Deutsche Bank Natl. Trust Co. v. Johnson

[Cite as Deutsche Bank Natl. Trust Co. v. Johnson, 2013-Ohio-4661.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DEUTSCHE BANK NATIONAL TRUST : JUDGES:
COMPANY :
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 12-CA-96
:
CHAD R. JOHNSON AND DRENNA A. :
JOHNSON, ET AL. :
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 2012 CV
00769
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 11, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendants-Appellants:
DAVID A. WALLACE JAMES R. BILLINGS
KAREN M. CADIEUX ROBIN L. JINDRA
CARPENTER LIPPS & LELAND LLP ZACKS LAW GROUP LLC
280 Plaza, Suite 1300 33 South James Road, 3rd Floor
280 North High Street Columbus, OH 43213
Columbus, OH 43214
Licking County, Case No.12-CA-96 2
Delaney, J.
{¶1} Appellants Chad and Drenna Johnson hereby appeal from the November
20, 2012 Entry Granting Summary Judgment and Decree in Foreclosure of the Licking
County Court of Common Pleas. Appellee is Deutsche Bank National Trust Company.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellants borrowed $312,000 from First Franklin a Division of Nat. City
Bank of IN (“First Franklin”) in 2006, promising to repay the loan by signing a note dated
June 26, 2006. Appellants also signed a mortgage encumbering the property known as
11193 Palmer Road Southwest, Pataskala, Ohio 43062 as security for repayment of the
loan. The mortgage designated Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the mortgagee and the nominee for First Franklin. The note was endorsed
by First Franklin to First Franklin Financial Corporation, which then endorsed the note in
blank. MERS, as nominee for First Franklin, assigned the mortgage to appellee on May
9, 2012.
Relevant Terms of the Note and Mortgage
{¶3} The note states the following pertaining to default:
B. Default: If I do not pay the full amount of each monthly
payment on the date it is due, I will be in default.
C. Notice of default: If I am in default, the Note Holder may
send me a written notice telling me that if I do not pay the
overdue amount by a certain date, the Note Holder may
require me to pay immediately the full amount of Principal
which has not been paid and all the interest that I owe on
Licking County, Case No.12-CA-96 3
that amount. That date must be at least 30 days after the
date on which the notice is mailed to me or delivered by
other means.
{¶4} The note states the following regarding notice:
Unless applicable law requires a different method, any notice
that must be given to me under this Note will be given by
delivering it or by mailing it by first class mail to me at the
Property Address above or at a different address if I give the
Note Holder a notice of my different address. Any notice
that must be given to the Note Holder at the address stated
in Section 3(A) above or at a different address if I am given a
notice of that different address (sic).
{¶5} The mortgage defines “applicable law” as follows:
H. “Applicable Law” means all controlling applicable federal,
state and local statues (sic), regulations, ordinances and
administrative rules and orders (that have the effect of law)
as well as all applicable final, non-appealable judicial
opinions.
{¶6} The mortgage states the following regarding notice:
15. Notices. All notices given by Borrower or Lender in
connection with this Security Instrument must be in writing.
Any notice to Borrower in connection with this Security
Instrument shall be deemed to have been given to Borrower
Licking County, Case No.12-CA-96 4
when mailed by first class mail or when actually delivered to
Borrower’s notice address if sent by other means. Notice to
any one Borrower shall constitute notice to all Borrowers
unless Applicable Law expressly requires otherwise. The
notice address shall be the Property Address unless
Borrower has designated a substitute notice address by
notice to Lender. * * * If any notice required by this Security
Instrument is also required under Applicable Law, the
Applicable Law requirement will satisfy the corresponding
requirement under this Security Instrument.
{¶7} Regarding acceleration and remedies, the mortgage states:
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 the 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 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
Licking County, Case No.12-CA-96 5
to collect all expenses incurred in pursuing the remedies provided
in this Section 22, including, but not limited to, costs of title
evidence.
{¶8} The assignment of mortgage was recorded with the Licking County
Recorder on May 24, 2012 as Instrument No. 201205240011551.
{¶9} Appellants fell behind on their mortgage payments and, according to
appellee, were sent default notices on February 4, 2010. These notices advised of
default, the amount required to cure default, the deadline of March 6, 2010, and the
possible consequence of acceleration of the loan and the filing of a foreclosure action.
Appellants did not cure the default and, according to appellee, currently owe a principal
balance of $305,865.70, plus interest at a rate of 5.75% per annum from July 1, 2010.
{¶10} Appellee filed the underlying foreclosure action on June 6, 2012 and
appellants answered. Appellee filed a motion for summary judgment; appellants
responded and appellees replied.
{¶11} On November 20, 2012, the trial court granted summary judgment in favor
of appellee and journalized an Entry Granting Summary Judgment and Decree in
Foreclosure.
{¶12} Appellants now appeal from the entry of the trial court granting summary
judgment in favor of appellee.
{¶13} Appellants raise one assignment of error:
ASSIGNMENT OF ERROR
{¶14} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
GRANTING APPELLEE’S MOTION FOR SUMMARY JUDGMENT (REC 45).”
Licking County, Case No.12-CA-96 6
ANALYSIS
{¶15} Appellants argue the trial court improperly granted summary judgment for
appellee because an issue of material fact exists as to whether notice of default was
properly given. We disagree.
{¶16} Summary judgment motions are to be resolved in light of the dictates of
Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel. Zimmerman
v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as
to any material fact remains to be litigated, (2) the moving
party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come
to but one conclusion, and viewing such evidence most
strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary
judgment is made. State ex rel. Parsons v. Fleming, 68 Ohio
St.3d 509, 511, 628 N.E.2d 1377 (1994), citing Temple v.
Wean United, Inc. 50 Ohio St.2d 317, 327, 364 N.E.2d 267(1977).
{¶17} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgment motions on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35, 36, 56 N.E.2d 212 (1987).
Licking County, Case No.12-CA-96 7
{¶18} The mortgage requires that the notice of acceleration is first provided to
borrowers prior to acceleration, and this notice must contain a deadline to cure the
default and prevent acceleration. Appellants assert they have brought forth evidence
creating a material issue of fact “as to whether they received proper notice of default
and notice of acceleration pursuant to the terms of the Note and Mortgage.” The cited
evidence is 1) the failure of appellee’s witness (Fazio) to state in her affidavit whether
she had any personal knowledge of such notice, and 2) affidavits from each appellant
stating they never received notice of the default or notice of the acceleration of the
mortgage from appellee. We have reviewed the Civ.R.56 evidence cited by appellants.
Fazio’s affidavit states she has personal knowledge of the record-keeping procedures
pertaining to appellants’ loan. Exhibits D and E appended to Fazio’s affidavit are
notices of default mailed to each appellant indicating the intent to accelerate and
paragraph seven of Fazio’s affidavit states in pertinent part, “* * * Affiant states that the
defendant (sic) was served with notice of their default and notice of the plaintiff’s intent
to accelerate by letter, attached here as Exhibits D and E.”
{¶19} This notice therefore contains the information required by the note and
mortgage; appellant does not point out any specific deficiency in the notice. Notice is
effective upon mailing pursuant to the terms of both. Appellants’ affidavits state “…the
Bank has not provided me with any document entitled notice of default or notice of
acceleration of a document entitled Note” (¶ 2) and “… the Bank has not provided me
with any notice of default or notice of acceleration of a document entitled Mortgage” (¶
3). This oddly equivocal language leads us to conclude appellants did receive notice of
default that did not have a title, as reflected in appellee’s Exhibits D and E. We find the
Licking County, Case No.12-CA-96 8
contents of the notice required by the note and mortgage to be satisfied by appellee’s
Exhibits D and E.
{¶20} Appellants further argue their affidavits create an issue of material fact as
to service and cite a number of cases purporting to establish there is a genuine issue of
material fact when there is an allegation that the borrower did not receive notice of the
default. As appellee points out, however, each of those cases is distinguishable due to
flaws in the Civ.R. 56 evidence which do not exist in the instant case. First Financial
Bank v. Doellman, 12th Dist. No. CA2006–02–029, 2007-Ohio-222 (letter providing
notice that was attached to the lender's reply memorandum was not incorporated by
reference into an affidavit or authenticated and not sent by certified mail); Mortgage
Electronic Registration Systems, Inc. v. Akpele, 9th Dist. Summit No. 21822, 2004-
Ohio-3411 (default letter attached to reply brief not authenticated by affidavit, nor was
certified mail receipt submitted despite appellee’s claim notice sent by certified mail);
Contimortgage Corp. v. Childers, 6th Dist. Lucas No. L-00-1332, 2001 WL 477235 (May
4, 2001) (default notice attached to affidavit but affidavit failed to state notice provided to
borrowers); Wells Fargo Bank, NA v. Shalvey, 5th Dist. Delaware No. 06CAE090060,
2007-Ohio-3928 (notice of default not submitted with summary judgment motion and
copy attached to reply brief not authenticated by affidavit).
{¶21} In the instant case, we find appellee complied with the terms of the
mortgage and the note when it sent notice of default to appellants. The Fazio affidavit
incorporates by reference the notice of default letters, both of which are addressed to
appellants. The note and mortgage provide notice is effective upon mailing. The Fazio
affidavit states, “Affiant states that the defendant was served with notice of their default
Licking County, Case No.12-CA-96 9
and notice of the plaintiff's intent to accelerate by letter, attached here as Exhibits D and
E.” We find this averment to be sufficient to establish that appellee complied with the
notice requirement. Citimortgage, Inc. v. Randy Loncar, 7th Dist. Mahoning No. 11 MA
174, 2013-Ohio-2959, ¶ 28. See also, R.B.S. Citizens v. Adams, 3rd Dist. Seneca No.
13-11-35, 2012-Ohio-1889.
{¶22} Finally, appellants assert they do not agree with the balance due on the
note but have not raised this issue as error. The blanket objection to the amount,
without more, is not sufficient to overcome a motion for summary judgment. A mere
statement that a debtor does not owe the amount of the debt is “nothing more than a
general denial” of the plaintiff's claim, which is insufficient to satisfy the defendant's
reciprocal summary judgment burden. Citibank v. McGee, 7th Dist. Mahoning No. 11
MA 158, 2012-Ohio-5364, ¶ 29, citing Citibank (South Dakota) N.A. v. Ogunduyile, 2d
Dist. Montgomery No. 21794, 2007–Ohio–5166, ¶ 15. Instead, appellant “was required
to set forth specific facts that would permit a trier of fact to find that the amount of debt
claimed by * * * [the plaintiff] was incorrect.” Appellants failed to set forth any such
facts in response to appellee’s motion for summary judgment and on appeal.
{¶23} We find no genuine issue as to any material fact remains to be litigated,
appellee is entitled to judgment as a matter of law, and it appears from the parties’
evidence that reasonable minds can come to but one conclusion. Viewing such
evidence most strongly in favor of appellants, appellee is entitled to summary judgment.
Appellants’ sole assignment of error is therefore overruled.
Licking County, Case No.12-CA-96 10
CONCLUSION
{¶24} Appellants’ sole assignment of error is overruled and the judgment of the
Licking County Court of Common Pleas is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Wise, J., concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE