2018 Ohio 917
Ohio Ct. App.2018Background
- Chase filed foreclosure on a mortgage originally executed by Lloyd and Shirley Shoffner; the parents died and their children (appellants) acquired title.
- Chase asserted approximately $94,641.23 principal owed (total due later stated $143,716.83 with interest/deferred interest) and sought foreclosure and correction of a scrivener’s-error property description.
- Appellants (Larry, Scott Shoffner, and Cathy Spears) claimed an oral agreement with Chase: they orally assumed/modified their parents’ loan, paid an $8,500 lump sum and made monthly payments of $716.20; some payments allegedly accepted, some refused.
- Chase moved for summary judgment, arguing no written agreement existed (statute of frauds bars oral agreement) and denying any oral modification/assumption.
- Trial court granted summary judgment for Chase; appellants appealed, arguing genuine factual disputes and that part performance removed the oral agreement from the statute of frauds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an alleged oral agreement to assume/modify the mortgage exists | No oral agreement; record lacks mutual assent or bank acceptance | Appellants say oral assumption/modification occurred; point to lump sum and payments | No genuine factual dispute: evidence is self-serving, unsigned documents, and intermittent payment acceptance does not show mutual agreement |
| Whether the statute of frauds bars enforcement of the alleged oral agreement | Agreement concerns an interest in land and must be in writing; unenforceable | Part performance (lump sum and payments) removes the agreement from statute of frauds | Statute of frauds applies; court did not reach part-performance issue because appellants failed to show an enforceable oral agreement |
| Whether appellants’ payments establish a modification or assumption | Payments were voluntary or partial account payments, not acceptance of a new contract | Payments (lump sum + monthly payments) are evidence of part performance and consideration | Payments alone insufficient to prove a separate enforceable agreement or mutual acceptance by the bank |
| Appropriateness of summary judgment | Chase: entitled to judgment as a matter of law after record shows no enforceable oral contract | Appellants: factual disputes preclude summary judgment | Summary judgment affirmed — reasonable minds can only conclude against appellants on the key issues |
Key Cases Cited
- FirstMerit Bank, N.A. v. Inks, [citation="138 Ohio St.3d 384"] (Ohio 2014) (oral forbearance/modification involving release or alteration of a mortgage pertains to an interest in land and falls under the statute of frauds)
- Grafton v. Ohio Edison Co., [citation="77 Ohio St.3d 102"] (Ohio 1996) (standard of review for summary judgment is de novo)
- Dresher v. Burt, [citation="75 Ohio St.3d 280"] (Ohio 1996) (party moving for summary judgment must identify evidentiary materials showing absence of genuine issue; nonmoving party must present specific facts)
- Hughes v. Oberholtzer, [citation="162 Ohio St. 330"] (Ohio 1954) (part performance must be unequivocal, exclusively referable to the alleged contract, and change the actor’s position to preclude restoring parties to status quo)