2019 Ohio 84
Ohio Ct. App.2019Background
- MB Financial Bank filed a foreclosure complaint in June 2017 alleging Mitchell defaulted on a $159,500 promissory note secured by a recorded mortgage on Warren County property.
- MB moved for summary judgment and submitted an affidavit from its vice president, Ray Stacy, attesting to review of business records and attaching the note, mortgage, mortgage assignment, and a payoff statement. Stacy averred MB possessed the note (endorsed in blank), Mitchell defaulted, and a principal balance remained due.
- Mitchell moved to strike Stacy's affidavit and opposed summary judgment, arguing MB failed to prove amount owed, continuous possession of the note, and proper notice of default; he submitted no contrary evidence.
- MB filed a supplemental Stacy affidavit later that incorporated additional payment history and a servicing-transfer notice; Mitchell claimed he did not receive those filings and sought leave to respond.
- The trial court granted MB summary judgment and denied Mitchell’s motion to strike, finding the supplemental affidavit cured perceived deficiencies; Mitchell appealed.
Issues
| Issue | Plaintiff's Argument (MB) | Defendant's Argument (Mitchell) | Held |
|---|---|---|---|
| Whether MB met initial Civ.R. 56 burden in foreclosure | Stacy affidavit + attached business records establish execution/delivery, recording, holder status, default, amount owed | Stacy affidavit was deficient; supplemental affidavit was improperly considered without opportunity to respond | MB met initial burden on the face of the original Stacy affidavit; summary judgment affirmed |
| Whether trial court erred by considering supplemental affidavit | Supplemental affidavit only added documents; MB relied primarily on original affidavit | Court should not have considered supplemental affidavit without allowing Mitchell to respond | Consideration of supplemental affidavit was inconsequential because original affidavit sufficed; error, if any, harmless |
| Whether trial court erred in denying motion to strike Stacy affidavits | Initial affidavit was sufficient under Evid.R. 803(6) and Civ.R. 56 | Initial affidavit was deficient; supplemental cured defects but court should have granted motion to strike earlier | Mitchell waived detailed attack on initial affidavit; denial of motion to strike not reversible error |
| Whether trial court abused discretion by denying Mitchell leave to respond | No prejudice because original affidavit supported summary judgment | Mitchell lacked opportunity to respond to supplemental filings | No prejudice shown; court’s ruling on leave to respond not reversible |
Key Cases Cited
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (Ohio 1998) (standard for summary judgment and construing evidence in favor of the nonmoving party)
- BAC Home Loans Servicing, L.P. v. Kolenich, 194 Ohio App.3d 777 (Ohio Ct. App. 2011) (elements plaintiff must prove in foreclosure action)
- State v. Watson, 126 Ohio App.3d 316 (Ohio Ct. App. 1998) (appellate court not required to search record to support appellant's arguments)
- State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467 (Ohio 1998) (presumption regarding trial court rulings when no entry is made)