PHH Mtge. Corp. v. Albus

[Cite as PHH Mtge. Corp. v. Albus, 2011-Ohio-3370.]
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
PHH MORTGAGE CORPORATION fka ) CASE NO. 09 MO 9
CENTURY 21 MORTGAGE )
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
MARIA S. ALBUS, et al. )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Monroe County, Ohio
Case No. 2008-234
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Amy Carr
Shapiro, Van Ess, Phillips & Barragate
4805 Montgomery Road, Suite 320
Cincinnati, Ohio 45212
Atty. James L. Peters
Monroe County Prosecutor
101 North Main Street, Room 15
P.O. Box 430
Woodsfield, Ohio 43793-0430
For Defendant-Appellant: Atty. Robin A. Bozian
Southeastern Ohio Legal Services
427 Second Street
Marietta, Ohio 45750
JUDGES:
Hon. Cheryl L. Waite
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Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: June 30, 2011
WAITE, P.J.
{1} Appellant, Maria S. Albus, appeals the entry of summary judgment
against her and in favor of Appellee, PHH Mortgage Corporation, formerly Century 21
Mortgage, in this foreclosure action. In her first assignment of error, Appellant
contends that Appellee failed to attach an affidavit in support of the motion for
summary judgment, and consequently, the trial court erred in granting the
unsupported motion. Although Appellee filed an affidavit in support of the motion, it
appears from the record that the affidavit, which was filed separately from the motion
for summary judgment, was never served on Appellant. Civ.R. 5 prohibits the trial
court from considering the affidavit because it was not served. Without the affidavit,
there is no evidence to establish the amount due and owing on the promissory note.
Accordingly, Appellant’s first assignment of error has merit and the decision to grant
summary judgment is reversed. Appellant asserts in her second assignment of error
that the judgment entry does not award a sum certain, thus, compromising her right
to redemption. Because we must reverse the underlying summary judgment,
Appellant’s argument is premature and can be addressed by the trial court after the
case is remanded. Accordingly, the judgment of the trial court is reversed and
remanded for further proceedings.
{2} An appellate court conducts a de novo review of a trial court’s decision
to grant summary judgment, using the same standards as the trial court as set forth
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in Civ.R. 56(C). Grafton v. Ohio Edison Co. (1996), 77 Ohio St. 3d 102, 105, 671
N.E.2d 241. Before summary judgment can be granted, the trial court must
determine 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 the
evidence most favorably in favor of the party against whom the motion for summary
judgment is made, the conclusion is adverse to that party. Temple v. Wean United,
Inc. (1977), 50 Ohio St. 2d 317, 327, 364 N.E.2d 267. When a court considers a
motion for summary judgment, the facts must be taken in the light most favorable to
the nonmoving party. Id.
{3} “[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party's claim.” (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St. 3d
280, 296, 662 N.E.2d 264. If the moving party carries its burden, the nonmoving
party has the reciprocal burden of setting forth specific facts showing that there is a
genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, in the face of a
properly supported motion for summary judgment, the nonmoving party must produce
some evidence that suggests that a reasonable factfinder could rule in that party’s
favor. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App. 3d 378, 386, 701
N.E.2d 1023.
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{4} On June 22, 2004, Appellant borrowed the sum of $58,000 from
Appellee in order to purchase her current residence. As security for the loan,
Appellant executed a mortgage on the property in favor of Appellee. Appellant
defaulted on the loan on November 1, 2006.
{5} Although Appellant attempted to negotiate a loan modification, the
parties were unable to reach an agreement and Appellee filed its complaint on July
21, 2008 seeking judgment on the unpaid balance of a promissory note and
foreclosure of the mortgage. Simultaneously with the filing of the answer, Appellee
filed a motion for default judgment and for summary judgment.
{6} Appellee also filed the affidavit of Tracy Johnson, the loan supervisor
assigned to Appellant’s account. According to the affidavit, Appellant defaulted on
the note and Appellee exercised the acceleration option contained in the note.
(Johnson Aff., ¶4-5.) Johnson avers that an unpaid principal balance exists in the
amount of $56,874.74, with interest to accrue at the rate of 8.308% per annum from
November 1, 2006, “plus sums advanced by Plaintiff pursuant to the terms of the
Mortgage Deed for real estate taxes, hazard insurance premiums and property
protection* * *.” (Johnson Aff., ¶5.) An illegible loan history statement is attached to
the affidavit, as well as a customer activity statement and a loan activity statement.
No certificate of service is included in the record with the document.
{7} During the pendency of the motions, the parties continued their efforts
to negotiate a loan modification agreement. Appellant filed a response to the motion
for summary judgment on January 30, 2009. A reply was filed on February 17, 2009.
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On October 8, 2009, the trial court entered summary judgment in favor of Appellee.
The judgment entry reads, in pertinent part:
{8} “Judgment on Plaintiff’s Promissory Note in the amount of $56,874.74,
plus interest at a rate of 8.308% from November 1, 2006 together with its advances
made pursuant to the terms of the mortgage for sums, including but not necessarily
limited to, real estate taxes, insurance premiums; and property inspections,
preservation and protection.” (10/8/08 J.E., pp. 3-4.)
ASSIGNMENT OF ERROR NO. 1
{9} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BECAUSE APPELLEE FAILED TO PRESENT EVIDENCE THAT THE AMOUNT
CLAIMED DUE AND OWING WAS CORRECT.”
{10} The evidence used to support summary judgment in favor of the bank in
this case was an affidavit of Tracy Johnson filed November 6, 2008. The record
reflects that the Johnson affidavit was filed with the trial court, but the record does not
include a certificate of service for the affidavit. Civ.R. 5(D), captioned “Filing,” reads,
in its entirety:
{11} “All papers, after the complaint, required to be served upon a party shall
be filed with the court within three days after service, but depositions upon oral
examination, interrogatories, requests for documents, requests for admission, and
answers and responses thereto shall not be filed unless on order of the court or for
use as evidence or for consideration of a motion in the proceeding. Papers filed with
the court shall not be considered until proof of service is endorsed thereon or
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separately filed. The proof of service shall state the date and manner of service and
shall be signed in accordance with Civ. R. 11.”
{12} Ohio courts have strictly enforced Civ.R. 5(D). Where there is no proof
of service either attached to a filing or separately filed with the trial court, the trial
court may not consider the filing. Civ.R. 5(D); Nosal v. Szabo, 8th Dist. Nos. 83974,
83975, 2004-Ohio-4076, ¶21; Manor Care Healthcare Corp. v. Cook (Jan. 7, 1993),
8th Dist. No. 64003. In this case, since there is no proof of service for the Johnson
affidavit, it cannot be used to support Appellee’s motion for summary judgment. We
also note that some of the supporting financial documents attached to the affidavit
are illegible and do not, then, qualify as competent credible evidence supporting
summary judgment.
{13} In Vivo v. Markovsky (May 2, 1996), 94 C.A. 152, we addressed the trial
court’s failure to consider a motion for continuance before proceeding to trial. The
record indicated that the trial court was not aware that the motion for continuance had
been filed, and also that no certificate of service was endorsed on the motion. We
stated, “[e]ven had the court been aware of the motion, it was precluded from ruling
on it until proof of service had been filed.” Id. at *3.
{14} Here, Appellee failed to include a certificate of service or proof of
service to accompany the affidavit in support of the motion for summary judgment.
According to the strict mandates of Civ.R. 5(D), the trial court should not have
considered the affidavit. Without the attestations in the affidavit, there was no
evidence before the trial court to establish the amount due and owing on the note.
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Therefore, the trial court erred when it entered summary judgment in favor of
Appellee. For these reasons, Appellant’s first assignment of error is sustained.
ASSIGNMENT OF ERROR NO. 2
{15} “THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN THE
AMOUNT OF $56,874, WITH INTEREST AND OTHER CHARGES NOT
SPECIFIED, WITHOUT EVIDENCE, NEGATING ALBUS’ RIGHT TO
REDEMPTION.”
{16} Appellant contends that the judgment in this case is not based on any
evidence of an actual accounting of the debt owed, and does not set forth a sum
certain that would enable her to redeem her property pursuant to the redemption
statute. The redemption statute, R.C. 2329.33, allows the debtor to redeem the
mortgaged property at any time before the sale is confirmed by the court.
Redemption consists of depositing with the clerk of courts the amount of the
judgment along with all costs, including poundage and interest. See Women’s Fed.
Sav. Bank v. Pappadakes (1988), 38 Ohio St. 3d 143, 146, 527 N.E.2d 792; R.C.
2329.22. Appellant contends that the final judgment in this case is ambiguous as to
the amount actually owed because it does not define what she owed for “advances
made pursuant to the terms of the mortgage for sums, including but not necessarily
limited to, real estate taxes, insurance premiums; and property inspections,
preservation and protection.” (10/8/09 J.E., pp. 3-4.) Appellant submits that she
could not exercise her right to redemption without knowing what amount she is
actually required to deposit with the clerk of court to effectively assert the right.
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{17} Appellee responds that this argument is premature because Appellant
has not actually attempted to the redeem the property, nor has she deposited any
amount of money with the clerk of court. Appellee also argues that the judgment
entry does describe a sum certain in the amount of $56,874.74 plus interest at a rate
of 8.308 percent from November 1, 2006. Appellee contends that Appellant could
have submitted this amount to the clerk of court in order to redeem the property.
{18} Both parties are partially correct. The trial court’s judgment entry does
state the exact amount due as the personal judgment on the promissory note, and it
is clear that the right of redemption has not yet been attempted since the foreclosure
sale was stayed by the trial court. However, as Appellant correctly argues, the
judgment entry is vague and confusing. At first glance, it appears to be intended as a
final judgment on the promissory note, even though it includes some, but not all, of
the elements of a final judgment in foreclosure. It does include a demand to marshal
liens, appraise, and sell the property. The entry includes standard language
declaring that the right of redemption is being foreclosed. But the judgment entry
cannot serve as a final judgment in foreclosure because it also states that the final
decree of foreclosure is “to be submitted” at some point in the future. (10/8/09 J.E.,
p. 4.) Further, the entry does not contain a number of elements that are necessary to
a final order of foreclosure, including the description and amount of other liens, the
priority of the liens, and how the funds should be distributed to the various claimants.
Second Natl. Bank of Warren v. Walling, 7th Dist. No. 01-C.A.-62, 2002-Ohio-3852,
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¶18; Mortgage Electronic Registration Systems, Inc. v. Green Tree Servicing, LLC,
9th Dist. No. 23723, 2007-Ohio-6295, ¶9.
{19} Because we must remand this matter pursuant to Appellant’s first
assignment, any ruling we would issue in assignment two would be advisory, only.
On remand, if the trial court does issue a final judgment of foreclosure, the court will
be required to inform Appellant of the amount required for her to redeem the property
pursuant to R.C. 2329.33, with specifity. Because no final order in foreclosure has
issued, Appellant’s second assignment of error in this regard is overruled.
{20} In conclusion, the affidavit submitted by Appellee in support of its
motion for summary judgment did not contain a certificate of service. Hence, it could
not be used by the trial court as evidence in this matter. Because there was no other
evidence in the record to establish the amount due on the note, it was error to grant
summary judgment to Appellee. The judgment of the trial court is hereby reversed
and this matter is remanded for further proceedings. Appellant’s second assignment
of error is overruled.
Vukovich, J., concurs.
DeGenaro, J., concurs.