THE BANK OF NEW YORK MELLON v. GREGORY ACKERMAN, et al.
Appellate Case No. 24390 : Trial Court Case No. 09-CV-3194
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 9, 2012
[Cite as Bank of New York Mellon v. Ackerman, 2012-Ohio-956.]
(Civil Appeal from Common Pleas Court)
Rendered on the 9th day of March, 2012.
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SCOTT A. KING, Atty. Reg. #0037582, and TERRY W. POSEY, JR., Atty. Reg. #0039666, Austin Landing I, 10050 Innovation Drive, Suite 400, Dayton, Ohio 45342 and ASHLEY ROTHFUSS, Atty. Reg. #0083605, and KIMBERLEE ROHR, Atty. Reg. #0084207, 120 East Fourth Street, 8th Floor, Cincinnati, Ohio 45202 Attorneys for Plaintiff-Appellee, The Bank of New York Mellon
GREGORY ACKERMAN, et al., 556 Shadowlawn Avenue, Dayton, Ohio 45419 Defendant-Appellants, pro se
GEORGE B. PATRICOFF, Atty. Reg. #0024506, Montgomery County Prosecutor‘s Office, Civil Division, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Defendant-Appellee, Montgomery County Treasurer
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{¶ 1} Pro se defendant-appellants Gregory and Joyce Ackerman appeal from a trial court‘s judgment entering summary judgment for plaintiff-appellee The Bank of New York Mellon on its claim in foreclosure. Finding no error, we affirm.
{¶ 2} In 1995 the Ackermans obtained a $91,000 mortgage to buy their Dayton home. The next year, according to the Ackermans’ brief, Joyce became disabled with a range of medical problems. While the Ackermans had purchased a long-term disability insurance policy, the policy apparently does not provide the coverage they thought it did. Eventually, Gregory had to quit working to care for Joyce, and financial hardship for the family followed.1
{¶ 3} In April 2009, the bank filed a foreclosure action.2 But in October of that year the bank asked the trial court to stay the case, saying that it and the Ackermans were working on a loan-modification plan. The court agreed, administratively dismissing the case but allowing it to be reactivated on the bank‘s motion. In May 2010, the bank moved to reactivate the case, saying that efforts to work out a plan had failed. In August 2010, the bank moved for summary judgment. The Ackermans’ opposition to summary judgment asked the court to stay
{¶ 4} On November 11, 2010, the trial court entered summary judgment for the bank, concluding that no genuine issue of material fact exists. The court found that all the necessary parties had been properly served and were properly before it. The court also found that the allegations in the bank‘s complaint were true. In particular, it found that the bank holds the promissory note and mortgage, a valid, first lien on the Ackermans’ house. The court further found that the Ackermans breached a condition of the mortgage. According to the bank‘s affidavit, the Ackermans defaulted on their mortgage when they failed to make a payment in October 2008, so the bank elected to accelerate their payments, making the entire balance owing due. The court found that the Ackermans owed the bank $74,507.87 with interest from September 1, 2008. Finally, the court found that the bank was entitled to foreclose on the mortgage.
{¶ 5} The Ackermans appealed. They now present three assignments of error for our review.
First Assignment of Error
{¶ 6} The Ackermans allege that by filing the foreclosure action the bank engaged in frivolous conduct under
{¶ 7} Under
{¶ 8} Even if the issue were properly before us, we would likely find no error. That modification discussions were ongoing did not bar the bank from seeking foreclosure. The Ohio Supreme Court said in one foreclosure case that “[the lender]‘s decision to enforce the written agreements cannot be considered an act of bad faith.” Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 443, 662 N.E.2d 1074, 1996-Ohio-194. The Court then quoted the Seventh Circuit Court of Appeals: “‘firms that have negotiated contracts are entitled to enforce them to the letter, even to the great discomfort of their trading partners, without being mulcted for lack of “good faith.“‘” Id., quoting Kham & Nate‘s Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357 (7th Cir.1990). “Indeed,” said the Court, “[the lender] had every right to seek judgment on the various obligations owed to it by [the borrower] and to foreclose on its security.” Id. In a recent Tenth District foreclosure case, U.S. Bank Natl. Assn. v. Mobile Assoc. Natl. Network Sys., Inc., 195 Ohio App.3d 699, 2011-Ohio-5284, 961 N.E.2d 715, (10th Dist.), before the bank filed a foreclosure action it and the borrowers had agreed in a letter to negotiate about the borrowers’ obligations. The borrowers asserted that the letter agreement was a binding contract that modified the loan to require the parties to negotiate. They contended that the bank failed to negotiate, breaching the modified loan. Until the bank negotiated, argued the borrowers, it should be estopped from foreclosing. The Tenth District rejected this argument for several reasons. Pertinent among them, the court said that the bank
{¶ 9} Here too, as the bank pointed out in its summary-judgment motion, no provision of the mortgage (or note) requires the bank to participate in loan-modification negotiations or requires it to wait until negotiations it chose to participate in are finished before exercising its right to foreclose. Rather, a mortgage provision gives the bank the right, on the Ackermans’ breach, to pursue full payment and foreclosure without first satisfying any conditions.3 Specifically, paragraph 21 of the mortgage provides that if the Ackermans do not timely cure any breach, the bank has the right to “require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this
{¶ 10} The first assignment of error is overruled.
Second Assignment of Error
{¶ 11} The Ackermans allege that the trial court erred by entering the foreclosure judgment on November 11, Veterans’ Day. They contend that this day is a “legal holiday” under
{¶ 12}
{¶ 13} The Ohio Supreme Court has said that, “in the absence of a statute containing a mandatory provision forbidding the judges of courts to hear and determine matters on a legal
{¶ 14} The question becomes, then, whether by entering the judgment in this case the trial court abused its discretion. The Third District, in considering whether the trial court abused its discretion in holding court during a legal holiday, looked to the regularity of the court‘s proceedings, finding no abuse of discretion: “Upon review of the record, particularly the trial proceedings, there is nothing to suggest that the trial proceeded in an inappropriate or
{¶ 15} The second assignment of error is overruled.
Third Assignment of Error
{¶ 16} Lastly, the Ackermans allege that the trial court erred by ordering foreclosure. They contend that on June 16, 2010, they signed and notarized a loan-modification agreement with the bank and they have been “willing and able to pay each month” under its terms. The agreement they submitted may not properly be considered.
{¶ 17} “Civ.R. 56 defines the standard to be applied when determining whether a summary judgment should be granted.
{¶ 18} ”
{¶ 19} The bank submitted an affidavit from the vice president of loan documentation for the bank‘s servicing agent containing all the averments necessary to support the bank‘s motion, including that the Ackermans are in default under the terms of the note and mortgage. The Ackermans’ response fails to present any
{¶ 21} Finally, we respond briefly to what appears to be the Ackermans’ fundamental desire in this case. In their reply brief, the Ackermans wrote:
The Appellant herein simply seeks the legal standard of a “trial by jury,” and respectfully demand the legal compliance to the rule(s) of Ohio law and United States law, upon a “jury demand” made in a court of law. A fundamental and functional protection of all citizens of their “inalienable rights” and “inviolate” right to a trial by jury on all genuine legal issues of material facts for a jury to decide in civil and criminal actions.
The Ackermans do not have a right to trial by jury in this case because the trial court properly granted summary judgment in favor of the plaintiff. See State Farm Mut. Auto. Ins. Co. v. Advanced Impounding & Recovery Servs., 165 Ohio App.3d 718, 2006-Ohio-760, 848 N.E.2d 534, ¶ 19 (10th Dist.) (saying that a trial court‘s grant of summary judgment does not violate the constitutional right to a jury trial under Ohio‘s constitution); Goodin v. Columbia Gas of Ohio, Inc., 141 Ohio App.3d 207, 231, 750 N.E.2d 1122 (4th Dist.2000) (finding no merit in the appellant‘s argument that summary judgment violated his right to trial by jury, noting that “the Rules of Civil Procedure expressly authorize the summary judgment procedure, and the Ohio Supreme Court consistently has sanctioned the procedure“).
{¶ 22} All of the assignments of error presented are overruled. The judgment of the trial court is affirmed.
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DONOVAN and FROELICH, JJ., concur.
Mathias H. Heck
George Patricoff
Scott A. King
Terry W. Posey, Jr.
Ashley Rothfuss
Kimberlee Rohr
Gregory Ackerman
Joyce Ackerman
Hon. Dennis J. Langer