Bank One v. LytleBank One v. Lytle
{¶ 3} Appellant answered Appellee's complaint wherein he admitted that Appellee was the holder of a note and mortgage executed by Appellant, but denied that he was in default on said note and mortgage. In his answer, Appellant asserted four affirmative defenses and set forth counterclaims that Appellee had violated the Consumer Credit Protection Act, the Truth in Lending Act, and the Fair Credit Reporting Act.
{¶ 4} On May 23, 2002, Appellee filed a motion for default judgment, which was denied by the trial court. Discovery ensued between the parties. On October 31, 2003, Appellee filed a motion for summary judgment. Proceeding pro se, Appellant responded to Appellee's motion for summary judgment on January 5, 2004. On January 30, 2004, Appellee filed a reply brief in support of its October 31, 2003 motion for summary judgment. On February 3, 2003, Appellant filed a
{¶ 5} Appellant has timely appealed the trial court's decision, asserting four assignments of error. We have changed the order of Appellant's assignments of error for ease of analysis.
{¶ 6} In his third assignment of error, Appellant appears to have argued that the trial court erred when it granted summary judgment for Appellee on its claims against Appellant as well as Appellant's counterclaims against Appellee. In relation to Appellee's claim against Appellant, Appellant has argued that a genuine issue of material fact existed as to the amount of money that was due and owing on the note held by Appellee. In relation to Appellant's counterclaims against Appellee, Appellant has argued that genuine issues of material fact existed as to his allegations that Appellee violated various federal statutes regulating consumer lending. We disagree.
{¶ 7} It is well established that an appellate court reviews an award of summary judgment de novo. Grafton v. Ohio EdisonCo. (1996),
"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),
{¶ 8} The party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying portions of the record that demonstrate an absence of a genuine issue of material fact as to some essential element of the nonmoving party's claim. Dresher v. Burt (1996),
{¶ 9} Once the moving party's burden has been satisfied, the burden shifts to the non-moving party, as set forth in
{¶ 10} Pursuant to
"Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
{¶ 11} In the instant matter, Appellant first has argued that Appellee failed to establish the exact amount of money that was due and owing on Appellant's note, therefore creating a genuine issue of material fact for trial and precluding summary judgment. Appellant has also argued that Appellee violated numerous federal statutes that govern the consumer lending industry. In response, Appellee has argued that it established, pursuant to
{¶ 12} We turn first to Appellant's argument that the amount of money that was due and owing on the note was in dispute and thus created a genuine issue of material fact. Our review of Appellee's motion for summary judgment reveals that two affidavits were attached to the motion. The first affidavit was from Mona Reynolds ("Reynolds"). Reynolds' affidavit stated the following: 1) Reynolds was employed by Bank One as a Vice President and Collection Manager I-Retail, and she was involved in efforts to collect the debt owed by Appellant; 2) Appellant was late for payments due on the note on multiple occasions in 1999, 2000 and 2001; 3) as of October 28, 2003, the date of Reynolds' affidavit, Appellant had not made any payments on the note since August 2001 when he paid the May 2001 installment of the note; 4) as a result of Appellant's nonpayment, the note was in default and had been accelerated resulting in a balance of $34,679 due and owing on the note. The second affidavit was from Brian Biernat ("Biernat"). Biernat's affidavit stated the following: 1) Biernat was a foreclosure specialist employed by Appellee; 2) Biernat had personal knowledge of Appellant's note and mortgage; 3) as of June 4, 2002, the date of Biernat's affidavit, Appellant was in default on the note and mortgage in that he failed to pay the June 2001 and all subsequent payments; 4) Appellant's note had been accelerated pursuant to the terms of the note; and 5) as a result of the default and acceleration, $34,679 was due and owing on the note.
{¶ 13} Pursuant to
"Unless controverted by other evidence, a specific averment that an affidavit pertaining to business * * * is made upon personal knowledge of the affiant * * * satisfies the
{¶ 14} In the instant matter, both affiants stated that they were employees of Appellee, had personal knowledge of Appellant's loan account, and had custody or control of Appellant's note. Both affiants also stated that Appellant's account was in default in the amount of $34,679. Appellant did not present any evidence to refute the claims as set forth by either affiant. Appellant did not present any evidence that either affiant lacked personal knowledge or competence to testify to the matters asserted as required, or that the averments contained in the affidavits were based upon inadmissible evidence. See
{¶ 15} Turning next to Appellant's claim that Appellee violated the Consumer Credit Protection Act, Truth in Lending Act and Fair Credit Reporting Act, we find that Appellant failed to present any evidence in support of these counterclaims. As a result, reasonable minds could come to but one conclusion, namely that Appellee was entitled to summary judgment on all of Appellant's counterclaims against Appellee. See Dresher,
{¶ 16} Based on the foregoing, Appellant's third assignment of error lacks merit.
{¶ 17} In his fourth assignment of error, Appellant has argued that the trial court abused its discretion when it entered summary judgment on behalf of Appellee. Specifically, Appellant has argued that he was unfairly prejudiced when the trial court failed to specifically rule on several pending motions prior to granting Appellee's motion for summary judgment. Appellant has further argued that the trial court abused its discretion when it failed to grant his
{¶ 18} Turning first to Appellant's argument regarding his pending motions, this Court has previously held that "when a trial court fails to rule upon a [pretrial] motion, it will be presumed that it was overruled." Franco v. Kemppel Homes, Inc.,
9th Dist. No. 21769,
{¶ 19} Next we turn to Appellant's argument that the trial court abused it discretion when it denied his
{¶ 20}
"Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just."
{¶ 21} The decision whether or not to grant a
{¶ 22} In support of his argument that he was entitled to a continuance pursuant to
{¶ 23} Our review of the procedural history of the instant matter reveals that Appellant filed a motion for the production of documents on May 9, 2002. The request was continuing and placed upon Appellee the obligation to make supplemental responses as appropriate. On October 30, 2002, Appellant filed a motion to compel discovery wherein he claimed that Appellee had not produced documents which were responsive to his May 9, 2002 request. The trial court granted Appellant's motion to compel on December 11, 2002, stating that Appellee must respond to Appellant's request by December 31, 2002.
{¶ 24} Appellant points to Biernat's affidavit as proof that Appellee violated the trial court's order compelling discovery and thus entitled him to a continuance pursuant to
{¶ 25} Assuming, arguendo, that Biernat's affidavit should have been produced to Appellant pursuant to his May 9, 2002 request, we find such error harmless pursuant to
"* * * [N]o error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice." (Emphasis added.)
{¶ 26} "`In determining whether a substantial right of a party has been affected, the reviewing court must decide whether the trier of fact would have reached the same decision, had the error not occurred.'" Prakash v. Copley Twp., 9th Dist. No. 21057,
{¶ 27} In the instant matter, Biernat's affidavit made the same averments as did Appellee in its complaint dated December 7, 2001 and Reynolds in her affidavit dated October 28, 2003. Biernat's affidavit avered that: 1) Appellant was in default on a note held by Appellee; 2) as a result of the default, the note had been accelerated pursuant to the acceleration clause of the note; and 3) as a result of the default and acceleration, $34,679 was due and owing on the note. Thus it is clear to this Court that even if Appellant would have received Biernat's affidavit prior to December 31, 2002 as ordered by the trial court, Appellant still bore the burden of production in response to Reynolds' affidavit. Specifically, Appellant had to produce evidence that created a genuine issue of material fact as to Reynolds' averments that Appellant was in default on his note and mortgage, the note had been accelerated, and $34,679 was due and owing on the note.
{¶ 28} As discussed, infra, Appellant did not meet his burden of production on these very issues when he responded to Appellee's motion for summary judgment on January 5, 2004. As a result, we are convinced that the trial court would have reached the same conclusion and granted Appellee's motion for summary judgment even if Appellee had produced Biernat's affidavit prior to December 31, 2002. It follows that a substantial right of Appellant was not affected by the alleged error of which he now complains, and the trial court did not abuse its discretion when it denied Appellant's
{¶ 29} In his first assignment of error, Appellant has argued that the trial court's decision entering judgment of foreclosure was in error because the amount that was due and owing on the note held by Appellee and secured by Appellant's real property was in dispute. In his second assignment of error, Appellant has argued that the entry of foreclosure and dismissal of Appellant's counterclaims was in error because the judgment entry of the trial court failed to address all of the issues presented to the trial court by Appellant. We disagree.
{¶ 30} It is well settled in Ohio that once a default in payment has occurred under the terms of a note, and once the note has been accelerated pursuant to its acceleration clause, the holder of the note is entitled to judgment. Bank One,
{¶ 31} This Court has already determined that summary judgment was properly granted to Appellee on its claims of foreclosure against Appellant and Appellant's numerous counterclaims. We affirmed the trial court's finding that Appellant defaulted on the note and mortgage held by Appellee, the balance had been accelerated pursuant to the acceleration clause of the note, and $34,679 was due and owing on the note. Based on the foregoing, it is clear to this Court that Appellee was entitled to a judgment of foreclosure. Id. Appellant's first and second assignments of error lack merit.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
Exceptions.
Slaby, J., Boyle, J., concur.