Ditech Fin., L.L.C. v. Balimunkwe

[Cite as Ditech Fin., L.L.C. v. Balimunkwe, 2019-Ohio-3806.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
DITECH FINANCIAL, LLC, : APPEAL NO. C-180445
TRIAL NO. A-1700815
Plaintiff-Appellee, :
O P I N I O N.
vs. :
KALEMBA BALIMUNKWE, :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 20, 2019
Lerner Sampson & Rothfuss, Rick D. DeBlasis, McCarthy, Lebit, Crystal & Liffman
Co., LPA, Charles A. Nemer, John E. Moran and Nicholas R. Oleski, for Plaintiff-
Appellee,
Graydon Head & Ritchey, LLP, and John B. Pinney, for Defendant-Appellant.
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M OCK , Presiding Judge.
{¶1} Because a genuine issue of material fact remains to be determined in
this foreclosure action, we reverse the decision of the trial court to grant summary
judgment.
Foreclosure Litigation Results
In Summary Judgment
{¶2} Plaintiff-appellee Ditech Financial, LLC, (“Ditech”) filed a foreclosure
lawsuit against defendant-appellant Kalemba Balimunkwe, claiming that it was the
holder of a note and mortgage signed by Balimunkwe and secured by Balimunkwe’s
residence. Balimunkwe had originally purchased his home in 1990 for $47,000.
According to the complaint filed by Ditech, Balimunkwe applied to have the loan
refinanced for the amount of $63,750 with Ditech. The documents indicate that the
load was subsequently modified in 2006. Ditech sued for foreclosure when
Balimunkwe stopped making payments in 2012.
{¶3} During the course of the litigation below, Balimunkwe represented
himself. He contended throughout the litigation that he had never signed the
refinancing agreement, and that he had thought he was still paying on his original
loan. He claimed that he stopped making payments when he discovered that he was
making payments on a loan that he had not agreed to. On August 8, 2017,
Balimunkwe filed an affidavit, report, and CV from a handwriting expert. The expert
opined that “the handwriting characteristics in the questioned signatures do not
conform to the handwriting characteristics in the known signatures and handwriting.
Therefore, it is my professional expert opinion that Kalemba Balimunkwe did not
sign his signatures on the questioned documents.”
{¶4} Ditech filed a motion for summary judgment in which it claimed that
Balimunkwe had agreed to the mortgage, that he owed the money due, and that
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Ditech was the holder of the note. In response, Balimunkwe again argued that the
signature was not his, and attached a portion of the report from the expert that had
been previously filed. The trial court granted Ditech’s motion for summary
judgment. In one assignment of error, Balimunkwe argues that the trial court erred
in granting that motion.
Summary Judgment
{¶5} A motion for summary judgment shall be granted if the court, upon
viewing the inferences to be drawn from the underlying facts set forth in the
pleadings, depositions, answers to interrogatories, written admissions, and affidavits
in a light most favorable to the party opposing the motion, determines (1) that no
genuine issue of material fact remains to be litigated, (2) that the moving party is
entitled to judgment as a matter of law, and (3) that the evidence demonstrates that
reasonable minds can come to but one conclusion and that conclusion is adverse to
the party opposing the motion. See Civ.R. 56(C); see also Dresher v. Burt, 75 Ohio
St.3d 280, 293, 662 N.E.2d 264 (1996).
{¶6} The party moving for summary judgment “bears the initial burden of
informing the trial court of the basis for the motion and of identifying those portions
of the record that demonstrate the absence of a genuine issue of material fact on the
essential element(s) of the nonmoving party’s claims” or defenses. Dresher at 293.
When, as here, the moving party discharges that burden, the nonmoving party then
has a reciprocal burden of specificity and cannot rest on the allegations or denials in
the pleadings, including verified pleadings, but must “set forth specific facts” by the
means listed in the rule, showing that a triable issue of fact exists. See id.; see also
Perkins v. 122 E. 6th St., LLC, 2017-Ohio-5592, 94 N.E.3d 207, ¶ 6 (1st Dist.). If the
nonmoving party does not discharge its reciprocal burden, summary judgment, if
appropriate, shall be entered against it. Dresher at 293. We review summary-
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judgment determinations de novo, without deference to the trial court’s ruling. See
Comer v. Risko, 106 Ohio St. 3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8; see also
Capital Fin. Credit, L.L.C. v. Mays, 191 Ohio App. 3d 56, 2010-Ohio-4423, 944
N.E.2d 1184, ¶ 3 (1st Dist.).
{¶7} Balimunkwe’s defense to Ditech’s claim is that he did not enter into
the agreement and that the signature on the 2004 refinance agreement was not his.
Ditech tacitly admits that such a defense would normally bar its claims, but that it
does not apply in this case for two reasons. First, Ditech claims that the argument
was not properly presented to the trial court below. Second, it claims that, even if
Balimunkwe had not signed the original 2004 refinance agreement, his subsequent
agreement to modify the agreement in 2006 acted as a ratification of that original
agreement. We will address each issue in turn.
Argument Properly Presented to Trial Court
{¶8} On appeal, Ditech argues that the trial court was not required to
consider the handwriting evidence because it was not attached to the memorandum
in opposition to the motion for summary judgment. There is no such requirement in
the rule. In fact, Civ.R. 56 expressly states that the trial court must consider “the
pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any” as long as they are
“timely filed in the action.” Civ.R. 56(C). The Ohio Supreme Court has said that
“[w]hile the movant is not necessarily obligated to place any of these evidentiary
materials in the record, the evidence must be in the record or the motion cannot
succeed.” Dresher, 75 Ohio St. 3d at 293, 662 N.E.2d 264. As this court has
repeatedly stressed, summary judgment should not be granted unless the entire
record demonstrates that no genuine issue of material fact remains for trial. See
Wal-Mart Realty Co. v. Tri-Cty. Commons Assoc., LLC, 1st Dist. Hamilton No. C-
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160747, 2017-Ohio-9280, ¶ 8; Alexander v. Motorists Mut. Ins. Co., 1st Dist.
Hamilton No. C-110836, 2012-Ohio-3911, ¶ 16; Whitley v. Progressive Preferred Ins.
Co., 1st Dist. Hamilton No. C-090240, 2010-Ohio-356, ¶ 8; Greene v. Whiteside, 181
Ohio App. 3d 253, 2009-Ohio-741, 908 N.E.2d 975, ¶ 23 (1st Dist.).
{¶9} While Ditech argued that a party cannot simply rely on the trial court
to comb through the record and make arguments on his behalf, that is not what has
occurred in this case. The affidavit and report had been filed prior to the filing of the
motion for summary judgment, Balimunkwe referenced the evidence in his pleading,
and he attached a page of the affidavit to his response. The evidence was in the
record and Balimunkwe referenced the information.
{¶10} The affidavit and expert report presented by Balimunkwe created a
genuine issue of material fact as to whether Balimunkwe entered into the 2004 loan
refinance agreement. Thus, summary judgment would have been inappropriate
unless the trial court’s decision was correct for another reason. Ditech argues that,
under the doctrine of ratification, Balimunkwe can be bound by the 2004 loan
refinance agreement because he entered into the 2006 modification ratifying the
agreement. And we consider that issue next.
Ratification Neither Argued Below
Nor Established in Record
{¶11} Alternately, Ditech argues that Balimunkwe ratified the 2004
refinance agreement in 2006 when he signed a loan modification. But Ditech did not
make that argument below. The only reference in the complaint to the 2006 loan
modification is the line “The loan was modified by the Loan Modification Agreement
signed by Defendant on February 17, 2006.” The complaint does not allege that
Balimunkwe’s alleged agreement to the loan modification acted as a ratification of
the 2004 loan refinance. Additionally, other than stating that the 2004 loan had
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been modified in 2006, there is no discussion of ratification in Ditech’s motion for
summary judgment. The affidavit filed in support of Ditech’s motion identifies the
modification agreement, but does not discuss its import. In fact, counsel admitted
during oral argument that the word “ratification” does not appear anywhere in the
trial court’s record. It is a universal principle of appellate procedure that “[a] party
who fails to raise an argument in the court below waives his or her right to raise it
[on appeal].” State ex rel. Zollner v. Indus. Comm., 66 Ohio St. 3d 276, 278, 611
N.E.2d 830 (1993). Since Ditech did not argue this issue below, it cannot argue it for
the first time on appeal.
{¶12} Even if considered on the merits, Ditech has not proven ratification
on this record. In contract law, ratification is a way that an agent can bind a
principal to an agreement the principal did not enter into on its own. Karat Gold
Imports, Inc. v. United Parcel Serv., Inc., 62 Ohio App. 3d 604, 611, 577 N.E.2d 115
(8th Dist.1989). But ratification will not apply when the actor is not acting as the
agent of the principal. See Alban Equip. Co. v. MPH Crane, Inc., 4th Dist. Pike No.
424, 1989 WL 62860, *4 (June 2, 1989) (ratification does not result from the
affirmance of a transaction with a third person unless the one acting purported to be
acting for the ratifier), citing Restatement of the Law 2d, Agency, Section 85, at 1
(1958); see also Williams v. Stearns, 59 Ohio St. 28, 51 N.E. 439 (1898).
{¶13} While an appellate court may affirm a trial court's decision on
separate grounds, the evidentiary basis on which the appellate court relies still must
have been adduced before the trial court. State v. Peagler, 76 Ohio St. 3d 496, 499,
668 N.E.2d 489 (1996). There is no evidence in the record that whoever signed the
2004 refinance agreement was acting as the agent of Balimunkwe, or that
Balimunkwe knew he was ratifying the 2004 agreement when he signed the 2006
modification. Ditech’s only evidence in this regard is the fact of his alleged signature
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on the modification, and the fact that he continued to make payments until 2012.
This is insufficient.
Conclusion
{¶14} Balimunkwe established that a genuine issue of material fact remains
regarding whether he signed and agreed to the 2004 refinance agreement that is the
subject of this litigation. We therefore sustain his sole assignment of error. We
reverse the decision of the trial court and remand this cause for proceedings
consistent with this opinion.
Judgment reversed and cause remanded.
ZAYAS and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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