2013 Ohio 566
Ohio Ct. App.2013Background
- Appellees American Savings Bank, fsb and ASB Development Corp. sued Carl E. Pertuset and Vera M. Pertuset in Scioto County for default on multiple promissory notes and foreclosures of related mortgages.
- Between 2000 and 2008 appellants executed three notes to American and one to ASB, with mortgages securing them.
- Suit filed May 20, 2010 alleging default and seeking foreclosure; appellants answered but did not address merits and sought dismissal due to a discharged bankruptcy (later dismissed).
- Plaintiffs moved for summary judgment supported by Jack Stephenson’s affidavit detailing amounts due, copies of instruments, and ownership of notes; appellants offered only vague rebuttals and failed to provide Civ.R. 56(C) evidentiary materials.
- Trial court granted summary judgment; foreclosure judgment entered; appellate review followed de novo.
- Appellants’ challenges on assignments of error were considered despite lack of formal assignments in the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privity and proper party in interest proven | Pertuset; American/ASB had privity | Pertuset; no privity shown | Privity established; proper party in interest found |
| Damages amount established | Stephenson affidavit shows amounts due | No counter-evidence of damages | Damages established via Stephenson affidavit |
| Summary judgment proper given no rebuttal evidence | Affidavit sufficient; no Civ.R. 56(C) evidence from appellants | Appellants rebuttal could create material fact | Summary judgment affirmed; no genuine issues raised |
Key Cases Cited
- Sutton Funding, L.L.C. v. Herres, 188 Ohio App.3d 686 (Ohio App. 4th Dist. 2010) (summary judgment de novo review factor guidance)
- Broadnax v. Greene Credit Service, 118 Ohio App.3d 881 (Ohio App. 2nd Dist. 1997) (summary judgment standard guidance)
- Sampson v. Cuyahoga Metro. Hous. Auth., 188 Ohio App.3d 250 (Ohio App. 8th Dist. 2010) (de novo review applies to summary judgments)
- Kalan v. Fox, 187 Ohio App.3d 687 (Ohio App. 8th Dist. 2010) (privity and ownership considerations in foreclosure)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (establishing burden-shifting in Civ.R.56)
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998) (burden shifting and standard for summary judgment)
- Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250 (2010) (summary judgment standard)
- Vahila v. Hall, 77 Ohio St.3d 421 (1997) (criteria for summary judgment)