Deutsche Bank Natl. Trust Co. v. TaylorDeutsche Bank Natl. Trust Co. v. Taylor
Dated: February 2, 2011
MOORE, Judge.
{¶1} Appellant, Kenneth S. Taylor, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I.
{¶2} On February 6, 2006, Taylor and his wife, Alycia Taylor-Driggins1, executed and delivered to Option One Mortgage Corporation a promissory note that was secured by a mortgage on the property at 8610 Hadden Road, Twinsburg, Ohio, 44087. They subsequently defaulted on the note and have not made a monthly payment since March 30, 2007. On May 4, 2007, Option One sent a notice of default that included terms for curing the default. The couple
{¶3} On August 22, 2008, Deutsche Bank filed a motion for summary judgment. After another attempt at mediation failed, Deutsche Bank filed another motion for summary judgment on July 21, 2009, and included a new affidavit in support of the motion. On September 10, 2009, the trial court granted summary judgment in favor of Deutsche Bank. On October 2, 2009, the trial court vacated the entry of summary judgment after Taylor brought to the court‘s attention a number of discrepancies between the affidavit in support of summary judgment filed on August 22, 2008, and the affidavit in support of summary judgment filed on July 21, 2009. Most importantly, the first page of the July 21, 2009 affidavit did not include a state, county or the affiant‘s name. Handwritten in the area left for a name is the notation “Original to Follow.” The affidavit lacked a signature and was not notarized. Also, the affidavit included several discrepancies related to dates. Finally, the affidavit included a statement that “Susan White is not of Active Military Status.” The trial court ordered Deutsche Bank to produce an accurate affidavit within 30 days or risk dismissal of the motion for summary judgment.
{¶4} On November 3, 2009, Deutsche Bank provided a new, properly signed and notarized affidavit in support of summary judgment. The November 3, 2009 affidavit included corrected dates and stated that neither Taylor nor Driggins-Taylor was on active military duty.
{¶5} Taylor timely filed a notice of appeal. He has raised ten assignments of error for our review. We have rearranged and combined some of Taylor‘s assignments of error to facilitate our discussion.
II.
{¶6} Taylor has presented his arguments before the trial court and this Court pro se. With respect to pro se litigants, this Court has observed:
“[P]ro se litigants should be granted reasonable leeway such that their motions and pleadings should be liberally construed so as to decide the issues on the merits, as opposed to technicalities. However, a pro se litigant is presumed to have knowledge of the law and correct legal procedures so that he remains subject to the same rules and procedures to which represented litigants are bound. He is not given greater rights than represented parties, and must bear the consequences of his mistakes. This Court, therefore, must hold [pro se appellants] to the same standard as any represented party.” (Internal citations omitted.) Sherlock v. Myers, 9th Dist. No. 22071, 2004-Ohio-5178, at ¶3.
{¶7} We have made every effort to address the merits of his contentions. It is not, however, our duty to create an argument where none is made. Cardone v. Cardone (May 6, 1998), 9th Dist. No. 18349, at *8.
“INSUFFI[]CIENCY SERVICE PROOF FINAL APPEALAB[L]E ORDER[.]”
{¶8} In his first assignment of error, Taylor contends that the trial court maliciously failed to send him notice of a final order in this case as required by
{¶9} It is unfortunate that the decree of foreclosure did not include
ASSIGNMENT OF ERROR II
“JUDGE LACK JURISDICTION[.]”
“SUMMARY JUDGMENT VOID[.]”
{¶10} In his second and third assignments of error, Taylor essentially contends that the trial court conspired with Deutsche Bank‘s counsel to inappropriately enter summary judgment on his counterclaims and that the trial court erred in granting summary judgment to Deutsche Bank on the foreclosure action and on Taylor‘s counterclaims. We agree that the trial court erred when it granted summary judgment in favor of Deutsche Bank on Taylor‘s counterclaims. We do not agree that the trial court erred in granting summary judgment to Deutsche Bank on its foreclosure claim.
{¶11} Initially, we must address whether the trial court actually granted summary judgment to Deutsche Bank on Taylor‘s counterclaims. The trial court‘s Judgment Entry And Decree In Foreclosure filed on February 1, 2010, recites that:
“On January 8, 2010, this Court, on Plaintiff‘s renewed Motion for Summary Judgment, having reviewed the Complaint, Defendants’ Motion to Dismiss, the Answer and Counterclaim filed by Defendants, Plaintiff‘s Reply to Defendants’ Counterclaim, Plaintiff‘s Response in Opposition to Defendants’ Motions to Dismiss, Defendants’ Opposition to Summary Judgment, Plaintiff‘s Reply Brief to Defendants’ Opposition to Plaintiff‘s Motion for Summary Judgment, the July 22 [sic] Motions and Oppositions thereto, as well as all evidence submitted, including the revised Affidavit submitted by Plaintiff on November 3, 2009 determined that no issue of fact remains for resolution and that Plaintiff is entitled to judgment in its favor as a matter of law on all claims in the suit (the ‘January 8 Order‘). The January 8 Order also referenced and denied Defendant Mr. Taylor‘s motion for an evidentiary hearing and for stay pending the outcome of an evidentiary hearing filed on January 4, 2010.” (Emphasis added.)
The language “on all claims in the suit” can be interpreted to mean all of Deutsche Bank‘s claims and all of Taylor‘s counterclaims. This is especially true because the court recited that it considered the counterclaims and Deutsche Bank‘s reply to the counterclaims. In fact, in its brief on appeal, Deutsche Bank contends that “the Trial Court properly considered the Taylors’
{¶12} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial court, viewing the facts of the case in the light most favorable to the non-moving party and resolving
{¶13} Pursuant to
“(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), 50 Ohio St.2d 317, 327.
{¶14} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶15} With respect to Taylor‘s counterclaims, after reviewing the grant of summary judgment de novo, we reverse the entry of summary judgment in favor of Deutsche Bank. In its motion for summary judgment, Deutsche Bank moved for judgment on its claims only. It did not move for summary judgment with respect to any of Taylor‘s counterclaims. ”
{¶16} With respect to Deutsche Bank‘s motion for summary judgment on its claim for foreclosure, we affirm the entry of summary judgment. When, on November 3, 2009, Deutsche Bank resubmitted a proper affidavit in support of summary judgment, the trial court reinstated Deutsche Bank‘s previously filed motion for summary judgment. “The historic prerequisites for a party seeking to foreclose a mortgage are, * * * execution and delivery of the note and mortgage; valid recording of the mortgage; default; and establishing an amount due.” (Quotation and citation omitted.) Neighborhood Housing Services of Toledo, Inc. v. Brown, 6th Dist. No. L-08-1217, 2008-Ohio-6399, ¶16. “Once a court has determined that a default on an obligation secured by a mortgage has occurred, it must then consider the equities of the situation in order to decide if foreclosure is appropriate.” Rosselot v. Heimbrock (1988), 54 Ohio App.3d 103, 106 (Citation omitted).
{¶17} The affidavit in support of summary judgment indicated that Deutsche Bank is the holder of the note and mortgage secured by the property located at 8610 Hadden Road, Twinsburg, Ohio 44087. On February 6, 2006, the Taylors executed the note and mortgage. The
{¶18} In its judgment entry granting Deutsche Bank a decree of foreclosure, the trial court observed that the Taylors had participated in three mediations. The trial court observed that the parties reached settlement agreements on two separate dates but that Taylor and his wife failed to abide by either agreement. The trial court further observed that the lender sent a third modification package to the couple after the final mediation and that they did not respond. The equities do not weigh against the grant of foreclosure. Rosselot, 54 Ohio App.3d at 105. Therefore, Deutsche Bank met its Dresher burden of demonstrating the absence of a question of material fact. Dresher, 75 Ohio St.3d at 292-93.
ASSIGNMENT OF ERROR VI
“COUNTERCL[AI]M[S] NOT HEARD[.]”
ASSIGNMENT OF ERROR IV
“DISCOVERY DENIED[.]”
{¶21} In his fourth assignment of error, Taylor contends that the trial court erred in failing to compel discovery with regard to a corporate disclosure statement and certain information about Cynthia Stevens, an affiant in support of Deutsche Bank‘s motion for summary judgment.
{¶22} In support of his fourth assignment of error, Taylor cites to Loc.R. 8.01(b), (c), (d)(1), (d)(20), (f) and Loc.R. 8.02 of the Court of Common Pleas of Summit County, General Division, as well as with
“VIOLATION OF JURY TRIAL[.]”
{¶23} In his seventh assignment of error, Taylor contends that the trial court violated his right to a jury trial with respect to Deutsche Bank‘s claim for foreclosure and his counterclaims. We do not agree.
{¶24} Neither party to a foreclosure action “is entitled to demand a jury trial for the trial of the issue.” Alsdorf v. Reed (1888), 45 Ohio St. 653, syllabus. Moreover, “[a] litigant‘s constitutional right to a jury trial is not abridged by the proper granting of a motion for summary judgment.” Washington Mut. Bank F.A. v. Christy, 12th Dist. No. CA2003-03-075, 2004-Ohio-92, ¶14, citing Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, 714; Houk v. Ross (1973), 34 Ohio St.2d 77, 83-84. Because we have already determined that the trial court properly granted summary judgment to Deutsche Bank on its claim for foreclosure, it follows that Taylor was not denied the right to a jury trial. Further, because we ordered his counterclaims to be remanded to the trial court for further proceedings, the remainder of this assignment of error is moot.
ASSIGNMENT OF ERROR V
“DEFECTIVE ASSIGNMENT[.]”
{¶25} In his fifth assignment of error, Taylor contends that the assignment of the note and mortgage to Deutsche Bank was defective. We do not agree.
{¶26} In his contention that the assignment was defective, Taylor relies upon
ASSIGNMENT OF ERROR VIII
“EGREGIOUS ABUSE OF JUDICIAL DISCRETION[.]”
{¶27} In his eighth assignment of error, Taylor contends that the trial court egregiously abused its discretion in creating the errors that form the basis for his first through seventh assignments of error. We do not agree.
{¶28} Taylor has wholly failed to support this contention with any citations to authority or the record.
ASSIGNMENT OF ERROR IX
“IL[L]EGAL WITHDRAWAL OF JUDGES AND COUNSEL[.]”
{¶29} In his ninth assignment of error, Taylor contends that the trial court illegally substituted judges and allowed illegal withdrawal of counsel for Deutsche Bank. We do not agree.
{¶30} Taylor contends that attorney Kevin L. Williams of Manley Deas Kochalski LLC “just walked away from this case after filing a[n] unlawful summary[]judgment motion.” Taylor has failed to demonstrate that any attorney has withdrawn either legally or illegally.
ASSIGNMENT OF ERROR X
“FRAUDULENT ALLONGE NOTE[.]”
{¶32} In his tenth assignment of error, Taylor contends that a fraudulent allonge is attached to the note. We do not agree.
{¶33} As the appellant, Taylor bears the burden of “showing error by reference to matters in the record.” Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. He directs this Court only to the allonge attached to Deutsche Bank‘s affidavit in support of summary judgment. He alleges that Option One added the allonge after the note was sold to Deutsche Bank. He then contends, without any support, that the “plaintiffs forged this document, and has [sic] suppressed the date, signed note with initials, it‘s not certified, has no ‘power of attorney[.]‘” Accordingly, Taylor has failed to demonstrate error with citations to the record. Id.;
III.
{¶34} Taylor‘s first and second assignments of error are overruled. Taylor‘s third assignment of error is sustained in part and overruled in part. Taylor‘s fourth assignment of error
Judgment affirmed in part, reversed in part, and cause remanded.
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 Summit, 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 all parties equally.
CARLA MOORE
FOR THE COURT
DICKINSON, P. J.
BELFANCE, J.
CONCUR
KENNETH S. TAYLOR, pro se, Appellant.
ROBIN M. WILSON, Attorney at Law, for Appellee.