2013 Ohio 567
Ohio Ct. App.2013Background
- Farm Credit Services of Mid-America, PCA sued for default on promissory notes and foreclosures; American Savings Bank, fsb sought to foreclose on its mortgage as the first lien.
- American filed a cross-claim alleging the mortgage secures its note and that it is the proper party in interest.
- Appellants answered pro se, the trial court treated it as a denial of all allegations.
- The trial court granted summary judgment to American after a Stephenson affidavit authenticated the note and mortgage.
- The affidavit stated the note and mortgage were true copies and that the debt totaled $160,001.52 as of June 15, 2009 with daily interest.
- The court affirmed the foreclosure judgment on appeal, holding no genuine issues of material fact remained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privity and party-in-interest established | American established privity and proper party in interest | Pertuset argues lack of privity or transfer of instruments | Privity and party in interest established; no transfer shown by appellants |
| Damages amount conclusively established | Stephenson affidavit proves the debt amount | Appellants counter with lack of evidence | Damages amount conclusively established; no counter evidence |
Key Cases Cited
- Sutton Funding, L.L.C. v. Herres, 188 Ohio App.3d 686 (4th Dist. 2010) (summary judgment de novo and standard guidance cited by the court)
- Broadnax v. Greene Credit Service, 118 Ohio App.3d 881 (2nd Dist. 1997) (summary judgment framework and burden shifting)
- Sampson v. Cuyahoga Metro. Hous. Auth., 188 Ohio App.3d 250 (8th Dist. 2010) (no deference to trial court on de novo review)
- Kalan v. Fox, 187 Ohio App.3d 687 (4th Dist. 2010) ( Civ.R. 56 burden and rebuttal standard)
- Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250 (2010-Ohio-1027) (summary judgment burdens and standard)
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998) (Affirmative evidence burden on moving party)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (burden-shifting framework for Civ.R. 56)