Fed. Natl. Mtge. Assn. v. Ford
2016 Ohio 919
Ohio Ct. App.2016Background
- Federal National Mortgage Association (Federal) sued Stanley Ford in 2011 for mortgage foreclosure, alleging default and attaching the note, mortgage, preliminary judicial report, and tax-lien notice to its complaint (but not a notice of acceleration).
- Ford, pro se, moved to dismiss for failure to state a claim, arguing Federal did not give the required 30-day notice of intent to accelerate; the trial court denied the motion and Ford later answered and counterclaimed.
- Federal moved for summary judgment in 2012, supporting the motion with an affidavit from a foreclosure specialist and Ford’s discovery responses; the affidavit referenced loan documents and a payment history but did not include those documents as attachments to the affidavit or the motion.
- A magistrate granted summary judgment for Federal in 2014; the trial court adopted the magistrate’s decision after Ford’s objections and Ford appealed.
- The appellate court reversed and remanded, holding it was plain error to grant summary judgment where Federal failed to attach or otherwise provide the documents the affidavit referenced (e.g., notice of acceleration, payment history, documentation of satisfaction of conditions precedent), so Federal did not meet its initial summary-judgment burden.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper without attaching documents the affidavit referenced | Affidavit from foreclosure specialist establishes review of loan file, default, acceleration, and amount due | Federal failed to attach the notice of acceleration, payment history, or other documents referenced in the affidavit as required by Civ.R. 56(E) | Reversed: summary judgment improper — plaintiff did not supply documentary support for affidavit assertions, so initial burden not met |
| Whether plaintiff proved default and amount due for foreclosure judgment | Affiant’s sworn statements and reference to loan file suffice to prove default and amounts | Without the loan history, payoff pages, or notices attached, assertions are unsupported by admissible evidence | Reversed: plaintiff did not substantiate default, amounts, late fees, or advances in the record before the court |
| Whether defendant waived challenge to affidavit by failing to object below (Civ.R. 53/Civ.R. 56) | Plaintiff relied on record and affidavit; objection rules and failure to object below should preclude appellate challenge | Ford objected to magistrate decision but did not specifically object to affidavit per Civ.R. 53; nevertheless, plain error review applies | Majority: plain error exists because omission of documentary support was an exceptional deficiency; waiver did not save judgment. Dissent: Ford waived the issue and should not obtain relief |
| Whether Civ.R. 56(E) required attachment/service of documents referenced in affidavits | Civ.R. 56(E) requires sworn copies of papers referred to in an affidavit be attached or served with it | Affidavit references documents; absent attached copies, the affidavit’s statements are conclusory and unsupportable | Held: Civ.R. 56(E) applies; portions of affidavit lacking documentary support should be disregarded and summary judgment cannot rest on them |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (summary judgment de novo review standard)
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (summary-judgment test and standard for resolving doubts in favor of nonmoving party)
- Dresher v. Burt, 75 Ohio St.3d 280 (burden on moving party to show no genuine issue of material fact and how nonmoving party must respond)
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (plain-error doctrine in civil cases; extremely rare and limited application)