U.S. Bank Natl. Assn. v. Turner ( 2012 )

[Cite as U.S. Bank Natl. Assn. v. Turner, 2012-Ohio-4592.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97935
U.S. BANK NATIONAL ASSOCIATION
PLAINTIFF-APPELLEE
vs.
ROBERT L. TURNER, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-751493
BEFORE: Jones, J., Celebrezze, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: October 4, 2012
FOR APPELLANTS
Robert L. Turner, pro se
LaTanya Turner a.k.a. LaTanya Harris
23464 Rushmore Drive
Richmond Heights, Ohio 44143
ATTORNEYS FOR APPELLEE
Manbir S. Sandhu
The Law Office of Manbir S. Sandhu LLC
1370 Ontario Street, Suite 600
Cleveland, Ohio 44113
Gilbert E. Blomgren
Blomgren & Bobka Co., LPA
1370 Ontario Street
Suite 600
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Appellants, Robert and Latanya Turner (“the Turners”), appeal from the trial
court’s judgment granting U.S. Bank National Association’s (“U.S. Bank”) motion for
summary judgment. We affirm.
I. Procedural History and Facts
{¶2} On March 24, 2005, the Turners executed a promissory note for $195,600
(“the note”) secured by a mortgage on property located at 23464 Rushmore Drive, in
Richmond Heights, Ohio (“the mortgage”), with Option One Mortgage Corporation
(“Option One”). On March 9, 2011, Option One, then known as Sand Canyon
Corporation transferred the note and mortgage to U.S. Bank, as Trustee for J.P. Morgan
Acquisition Corp. 2005-OPTI, Asset Backed Pass-Through Certificates Series
2005-OPTI. The Turners defaulted on the note.
{¶3} On March 21, 2011, U.S. Bank filed a complaint in foreclosure. After the
Turners filed their answer, U.S. Bank filed motions for summary judgment and
default judgment. On June 9, 2011, the trial court denied the motions because U.S. Bank
had failed to name all necessary parties, specifically, Sand Canyon Corporation, the
successor to Option One.
{¶4} On June 15, 2011, U.S. Bank filed an amended complaint naming Sand
Canyon Corporation as a defendant. Thereafter, the Turners filed an answer to the
amended complaint. On August 23, 2011, U.S. Bank filed its motion for summary
judgment on the amended complaint. Attached to the motion were signed copies of the
note, signed copies of the mortgage documents, and a copy of the Turners’ payment
history, which revealed that they made their last payment in October 2010.
{¶5} In addition, an affidavit in support of the motion for summary judgment from
Joseph Kaminiski of American Home Servicing Inc., the servicing agent for U.S. Bank,
was attached. Kaminiski averred that he had personal knowledge of the facts contained
in the affidavit.
{¶6} Specifically and in pertinent part, Kaminiski averred that U.S. Bank is the
owner and holder of the note and mortgage, that the Turners are in default for failure to
pay the amount due for November 1, 2010, as well as all subsequent payments, and that
U.S. Bank had elected to accelerate the entire balance due. Further, Kaminiski averred
that the Turners owed a principal balance of $118,246.18, with interest at the rate of 2
percent per annum from October 1, 2010, as well as advances for taxes and insurance.
{¶7} On November 21, 2011, without any opposition by the Turners, the
magistrate filed a decision rendering summary judgment in favor of U.S. Bank. On
November 30, 2011, the Turners filed their objections to the magistrate’s decision. On
January 3, 2012, U.S. Bank filed a brief in opposition to the Turners’ objections.
{¶8} On January 11, 2012, the trial court overruled the Turners’ objections and
adopted the magistrate’s decision granting summary judgment in favor of U.S. Bank.
The Turners now appeal.
II. Law and Analysis
{¶9} In the sole assignment of error, the Turners argue the trial court erred by
granting summary judgment in U.S. Bank’s favor.
{¶10} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. The Ohio Supreme
Court stated the appropriate test in Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,
369-370, 1998-Ohio-389, 696 N.E.2d 201, as follows:
Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, said party
being entitled to have the evidence construed most strongly in his favor.
Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d
1196, paragraph three of the syllabus. The party moving for summary
judgment bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Dresher
v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.
{¶11} If the party moving for summary judgment satisfies this burden, the
nonmoving party has a reciprocal burden outlined in Civ.R. 56(E), which provides that:
When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or
denials of his pleadings, but his response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial. If he does not so respond, summary judgment, if
appropriate, shall be entered against him.
Dresher, 75 Ohio St.3d at 293.
{¶12} In the instant case, U.S. Bank’s summary judgment motion is substantively
unchallenged, both at the trial court level and on appeal. It is unclear what the Turners are
arguing under this assignment of error, but what is clear is that, as the party adverse to
summary judgment, their argument is not supported by affidavit or other evidence in the
record, and it does not set forth specific facts showing a genuine issue for trial.
{¶13} The trial court’s January 11, 2012 journal entry found from the evidence in
the record that there is due to U.S. Bank, on the promissory note and mortgage, the sum
of $118,246.18 plus interest thereon at the rate of 2 percent per annum from October 1,
2010. Upon review, we find evidence attached to U.S. Bank’s summary judgment
motion that includes signed copies of the note, signed copies of the mortgage documents,
the Turners’ payment history, and affidavits of personal knowledge attesting to the
default.
{¶14} Thus, U.S. Bank has satisfied the historic prerequisites for a party seeking to
foreclose a mortgage, namely: execution and delivery of the note and mortgage; valid
recording of the mortgage; default; and establishing an amount due. Deutsche Bank Natl.
Trust Co. v. Taylor, 9th Dist. No. 25281, 2011-Ohio-435. See also Chase Home Fin.,
L.L.C. v. Heft, 3d Dist. Nos. 8-10-14 and 8-11-16, 2012-Ohio-876; CitiMortgage v.
Arnold, 9th Dist. No. 25186, 2011-Ohio-1350. There is nothing in the record to
contradict this evidence. As such, the trial court did not err by granting U.S. Bank’s
summary judgment motion.
{¶15} Nonetheless, although the Turners have not disputed that they were in
default on the note and mortgage, they question Option One’s successor, Sand
Canyon’s, ability to assign its interest to U.S. Bank. As such, the Turners essentially
argue that U.S. Bank was not the real party in interest.
{¶16} It is well established that the current holder of the note and mortgage is the
real party in interest in a foreclosure action. Chase Manhattan Mtge. Corp. v. Smith, 1st
Dist. No. C061069, 2007-Ohio-5874. Where a party fails to establish itself as the current
holder of the note and mortgage, summary judgment is inappropriate. Wells Fargo Bank,
N.A. v. Stovall, 8th Dist. No. 91802, 2010-Ohio-236, citing First Union Natl. Bank v.
Hufford, 146 Ohio App.3d 673, 2001-Ohio-2271, 767 N.E.2d 1206 (3d Dist.).
{¶17} In the present case, we find that U.S. Bank provided evidence to
demonstrate that it was the current holder and owner of the note and mortgage at the time
the complaint was filed. U.S. Bank attached a copy of a duly executed assignment
demonstrating that all interest in the mortgage of the subject property had been assigned
to it effective March 9, 2011. The assignment was duly recorded in the Cuyahoga
County Recorder’s Office on March 22, 2011.
{¶18} Here, the record indicates that U.S. Bank filed the foreclosure complaint
on March 21, 2011, after all interest in the note and mortgage had been duly assigned to
the company. Although U.S. Bank did not record the assignment until the day after
the complaint was filed, this is not fatal. U.S. Bank was still the real party in interest
because all interest in the note and mortgage had been assigned to it prior to the filing of
the complaint. Deutsche Bank Natl. Trust Co. v. Ingle, 8th Dist. No. 92487,
2009-Ohio-3886. Consequently, as the real party in interest, U.S. Bank could properly
bring the instant foreclosure action. Id.{¶19} We conclude, on the evidence before us, that there are no genuine issues of
material fact. As such, the trial court did not err because U.S. Bank was entitled to
summary judgment as a matter of law. Consequently, the Turners’ sole assignment of
error is overruled.
{¶20} Judgment affirmed.
It is ordered that appellee recover from appellants its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
LARRY A. JONES, SR., JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR