FirstMerit Bank, N.A. v. Shaheen
2011 Ohio 6146
Ohio Ct. App.2011Background
- FirstMerit Bank filed a foreclosure action against Shaheen on June 11, 2009.
- FirstMerit moved for summary judgment on June 9, 2010; Shaheen answered August 5, 2010 and replied January 31, 2011; FirstMerit replied February 17, 2011.
- The trial court granted summary judgment on February 24, 2011 and issued a foreclosure decree March 16, 2011.
- Shaheen challenged the use of an allegedly untrustworthy affidavit and a notary with a perceived bank-affiliate interest.
- The appellate court applied Civ.R. 56 standards, discussed Dresher and related cases, and held Shaheen waived the challenge by not raising it in the trial court.
- The court affirmed the trial court’s judgment, overruling Shaheen’s sole assignment of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of challenge to the affidavit | FirstMerit argues Shaheen waived the challenge by not raising it in the trial court | Shaheen contends the issue could be raised on appeal despite not being raised below | Waived; assignment overruled; judgment affirmed |
Key Cases Cited
- Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41 (Ohio 1975) (errors not raised in trial court are waived on appeal)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (movant bears initial burden in summary judgment)
- Vahila v. Hall, 77 Ohio St.3d 421 (Ohio 1997) (reciprocal burden on nonmoving party to respond with specific facts)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (Ohio 1987) (standard for reviewing summary-judgment evidence)