2019 Ohio 3806
Ohio Ct. App.2019Background
- Ditech Financial sued Balimunkwe to foreclose a 2004 refinance mortgage on his home after payments stopped in 2012.
- Balimunkwe claims he never signed the 2004 refinance and continued to think he was paying the original 1990 loan.
- In August 2017 Balimunkwe filed a handwriting-expert affidavit and report concluding the questioned signatures were not his.
- Ditech moved for summary judgment asserting entitlement to foreclosure as holder of the note; the trial court granted the motion.
- On appeal, the Court of Appeals held the expert evidence created a genuine issue of material fact and that Ditech’s alternative ratification theory was neither pleaded nor supported by the record.
- The appellate court reversed summary judgment and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether handwriting-expert evidence was properly before the trial court and created a triable issue | The evidence was not properly presented with the opposition and the court could ignore it | The affidavit/report were timely filed, referenced in the response, and created a genuine issue whether Balimunkwe signed the 2004 refinance | Evidence was in the record and created a genuine issue of material fact; summary judgment inappropriate |
| Whether signing a 2006 loan modification ratified the 2004 refinance, binding Balimunkwe | The 2006 modification ratified the 2004 agreement, so Balimunkwe is bound | Balimunkwe disputes the 2004 signature and denies ratifying it; the ratification argument was not raised below | Ratification argument was not raised below and thus waived; on the merits record lacks evidence of agency or knowledge to prove ratification |
Key Cases Cited
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (summary-judgment burden-shifting standard)
- Comer v. Risko, 106 Ohio St.3d 185 (2005) (de novo review of summary judgment)
- State v. Peagler, 76 Ohio St.3d 496 (1996) (appellate court may affirm on different grounds only if evidentiary basis was in the trial record)
- State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276 (1993) (issues not raised below are waived on appeal)
- Karat Gold Imports, Inc. v. United Parcel Serv., Inc., 62 Ohio App.3d 604 (1989) (ratification requires that actor purported to act for the ratifier/agency principles)
- Williams v. Stearns, 59 Ohio St. 28 (1898) (ratification and agency principles)
- Greene v. Whiteside, 181 Ohio App.3d 253 (2009) (summary judgment requires the entire record demonstrate no genuine issue)
- Perkins v. 122 E. 6th St., LLC, 94 N.E.3d 207 (2017) (nonmoving party’s reciprocal burden to set forth specific facts to show a triable issue)