Bank of New York Mellon v. Ackerman
2012 Ohio 956
Ohio Ct. App.2012Background
- In 1995, the Ackermans obtained a $91,000 mortgage to buy their Dayton home.
- Joyce Ackerman allegedly became disabled the following year, contributing to financial hardship.
- In April 2009, Bank filed a foreclosure action; in October 2009, the bank sought a stay for loan-modification discussions, which the court granted administratively.
- Bank moved to reactivate in May 2010; in August 2010, Bank moved for summary judgment; Ackermans opposed, requesting a stay.
- On November 11, 2010, the trial court granted summary judgment to Bank, finding the note and mortgage valid, breach by Ackermans, and a balance of $74,507.87 plus interest due.
- Ackermans appealed asserting three assignments of error; the appellate court affirmed, overruling all assignments and holding Bank entitled to foreclose.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing foreclosure despite ongoing modification talks constitutes frivolous conduct | Ackermans argue Bank acted frivolously under RC 2323.51 | Ackermans contend bank’s action during modification talks was improper | Frivolous-conduct claim forfeited; no error shown even if properly before court |
| Whether entering judgment on Veterans’ Day was an error | Bank asserts timely entry of judgment | Ackermans claim holiday timing invalidates judgment | No abuse of discretion; judgment entered properly on a legal holiday under discretionary authority |
| Whether summary judgment was erroneous due to a claimed loan-modification agreement | Bank relied on default and proper evidentiary support; modification agreement not properly admissible | Ackermans contend there was a June 2010 loan-modification agreement affecting default status | Summary judgment proper; modification evidence not properly admissible under Civ.R.56 |
Key Cases Cited
- Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433 (Ohio 1996) (lender may enforce written agreements without bad-faith claim)
- Kham & Nate's Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351 (7th Cir. 1990) (contract enforcement not bad faith merely for negotiating later)
- U.S. Bank Natl. Assn. v. Mobile Assoc. Natl. Network Sys., Inc., 195 Ohio App.3d 699 (2011-Ohio-5284 (10th Dist.)) (bank may pursue foreclosure despite negotiations; lender’s rights under contract)
- Key Bank Natl. Assoc. v. Bolin, 2011-Ohio-4532 (Fifth Dist. Ohio) (no requirement to allow borrower to participate in modification)
- Norman v. State, 109 Ohio St. 213 (1924) (courts may hear matters on a legal holiday absent mandatory prohibition)
- State v. Turner, 2011-Ohio-4348 (3d Dist. Ohio) (trial court may conduct business on a legal holiday; no voiding of proceedings)