Huntington Natl. Bank v. Thompson

[Cite as Huntington Natl. Bank v. Thompson, 2014-Ohio-5168.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
THE HUNTINGTON NATIONAL BANK :
Plaintiff-Appellee : C.A. CASE NO. 26265
v. : T.C. NO. 13CV835
VIVIAN L. THOMPSON, et al. : (Civil appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 21st day of November , 2014.
..........
MIKE L. WIERY, Atty. Reg. No. 0068898 and RACHEL M. KUHN, Atty. Reg. No.
0090220, 30455 Solon Rd., Solon, Ohio 44139
Attorneys for Plaintiff-Appellee
VIVIAN L. THOMPSON, 180 N. Ardmore, Dayton, Ohio 45417
Defendant-Appellant
..........
FROELICH, P.J.
{¶ 1} Vivian L. Thompson appeals from a judgment of the Montgomery
County Court of Common Pleas, which granted summary judgment to The Huntington
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National Bank on its claims for a monetary judgment on a note and a decree of foreclosure
regarding rental property that Thompson owned. For the following reasons, the trial court’s
judgment will be affirmed.
I. Factual and Procedural History
{¶ 2} In November 2003, Thompson borrowed $134,000 from The Huntington
National Bank to purchase the property located at 140 Lexington Avenue in Dayton, Ohio.
She signed an adjustable rate note, which identified Huntington as the lender, and an
accompanying mortgage. In March 2010, Thompson and Huntington entered into a loan
modification agreement.
{¶ 3} On February 8, 2013, Huntington filed a foreclosure action against
Thompson, seeking a monetary judgment on the note, foreclosure of the mortgage, and the
sale of the property. Huntington alleged that Thompson had defaulted on the note, the loan
modification agreement, and the mortgage as of July 1, 2012, and that there remained due
and owning $118,443.73, plus interest. The bank attached to the complaint a copy of the
adjustable rate note, the loan modification agreement, and the mortgage.
{¶ 4} On January 31, 2014, Huntington moved for summary judgment against
Thompson. In support of its motion, Huntington submitted the affidavit of Marvin DeLong,
a litigation specialist with Huntington, who authenticated various documents related to
Thompson’s loan and mortgage. The documents provided evidence of the loan and
mortgage, of Thompson’s default, of Huntington’s compliance with conditions precedent to
bringing its foreclosure action, and of the amount owed. Huntington further relied on the
request for admissions that it sent to Thompson; the bank argued that, because Thompson
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failed to respond to the request for admissions, those matters should be deemed admitted,
pursuant to Civ.R. 36(A)(1).
{¶ 5} In March 2014, Thompson filed several documents to oppose the summary
judgment motion. She claimed that the trial court lacked jurisdiction, that Huntington was
not the real party in interest, and that there was no evidence of default or the sending of a
letter of default. Thompson further claimed that DeLong’s affidavit was hearsay and
implicitly moved for the affidavit to be stricken. She further argued that the trial court
should not deem that she had admitted the statements in Huntington’s request for
admissions. Finally, she stated that Huntington could not bring its action because it had not
registered its fictitious name with the State of Ohio. Thompson reiterated her assertions in
an affidavit.
{¶ 6} On April 10, 2014, the magistrate issued a decision granting Huntington’s
motion for summary judgment and denying Thompson’s request to strike DeLong’s
affidavit. Thompson objected to the magistrate’s ruling. On May 13, 2014, the trial court
overruled her objections and adopted the magistrate’s decision. On May 28, 2014, the trial
court granted Huntington judgment on the note in the amout of $118,443.73, plus interest,
foreclosed the equity of redemption, and ordered the property sold.
{¶ 7} Thompson appeals from the trial court’s judgment, raising seven
assignments of error.
II. Jurisdiction of Common Pleas Court and the Bank’s Ability to Sue
{¶ 8} Thompson’s first assignment of error states:
The Trial Court erred in entering a Summary Judgment that is void ab initio
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because the Montgomery County, Common Pleas Court of Ohio is a foreign
corporation pursuant to 1703.01(C), Appellee is a foreign corporation
pursuant to 1703.01(A)(B) and the process is a foreign corporation pursuant
to 1703.01(E) and none of the foreign corporations above got consent from
the Department of State, United States District Court or the Appellant to give
the court jurisdiction.
{¶ 9} In her first assignment of error, Thompson claims that the trial court lacked
subject matter jurisdiction and that Huntington failed to get permission from the federal
government to bring its foreclosure action in the trial court. Thompson cites R.C. 1703.01,
which defines the terms “domestic corporation,” “foreign corporation,” “state,” “articles,”
and “process” for purposes of Ohio’s foreign corporation statutes, R.C. Chapter 1703. She
also references 28 U.S.C. 1330, which concerns the jurisdiction of federal district courts
regarding actions against foreign states.
{¶ 10} The Supreme Court of Ohio recently addressed whether courts of common
pleas have subject matter jurisdiction over foreclosure actions. Bank of Am., N.A. v.
Kuchta, Ohio St.3d , 2014-Ohio-4275, N.E.3d . It stated:
Subject-matter jurisdiction is the power of a court to entertain and
adjudicate a particular class of cases. A court’s subject-matter jurisdiction is
determined without regard to the rights of the individual parties involved in a
particular case. A court’s jurisdiction over a particular case refers to the
court’s authority to proceed or rule on a case that is within the court’s
subject-matter jurisdiction. This latter jurisdictional category involves
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consideration of the rights of the parties. If a court possesses subject-matter
jurisdiction, any error in the invocation or exercise of jurisdiction over a
particular case causes a judgment to be voidable rather than void.
Although courts created by statute, such as municipal courts, are a
different matter, this case involves a constitutionally created common pleas
court. Ohio’s common pleas courts are endowed with “original jurisdiction
over all justiciable matters * * * as may be provided by law.” Article IV,
Section 4(B), Ohio Constitution. Jurisdiction has been “provided by law” in
R.C. 2305.01, which states that courts of common pleas have “original
jurisdiction in all civil cases in which the sum or matter in dispute exceeds
the exclusive original jurisdiction of county courts.” This court has long
held that the court of common pleas is a court of general jurisdiction, with
subject-matter jurisdiction that extends to “all matters at law and in equity
that are not denied to it.” We have also long held that actions in foreclosure
are within the subject-matter jurisdiction of a court of common pleas. * * *
(Citations omitted.) Kuchta at ¶ 19-20. The supreme court has thus made clear that courts
of common pleas, including the Montgomery County Court of Common Pleas, have subject
matter jurisdiction over foreclosure actions, such as the case before us. Title 28 of the
United States Code, which addresses the federal judiciary, has no relevance.
{¶ 11} In addition, R.C. Chapter 1703 does not preclude an action by Huntington in
the Montgomery County Court of Common Pleas. R.C. 1703.03 requires foreign
corporations to obtain a license from the Ohio Secretary of State in order to transact business
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in Ohio. Under R.C. 1703.29, “no foreign corporation that should have obtained such
license shall maintain any action in any court until it has obtained such license.”
{¶ 12} Here, the mortgage identifies Huntington’s address as located in Columbus,
Ohio. Thus, the record suggests that Huntington is a domestic corporation, not a foreign
corporation. Thompson does not provide evidence that Huntington is a foreign corporation.
{¶ 13} Even accepting, for sake of argument, that Huntington is a foreign
corporation, “R.C. 1703.031(A) exempts a federally chartered bank, savings bank or
savings and loan from the licensing requirement of R.C. 1703.01 to R.C. 1703.31.”
Citibank v. Eckmeyer, 11th Dist. Portage No. 2008-P-69, 2009-Ohio-2435, ¶ 27. “Business
activities of national banks are controlled by the National Bank Act (NBA or Act), 12 U.S.C.
§ 1 et seq., and regulations promulgated thereunder by the Office of the Comptroller of the
Currency (OCC).” Watters v. Wachovia Bank, N.A., 550 U.S. 1, 6, 127 S. Ct. 1559, 167
L. Ed. 2d 389 (2007). The mortgage indicates that Huntington is a national banking
association organized and existing under the laws of the United States. Thus, any
restrictions in R.C. Chapter 1703 on Huntington’s ability to bring suit in Ohio would be
preempted by federal law, and R.C. 1703.29 would not apply. Eckmeyer at ¶ 24-39;
MidFirst Bank v. Speigelberg, 8th Dist. Cuyahoga No. 98765, 2013-Ohio-587, ¶ 6.
{¶ 14} Thompson’s first assignment of error is overruled.
III. Right to Jury Trial in Civil Action
{¶ 15} Thompson’s second assignment of error states:
The Trial Court erred in entering a Summary Judgment that is void ab initio
because because [sic] the summary judgment violates her Seven[th]
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Amendment rights and the court only had jurisdiction for $15,000 or more.
{¶ 16} In this assignment of error, Thompson cites to the monetary limits set forth
in the Seventh Amendment to the United States Constitution and R.C. 1907.03 and 2305.01
to claim that the trial court lacked jurisdiction to enter summary judgment against her.
{¶ 17} R.C. 2305.01 provides that, except as stated in R.C. 2305.03, “the court of
common pleas has original jurisdiction in all civil cases in which the sum or matter in
dispute exceeds the exclusive original jurisdiction of county courts * * *.” “[C]ounty courts
have exclusive original jurisdiction in civil actions for the recovery of sums not exceeding
five hundred dollars and original jurisdiction in civil actions for the recovery of sums not
exceeding fifteen thousand dollars.” R.C. 1907.03. Thompson correctly states that this
action falls within the monetary jurisdiction of the common pleas court.
{¶ 18} The Seventh Amendment creates the right to a jury trial in civil matters. It
states that, “where the value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved * * *.” Reading the Seventh Amendment and the jurisdictional
statutes together, Thompson asserts that summary judgment cannot be granted by a court of
common pleas if the amount in controversy exceeds $20.
{¶ 19} The Seventh Amendment does not apply to state courts. Gasperini v. Ctr.
for Humanities, Inc., 518 U.S. 415, 432, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996). But
parties do have a constitutional right to a jury trial in civil matters under the Ohio
Constitution. See Ohio Constitution, Article I, Section 5 (“[t]he right of trial by jury shall
be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a
verdict by the concurrence of not less than three-fourths of the jury.”).
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{¶ 20} However, a trial court does not violate the Ohio Constitution by granting
summary judgment when no material issues of fact exist for a jury to decide. It is
well-established that “[s]ummary judgment pursuant to Civ.R. 56 is another method
available to a party seeking to avoid a trial and is used when the facts of a case are allegedly
undisputed.” Parrish v. Jones, 138 Ohio St. 3d 23, 2013-Ohio-5224, 3 N.E.3d 155, ¶ 13.
{¶ 21} Huntington’s claims fell within the monetary jurisdiction of the common
pleas court, and the trial court found that no genuine issues of material fact exist and that
Huntington was entitled to judgment as a matter of law. Accordingly, the trial court’s
grant of summary judgment was not void ab initio under the Ohio Constitution, the Seventh
Amendment to the United States Constitution, or Ohio’s statutes establishing the monetary
jurisdiction of the state courts.
{¶ 22} Thompson’s second assignment of error is overruled.
IV. Standing
{¶ 23} Thompson’s third assignment of error states:
The Trial Court erred in entering a Summary Judgment that is void ab initio
because Appellee lacked standing and the court lacked jurisdiction.
{¶ 24} Thompson asserts that Huntington lacked standing to bring its foreclosure
action, because it was not the “owner” of the note and mortgage at the time it commenced its
action. Thompson relies on a printout of a “Fannie Mae Loan Lookup” (Doc. #106,
Thompson’s Ex. B), dated September 7, 2013, which shows that Fannie Mae acquired
Thompson’s loan on March 1, 2004. The printout identified Thompson’s mortgage
company as The Huntington National Bank.
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{¶ 25} Initially, we reject Thompson’s suggestion that lack of standing by
Huntington would affect the jurisdiction of the trial court. Addressing a post-judgment
challenge to a foreclosure judgment, the Supreme Court of Ohio explained that standing
involves a “party’s ability to invoke the jurisdiction of a court” in a particular case, and it
does not affect the subject matter jurisdiction of the court. Kuchta, Ohio St.3d
, 2014-Ohio-4275, N.E.3d , at ¶ 22. The Court stated, “Lack of standing
is certainly a fundamental flaw that would require a court to dismiss the action, and any
judgment on the merits would be subject to reversal on appeal. But a particular party’s
standing, or lack thereof, does not affect the subject-matter jurisdiction of the court in which
the party is attempting to obtain relief.” Id. at ¶ 23. Accordingly, regardless of whether
Huntington had standing, the trial court had jurisdiction over the action before us.
{¶ 26} In order for Huntington to have standing to bring its foreclosure action,
Huntington must have had an interest in the note or mortgage at the time it filed suit. Bank
of Am., N.A. v. Thompson, 2d Dist. Montgomery No. 25952, 2014-Ohio-2300, ¶ 7, citing
Federal Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 2012-Ohio-5017,
979 N.E.2d 1214, ¶ 28. This court has held, however, that a party is not required to show
that it owned a note at the time a foreclosure action is filed, where the party has a right to
enforce the note and mortgage. LaSalle Bank Natl. Assn. v. Brown, 2014-Ohio-3261, 17
N.E.3d 81, ¶ 34 (2d Dist.); Nationstar Mtge., L.L.C. v. West, 2d Dist. Montgomery Nos.
25813, 25837, 2014-Ohio-735, ¶ 26.
{¶ 27} R.C. 1303.31(A) identifies three classes of persons who are “entitled to
enforce” an instrument, such as a note: (1) the holder of the instrument, (2) a nonholder in
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possession of the instrument who has the rights of a holder, and (3) a person not in
possession of the instrument who is entitled to enforce the instrument pursuant to R.C.
1303.38 or R.C. 1303.58(D). The term “holder” includes a “person in possession of a
negotiable instrument that is payable either to bearer or to an identified person that is the
person in possession.” R.C. 1301.201(B)(21)(a).
{¶ 28} Huntington supported its summary judgment motion with copies of
Thompson’s note, mortgage, and loan modification agreement. The note is made payable to
Huntington. In March 2010, Thompson and Huntington entered into a loan modification
agreement, which altered the payment terms of the note. In his affidavit, DeLong stated
that Huntington “has possession of the Note and had such possession of the Note prior to
filing the Complaint in this action.” The mortgage provides that the mortgagee was
Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the lender,
Huntington. On February 1, 2013, one week before the complaint was filed in this case,
MERS assigned the mortgage to Huntington.
{¶ 29} Huntington’s evidence established that it was in possession of the note prior
to filing this action and continues to have possession of the note, and that the note was
payable to Huntington. Accordingly, Huntington presented evidence that it is the holder of
the note and that, under R.C. 1301.31(A), it is entitled to enforce the note. In addition, the
assignment of the mortgage from MERS to Huntington provided another basis to
demonstrate that Huntington had standing in the foreclosure action. Bank of New York
Mellon v. Clancy, 2d Dist. Montgomery No. 25823, 2014-Ohio-1975, ¶ 28. Thompson’s
printout showing that Fannie Mae is the owner of the note does not create a genuine issue of
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material fact as to Huntington’s standing.
{¶ 30} Thompson’s third assignment of error is overruled.
V. Fifth Amendment and Civ.R. 36 Request for Admissions
{¶ 31} Thompson’s fourth assignment of error states:
The Trial Court erred in entering a Summary Judgment that is void ab initio
because the court abused its discretion by allowing admission in violation of
Appellant’s Fourth and Fifth Amendment rights.
{¶ 32} Thompson’s fourth assignment of error claims that the trial court erred in
deeming Huntington’s request for admissions to be admitted by Thompson, because she has
a right to remain silent under the Fifth Amendment to the United States Constitution and the
court’s actions in deeming those statements admitted denied her equal protection.
Thompson suggests that this foreclosure action should be considered a criminal case for
purposes of the Fifth Amendment because it involves a proceeding to forfeit her property.
{¶ 33} The Eighth District has summarized the scope of the right against
self-incrimination under the federal and Ohio constitutions.
By its own terms, the Self-Incrimination Clause of the Fifth
Amendment to the United States Constitution, as held applicable to the states,
applies only to criminal cases: “No person * * * shall be compelled in any
criminal case to be a witness against himself * * *.” Section 10, Article I,
Ohio Constitution is similarly applicable only in criminal proceedings: “No
person shall be compelled, in any criminal case, to be a witness against
himself.” The rule applies in civil proceedings to the extent that compelled
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testimony “may tend to incriminate” the witness in a future criminal
proceeding. Tedeschi v. Grover, 39 Ohio App. 3d 109, 111, 529 N.E.2d 480
(10th Dist.1988). In this context, “incrimination” means not only evidence
that would directly support a criminal conviction, Cincinnati v.
Bawtenheimer, 63 Ohio St. 3d 260, 264, 586 N.E.2d 1065 (1992), but
“information which would furnish a link in the chain of evidence that could
lead to prosecution, as well as evidence which an individual reasonably
believes could be used against him in a criminal prosecution.” Maness v.
Meyers, 419 U.S. 449, 461, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975).
In re M.B., 8th Dist. Cuyahoga Nos. 101094, 101095, 101096, 2014-Ohio-4837, ¶ 9.
{¶ 34} A mortgage foreclosure action is a civil proceeding, and there is no
indication in the record that Huntington’s request for admissions would subject Thompson to
criminal prosecution or could lead to a criminal prosecution against her. Thompson’s claim
that she could invoke the Fifth Amendment to avoid responding to Huntington’s request for
admissions is unsupported by the record.
{¶ 35} Requests for admissions are governed by Civ.R. 36, which provides that “[a]
party may serve upon any other party a written request for the admission, for purposes of the
pending action only, of the truth of any matters within the scope of Civ.R. 26(B) set forth in
the request, that relate to statements or opinions of fact or of the application of law to fact,
including the genuineness of any documents described in the request. * * *” Civ.R. 36(A).
Under Civ.R. 36(A)(1), a request for admission is deemed admitted, unless the party to
whom the request was directed “serves upon the party requesting the admission a written
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answer or objection addressed to the matter, signed by the party or by the party’s attorney.”
{¶ 36} Any matter admitted under Civ.R. 36(A) is “conclusively established,”
unless the court on motion permits withdrawal or amendment of the admission. Civ.R.
36(B). “The word ‘conclusively’ establishes that evidence may not be used to contradict an
admission made pursuant to Civ.R. 36.” Crespo v. Harvey, 2014-Ohio-1755, 11 N.E.3d
1206, ¶ 7 (2d Dist).
{¶ 37} On November 1, 2013, Huntington certified that it sent hard and electronic
copies of its first set of request for admissions, interrogatories and request for production of
documents to Thompson. Upon Thompson’s motion, the trial court granted Thompson
until December 20, 2013 to respond to Huntington’s discovery requests. On January 3,
2014, Huntington sent a letter to Thompson indicating that it had not received any response
and requesting responses within seven days. In its January 31, 2014, summary judgment
motion, Huntington indicated that Thompson had not responded to its request for
admissions, and it asked the court to consider the requested matters admitted when ruling on
the summary judgment motion.
{¶ 38} Thompson neither argued nor provided evidence that she responded to
Huntington’s discovery requests. She did not explain to the trial court why she failed to
respond to the request for admissions, and she did not seek to have the admissions
withdrawn or amended under Civ.R. 36(B). Under the circumstances before us, we cannot
conclude that the trial court abused its discretion in deeming Huntington’s request for
admissions to be admitted under Civ.R. 36(A).
{¶ 39} Thompson’s fourth assignment of error is overruled.
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VI. Summary Judgment on Huntington’s Claims
{¶ 40} Thompson’s fifth assignment of error states:
The Trial Court erred to the prejudice of the appellant and abused its
discretion by granting appellee’s motion for summary judgment where, there
are clearly genuine issues of material facts and the appellee is not entitled to
judgment as a matter of law.
{¶ 41} In her fifth assignment of error, Thompson claims that the trial court erred in
granting summary judgment to Huntington on its claims. Thompson asserts that Huntington
failed to (1) send a notice of default before filing its action, (2) have a face-to-face meeting
with her, and (3) follow appropriate accounting principles in maintaining her account.
{¶ 42} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter
of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the
nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club,
Inc., 82 Ohio St. 3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the
initial burden of affirmatively demonstrating that no genuine issue of material fact remains
to be litigated. Mitseff v. Wheeler, 38 Ohio St. 3d 112, 115, 526 N.E.2d 798 (1988). To
this end, the movant must be able to point to evidentiary materials of the type listed in
Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt,
75 Ohio St. 3d 280, 292-293, 662 N.E.2d 264 (1996). Those materials include “the
pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts
of evidence, and written stipulations of fact, if any, filed in the action.” Id. at 293; Civ.R.
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56(C).
{¶ 43} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293, 662
N.E.2d 264; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to
respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts
that show that there is a genuine issue of material fact for trial. Id. Throughout, the
evidence must be construed in favor of the nonmoving party. Id.
{¶ 44} We review the trial court’s ruling on a motion for summary judgment de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. “De
novo review means that this court uses the same standard that the trial court should have
used, and we examine the evidence to determine whether as a matter of law no genuine
issues exist for trial.” Brewer v. Cleveland City Schools Bd. of Edn., 122 Ohio App. 3d 378,
383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio
St.2d 116, 119-20, 413 N.E.2d 1187 (1980). Therefore, the trial court’s decision is not
granted deference by the reviewing appellate court. Powell v. Rion, 2012-Ohio-2665, 972
N.E.2d 159, ¶ 6 (2d Dist.).
{¶ 45} According to the documents attached to DeLong’s affidavit, Thompson
borrowed $134,000 from Huntington to purchase the property located at 140 Lexington
Avenue. Thompson signed a note for that amount, payable to Huntington, and secured the
debt with a mortgage. The note was subsequently modified through a loan modification
agreement. Huntington provided a detailed account history, itemizing Thompson’s
payments on the loan; the account history reflected that the last payment, processed on
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September 25, 2012, was for the July 2012 payment and left a balance due of $118,443.73.
DeLong stated that, prior to initiating foreclosure proceedings, Huntington sent a Notice of
Intention to Accelerate and Foreclose to Thompson; that notice was attached as Exhibit A-6.
{¶ 46} Many of the statements in Huntington’s request for admissions asked
Thompson to admit that she signed the note, mortgage, and loan modification agreement at
issue and that the documents accurately reflected the terms of the loan. By failing to
respond to the request for admissions, it was deemed that Thompson admitted to those
matters. In addition, she was deemed to have admitted that she last paid the note/loan
modification on July 1, 2012, that she breached the note, loan modification agreement, and
mortgage by nonpayment, that she owes $118,443.73 plus interest, that she received the
notice of default and written notification that her payments were past due, that Huntington
“duly performed all of its duties under the Note, Loan Modification Agreement and
Mortgage,” that she failed to make payments to bring her loan current, and that she failed to
mitigate her losses.
{¶ 47} Construing the evidence in Thompson’s favor, Huntington’s evidence (with
or without Thompson’s admissions) established that Thompson had defaulted on the note
in the amount $118,443.73, plus interest, and that Huntington was entitled to judgment on
the note and a decree of foreclosure.
{¶ 48} Thompson asserts that there is a genuine issue of material fact as to whether
Huntington provided evidence that a letter of default was sent to her, providing her an
opportunity to cure the default. The November 20, 2012 Notice of Intention to Accelerate
and Foreclose informed Thompson that she had “defaulted on your mortgage loan by failing
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to make one or more monthly payments when due as required by the terms of your mortgage
loan.” It provided her the “right to correct this default” and notified her that she could cure
the default by paying $4,363.95 by December 25, 2012. The note asked Thompson to
“please act now so that we can avoid taking further action” and indicated that Huntington
may accelerate the mortgage and initiate foreclosure proceedings if no payment were
received. A certified mail receipt indicates that Thompson received the notice. Thompson
has provided no evidence to contradict Huntington’s evidence. We find no genuine issue of
material fact as to whether Huntington sent Thompson a notice of default.
{¶ 49} Thompson next argues that Huntington never attempted to have a
face-to-face meeting with her and did not comply with federal servicing requirements. With
some exceptions, 24 C.F.R. 203.604(b) requires an FHA lender to have a face-to-face
interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before
three full monthly installments due on the mortgage are unpaid. In addition, 24 C.F.R.
203.606 requires the mortgagee to ensure, before initiating foreclosure, that all regulatory
servicing requirements have been met.
{¶ 50} Thompson has not provided evidence that she has an FHA loan with
Huntington or that these federal regulations have been incorporated into the note and
mortgage at issue. Accordingly, Thompson’s citation to federal regulations does not create
a genuine issue of material fact as to whether Huntington properly filed its action.
{¶ 51} Finally, Thompson asserts that Huntington’s bookkeeping entries do not
demonstrate that Huntington has strictly complied with its contractual obligations.
Huntington’s evidence established that Thompson’s last payment on the loan was for July
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2012, and that she has a remaining balance of $118,443.73, plus interest. Thompson has
presented no evidence to contradict or raise any questions regarding Huntington’s
accounting.
{¶ 52} Accordingly, we find no genuine issue of material facts as to whether
Thompson defaulted on the note and mortgage and whether Huntington satisfied
prerequisites for initiating this foreclosure action. The trial court did not err in granting
summary judgment to Huntington on its claims. Thompson’s fifth assignment of error is
overruled.
VII. Electronic Signature
{¶ 53} Thompson’s sixth assignment of error states:
The Trial Court erred in entering a Summary Judgment that is void ab initio
because all the orders were sign[ed] electronically which is a violation of law.
{¶ 54} In her sixth assignment of error, Thompson asserts that the trial court was
not permitted to sign and file its orders and judgment electronically. Thompson cites to
R.C. 1306.22 and federal law.
{¶ 55} R.C. Chapter 1306 is Ohio’s Uniform Electronic Transactions Act. R.C.
1306.22 specifically provides that nothing in the Act shall be construed to “require” courts in
Ohio “to use or permit the use of electronic records and electronic signatures.” R.C.
1306.22(A). It further provides that courts “may adopt rules pertaining to the use of
electronic records and electronic signatures.” R.C. 1306.23(B).
{¶ 56} The Montgomery County Court of Common Pleas, General Division, has
adopted rules regarding electronic filing of documents. Local Rule 1.15 states that,
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“[e]xcept as otherwise provided * * *, all civil and criminal cases, including all pleadings,
motions, briefs, memoranda of law, deposition transcripts, transcripts of proceedings, orders
or other documents, shall be filed electronically through the Court’s authorized electronic
filing system (‘eFile system’). * * *” This rule includes a requirement that the court eFile
all court initiated filings. Local Rule 1.15(B).
{¶ 57} Local Rule 1.15(F)(4)(e) addresses signatures of a judge or judicial officer.
It states that “eFiled documents may be signed by a Judge or judicial officer via a digitized
image of his or her signature combined with a digital signature. All orders, decrees,
judgments and other documents signed in this manner shall have the same force and effect as
if the Judge had affixed his or her signature to a paper copy of the order and journalized it.”
{¶ 58} The trial court’s signing and filing of documents electronically in this case
was authorized by Local Rule and was not improper. Thompson’s sixth assignment of error
is overruled.
VIII. Thompson’s Substantial Rights
{¶ 59} Thompson’s seventh assignment of error states:
The Trial Court erred in entering a Summary Judgment that is void ab initio
because the Court violated the Appellant’s “Substantial rights.”
{¶ 60} In her seventh assignment of error, Thompson asserts that the trial court
violated her substantial rights by entering orders without jurisdiction and proper parties.
She states that the court violated her substantial rights in eight ways:
(1) illegal electronic signed orders by the Courts; (2) refusal of Appellant’s
common law right to receive the contract; (3) refusal of the court to have the
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Appellee produce documents to show a injured party; (4) refuse to allow
Appellant to present oral argument; (5) refusal of court to allow a time
[where] Appellant could present witnesses in her case; (6) Appellee is a
foreign corporation pursuant to ORC 1703.01(A)(B) and must inform the
Department of State of any suit and the Department of [S]tate must inform
Appellant pursuant [to] Title 22 CFR 93.1-93.2 and Appellant must consent
to the court’s jurisdiction which in above case has not happen[ed]; (7) Title
28 USC 1602-1611 allows the jurisdiction of this court to be challenged, and
demand of proper jurisdiction to be stated. In the above case jurisdiction has
been challenged and proper jurisdiction has not been stated or addressed and;
(8) Common Pleas Court in Ohio have jurisdiction on cases fifteen thousand
dollars ($15,000) or more so summary [judgment] violates Appellant’s
Seventh Amendment right or the court didn’t have jurisdiction because the
Seventh Amendment only allows summary judgment for twenty dollars ($20)
or less and Common Pleas Courts don’t have jurisdiction over twenty dollars
($20) or less cases.
{¶ 61} In addressing Thompson’s other assignments of error, we have already
addressed and rejected most of her claims. The only new matter that she raises here is that
the trial court refused to allow her to present oral argument and present witnesses.
Thompson had asked for an oral hearing regarding Huntington’s motion for summary
judgment, but the trial court was not required to grant her request. Her substantial rights
were not violated by the trial court’s denial of her request for an oral hearing. And, because
21
the trial court properly concluded that no genuine issues of material fact existed and that
summary judgment was appropriate, the trial court did not violate her substantial rights by
granting summary judgment, thereby precluding Thompson from presenting witnesses at a
trial.
{¶ 62} Thompson’s seventh assignment of error is overruled.
IX. Conclusion
{¶ 63} The trial court’s judgment will be affirmed.
..........
DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Mike L. Wiery
Rachel M. Kuhn
Vivian L. Thompson
Yale Levy
Douglas Trout
Christine Kurilic
Hon. Dennis J. Langer