CitiMortgage, Inc. v. Kermeen , 2012 Ohio 1655 ( 2012 )


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  • [Cite as CitiMortgage, Inc. v. Kermeen, 2012-Ohio-1655.]
    IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO
    CITIMORTGAGE, INC.                                         :
    Plaintiff-Appellant                                :            C.A. CASE NO.     2011 CA 2
    v.                                                         :            T.C. NO.    10CV569
    CHRISTOPHER G. KERMEEN, et al.                             :            (Civil appeal from
    Common Pleas Court)
    Defendants-Appellees                   :
    :
    ..........
    OPINION
    Rendered on the        13th           day of       April       , 2012.
    ..........
    MICHAEL J. SIKORA III, Atty. Reg. No. 0069512 and RICHARD T. CRAVEN, Atty. Reg.
    No. 0082273, 685 S. Front Street, Columbus, Ohio 43206
    Attorneys for Plaintiff-Appellant
    SCOTT D. RUDNICK, Atty. Reg. No. 0000853 and NATHAN D. HOSEK, Atty. Reg. No.
    0083994, 121 West Third Street, Greenville, Ohio 45331
    Attorneys for Defendants-Appellees
    ..........
    DONOVAN, J.
    {¶ 1} This matter is before the Court on the Notice of Appeal of
    CitiMortgage, Inc., filed March 2, 2011.            CitiMortgage appeals from the trial court’s
    decision denying its motion for default judgment, motion for an order deeming the
    2
    averments in the complaint admitted, and/or motion for summary judgment, and awarding
    half of the gross sale proceeds of the property at issue, located at 2412 Cox Rd., Greenville,
    to Kimberly Kermeen.
    {¶ 2} On July 29, 2010, CitiMortgage filed a “Complaint in Foreclosure and
    Reformation of Mortgage” against Christopher G. Kermeen and Kimberly L. Kermeen.
    CitiMortgage alleged that it is the holder of note and a loan modification agreement which
    are secured by a mortgage, and that by reason of default under the terms of the note,
    Christopher owes $79,686.13, together with interest at the rate of 6.25% per year, from April
    1, 2009, plus court costs, advances and other charges. CitiMortgage alleged that it was
    assigned the mortgage. The Complaint provides that the “parties intended that the mortgage
    from Christopher G. Kermeen and Kimberly L. Kermeen would secure a valid first lien upon
    the fee simple interest of the premises and plaintiff’s predecessor in interest would not have
    granted or permitted a disbursement or fund[s]” to the parties “if it had known that it would
    acquire a mortgage against only one-half of the real estate.”         The complaint further
    provides, “due to an inadvertent mistake on the part of the preparer of the mortgage, the
    titleholder’s name Kimberly L. Kermeen was left out of the granting clause.” Citimortgage
    asserts that the “mistake was the result of scrivener’s error and mutual mistake of fact
    between the parties to said document,” and that it “is entitled to have [the mortgage]
    reformed to properly state Christopher G. Kermeen and Kimberly L. Kermeen[,] husband
    and wife[,] in the Granting Clause.” Citimortgage asserted that it is entitled to a court order
    for the sale of the property at sheriff’s sale.
    {¶ 3} Attached to the Complaint as Exhibit A is the Note, dated September 12,
    3
    2002, signed by Christopher Kermeen, pursuant to which he promised to pay $70,000.00
    plus interest to First Residential Mortgage - Louisville. Attached to the Note is an “Allonge
    to Note,” which provides
    Allonge to Note Dated September 12, 2002
    In Favor of First Residential Mortgage - Louisville
    And Executed by Christopher G. Kermeen
    Pay to the Order of ABN AMRO Mortgage Group, Inc.
    Without Recourse First Residential Mortgage - Louisville
    The signature at the end of the allonge is illegible, but the person is identified as a “corporate
    agent.”
    {¶ 4} Attached to the Complaint as Exhibit B is the Loan Modification Agreement
    (“Agreement”), between Christopher and CitiMortgage, which provides that the “New
    Unpaid Principal Balance” on the Note is $85,134.36.         The Agreement states, “This Loan
    Modification Agreement (‘Agreement’), made 10/19/07, between CHRISTOPHER G
    KERMEEN and . Single (Borrower) (sic) * * * and CitiMortgage, Inc. (Lender) * * *
    amends and supplements (1) the Mortgage, Deed of Trust, or Deed to Secure Debt (the
    ‘Security Instrument’) dated 09/12/02 * * * and (2) the Note bearing the same date as, and
    secured by the Security Instrument * * * .”
    {¶ 5} Paragraph 5 of the Agreement provides
    Nothing in this Agreement shall be understood or construed to be a
    satisfaction or release in whole or in part of the Note and Security Instrument.
    Except as otherwise specifically provided in this Agreement, the Note and
    4
    Security Instrument will remain unchanged, and the Borrower and Lender
    will be bound by and comply with, all of the terms and provisions thereof, as
    amended by this Agreement.
    {¶ 6} Paragraph 6 of the Agreement provides
    It is mutually agreed that said security instrument shall continue a first
    lien upon the premise and that neither the obligation evidencing the aforesaid
    indebtedness nor the security instrument the same (sic) shall in any way be
    prejudiced by this agreement, but said obligation and security instrument and
    all the covenants and agreements thereof and the rights of the parties
    thereunder shall remain in full force and effect except as herein expressly
    modified.
    {¶ 7} The Agreement is signed by Christopher, above a preprinted line that reads,
    “Borrower - Christopher G. Kermeen,” and “9-28-07" appears next to his signature. There
    are three blank signature lines with “Borrower” preprinted beneath them under Christopher’s
    signature.   The Agreement is initialed by Stacey Andrew, Assistant Vice President of
    CitiMortgage, above a preprinted line that reads, “Lender - Stacey Andrew Assistant Vice
    President,” and “10/29/07" appears next to her signature. Christopher is named in the notary
    public’s acknowledgment clause.
    {¶ 8} Attached to the Complaint as Exhibit C is a copy of the Mortgage. In the
    first section, entitled “DEFINITIONS,” “Borrower” is defined as “Christopher G. Kermeen,
    a married man,” and the Mortgage further provides, “Borrower is the mortgagor under this
    Security Instrument.” First Residential Mortgage - Louisville is identified as the “Lender.”
    5
    “Note” is defined as “the promissory note signed by Borrower and dated September 12,
    2002.” The granting clause appears immediately after the definitions, in a section entitled
    “TRANSFER OF RIGHTS IN THE PROPERTY,” and it provides
    This Security Instrument secures to Lender: (i) the repayment of the
    Loan, and all renewals, extensions, and modifications of the Note; and (ii) the
    performance of the Borrower’s covenants and agreements under this Security
    Instrument and the Note. For this purpose, Borrower does hereby mortgage,
    grant and convey to Lender the following described property * * *
    TOGETHER WITH all the improvements now or hereafter erected on
    the property, and all easements, appurtenances, and fixtures now or hereafter
    a part of the property. All replacements and additions shall also be covered
    by this Security Instrument.    All of the foregoing is referred to in this
    Security Instrument as the “Property.”
    BORROWER COVENANTS that Borrower is lawfully seized of the
    estate hereby conveyed and has the right to mortgage, grant and convey the
    Property and that the Property is unencumbered, except for encumbrances of
    record. Borrower warrants and will defend generally the title to the Property
    against all claims and demands, subject to any encumbrances of record.
    {¶ 9} Paragraph 13 of the Mortgage provides
    Joint and Several Liability; Co-signers; Successors and Assigns
    Bound.     Borrower covenants and agrees that Borrower’s obligations and
    liability shall be joint and several. However, any Borrower who co-signs this
    6
    Security Instrument but does not execute the Note (a “co-signer”): (a) is
    co-signing this Security Instrument only to mortgage, grant and convey the
    co-signer’s interest in the Property under the terms of this Security
    Instrument; (b) is not personally obligated to pay the sums secured by this
    Security Instrument; and (c) agrees that Lender and any other Borrower can
    agree to extend, modify, forbear or make any accommodations with regard to
    the terms of this Security Instrument of the Note without the co-signer’s
    consent.
    {¶ 10} Pages 1 -7 bear the initials of Christopher and Kimberly. On the final
    page, page 8, the mortgage provides, “BY SIGNING BELOW, Borrower accepts and agrees
    to the terms and covenants contained in this Security Instrument and in any Rider executed
    by Borrower and recorded with it.” Christopher’s signature appears on a typed signature
    line above a typed version of his name. Kimberly’s signature appears on a handwritten
    second signature line above a hand-printed version of her name.        The Mortgage was
    notarized by Tracy L. Powell. The acknowledgment provides, “The foregoing instrument
    was acknowledged before me this 9-12-02 (date) by Christopher G Kermeen (name of
    person acknowledged).” The parties’ initials do not appear on this page. Exhibit A to the
    Mortgage is a description of the property, which appears to contain Christopher’s initials.
    The Mortgage was recorded in Darke County on September 25, 2002, in Book 305, Page
    2675.
    {¶ 11} Attached to the Complaint as Exhibit D is an Assignment of Mortgage,
    which provides in part that First Residential Mortgage - Louisville grants, sells, assigns
    7
    transfers and conveys to ABN AMRO Mortgage Group, Inc., “a certain Mortgage dated
    September 12, 2002, made and executed by Christopher G. Kermeen, a married man * * * .”
    The assignment was recorded in Darke County on September 25, 2002, in Book 305, Page
    2684.
    {¶ 12} The record establishes that the Kermeens were properly served with a copy
    of the Complaint by certified mail on July 31, 2010 and August 4, 2010.
    {¶ 13}     A Preliminary Judicial Report, dated April 15, 2010, indicates that the
    record title to the property at issue is vested in Christopher G. Kermeen and Kimberly L.
    Kermeen. Schedule B to the Preliminary Judicial Report lists “exceptions” to the report,
    noting that Kimberly is not mentioned in the granting clause or acknowledged in the notary
    clause in the mortgage from Christopher, “a married man,” to First Residential Mortgage -
    Louisville, although “she does sign the Mortgage, and she is a titleholder.”
    {¶ 14} On September 3, 2010, CitiMortgage filed a motion for default judgment,
    asserting that Christopher and Kimberly are in default of motion or answer. On September
    10, 2010, the court set the matter for trial, noting in its Scheduling Entry that it prefers “to
    adjudicate cases on their merits, not being satisfied with the supporting affidavit filed herein,
    seeking to determine compliance with applicable laws regarding validity of the note and
    mortgage * * *.”
    {¶ 15} On December 30, 2010, CitiMortgage filed its joint motion for default
    judgment/ motion for an order deeming the averments of the Complaint for foreclosure and
    reformation of the mortgage admitted/ motion for summary judgment.                 CitiMortgage
    asserted that it is entitled to default judgment against the Kermeens based upon their failure
    8
    to respond to the Complaint. CitMortgage further asserted that it is entitled to summary
    judgment on the Note and Agreement, foreclosure of the Mortgage and reformation of the
    Mortgage, based upon multiple affidavits. Finally, CitiMortgage asserted that the Kermeens
    admit that it is entitled to judgment in its favor.
    {¶ 16} Attached to CitiMortgage’s motion is the affidavit of Jim Madonia, which
    provides that he is “employed by Surepoint Lending abn (sic) First Residential Mortgage
    Network, Inc. (‘First Residential’).” Madonia avers that he has been employed by First
    Residential as a Manager, and that he is authorized to testify on its behalf. Madonia avers
    that on September 12, 2002, Christopher and Kimberly held title to the property at issue.
    Madonia avers that he served as the Manager for First Residential in connection with the
    loan at issue, and that First Residential “intended to encumber the entire fee simple interest
    of Christopher Kermeen and Kimberly Kermeen in the property and intended to hold the
    first and best lien on the Property.”         Madonia asserts that First Residential required
    Christopher and Kimberly to execute a mortgage in favor of it, as lender, and he
    authenticated a copy of the Mortgage attached to his affidavit. According to Madonia,
    based upon his interaction with Christopher and Kimberly “and the documents contained
    within the loan file,” he understood that Christopher and Kimberly “knew that the Mortgage
    intended to encumber their entire fee simple interest in the property.” Finally, Madonia
    avers that Kimberly’s name was omitted from the granting clause and acknowledgment
    clause due to scrivener’s error, and the fact that she signed the Mortgage without limitation
    and initialed pages 1 - 7 “evidences that her name was inadvertently omitted.”
    {¶ 17} Also attached to CitiMortgage’s motion is the affidavit of Cindy Schneider,
    9
    who averred that she is employed by CitiMortgage, successor by merger to ABN AMRO
    Mortgage Group, Inc. Schneider averred that she worked as a Business Operations Analyst.
    According to Schneider, CitiMortgage has custody of and maintains records related to the
    loan documents concerning the property at issue, including the Note, Loan Modification
    Agreement and Mortgage, which were made and kept in the ordinary course of business.
    Schneider asserts that at the September 12, 2002, closing on the loan, Christopher executed a
    Note in favor of First Residential, and CitiMortgage is the current holder of the Note, and
    that First Residential required the Kermeens to execute a Mortgage in its favor to secure the
    Note. Schneider authenticated a copy of the Mortgage, attached to her affidavit. Schneider
    averred that First Residential intended to encumber the entire fee simple interest of the
    property at issue. Further, according to Schneider, on September 23, 2002, First Residential
    assigned the Mortgage to ABN AMRO Mortgage, Inc., and the assignment was recorded in
    Book 305, Page 2684 on September 25, 2002. Schneider authenticated a copy of the
    assignment, attached to her affidavit.
    {¶ 18}   Schneider asserted that ABN AMRO Mortgage, Inc. and CitiMortgage
    merged on August 21, 2007, and she authenticated a Certificate of Merger attached to her
    affidavit.   She further averred that Christopher and CitiMortgage entered into a Loan
    Modification Agreement, and she authenticated a copy thereof attached to her affidavit.
    Schneider averred that on August 10, 2009, Christopher and Kimberly provided
    CitiMortgage with financial information in a Financial Statement relative to the Mortgage
    and loan, a copy of which is attached to the affidavit and authenticated by Schneider. Finally,
    Schneider averred that the Note and Mortgage are in default, and $79,686.13 plus interest is
    10
    due.
    {¶ 19} The affidavit of Tracy L. Blankenship is also attached to CitiMortgage’s
    motion. Blankenship averred that she has been a notary public in Ohio from 2001 - 2006,
    that she is familiar with “the requirements of notarizing and acknowledging a mortgage,”
    having served on numerous transactions in which mortgages were given to lenders.
    Blankenship served as the notary “in the transaction involving the Mortgage executed by
    Christopher G. Kermeen and Kimberly L. Kermeen” in favor of First Residential Mortgage -
    Louisville. She averred that she notarized the Mortgage and “administered the oath” to the
    Kermeens, and that her signature appears in the notary clause. According to Blankenship,
    Kimberly’s “name was inadvertently omitted from the acknowledgment clause of the
    Mortgage as a result of a scrivener’s error and mutual mistake,” and the Mortgage indicates
    that Christopher is “the only individual designated as mortgagor.” Blankenship averred, it
    “is my belief that the parties intended that the Mortgage would encumber both”
    Christopher’s and Kimberly’s “entire, undivided fee simple interest in the Property.”
    Finally, according to Blankenship, Kimberly “was aware that she held an undivided one-half
    (½) interest in the Property and it was the intent of Kimberly L. Kermeen to sign the
    Mortgage to encumber her entire undivided fee simple interest in the Property.”
    {¶ 20} On January 3, 2011, and again on January 10, 2011, Final Judicial Reports
    as well as Affidavits of Status of Account and Military Affidavits were filed.
    {¶ 21} On January 25, 2011, CitiMortgage filed a supplemental affidavit of Cindy
    Schneider, attached to which are multiple exhibits, including a copy of the payment history
    of the loan. Also attached is a Loan Modification Agreement, effective March 1, 2004,
    11
    “between Christopher G. Kermeen (‘Borrower’) and ABN AMRO Mortgage Group
    (‘Lender’).”    The Loan Modification Agreement is signed and acknowledged by
    Christopher, and signed by Vickie Lester, Vice President of ABN AMRO Mortgage Group.
    A Modification Due on Transfer Rider is attached to the Loan Modification Agreement, and
    it is signed by Christopher, who is identified as “(‘the Borrower’).”          A “1-4 Family
    Modification Agreement Rider Assignment of Rents” is also attached and signed by
    Christopher, who is again identified as “(‘the Borrower’).”
    {¶ 22} Christopher and Kimberly did not respond to the motions.
    {¶ 23} On January 31, 2011, the trial court issued a Decision and Judgment Entry,
    which provides that the matter came before the court for trial, and that both Kermeens failed
    to appear. The Entry states, “[a]s has been the Court’s practice, the Court decided to hear
    testimony to determine the quality of the lending practices of various Plaintiffs in foreclosure
    cases, including this Plaintiff, in order to ensure that proper record keeping and proof is a
    part of the practice of this Plaintiff - and other lenders on this Court’s docket.” The court
    noted that it granted CitiMortgage a continuance of the initial trial date for discovery
    purposes, and it reviewed the “various reasons” it denied CitiMortgage’s motion for default
    judgment, namely its preference to adjudicate cases on their merits and “lack of satisfaction
    with the affidavit in support of the motion.” According to the trial court, CitiMortgage “is
    not entitled to a default judgment merely because the Defendants fail to appear or to
    answer,” and it noted that “the presentation of evidence can be requested by the Court, based
    on Civ.R. 55.” The court further noted “the mistaken impression that foreclosure Plaintiffs
    - or other creditors asserting collection rights - are entitled to invoke the authority and
    12
    imprimatur of the civil justice system without first establishing the validity of their claims is
    an unfortunate misunderstanding. Maybe courts have historically been willing to defer to
    claimants and to not assert the court’s responsibility to require claimants to meet their
    burden of proof. Maybe an ill gotten attitude of entitlement exists among the creditors and
    their counsel. Burgeoning caseloads and time constraints on courts make this regrettably
    understandable. However, when called upon to produce evidence at trial, Plaintiffs and
    their counsel who misunderstand the burden of proof do so at their own peril.”
    {¶ 24}     The court then noted that it considered the pleadings, affidavits and
    attachments, and that those documents “become the evidence of the terms, conditions and
    fulfillment of * * * the loan.” The court next noted that Christopher alone signed the
    promissory note in the amount of $70,000.00, to borrow that sum from First Residential
    Mortgage - Louisville, and Christopher’s “failure to pay according to the terms of the note
    results in a finding * * * that Plaintiff is entitled to a judgment” against Christopher in the
    amount of $79,686.13 plus interest at the rate of 6.25% from April 1, 2009, plus past and
    future advances under the note. Since Kimberly did not sign the Note, the court did not
    grant a monetary judgment against her.
    {¶ 25} Regarding the Mortgage, the court noted that it was apparently “modified at
    the closing with the addition of a signature line and handwritten notation that Kimberly * * *
    was also signing the mortgage.” The court further noted that the notary acknowledgment
    was not modified to reflect the additional signature.
    {¶ 26} Regarding the Preliminary Judicial Report, the court noted that it indicates
    that the Kermeens “took title to the real estate in April, 1991 with each owning an undivided
    13
    one-half interest. This information was available to the loan originator and original lender
    at the time of closing.”
    {¶ 27} To determine CitiMortgage’s request to reform the mortgage, the court
    applied general contract principles and determined that the plain language of the Note and
    Mortgage “consistently indicate an intention for Christopher G. Kermeen alone to be
    obligated for the indebtedness. When the note was modified in September, 2008 (sic),
    again Kimberly L. Kermeen was not involved in the transaction. The loan modification
    agreement was prepared by the lender even though it was aware of the joint ownership of the
    realty.”     Since there was “no internal inconsistency within the transaction,” the court
    concluded that the contract documents are not ambiguous.
    {¶ 28}   In the absence of ambiguity, the court declined to admit the affidavits
    CitiMortgage submitted in support of summary judgment, as well as the unanswered
    requests for admission that CitiMortgage sought to have the court deem admitted.
    According to the court, the documents “clearly speak for themselves; affidavits and requests
    for admissions violate the parole evidence rule.” “Anecdotally,” the court further found
    CitiMortgage’s affidavits “to be unpersuasive and self-serving; the affidavits purport to state
    intentions at the time of the loan over eight (8) years later. Finally, if inadvertence was
    involved, it was consistent inadvertence over numerous documents and over six years, which
    time included an agreed loan modification.”         In a footnote, the court indicated that
    “consistent inadvertence” may “actually be an oxymoron.”
    {¶ 29}   Further, the court indicated that an “equally plausible explanation for
    individual indebtedness,” in addition to the documents themselves, is that Kimberly “was
    14
    not willing to incur further debt nor pledge her half of the collateral as security for her
    husband’s loan.” The court found no error on Kimberly’s part “nor any misrepresentation
    about the joint status of the parties’ ownership of the realty.” It further noted that no
    explanation had been provided for the eight year delay, from 2002 - 2010, “in seeking to
    correct the error.”
    {¶ 30} Finally, the court determined that since Kimberly was not a grantor of the
    mortgage, “her signature indicates a pledge of her dower interest in the real estate. In this
    case, when she signed the mortgage to release her dower interest, she agreed to release any
    interest she held in her husband’s interest in the realty. The effect is that First Residential
    Mortgage - Louisville only took a one-half interest in the realty as collateral for the loan.”
    According to the court, “to rule otherwise would elevate business practices and unspoken
    intentions over the integrity and certainty of the written documents.” The court determined
    that the request for reformation of the Mortgage “is not justified under the facts as
    presented.”
    {¶ 31} The court granted judgment in favor of CitiMortgage against Christopher in
    the amount of $79,686.13, plus interest at the rate of 6.25% from April 1, 2009, plus past
    and future advances under the Note, and it determined that CitiMortgage was entitled to a
    decree in foreclosure and order of sale. Finally, it determined that one-half of the gross
    proceeds from the sale accrued to Kimberly for distribution following confirmation of the
    sale.
    {¶ 32}        CitiMortgage asserts five assignments of error.    CitiMortgage’s first
    assigned error is as follows:
    15
    “THE TRIAL COURT ERRED IN FAILING TO GRANT CITIMORTGAGE
    DEFAULT JUDGMENT WHEN APPELLEES WERE PROPERLY SERVED WITH THE
    COMPLAINT AND FAILED TO RESPOND TO THE ALLEGATIONS IN THE
    COMPLAINT.”
    {¶ 33} Our standard of review for this assignment of error is abuse of discretion.
    Comunale v. Harrison, 2d Dist. No. 20804, 2005-Ohio-4730, ¶ 6. As the Supreme Court of
    Ohio as previously determined
    “Abuse of discretion” has been defined as an attitude that is
    unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is
    to be expected that most instances of abuse of discretion will result in
    decisions that are simply unreasonable, rather than decisions that are
    unconscionable or arbitrary.
    A decision is unreasonable if there is no sound reasoning process that
    would support that decision. It is not enough that the reviewing court, were
    it deciding the issue de novo, would not have found that reasoning process to
    be persuasive, perhaps in view of countervailing reasoning processes that
    would support a contrary result.      AAAA Enterprises, Inc. v. River Place
    Community Redevelopment, 
    50 Ohio St. 3d 157
    , 161, 
    553 N.E.2d 597
    (1990).
    {¶ 34}     Default judgments are employed where findings by the court regarding
    matters at issue may be determined by the pleadings alone. “Civ. R. 55(A) provides that
    default judgment may be awarded when a defendant fails to make an appearance by filing an
    answer or otherwise defending an action. (Citation omitted). However, it is ‘a basic tenet
    16
    of Ohio jurisprudence that cases should be decided on their merits.’ (Citation omitted).”
    Lykins v. Miami Valley Hospital, 
    157 Ohio App. 3d 291
    , 2004-Ohio-2732, 
    811 N.E.2d 124
    , ¶
    92 (2d Dist.). Civ.R. 55(A) provides
    If, in order to enable the court to enter judgment or to carry it into
    effect, it is necessary to take an account or to determine the amount of
    damages or to establish the truth of any averment by evidence or to make an
    investigation of any other matter, the court may conduct such hearings or
    order such references as it deems necessary and proper and shall when
    applicable accord a right of trial by jury to the parties.
    {¶ 35} “Clearly, Civ.R. 55(A) makes it discretionary with the trial court to decide if
    a hearing is necessary.     It has always been within the discretion of the trial court to
    determine whether further evidence is required to support a claim against a defaulting
    defendant. See Dallas v. Ferneau (1874), 
    25 Ohio St. 635
    (further citation omitted).”
    Buckeye Supply Co. v. Northeast Drilling Co., 
    24 Ohio App. 3d 134
    , 136, 
    493 N.E.2d 964
    (9th Dist. 1985). “If the court hears evidence, ‘it follows that the court should make its
    decision conform to the law as applicable to the facts proven, and if no cause of action is
    shown no default judgment in plaintiff’s favor should be rendered.’ Streeton v. Roehm
    (1948), 
    83 Ohio App. 148
    , 
    81 N.E.2d 133
    .” Regency Centre Dev. Co., Ltd. v. Constr.
    Dimensions, Inc., 8th Dist. No. 81171, 2003-Ohio-5067, ¶ 15.
    {¶ 36} In accord with Ohio jurisprudence, the trial court made clear its preference
    to decide matters on their merits, and it set this matter for trial to establish, by evidence, the
    truth of the averments in CitiMortgage’s Complaint. Since it was within the trial court’s
    17
    discretion to set the matter for trial, we cannot conclude, as CitiMortgage asserts, that it was
    entitled to a default judgment against the Kermeens solely on the basis that the defendants
    failed to appear and defend. Since an abuse of discretion is not shown, CitiMortgage’s first
    assigned error is overruled.
    {¶ 37} We will next address CitiMortgage’s second and fourth assigned errors,
    which are as follows:
    “THE TRIAL COURT ERRED IN FAILING TO DEEM THE AVERMENTS IN
    THE    COMPLAINT         ADMITTED         BECAUSE       APPELLEES          ADMITTED      THAT
    CITIMORTGAGE IS ENTITLED TO JUDGMENT.”
    And,
    “THE TRIAL COURT ERRED IN FINDING THAT CITIMORTGAGE WAS NOT
    ENTITLED TO REFORMATION.
    “1.       THE      TRIAL     COURT        ERRED        IN    FINDING      THAT
    CITIMORTGAGE’S          REQUEST       FOR     REFORMATION          WAS      NOT JUSTIFIED
    BECAUSE THE MORTGAGE WAS UNAMBIGUOUS.
    “2.   CITIMORTGAGE DEMONSTRATED THROUGH UNDISPUTED
    PROPER RULE 56(c) EVIDENCE THAT IT IS ENTITLED TO REFORMATION OF THE
    MORTGAGE.”
    {¶ 38} CitiMortgage asserts that Kimberly’s name was inadvertently omitted from
    the granting clause and the acknowledgment clause of the Mortgage due to scrivener’s error
    and mutual mistake, and that it is entitled to reform the Mortgage.
    {¶ 39} We initially note that this Court reviews mortgages under general principles
    18
    of contract law, and we presume that the parties’ intent “‘resides in the language they have
    chosen to employ in the agreement.’” SFJV 2005, L.L.C. v. Ream, 
    187 Ohio App. 3d 715
    ,
    2010-Ohio-1615, 
    933 N.E.2d 819
    , ¶ 22 (2d Dist.), citing in part Fountain Skin Care v.
    Hernandez, 
    175 Ohio App. 3d 93
    , 2008-Ohio-489, 
    885 N.E.2d 286
    , ¶ 22 (2d Dist.).          “‘If a
    contract is clear and unambiguous, then its interpretation is a matter of law and there is no
    issue of fact to be determined.’ Inland Refuse Transfer Co. v. Browning-Ferris Indus. of
    Ohio, Inc. (1984), 
    15 Ohio St. 3d 321
    , 322, 15 OBR 448, 
    474 N.E.2d 271
    .” 
    Id. In such
    a
    case, “a court may not go beyond the plain language of the agreement to determine the
    parties’ rights and obligations, and it may not consider parole evidence of the parties’
    intentions. (Citations omitted).” 
    Id. The court,
    instead, “must give effect to the express
    terms of the contract.” 
    Id. {¶ 40}
    However, “‘if a term cannot be determined from the four corners of a
    contract, factual determination of intent or reasonableness may be necessary to supply the
    missing term.’ (Citation omitted).” 
    Id., at ¶
    23. In the event an ambiguity exists in a
    contract,
    “then it is proper for a court to consider ‘extrinsic evidence,’ i.e.,
    evidence outside the four corners of the contract, in determining the parties’
    intent. Blosser v. Carter (1990), 
    67 Ohio App. 3d 215
    , 219, 
    586 N.E.2d 253
    .
    Such extrinsic evidence may include (1) the circumstances surrounding the
    parties at the time the contract was made, (2) the objectives the parties
    intended to accomplish by entering into the contract, and (3) any acts by the
    parties that demonstrate the construction they gave to their agreement. Id.”
    19
    (Citations omitted). 
    Id. {¶ 41}
    We review a trial court’s interpretation of a contract de novo.    Ignazio v.
    Clear Channel Broadcasting, Inc. 
    113 Ohio St. 3d 276
    , 2007-Ohio-1947, 
    865 N.E.2d 18
    , ¶
    19.   Ream, ¶ 24.
    {¶ 42} Regarding the omission of Kimberly’s name in the granting clause, we note
    that in Ream this court affirmed a judgment which determined that the mortgage therein was
    unambiguous and fully secured both the wife’s and husband’s interest in the property at
    issue, where both of them signed the mortgage, but only the wife executed the note, and only
    the wife was named in the granting clause and identified as the borrower and mortgagor.
    {¶ 43} Paragraph 12 of the mortgage in Ream contained similar language to that of
    paragraph 13 of the Mortgage herein as follows:
    The covenants and agreements of this Security Instrument shall bind
    and benefit the successors and assigns of Lender and Borrower, subject to the
    provisions of paragraph 9(b). Borrower’s covenants and agreements shall be
    joint and several. Any Borrower who co-signs this Security Instrument but
    does not execute the Note: (a) is co-signing this Security Instrument only to
    mortgage, grant and convey that Borrower’s interest in the Property under the
    terms of this Security Instrument; (b) is not personally obligated to pay the
    sums secured by this Security Instrument; and (c) agrees that Lender and any
    other Borrower may agree to extend, modify, forbear or make any
    accommodations with regard to the terms of this Security Instrument or the
    Note without that Borrower’s consent. Ream, ¶ 27.
    20
    {¶ 44}      This Court found nothing ambiguous about the Ream mortgage,
    determining,
    * * * The first page states that Donna Ream, the borrower, owes the
    lender a debt of approximately $64,000, which was evidenced by a note due
    and payable on May 1, 2034. These statements are followed by terms that
    provide that the “borrower” mortgages the property * * * as security for
    repayment of that debt. Paul initialed each page of the mortgage and signed
    the signature page on a line labeled “borrower.”
    Although Paul Ream is not listed as a borrower/mortgagor on the first
    page of the mortgage, paragraph 12 of the mortgage makes clear that a
    “borrower” who signs the mortgage instrument but does not execute the note
    mortgages his interest in the property without assuming liability for
    repayment of the debt; Paul signed as a “borrower.” There is no mention in
    the mortgage about the release of dower rights, nor is there any provision that
    suggests that Paul Ream signed the mortgage for a purpose other than to
    mortgage his interest in this property. 
    Id., ¶ 30-31.
    {¶ 45} Pursuant to Ream, we conclude that despite the omission of Kimberly’s
    name from the granting clause in the Mortgage, pursuant to the co-signer provision,
    Kimberly signed the Mortgage for the purpose of mortgaging her interest in the property.
    Furthermore, her intent to do so is deemed admitted pursuant to Civ.R. 8(D), which
    provides, “[a]verments in a pleading to which a responsive pleading is required, * * * are
    admitted when not denied in the responsive pleading.”
    21
    {¶ 46}     Regarding the acknowledgment clause in the Mortgage, R.C. 5301.01
    provides
    A deed, mortgage, land contract * * * or lease of any interest in real
    property * * * shall be signed by the grantor, mortgagor, vendor, or lessor in
    the case of a deed, mortgage, land contract, or lease * * * . The signing shall
    be acknowledged by the grantor, mortgagor, vendor, or lessor * * * before a *
    * * notary public * * *, who shall certify the acknowledgment and subscribe
    the official’s name to the certificate or the acknowledgment.
    {¶ 47} R.C. 147.53 provides
    The person taking an acknowledgment shall certify that:
    (A) the person acknowledging appeared before him and he executed
    the instrument;
    (B) The person acknowledging was known to the person taking the
    acknowledgment, or that the person taking the acknowledgment had
    satisfactory evidence that the person acknowledging was the person described
    in and who executed the instrument.
    {¶ 48} While Kimberly’s name is absent from the acknowledgment clause, and the
    Mortgage was accordingly improperly acknowledged, “the Ohio Supreme Court has long
    held that ‘[a] defectively executed conveyance of an interest in land is valid as between the
    parties thereto, in the absence of fraud.’ Citizen’s National Bank v. Denison (1956), 1165
    Ohio St.89, 95, 
    133 N.E.2d 329
    .” Texas Commerce Bank National Association v. Joseph,
    8th Dist. Cuyahoga No. 81097, 2003-Ohio-995, ¶ 20; see also Seabrooke v. Garcia, 
    7 Ohio 22
    App.3d 167, 169, 
    454 N.E.2d 961
    (9th Dist. 1982), citing Denison and noting the “reasoning
    behind such a rule is to bind the parties to that which they intended. The purpose of the
    acknowledgment statute (R.C. 5301.01) is to provide evidence of execution and authority for
    recordation. It is not to provide a way of escape for a party who later wishes to renege on
    his agreement.”)
    {¶ 49} Since both Christopher’s and Kimberly’s intent to convey the entire fee
    simple interest in the property is clear by the express terms of the Mortgage, as well as
    admitted facts, we conclude that the Mortgage fully secured Kimberly’s interest in the
    property.
    {¶ 50} CitiMortgage’s remaining assignments of error are as follows:
    “THE TRIAL COURT ERRED IN RAISING UNPLEAD DEFENSES FOR
    APPELLEES WHEN APPELLEES FAILED TO DO SO.”
    And,
    “THE TRIAL COURT ERRED IN ORDERING THAT APPELLEE KIMBERLY
    KERMEEN IS ENTITLED TO ONE HALF OF THE GROSS SALES PROCEEDS.”
    {¶ 51}     Given our conclusion that the trial court acted within its discretion,
    consistent with Ohio jurisprudence, to set the matter for trial and review the documents at
    issue, and having conducted de novo review of the trial court’s interpretation of the
    Mortgage at issue, and further having concluded that the Mortgage encompasses the entire
    fee simple interest of the property, these assignments of error are necessarily sustained as
    well.
    {¶ 52} Reversed and remanded for the trial court to enter judgment in foreclosure
    23
    against Kimberly as well to the extent of her full interest.
    ..........
    FAIN, J. and HALL, J., concur.
    Copies mailed to:
    Michael J. Sikora III
    Richard T. Craven
    Scott D. Rudnick
    Nathan D. Hosek
    Hon. Jonathan P. Hein