CitiMortgage, Inc. v. GuintherCitiMortgage, Inc. v. Guinther
Rendered on September 17, 2013
Graydon Head & Ritchey LLP, John C. Greiner, and Harry W. Cappel, for appellee.
Cindy S. Guinther, pro se.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Defendant-appellant, Cindy S. Guinther (“appellant“), appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment and a decree in foreclosure to plaintiff-appellee, CitiMortgage, Inc., successor by merger to ABN AMRO Mortgage Group, Inc. (“CitiMortgage“). Because (1) appellant failed to present sufficient evidence in response to CitiMortgage‘s motion for summary judgment to establish that CitiMortgage was not a holder of the note and mortgage, (2) appellant failed to demonstrate any prejudice resulting from her delayed receipt of CitiMortgage‘s motion for summary judgment, and (3) appellant failed to object to the court‘s entry granting CitiMortgage summary judgment, we affirm.
{¶ 2} This case concerns a parcel of residential property located on East Lincoln Avenue in Columbus, Ohio. Appellant notes that the property has been in her family‘s possession for over 80 years.
{¶ 3} On September 4, 2003, appellant executed a promissory note in favor of Pinnacle Equity Group of Canton, Inc. (“Pinnacle“) in the face amount of $64,000. Appellant also granted Pinnacle a mortgage upon the East Lincoln Avenue property to secure the obligation under the note. Pinnacle subsequently assigned the note and mortgage to ABN AMRO Mortgage Group, Inc. (“ABN“). On September 1, 2007, ABN merged into CitiMortgage.
{¶ 4} On August 18, 2011, CitiMortgage filed a complaint for foreclosure, alleging that appellant had defaulted under the terms of the note. Appellant, appearing pro se, filed an answer to the complaint.
{¶ 5} On March 2, 2012, CitiMortgage filed a
{¶ 6} On April 19, 2012, appellant filed a memorandum contra CitiMortgage‘s motion for summary judgment. Appellant asserted in her memorandum contra that CitiMortgage had not established ownership over either the note or the mortgage, that Freddie Mac claimed to be the owner of the mortgаge, and that CitiMortgage violated the Fair Debt Collection Practices Act (“FDCPA“) by sending appellant the proposed judgment entry on March 5, 2012. CitiMortgage filed a memorandum in support of its motion for summary judgment on May 7, 2012, noting that appellant failed to submit appropriate
{¶ 7} On May 23, 2012, appellant filed an affidavit which incorporated several documents by reference. CitiMortgage filed a motion to strike appellant‘s affidavit on May 31, 2012.
II. ASSIGNMENTS OF ERROR
{¶ 9} Appellant appeals, assigning the following assignments of error:
I. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR CITIMORTGAGE, INC., BY FINDING THAT ALL NECESSARY PARTIES HAVE BEEN PROPERLY SERVED THE PLAINTIFF, CITIMORTGAGE, INC. DID NOT INCLUDE FREDDIE MAC IN THE FORECLOSURE SUMMONS THAT WAS FILED ON 08/18/2011.
II. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE PLAINTIFF, CITIMORTGAGE, INC., BECAUSE THE PLAINTIFF DID NOT SEND THE MOTION FOR DEFAULT JUDGMENT, THE MOTION FOR SUMMARY JUDGMENT, AND CRYSTAL BERRY‘S AFFIDAVIT THAT WAS FILED ON 03/02/2012, UNTIL 03/20/2012.
III. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE PLAINTIFF, CITIMORTGAGE, INC. WHEN THERE STILL EXISTS A GENUINE ISSUE OF MATERIAL FACT,
OHIO LAW 56 (C) . I HAVE SUBSTANTIAL EVIDENCE THAT FREDDIE MAC IS THE TRUE OWNER OF MY MORTGAGE AND PROMISSORY NOTE, AND THE PLAINTIFF DOES NOT HAVE THE STANDING TO FORECLOSE.IV. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE PLAINTIFF, CITIMORTGAGE, INC., WHEN THERE IS AN UNCERTAINTY OF THE COSTS. THE
TOTAL AMOUNTS OWED FOR TAXES, INSURANCE, AND OTHER FEES WERE NOT SPECIFIED AS REQUIRED.
{¶ 10} For ease of discussion, we address appellant‘s first and third assignments of error together.
III. FIRST AND THIRD ASSIGNMENTS OF ERROR—SUMMARY JUDGMENT PROPERLY GRANTED
{¶ 11} Appellant‘s first assignment of error asserts the trial court erred in granting summary judgment as CitiMortgage failed to serve the complaint on all necessary parties. Appellant‘s third assignment of error asserts the trial court erred in granting summary judgment as a genuine issue of material fact exists regarding ownership of the note and mortgage. Appellant сontends that Freddie Mac is the true owner of her mortgage.
{¶ 12} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). “When reviewing a trial court‘s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Bank Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). We must affirm the trial court‘s judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
{¶ 13} Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving party is entitlеd to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in that party‘s favor.
{¶ 14} When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bares the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an еssential element of the nonmoving party‘s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). A moving
{¶ 15} In its motion for summary judgment, CitiMortgage explained that it was the holder of the note and mortgage as the successor by merger to ABN. CitiMortgage supported its motion with the affidavit of its document control officer, Crystal Berry.
{¶ 16} Berry explained that through her position at CitiMortgage, she had access to CitiMortgage‘s business records, including loan documents and loan account records. Berry averred that her affidavit was based on “personal knowledge obtained from [her] personal review of the business records for the loan which is the subject of this action.” (Berry Affidavit, ¶ 4.) See
{¶ 17} The note reflects that appellant executed the note in favor of Pinnacle on September 4, 2003; the note also contains an allonge. The top part of the allonge is signed by an officer at Pinnacle, and states “[w]ithout recourse pay to the order of ABN AMRO Mortgage Group, Inc.” (Berry Affidavit, exhibit A.) The bottom part of the allonge
{¶ 18} “In foreclosure actions, the real party in interest is the current holder of the note and mortgage.” Everhome Mtge. Co. v. Rowland, 10th Dist. No. 07AP-615, 2008-Ohio-1282, ¶ 12. See also
{¶ 19} Following a merger, the surviving company ” ‘has the ability to enforce * * * agreements as if the resulting company had stepped in the shoes of the absorbed company.’ ” Id., quoting Acordia of Ohio, L.L.C. v. Fishel, 133 Ohio St.3d 356, 2012-Ohio-4648, ¶ 7 (”Acordia II“). See also
{¶ 20} When ABN merged into CitiMortgage, CitiMortgage stepped into the shoes of ABN and, by operation of law, assumed ABN‘s interest in the note and mortgage. Accordingly, the evidence demonstrating the assignment of the note and mortgage to
{¶ 21} Appellant has never contested that she failed to make the required payments on the note. Rather, appellant‘s primary contention throughout this litigation has been that Freddie Mac, and not CitiMortgage, is the true owner of the mortgage. In her memorandum contra the motion for summary judgment, appellant supported her assertion that Freddie Mac was the true owner of the mortgage with a letter from CredAbility, a nonprofit credit counseling group. The letter contains the following statement: “Freddie Mac is the owner of your mortgage and was recently notified by your mortgage lender CITIMORTGAGE, INC. that your loan has become delinquent.” (Memorandum Contra Motion for Summary Judgment, exhibit C.)
{¶ 22} The letter from CredAbility is not a document of the type listed in
{¶ 23} Appellant did not incorporate the letter by reference in a properly framed affidavit and, therefore, the trial court could not consider the letter. See also Karnofel at ¶ 27 (noting that “the Ohio Rules of Civil Procedure must be followed regardless of whether the litigant is represented by counsel or appears pro se“); State of Ohio, Crime Victims Reparations Fund v. Pryor, 10th Dist. No. 07-AP-90, 2007-Ohio-4275. Accordingly, appellant failed to set forth sufficient evidentiary material in her response to
{¶ 24} One month after filing her memorandum in opposition to the motion for summary judgment, appellant filed an affidavit. CitiMortgage filed a motion to strike the affidavit citing Franklin County Court of Common Pleas
{¶ 25} Regardless of any shortcomings in appellant‘s pro se affidavit, the documents which appellant incorporated into the affidavit did not establish that Freddie Mac had an enforceable interest in the note or mortgage. Appellant incorporated into her affidavit the note, the mortgage, a page from the Freddie Mac Document Custody Procedures Handbook, and a partial release of property аpplication which appellant received from CitiMortgage. Appellant did not incorporate the CredAbility letter into her affidavit.
{¶ 26} On the note and mortgage, appellant circled statements on each document indicating that the documents were Fannie Mae/Freddie Mac uniform instruments. On the page from the Freddie Mac handbook, appellant circled a section entitled “Endorsement Chains.” (Appellant‘s Affidavit, exhibit C.) The section explains that a party selling a note to Freddie Mac “must endorse each Note in blank.” (Appellant‘s Affidavit, exhibit C.) Appellant asserted in her affidavit that ABN put the blank endorsement on the note “when they sold it to Freddie Mac, as Freddie Mac requires an Endorsement in Blank on the Promissory Note when it buys a loan.” (Appellant‘s Affidavit, 3.)
{¶ 27} Appellant also asserted in her affidavit that CitiMortgage stated in the partial release of property application “that Freddie Mac [was] the owner of [her] Mortgage.” (Appellant‘s Affidavit, 2.) The letter accompanying the application indicates
{¶ 28} These documents failed to establish that Freddie Mac held any interest in the note or mortgage. The uniform form designation indicates only that the documents were a certain kind of form. As any party may utilize a blаnk endorsement to transfer an instrument, the blank endorsement does not indicate that Freddie Mac had an interest in the note. Finally, the partial release application demonstrates that appellant contacted CitiMortgage to ask CitiMortgage to release the mortgage, thus indicating that CitiMortgage owned the mortgage and had the authority to release the mortgage. Moreover, the blank standard form asking the borrower to fill in the Freddie Mac loan number does not establish that Freddie Mac had any ownership interest in the mortgage. Accordingly, aрpellant‘s affidavit did not present sufficient evidence to create a genuine issue of material fact regarding ownership of the mortgage.
{¶ 29} In her memorandum contra the motion for summary judgment, appellant also asserted that Berry‘s averments were not trustworthy, as the allonge on the note attached to the complaint differed from the allonge on the note attached to the motion for summary judgment. While the allonge attached to the complaint contained only the special endorsement transferring the note to ABN, the allonge attaсhed to the motion for summary judgment contained both the special endorsement to ABN and a blank endorsement.
{¶ 30} The Supreme Court of Ohio recently held that, if a party seeking to foreclose on a mortgage fails to establish “an interest in the note or mortgage at the time it filed suit, it [has] no standing to invoke the jurisdiction of the common pleas court.” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 28. Here, however, CitiMortgage established its ownership interest in the note and mortgage at the time it filed suit, as it attached the necessary documents establishing that it had assumed ABN‘s interest in the note and mortgage following the merger. Accordingly, the
{¶ 31} Although appellant continues to assert on appeal that Freddie Mac owns her mortgage, she acknowledges that the “recorded chain of title stops at ABN.” (Appellant‘s brief, 8.) Appellant also notes that she has “never denied, or disputed the legal merger of ABN * * * with CitiMortgage in 2007.” (Appellant‘s reply brief, 5.) Appellant asserts, however, that ABN did not own her mortgage in 2007, as she contends that Freddie Mac acquired the mortgage in November 2003.
{¶ 32} Appellant has attached a print out from a Freddie Mac webpage to her appellate brief which states that Freddie Mac acquired the mortgage on November 12, 2003. Appellant did not file this document in the court below and accordingly we may not consider the print out in determining the merits of this appeal. See
{¶ 33} Appellant failed to present sufficient evidence in response to CitiMortgage‘s motion for summary judgment to establish a genuine issue of material fact regarding whether ABN owned the mortgage in 2007 when it merged into CitiMortgage. As appellant has not contested Berry‘s averment that appellant defaulted under the terms of the note, the trial court properly granted CitiMortgage‘s motion for summary judgment.
{¶ 34} Appellant‘s first assignment of error asserts the trial court erred in granting CitiMortgage‘s motion for summary judgment as CitiMortgage failed to serve the complaint on Freddie Mac. However, as appellant failed to present evidence demonstrating that Freddie Mac held an interest in the mortgage, appellant failed to establish that Freddie Mac was a necessary party to this action. See Davet v. Sensenbrenner, 8th Dist. No. 98636, 2012-Ohio-5898, ¶ 19, citing State ex rel. Squire v. Kofron, 58 Ohio App. 65 (8th Dist.1937) (noting that “[a]ll parties who have any title, right, or interest in real estate, are necessary parties in a foreclosure action“). Accordingly, there is no discernable error resulting from CitiMortgage‘s failure to serve Freddie Mac with a copy of the complaint.
IV. SECOND ASSIGNMENT OF ERROR—SERVICE
{¶ 36} Appellant‘s second assignment of error asserts the trial court erred in grаnting summary judgment, as appellant did not receive a copy of CitiMortgage‘s March 2, 2012 motion for summary judgment until March 20, 2012.
{¶ 37} Appellant notes that she received CitiMortgage‘s proposed entry granting summary judgment and decree in foreclosure on March 5, 2012. Appellant explains that, after receiving the proposed entry, her friend visited the clerk of court‘s website and discovered that CitiMortgage had filed the motion for summary judgment. Appellant‘s friend informed the clerk‘s office on March 19, 2012 that appellant had not yet received the motion for summary judgment. On March 20, 2012, CitiMortgage‘s counsel sent appellant a letter and a copy of the motion for summary judgment. On March 27, 2012, appellant filed a motion for extension of time and, on April 19, 2012, appellant filed her memorandum contra the motion for summary judgment.
{¶ 38} Appellant contends that the March 5, 2012 letter containing the proposed judgment entry demonstrates CitiMortgage‘s “intent to cheat [her] out of the chance to respond to the Motion for Summary Judgment, because the 17-day allotted time period for [her] response would have expired, and this Entry Judgment letter was a good distraction.” (Aрpellant‘s brief, 5.) Appellant asserts that CitiMortgage‘s attorney “should have confirmed that [appellant] received” the motion for summary judgment after it was filed. (Appellant‘s brief, 4.)
{¶ 39} Under
{¶ 40} CitiMortgage‘s motion for summary judgment contains a certificate of service signed by CitiMortgage‘s counsel attesting that a copy of the motion was sent to appellant‘s address by United States mail. Appellant asserted in her affidavit that she did not receive the motion for summary judgment until March 20, 2012. Thus, although appellant argues that she did not receive the motion shortly after it was filed, she expressly acknowledges that she received the motion on March 20, 2012.
{¶ 41} “Absent any indication of material prejudice, errоr is harmless and cannot serve as a basis for reversal.” Gill v. Grafton Corr. Inst., 10th Dist. No. 10AP-1094, 2011-Ohio-4251, ¶ 30. The trial court granted appellant‘s motion for extension of time, and appellant was able to file her memorandum contra CitiMortgage‘s motion for summary judgment, which the court considered in its entry granting CitiMortgage‘s motion for summary judgment. As such, appellant did not suffer any prejudice from the delayed service of the motion for summary judgment. Similarly, although appellant contends that CitiMortgage sent the proposed judgment entry in an effort to cheat her out of a chance to respond to the motion for summаry judgment, appellant successfully responded to the motion.
{¶ 42} Appellant makes an additional argument under her second assignment of error regarding the FDCPA. Appellant‘s second assignment of error, however, concerns only the delayed service of the motion for summary judgment. Pursuant to
{¶ 43} Appellant contends that by sending her the letter containing the proposed judgment entry CitiMortgage violated the FDCPA. Appellant specifically relies on
{¶ 44} “Application of the FDCPA, however, is limited to consumer debt.” Bank of New York v. Barclay, 10th Dist. No. 03AP-844, 2004-Ohio-1217, ¶ 19. See
{¶ 45} By sending the letter and proposed judgment entry to appellant, CitiMortgаge was not attempting to collect a debt owed to another. Rather, as a result of the merger of ABN into CitiMortgage, CitiMortgage was, if anything, attempting to collect its own debt. Moreover, although appellant cited
{¶ 46} Based on the foregoing, appellant‘s second assignment of error is overruled.
V. FOURTH ASSIGNMENT OF ERROR—CERTAINTY OF JUDGMENT
{¶ 47} Appellant‘s fourth assignment of error asserts the trial court‘s judgment entry is void as it does not present appellant with a definite sum. In its entry granting summary judgment and decree in foreclosure, the court stated that appellant owed a principal balance of $57,180.86 on the note, with interest at the rate of 6.375 percent per annum from April 1, 2011, “and as may be adjusted pursuant to the terms of the note, together with advances for taxes, insurance and otherwise expended, plus costs.” (July 30, 2012 Entry, 2.) Rеlying on NovaStar Mtge., Inc. v. Akins, 11th Dist. No. 2007-T-0111, 2008-Ohio-6055, appellant contends that the court‘s failure to specify the amount due
{¶ 48} In NovaStar, the trial court granted NovaStar‘s motion for summary judgment and “issued an ‘agreed judgment entry and decree of foreclosure.’ ” Id. at ¶ 12. Although captioned an agreed judgment entry, the mortgagor‘s counsel did not sign the entry, “and specifically responded to the proposed judgment entry with a memo to NovaStar‘s counsel, which stated, in part, ‘the judgment entry you propose is wholly inappropriate and you do not have permission to sign my consent.’ ” (Emphasis sic.) Id. at fn. 4. Thе court signed the agreed judgment entry and entered judgment in favor of the mortgagee in the amount of $80,619.43, plus interest at the rate of 9.1 percent, “plus late charges, costs and advances, all as provided in the Note and Mortgage.” Id. at ¶ 12. The court further ordered the mortgagor to pay NovaStar for “advances made on behalf of the Property for real estate taxes, insurance premiums and property protection and maintenance by [NovaStar.]” Id. at ¶ 48.
{¶ 49} Regarding the advances made for real estate taxes and insurance premiums, the court in NovaStar noted that the judgment entry did not provide a sum for these advances, and that the record did not contain any evidence indicating that NovaStar had made such advances. Id. at ¶ 50. The court further noted that there was nothing in the record documenting NovaStar‘s costs and expenses, or any of the funds NovaStar expended for property protection. Id. at ¶ 53, 56. As such, the court concluded the judgment entry was “vague and uncertain, because it does not permit [the mortgagor] to determine her obligations as they existed at the time of the decree with reasonable certainty.” Id. at ¶ 57. Aсcordingly, the court found the judgment entry ” ‘void for uncertainty.’ ” Id., quoting Short v. Short, 6th Dist. No. F-02-005, 2002-Ohio-2290, ¶ 10.
{¶ 50} The Eleventh District later overruled NovaStar to the extent it held the judgment entry void, as the “judgment entry should have been deemed erroneous and voidable, but not ‘void for uncertainty.’ ” Geauga Sav. Bank v. McGinnis, 11th Dist. No. 2010-T-0052, 2010-Ohio-6247, ¶ 18. In Geauga Sav. Bank, the court found NovaStar inapplicable as the appellant, a junior lien holder bank, had “failed to object to the * * * judgment entry, although the record indicate[d] that it was submitted to [the bank],” while in NovaStar, the mortgagor did voice an objection to the proposed entry. Id. at ¶ 15.
{¶ 51} Unlike the facts in NovaStar, appellant did not voice an objection to the proposed judgment entry, which the court ultimately adoрted as its own. Appellant never signed the proposed entry, and thus never indicated whether she accepted or rejected the wording of the entry. See
{¶ 52} Based on the foregoing, appellant‘s fourth assignment of error is overruled.
VI. CONCLUSION
{¶ 53} Having overruled appellant‘s four assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and BROWN, JJ., concur.
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