JP Morgan Chase Bank, Natl. Assn. v. Heckler , 2013 Ohio 2388 ( 2013 )

[Cite as JP Morgan Chase Bank, Natl. Assn. v. Heckler, 2013-Ohio-2388.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
JP MORGAN CHASE BANK,
NATIONAL ASSOCIATION,
PLAINTIFF-APPELLEE,
CASE NO. 14-12-26
v.
BELINDA HECKLER,
DEFENDANT-APPELLANT,
-and- OPINION
UNION COUNTY TREASURER, ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Union County Common Pleas Court
Trial Court No. 2012-CV-0253
Judgment Affirmed
Date of Decision: June 10, 2013
APPEARANCES:
John Sherrod for Appellant
Thomas Wyatt Palmer and Laura A. Hauser for Appellee,
JP Morgan Chase Bank, N.A.
Case No. 14-12-26
SHAW, J.
{¶1} Defendant-appellant, Belinda Heckler (“Belinda”), appeals the
October 18, 2012 judgment of the Union County Court of Common Pleas granting
a motion for summary judgment filed by plaintiff-appellee, JP Morgan Chase
Bank (“the Bank”), and issuing a foreclosure decree.
{¶2} The facts in this case are undisputed by the parties. On December 15,
2005, Bradley Heckler, Belinda’s husband, executed a promissory note with the
Bank in the amount of $134,000, plus interest, for the purchase of a home.
Belinda was not a party to the promissory note; however, she did sign the
mortgage giving a security interest in the property to secure the loan.
{¶3} The record indicates that beginning in February 2009 Bradley failed to
make the monthly payments on the loan.
{¶4} On November 18, 2009, the Bank sent Bradley a letter informing him
that the loan was now in default due to his failure to pay the required monthly
installments and announcing the Bank’s intent to accelerate the loan under the
terms of the Mortgage. The parties agree that this letter complied with all the
acceleration notice requirements stated in the Mortgage.
{¶5} The record indicates that on October 7, 2010, Bradley passed away.
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{¶6} In 2011, the Bank initiated a foreclosure action. For reasons not
apparent in the record, the Bank voluntarily dismissed this first foreclosure
proceeding.
{¶7} In a letter dated June 15, 2012, the Bank again notified Belinda of the
default and accelerated the loan.
{¶8} On June 20, 2012, the Bank filed a complaint in foreclosure listing
Belinda as a defendant. The complaint stated that by reason of the default, the
Bank had accelerated the debt and the sum of $128,825.09, together with an
interest rate of 6.25% per year from February 1, 2009, plus other permissible
costs, was due and owing. The record indicates that at the time this second
foreclosure action was initiated, Belinda still resided in the home.
{¶9} In an affidavit, Belinda averred that she received the June 15, 2012
letter from the Bank’s attorney on June 21, 2012, one day after the filing of the
complaint in this action.
{¶10} Belinda subsequently filed an answer asserting various defenses and
in particular asserting that the Bank “failed to meet certain conditions precedent
under the promissory note and/or mortgage that are the subject of this lawsuit.
Specifically, but not limited to, Plaintiff failed to meet any applicable notice
requirements relating to advising [Belinda] of [the Bank’s] intent to accelerate
and/or foreclose and/or to advising [Belinda] of its [sic] right to reinstate/redeem
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prior to acceleration and/or foreclosure, including those regulations promulgated
by the HUD Secretary.” (Answer at 3-4).
{¶11} On July 20, 2012, Belinda filed a motion for summary judgment
alleging that the Bank’s failure to provide her with a second notice of its intent to
accelerate the loan, which complied with the terms of the Mortgage, precluded it
from initiating the instant foreclosure proceeding. The Bank subsequently filed a
response to Belinda’s motion for summary judgment, claiming that it complied
with the requisite notice requirements on November 18, 2009, when it sent notice
of its intent to accelerate the loan to Belinda’s husband, Bradley.
{¶12} On August 29, 2012, the Bank filed a motion for summary judgment
asserting that there was no genuine issue of material fact that it complied with the
necessary notice requirements under the terms of the Mortgage and that it was
entitled to judgment as a matter of law.
{¶13} On October 18, 2012, the trial court overruled Belinda’s motion for
summary judgment, finding that the Bank complied with the acceleration notice
requirements in the Mortgage.
{¶14} On October 28, 2012, the trial court granted the Bank’s motion for
summary judgment and issued a decree in foreclosure.
{¶15} Belinda now appeals, asserting the following assignment of error.
THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
MOTION FOR SUMMARY JUDGMENT GIVEN THAT
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APPELLEE DID NOT PROVIDE PROPER NOTICE OF ITS
INTENT TO FORECLOSE UPON APPELLANT PRIOR TO
FILING THE FORECLOSURE ACTION.
{¶16} At the outset, we note that the parties do not dispute that the loan is
in default. Rather, in her sole assignment of error, Belinda argues that the Bank’s
letter dated June 15, 2012 did not comply with the acceleration notice
requirements set forth in the Mortgage. Belinda concedes that the November 18,
2009 letter sent from the Bank to her late husband complied with the proper notice
requirements. However, on appeal Belinda contends that the Mortgage required
the Bank to send her a second Notice again informing her of its intent to accelerate
the debt prior to filing the instant foreclosure action.
{¶17} For its part, the Bank maintains that its November 18, 2009 letter
was sufficient to comply with the acceleration notice requirement for the instant
foreclosure action and that it was not required to send a second Notice before
initiating this foreclosure action. The Bank further argues that Belinda has not
provided any evidence that “deceleration” or reinstatement of the loan has
occurred since the November 18, 2009 Notice was given.
{¶18} Initially, we note that an appellate court reviews a grant of summary
judgment de novo, without any deference to the trial court. Conley–Slowinski v.
Superior Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (1998). A grant of
summary judgment will be affirmed only when the requirements of Civ.R. 56(C)
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are met. This requires the moving party to establish: (1) that there are no genuine
issues of material fact, (2) that the moving party is entitled to judgment as a matter
of law, and (3) that reasonable minds can come to but one conclusion and that
conclusion is adverse to the non-moving party, said party being entitled to have
the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton v.
Harwick Chem. Corp., 73 Ohio St.3d 679, 1995–Ohio–286, paragraph three of the
syllabus.
{¶19} The party moving for summary judgment bears the initial burden of
identifying the basis for its motion in order to allow the opposing party a
“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112,
syllabus (1988). The moving party also bears the burden of demonstrating the
absence of a genuine issue of material fact as to an essential element of the case.
Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996–Ohio–107. Once the moving party
demonstrates that he is entitled to summary judgment, the burden shifts to the non-
moving party to produce evidence on any issue which that party bears the burden
of production at trial. See Civ.R. 56(E).
{¶20} “ ‘Mortgages, being voluntary security agreements incident or
collateral to a primary obligation, are susceptible to the same rules of
interpretation and the same framework of analysis which apply to contracts
generally.’ ” Ogan v. Ogan, 122 Ohio App.3d 580, 584 (12th Dist. 1997), quoting
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First Federal S. & L. Assn. of Toledo v. Perry’s Landing, Inc., 11 Ohio App.3d
135, 143 (6th Dist. 1983). “Contract interpretation is a matter of law, and
questions of law are subject to de novo review on appeal.” St. Marys v. Auglaize
Cty. Bd. of Commrs., 115 Ohio St.3d 387, 2007–Ohio–5026, ¶ 38, citing
Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108
(1995). Courts must give common words their ordinary meaning unless manifest
absurdity would result or some other meaning is clearly evidenced from the face
or overall contents of the written instrument. In re All Kelley & Ferraro Asbestos
Cases, 104 Ohio St.3d 605, 2004–Ohio–7104, ¶ 29. “If a contract is clear and
unambiguous, the court need not go beyond the plain language of the agreement to
determine the parties’ rights and obligations; instead, the court must give effect to
the agreement’s express terms.” Uebelacker v. Cincom Sys., Inc., 48 Ohio App.3d
268, 271, (1st Dist.1988).
{¶21} The provision of the Mortgage at issue states the following:
22. Acceleration; Remedies. Lender shall give notice to
Borrower prior to acceleration following Borrower’s breach of
any covenant or agreement in this Security Instrument[.] The
notice shall specify: (a) the default; (b) the action required to
cure the default; (c) a date, not less than 30 days from the date
notice is given to Borrower, by which the default must be cured;
and (d) that failure to cure the default on or before the date
specified in the notice may result in acceleration of the sums
secured by this Security Instrument, foreclosure by judicial
proceeding and sale of the Property. The notice shall further
inform Borrower of the right to reinstate after acceleration and
the right to assert in the foreclosure proceeding the non-
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existence of a default or any other defense of Borrower to
acceleration and foreclosure. If the default is not cured on or
before the date specified in the notice, Lender at its option may
require immediate payment in full of all sums secured by this
Security Instrument without further demand and may foreclose
this Security Instrument by judicial proceeding. Lender shall be
entitled to collect all expenses incurred in pursuing the remedies
provided in this Section 22, including, but not limited to, costs of
title evidence.
(Mortgage at 13).
{¶22} As previously discussed, the primary issue on appeal is whether
paragraph 22 of the Mortgage required the Bank to send Belinda a second Notice
prior to filing the instant foreclosure action. In overruling Belinda’s motion for
summary judgment, the trial court specifically concluded the following:
The Court finds that the requirements set forth in Paragraph 22
of the Mortgage were not intended to require a Lender to
repeatedly perform the provision set forth within at the
initiation of subsequent lawsuits, but were in fact intended to put
the Borrower on notice at the onset of the initial acceleration of
the debt. Had either party presented evidence that the Borrower
had reinstated the loan at any point prior to the commencement
of this lawsuit, the Court would most certainly have reached an
alternate conclusion. The Court further finds that the fact that
[Belinda] has known of [the Bank’s] ongoing intent to accelerate
the debt for nearly three years constituted sufficient Notice and
provided the Borrower more than adequate opportunity to make
contact with her lender to discuss retention options. The Court
finds that the provisions set forth in Paragraph 22 are not
required in re-filed actions, and thus not a condition precedent
unless the loan has been reinstated or modified following the
proper initial Notice.
(JE, Oct. 18, 2012 at 3).
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{¶23} In reviewing the language at issue, we concur with the analysis of the
trial court that paragraph 22 does not require the Bank to issue a new Notice every
time it initiates a judicial proceeding on the Mortgage, but instead requires that the
Bank give the Borrower proper notice prior to the initial acceleration of the debt.
Here, it is undisputed by the parties that the Bank’s November 18, 2009 letter
complied with the acceleration notice requirements in the Mortgage. Thus, for
nearly three years Belinda had notice of the Bank’s ongoing intent to accelerate
the debt. There is no evidence presented by either party that in that time Belinda
made any attempt to contact the Bank to cure the default or to modify the terms of
the loan, despite being given the appropriate information by the Bank and ample
opportunity to do so. Accordingly, because the parties were in the same position
at the initiation of the instant foreclosure action in June of 2012 as they were in
November of 2009 when the initial Notice was issued, we find that in this instance
the Bank met its notice obligations under the Mortgage. Based on the foregoing,
we conclude that the trial court did not err in granting the Bank’s motion for
summary judgment.
{¶24} For all these reasons, the assignment of error is overruled and the
judgment of the Union County Court of Common Pleas is affirmed.
Judgment Affirmed
PRESTON, P.J. and ROGERS, J., concur.
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