DocketNumber: No. 2005CA00227.
Judges: FARMER, P.J.
Filed Date: 2/21/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} Over time, appellant failed to make the required payments. Appellee sent appellant a thirty day demand letter. Appellant failed to remit the required sum and as a result, the loan was accelerated.
{¶ 3} On February 15, 2005, appellee filed a foreclosure action. Appellant filed an answer and counterclaim on March 22, 2005. Both parties filed motions for summary judgment; appellant on her counterclaim and appellee on its complaint and appellant's counterclaim. By judgment entry filed September 2, 2005, the trial court granted appellee's motion for summary judgment and denied appellant's motion.
{¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
{¶ 7} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins,
{¶ 8} "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 (1994),
{¶ 9} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987),
{¶ 10} A movant for summary judgment bears the burden of proving that no genuine issue of material fact exists and he/she is entitled to judgment as a matter of law. AAAA v. River PlaceCommunity (1990),
{¶ 11} "[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and 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. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party."
{¶ 13} In appellant's own motion for summary judgment, she avers in her affidavit that she "made all her monthly payments in full and on a timely basis." See, Lee Aff. at ¶ 3, attached to Defendant's July 29, 2005 Motion for Summary Judgment as Exhibit A. In support of this claim, appellant attached the same print out of her account, but the print out stopped before the claimed date of non-payment (November 1, 2004).
{¶ 14} Based on the exhibits presented, we do not find that a genuine issue of material fact exists on the issue of non-payment since November 1, 2004. Therefore, we conclude appellee met its burden to justify summary judgment on the complaint.
{¶ 15} Upon review, we find the trial court did not err in granting summary judgment to appellee on the complaint.
{¶ 17} Appellant acknowledges that appellee notified her of forced insurance payments via a letter dated June 20, 2002, but she claims she contacted appellee "and notified them of the insurance she already [had] in place on the Property." See, Lee Aff. at ¶ 7 and 8. Attached to appellant's motion for summary judgment as Exhibit 1 are various insurance declarations from August 1995 to December 1998 and one dated March 7, 2005. None of these declarations are proof of payment of insurance nor do they cover the time from 2002 to 2004 when the forced insurance payments were put into effect. The motion does not include any proof of payment of real estate taxes.
{¶ 18} Based on the exhibits presented, appellant did not produce proof of payment of insurance or real estate taxes. Therefore, we conclude appellant did not meet her burden to justify summary judgment on the counterclaim.
{¶ 19} Upon review, we find the trial court did not err in denying appellant's motion for summary judgment on the counterclaim.
{¶ 20} The sole assignment of error is denied.
{¶ 21} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.
Farmer, P.J. Edwards, J. and Boggins, J. concur.