Fifth Third Mtge. Co. v. Perry
2013 Ohio 3308
Ohio Ct. App.2013Background
- Richard and Audrey Perry executed a mortgage and note; the loan was assigned to Fifth Third Mortgage; loan modified in 2008 increasing principal. Richard died in October 2009; no probate estate was opened; Kenneth Perry received title via transfer-on-death deed but did not sign or assume the loan documents.
- Kenneth Perry paid $5,000 in July 2010 and later received a coupon book; he alleges an oral agreement with a Fifth Third representative ("Kathy") to forbear foreclosure in exchange for the lump sum and a modified payment plan; Fifth Third filed foreclosure Nov. 16, 2010 and returned later payments.
- Insurance proceeds payable to the Estate of Richard Perry and Fifth Third Bancorp were applied by Fifth Third to repairs and fees; Kenneth claimed conversion.
- Fifth Third sued in foreclosure (seeking lien enforcement and sale); Kenneth counterclaimed/new-party-claimed for breach of contract, conversion, civil conspiracy, abuse of process, fraud, negligent misrepresentation, and OCSPA violations.
- Trial court granted summary judgment to Fifth Third on the foreclosure and to Fifth Third on most counterclaims; Kenneth appealed; this court stayed foreclosure and reviewed de novo.
- Appellate holding: reverse summary judgment on foreclosure and remand (triable issues exist whether parties agreed to modify payments); affirm summary judgment for Fifth Third on conversion, fraud, civil conspiracy, abuse of process, and OCSPA; reverse as to breach of contract and negligent misrepresentation (these survive to trial). Protective order/discovery ruling affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fifth Third was entitled to summary judgment and foreclosure | Fifth Third: loan and mortgage were in default; no enforceable modification; foreclosure proper | Kenneth: parties made an oral forbearance/modification (July 2010) preventing default/foreclosure | Reversed: triable factual dispute exists about an oral agreement modifying payment terms; summary judgment inappropriate; remand for trial |
| Whether alleged oral agreement is barred by Statute of Frauds | Fifth Third: agreement invalid under Statute of Frauds absent signed writing | Kenneth: the alleged agreement only changed payment timing/amounts and did not alter land interest or assume another's debt, so Statute of Frauds inapplicable | Held for Kenneth on this legal point: oral modification re payment schedule/assumption not barred by Statute of Frauds; triable issue remains |
| Whether Fifth Third failed to name necessary parties (estate/heirs) in foreclosure | Kenneth: estate/heirs should have been defendants to obtain relief on the debt | Fifth Third: foreclosure sought lien enforcement/sale not money judgment on estate; necessary parties (title holders) were named, Kenneth included | Court: foreclosure complaint need not name estate where no money judgment sought; but trial court erred if it awarded a money judgment to Fifth Third; naming adequate as filed |
| Validity of Kenneth's counterclaims (breach, conversion, fraud, negligent misrep., civil conspiracy, abuse of process, OCSPA) | Kenneth: facts support each tort/contract claim based on forbearance promise, return/handling of payments, and insurance checks | Fifth Third: no agreement existed; payments applied properly; Kenneth lacks standing to sue on Estate checks; no evidence of intent or concerted malicious acts | Mixed: summary judgment for Fifth Third affirmed on conversion, fraud, civil conspiracy, abuse of process, and OCSPA; reversed as to breach of contract and negligent misrepresentation (these present triable issues) |
| Discovery/protective order | Kenneth: Fifth Third's discovery responses were insufficient; protective order/stay improper | Fifth Third: produced ~1,000 documents and responses; protective order appropriate | Court: trial court did not abuse discretion; protective order and stay of discovery affirmed |
Key Cases Cited
- Smith v. McBride, 130 Ohio St.3d 51 (2011) (standard of review for summary judgment is de novo)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (moving party’s burden to demonstrate absence of genuine issue of material fact)
- Nonamaker v. Amos, 73 Ohio St. (1905) (oral agreements extending mortgage payment time not barred by Statute of Frauds)
- Cleveland Trust Co. v. Elbrecht, 137 Ohio St. 358 (1940) (oral assumption of a mortgage is not within the Statute of Frauds)
- Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294 (1994) (elements of abuse of process claim)