FOR THE TRIAL COURT TO GRANT FIFTH THIRD
    MORTGAGE COMPANY A DECREE OF FORECLOSURE WHEN THE MORTGAGE
    COMPANY FAILED TO PRODUCE ANY BUSINESS RECORDS THAT WOULD
    SUPPORT A HISTORY OF PAYMENT DELINQUENCY AND DEFAULT AND
    PROVIDE A DOCUMENTARY SUMMARY FOR THAT CALCULATION OF THE
    DOLLAR AMOUNT SOUGHT IN THE UNDERLYING FORECLOSURE ACTION."
    Summary Judgment
    {¶9}   Civ. R. 56 states in pertinent part:
    {¶10} “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 of material fact and that the moving party is entitled to
    Fairfield County, Case No. 15-CA-5                                                     4
    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 mostly strongly in the party's favor. A
    summary judgment, interlocutory in character, may be rendered on the issue of liability
    alone although there is a genuine issue as to the amount of damages.”
    {¶11} A trial court should not enter a summary judgment if it appears a material
    fact is genuinely disputed, nor if, construing the allegations most favorably towards the
    non-moving party, reasonable minds could draw different conclusions from the
    undisputed facts. Hounshell v. Am. States Ins. Co., 
    67 Ohio St. 2d 427
    , 
    424 N.E.2d 311
    (1981). The court may not resolve any ambiguities in the evidence presented. Inland
    Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 
    15 Ohio St. 3d 321
    , 
    474 N.E.2d 271
    (1984). A fact is material if it affects the outcome of the case under the
    applicable substantive law. Russell v. Interim Personnel, Inc., 
    135 Ohio App. 3d 301
    ,
    
    733 N.E.2d 1186
    (6th Dist.1999).
    {¶12} When reviewing a trial court's decision to grant summary judgment, an
    appellate court applies the same standard used by the trial court. Smiddy v. The
    Wedding Party, Inc., 
    30 Ohio St. 3d 35
    , 
    506 N.E.2d 212
    (1987). This means we review
    the matter de novo. Doe v. Shaffer, 
    90 Ohio St. 3d 388
    , 2000–Ohio–186, 
    738 N.E.2d 1243
    .
    Fairfield County, Case No. 15-CA-5                                                        5
    {¶13} The party moving for summary judgment bears the initial burden of
    informing the trial court of the basis of the motion and identifying the portions of the
    record which demonstrate the absence of a genuine issue of fact on a material element
    of the non-moving party's claim. Drescher v. Burt, 
    75 Ohio St. 3d 280
    , 
    662 N.E.2d 264
    (1996). Once the moving party meets its initial burden, the burden shifts to the
    nonmoving party to set forth specific facts demonstrating a genuine issue of material
    fact does exist. 
    Id. The non-moving
    party may not rest upon the allegations and denials
    in the pleadings, but instead must submit some evidentiary materials showing a genuine
    dispute over material facts. Henkle v. Henkle, 
    75 Ohio App. 3d 732
    , 
    600 N.E.2d 791
    (12th Dist.1991).
    I
    {¶14} In his first assignment of error, Appellant contends the trial court erred in
    entering a decree of foreclosure when the loan modification agreement was not filed of
    record pursuant to R.C. 5301.231. We disagree.
    {¶15} R.C. 5301.23 provides, “All properly executed 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. 5301.23(A).
    {¶16} In Ohio, the “failure or success of recording an instrument has no effect on
    its validity as between the parties to that instrument.” Bank of New York Mellon v.
    Loudermilk, 5th Dist. Fairfield No.2012–CA–30, 2013–Ohio–2296, citing Bank One, N.A.
    v. Dillon, 9th Dist. No. 04CA008571, 2005–Ohio–1950, ¶ 9. “The purpose of the
    recording statutes is to put other lien holders on notice and to prioritize the liens.” 
    Id., Fairfield County,
    Case No. 15-CA-5                                                           6
    citing GMAC Mtge. Corp. v. McElroy, 5th Dist. No.2004–CA–00380, 2005–Ohio–2837, ¶
    16.
    {¶17} In support of his position, Appellant cites Community Action Commt. of
    Pike Cty., Inc. v. Maynard, 4th Dist. Pike No. 02CA695, 2003-Ohio-4312, 
    2003 WL 21949715
    , ¶ 8–10, for the proposition an unrecorded mortgage modification is
    ineffective. We find Appellant’s reliance on Maynard is misplaced. While the Fourth
    District Court of Appeals concluded a mortgage modification which is not recorded is an
    ineffective modification, it did so in the context of a mortgage modification's
    effectiveness as to the priority of lienholders. 
    Id. Although R.C.
    5301.231(A), as a
    recording statute, affects the rights of third parties as to the priority of mortgage liens, it
    has no effect on the underlying obligation as between the parties. See, GMAC Mtge.
    Corp. v. McElroy, 5th Dist. Stark No. 2004–CA–00380, 2005-Ohio-2837, ¶ 16, citing
    Sidle v. Maxwell, 
    4 Ohio St. 236
    , 238 (1854) and Gossard v. Hillman, 4th Dist. Jackson
    No. 478 (May 16, 1984).
    {¶18} Based upon the foregoing, we find the lack of recording of the loan
    modification agreement does not provide a defense for Appellant.              The trial court
    properly granted summary judgment in favor of Fifth Third and did not err in entering the
    decree of foreclosure.
    {¶19} Appellant’s first assignment of error is overruled.
    II
    {¶20} In his second assignment of error, Appellant maintains the trial court erred
    in entering a decree of foreclosure when Fifth Third failed to produce business records
    which support a history of payment delinquency and default, and failed to provide
    Fairfield County, Case No. 15-CA-5                                                      7
    documentary evidence supporting the calculation of the dollar amount sought.
    Specifically, Appellant argues Hoff’s affidavit fails to adequately establish the amount
    due on the loan and the trial court should not have entered a decree of foreclosure
    based upon Fifth Third’s failure to provide a “payment history.”
    {¶21} There is no requirement that a party seeking a foreclosure submit a
    payment history to demonstrate entitlement to summary judgment. Deutsche Bank Natl.
    Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013–Ohio–1657, ¶ 40. Rather, an
    affidavit establishing a loan is in default is sufficient to demonstrate entitlement to
    summary judgment where there is no evidence controverting the affiant's averments.
    See e .g. Cent. Mortg. Co. v. Elia, 9th Dist. Summit No. 25505, 2011–Ohio3188, ¶ 7.
    {¶22} Fifth Third submitted Kimberly Hoff’s affidavit in support of its motion for
    summary judgment. In her affidavit, Hoff averred Appellant was in default under the
    terms of the Note, the mortgage, and the loan modification agreement as the result of
    “his failure to make all required payments.” Hoff Affidavit, para. 11. Additionally, Hoff
    stated the amount due and payable on the account was “$66,982.93 plus interest at the
    rate of 6.625% from September 1, 2013, plus court costs, advances, and other charges
    allowed by the Note and Mortgage and Ohio law.” 
    Id. at para.
    13. Hoff added, “The
    default has not been cured.” 
    Id. {¶23} Appellant
    did not dispute the evidentiary quality of the affidavit and did not
    provide evidence which would controvert Hoff's averments regarding the status or
    balance of the account.
    {¶24} In Wachovia Bank v. Jackson, 5th Dist. Stark No.2010–CA–00291, 2011–
    Ohio–3203, this Court held in order to properly support a motion for summary judgment
    Fairfield County, Case No. 15-CA-5                                                         8
    in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (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. 
    Id. ¶ 40–45.
    {¶25} Fifth Third, via the Hoff affidavit, provided evidence to satisfy all the
    foregoing criteria. We, therefore, find Fifth Third set forth sufficient evidence to support
    its motion for summary judgment. And, because Appellant failed to meet his reciprocal
    burden of submitting evidence which would create a genuine issue of material fact for
    trial, we conclude the trial court did not err in granting summary judgment in favor of
    Fifth Third as a matter of law, and entering the decree of foreclosure.
    {¶26} Appellant further submits Fifth Third failed to establish its damages due to
    a lack of proper documentation. We disagree.
    {¶27} Ohio courts have held “an averment of outstanding indebtedness made in
    the affidavit of a bank loan officer with personal knowledge of the debtor's account is
    sufficient to establish the amount due and owing on the note, unless the debtor refutes
    the averred indebtedness with evidence that a different amount is owed.” JPMorgan
    Chase Bank, N.A. v. Salazar, 6th Dist. Lucas No. L–13–1038, 2014–Ohio–1002, ¶ 13;
    Natl. City Bank v. TAB Holdings, Ltd. 6th Dist. Erie No. E–10–060, 2011–Ohio–3715, ¶
    12.
    {¶28} We find Hoff’s affidavit was sufficient to establish Fifth Third’s damages.
    {¶29} Appellant’s second assignment of error is overruled.
    Fairfield County, Case No. 15-CA-5                                                    9
    {¶30} The judgment of the Fairfield County Court of Common Pleas is affirmed.
    By: Hoffman, J.
    Gwin, P.J. and
    Farmer, J. concur
    

Document Info

Docket Number: 15-CA-5

Citation Numbers: 2015 Ohio 4260

Judges: Hoffman

Filed Date: 10/9/2015

Precedential Status: Precedential

Modified Date: 10/14/2015