Bank of Am., N.A. v. Moore ( 2013 )

[Cite as Bank of Am., N.A. v. Moore, 2013-Ohio-3370.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BANK OF AMERICA, N.A. : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
RANDY MOORE, ET AL. : Case No. 13CA1
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12FR06-0319
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 1, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
BRADLEY P. TOMAN BRIAN K. DUNCAN
24755 Chagrin Blvd. 155 East Broad Street
Suite 200 Suite 2200
Cleveland, OH 44122 Columbus, OH 43215
Knox County, Case No. 13CA1 2
Farmer, J.
{¶1} On June 20, 2012, appellee, Bank of America, N.A., filed a complaint in
foreclosure against appellants, Randy and Cheryl Moore, for failure to pay on a note.
{¶2} On September 19, 2012, appellee filed a motion for summary judgment.
By judgment entry filed December 19, 2012, the trial court granted the motion and
entered a judgment of foreclosure.
{¶3} Appellants filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE
ISSUES OF FACT AND PLAINTIFF WAS NOT ENTITLED TO JUDGMENT AS A
MATTER OF LAW."
II
{¶5} "THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT BECAUSE DEFENDANTS WERE NEITHER AFFORDED A
FULL AND FAIR OPPORTUNITY TO CONDUCT DISCOVERY ON ALL FACTUAL
MATTERS IN DISPUTE NOR VERIFY THE MERIT OF PLAINTIFF'S COMPLAINT."
I
{¶6} Appellants claim the trial court erred in granting summary judgment to
appellee as appellee was not the "holder in due course" of the underlying note. We
disagree.
Knox County, Case No. 13CA1 3
{¶7} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any
material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is
made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,
628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50
Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
{¶8} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35 (1987).
{¶9} R.C. 1303.32 governs holder in due course. Subsection (A) states the
following:
Knox County, Case No. 13CA1 4
(A) Subject to division (C) of this section and division (D) of section
1303.05 of the Revised Code, "holder in due course" means the holder of
an instrument if both of the following apply:
(1) The instrument when issued or negotiated to the holder does
not bear evidence of forgery or alteration that is so apparent, or is not
otherwise so irregular or incomplete as to call into question its authenticity;
(2) The holder took the instrument under all of the following
circumstances:
(a) For value;
(b) In good faith;
(c) Without notice that the instrument is overdue or has been
dishonored or that there is an uncured default with respect to payment of
another instrument issued as part of the same series;
(d) Without notice that the instrument contains an unauthorized
signature or has been altered;
(e) Without notice of any claim to the instrument as described
in section 1303.36 of the Revised Code;
(f) Without notice that any party has a defense or claim in
recoupment described in division (A) of section 1303.35 of the Revised
Code.
{¶10} In their response to the motion for summary judgment, appellants argued
there was a genuine issue of material fact as to whether appellee was the holder in due
Knox County, Case No. 13CA1 5
course. Appellants also argued other vague fact issues, but failed to assign them as
error. Attached to the complaint is a commitment to modify mortgage and modification
agreement dated May 18 2010, wherein appellants admitted to default. See, June 20,
2012 Complaint at Exhibit B. No evidentiary quality material was submitted to dispute
appellee's claims.
{¶11} Appellee presented the affidavit of its officer, Denise Sipe, in support of its
motion. Ms. Sipe averred the following:
4. BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO
BAC HOME LOANS SERVICING, L.P., FKA, COUNTRYWIDE HOME
LOANS SERVICING, L.P. directly or through an agent, has possession of
the promissory note. The promissory note has been duly indorsed. BANK
OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS
SERVICING, L.P., FKA, COUNTRYWIDE HOME LOANS SERVICING,
L.P. is the assignee of the security instrument for the referenced loan.
{¶12} Attached to the complaint is an assignment of mortgage which
demonstrates the mortgage was assigned to appellee three years prior to the filing of
the complaint. See, June 20, 2012 Complaint at Exhibit C. We find the requirements of
Federal Home Loan Mortgage Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-
5017, have been met.
{¶13} Upon review, we find the trial court did not err in finding no genuine issue
of material fact on whether appellee was the holder in due course of the note.
Knox County, Case No. 13CA1 6
{¶14} Assignment of Error I is denied.
II
{¶15} Appellants claims the trial court erred in denying their Civ.R.56(F) motion
as they should have been afforded additional time for discovery to address the issues
raised in the motion. We disagree.
{¶16} Civ.R. 56(F) states the following:
Should it appear from the affidavits of a party opposing the motion
for summary judgment that the party cannot for sufficient reasons stated
present by affidavit facts essential to justify the party's opposition, the
court may refuse the application for judgment or may order a continuance
to permit affidavits to be obtained or discovery to be had or may make
such other order as is just.
{¶17} The decision of whether to grant or deny a Civ.R. 56(F) continuance is
within the sound discretion of the trial court. Beegle v. Amin, 156 Ohio App.3d 533,
2004-Ohio-1579 (7th Dist.). In order to find an abuse of discretion, we must determine
the trial court's decision was unreasonable, arbitrary or unconscionable and not merely
an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶18} Appellee filed the complaint on June 20, 2012. Appellants answered and
counterclaimed on July 19, 2012, and requested foreclosure mediation. The trial court
denied mediation on August 6, 2012. On September 19, 2012, appellee filed its motion
Knox County, Case No. 13CA1 7
for summary judgment. Appellants filed their Civ.R. 56(F) motion on October 3, 2012,
and memorandum contra to the summary judgment motion on October 19, 2012.
{¶19} In their answer to the complaint, appellants raised numerous defenses
including the Federal Truth and Lending Act, the Real Estate Settlement Practices Act,
the Fair Debt Collection Act, and the Ohio Consumer Sales Practices Act. They
challenged real party in interest, the jurisdiction of the trial court and venue, and claimed
they were entitled to recoupment or a set off and some rescission.
{¶20} We find no Civ.R. 56(F) affidavit was submitted to substantiate the reason
for the continuance. State, ex rel. Coulverson v. Ohio Adult Parole Authority, 62 Ohio
St.3d 12 (1991) [without a valid affidavit, "the court of appeals could not act under Civ.R.
56(F)"].
{¶21} Upon review, we find the trial court did not abuse its discretion in denying
the Civ.R. 56(F) motion.
{¶22} Assignment of Error II is denied.
Knox County, Case No. 13CA1 8
{¶23} The judgment of the Court of Common Pleas of Knox County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Baldwin, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. W. Scott Gwin
_______________________________
Hon. Craig B. Baldwin
SGF/sg 717
[Cite as Bank of Am., N.A. v. Moore, 2013-Ohio-3370.]
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BANK OF AMERICA, N.A. :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RANDY MOORE, ET AL. :
:
Defendants-Appellants : CASE NO. 13CA1
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Knox County, Ohio is affirmed. Costs to
appellants.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. W. Scott Gwin
_______________________________
Hon. Craig B. Baldwin