Deutsche Bank National Trust Company, solely as Trustee for MortgageIT Trust 2005-5, Mortgage-Backed Notes, Series 2005-5 v. Barbara A. Stone, et al.
No. 20AP-94
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 31, 2021
2021-Ohio-3007
On brief: Reisenfield & Associates, LLC, and John R. Tarter, for appellee. Argued: John R. Tarter.
On brief: Doucet Gerling Co., LPA, and John A. Zervas, for appellants. Argued: Barbara A. Stone, and Ronald D. Stone, pro se.
APPEAL from the Franklin County Court of Common
DORRIAN, P.J.
{¶ 1} Defendants-appellants, Barbara A. and Ronald D. Stone (collectively, “appellants“), appeal the January 14, 2020 judgment entry of the Franklin County Court of Common Pleas granting summary judgment in favor of plaintiff-appellee, Deutsche Bank National Trust Company (“Deutsche Bank“), and entering a decree of foreclosure. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On June 27, 2018, Deutsche Bank filed a complaint in foreclosure against appellants.1 In the complaint, Deutsche
{¶ 3} Deutsche Bank further alleged in the complaint that a loan modification, which was attached to the complaint, was executed by Barbara. Additionally, Deutsche Bank alleged it was the holder of the Mortgage and that such Mortgage was a valid first lien on certain real property in Franklin County. Deutsche Bank alleged it held the Mortgage by assignment and attached a copy of the chain of the assignments to the complaint.
{¶ 4} On September 13, 2018, appellants filed an answer. On August 23, 2019, Deutsche Bank filed notice that it submitted on the same date its first set of interrogatories, request for production of documents, and request for admissions to appellants’ counsel. On October 10, 2019, appellants’ attorney filed a motion to withdraw pursuant to
{¶ 5} On November 21, 2019, Deutsche Bank filed a motion for summary judgment. In its motion, Deutsche Bank stated that appellants failed to respond to the August 23, 2019 request for admissions. On November 21, 2019, Deutsche Bank filed a motion for default judgment. On January 14, 2020, the trial court filed a judgment entry granting summary judgment in favor of Deutsche Bank and entering a decree of foreclosure.
II. Assignment of Error
{¶ 6} Appellants appeal and assign the following sole error for our review:
THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE‘S MOTION FOR SUMMARY JUDGMENT AND AWARDED A FORECLOSURE JUDGMENT AGAINST APPELLANTS.
III. Discussion
{¶ 7} In their sole assignment of error, appellants assert the trial court erred in granting summary judgment for Deutsche Bank in this foreclosure action.2
{¶ 8} Upon a mortgagor‘s default, the mortgagee may choose among three separate and independent remedies to collect the debt secured by the mortgage: (1) a personal judgment against the mortgagor to recover the amount due on the promissory note, (2) an action in ejectment to take possession of the property, receive income from the property, with such income applied to the debt, with the property restored to the mortgagor when the debt is satisfied, or (3) an action in foreclosure. Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, ¶ 21-24. An action in foreclosure is the enforcement of a debt obligation and the debt is established by the note. Id. at ¶ 27. ” ‘Where a promissory note is secured by mortgage, the note, not the mortgage, represents the debt.’ ” Id., quoting Kernohan v. Manss, 53 Ohio St. 118, 133 (1895). Generally, a foreclosure action consists of a legal action to collect on the defaulted note combined with an equitable action to force a sale of the mortgaged property. Nationstar Mtge. LLC v. Payne, 10th Dist. No. 16AP-185, 2017-Ohio-513, ¶ 41.
{¶ 9} To properly support a motion for summary judgment in a foreclosure action, a plaintiff must present “evidentiary quality materials” demonstrating that: (1) it is the holder of the note and mortgage, or is a party entitled to enforce the instrument, (2) if it is not the original mortgagee, the chain of assignments or transfers of the mortgage, (3) the mortgagor is in default, (4) all the conditions precedent have been met, and (5) the amount of principal and interest due. U.S. Bank Natl. Assn. v. Lewis, 10th Dist. No. 18AP-550, 2019-Ohio-3014, ¶ 23. See Wiltshire Capital Partners v. Reflections II, Inc., 10th Dist. No. 19AP-415, 2020-Ohio-3468, ¶ 30; Nationstar at ¶ 16. “[P]resentation of the note and mortgage documents, along with the affidavit of a loan servicing agent or employee with personal knowledge of the account, may provide sufficient evidentiary support for a summary judgment in favor of the mortgagee.” Green Tree Servicing LLC v. Asterino-Starcher, 10th Dist. No. 16AP-675, 2018-Ohio-977, ¶ 33, citing Regions Bank v. Seimer, 10th Dist. No. 13AP-542, 2014-Ohio-95, ¶ 19, citing Deutsche Bank Natl. Trust Co. v. Germano, 11th Dist. No. 2012-P-0024, 2012-Ohio-5833. See Holden at ¶ 28, quoting Washer v. Tontar, 128 Ohio St. 111, 113 (1934) (noting that “[g]enerally, ‘the promissory note is the primary evidence of the debt’ * * * and the borrower‘s history of payments is evidence of amounts credited to reduction of the principal, which proportionately reduce the mortgage lien“).
B. Standard of Review
{¶ 10} We review a decision on a motion for summary judgment under a de novo standard. LRC Realty, Inc. v. B.E.B. Properties, 160 Ohio St.3d 218, 2020-Ohio-3196, ¶ 11. De novo appellate review means the court of appeals conducts an independent review, without deference to the trial court‘s decision. Wiltshire Capital at ¶ 12. Summary judgment is appropriate only when the moving party demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled 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
{¶ 11} Pursuant to
{¶ 12} Here, appellants did not respond to Deutsche Bank‘s motion for summary judgment but, instead, raise issues for the first time on appeal challenging whether Deutsche Bank met its initial burden under
C. Analysis
{¶ 13} In their sole assignment of error, appellants assert Deutsche Bank failed to
{¶ 14} Here, Deutsche Bank provided in support of its motion for summary judgment the affidavit of Mark McCloskey. In his affidavit, McCloskey, an assistant vice president of Specialized Loan Servicing LLC, a loan servicing agent for Deutsche Bank, stated that at the time of the filing of the complaint, Deutsche Bank, directly or through an agent, had possession of the Note. McCloskey stated the Note was “duly endorsed in blank” and Deutsche Bank was the assignee of the security instrument for the subject loan. In the signature line of the Note attached to McCloskey‘s affidavit, it states that it is “Pay to the order of:” followed by a blank section and, on subsequent lines, it states: “Without Recourse MortgageIT, Inc.” (Nov. 21, 2019 Mot. for Sum. Jgmt., McCloskey Aff., Ex. A.)
{¶ 15} McCloskey stated that attached to his affidavit were true and accurate copies of the assignments of the Mortgage as they appeared in the business records. Also attached to McCloskey‘s affidavit was a document reflecting an assignment of the Mortgage dated April 20, 2009 from MortgageIT, Inc. to MortgageIT Holdings. Additionally, an attachment reflected a subsequent assignment dated March 26, 2018 from MortgageIT, Inc. to Deutsche Bank. McCloskey averred that the statements in his affidavit were based on his personal knowledge obtained from his personal review of the business records for the loan which was the subject of the foreclosure action.
{¶ 16} Appellants assert that while McCloskey averred in his affidavit that the exhibits reflecting the Mortgage‘s assignments are true and accurate copies of the original documents, he does not offer testimony regarding the content or validity of the assignments. Appellants further argue that McCloskey offers no explanation for an alleged gap in the chain of assignments created because MortgageIT, Inc. had already assigned its interest to MortgageIT Holdings prior to its assignment to Deutsche Bank. Appellants assert, therefore, that MortgageIT, Inc. had no interest to assign to Deutsche Bank or that there is a gap in the chain of assignments reflecting an assignment from MortgageIT Holdings back to MortgageIT, Inc. As a result, appellants assert there is no evidence in the record satisfying the requirements of
{¶ 17} In support of its motion for summary judgment, Deutsche Bank noted that it served on August 23, 2019 the following requests for admissions on appellants:
REQUEST FOR ADMISSION NO. 13: Admit that the Plaintiff is the current holder of the Mortgage.
REQUEST FOR ADMISSION NO. 14: Admit that you have no evidence that the Plaintiff is not the current holder of the Mortgage.
* * *
REQUEST FOR ADMISSION NO. 19: Admit that the Mortgage was granted to secure payment of the Note.
REQUEST FOR ADMISSION NO. 20: Admit that the Mortgage secures the Note with the Property.
REQUEST FOR ADMISSION NO. 21: Admit that you have defaulted on the Mortgage by reason of nonpayment.
REQUEST FOR ADMISSION NO. 22: Admit that as a result of your default on
the Note and Mortgage, Plaintiff is entitled to foreclose on the same.
(Nov. 21, 2019 Mot. for Sum. Jgmt. at 3-4.) Appellants do not dispute that the requests for admissions were properly served on their counsel at the time and that they failed to respond to the requests.
{¶ 18}
{¶ 19} Thus, under
{¶ 20} Here, because appellants neither responded to Deutsche Bank‘s requests for admissions nor sought relief from admission under
{¶ 21} Furthermore, we have held that “any putative defect in the chain of mortgage assignments would not necessarily create a genuine issue of material fact to preclude summary judgment.” Green Tree at ¶ 37. ” ‘[T]he negotiation of
{¶ 22} As to the remaining elements necessary for demonstrating entitlement to summary judgment on a foreclosure claim, Deutsche Bank supplied copies of the Note and Mortgage attached to the affidavit of McCloskey, who averred that he was a loan servicing agent with personal knowledge of the account in question. McCloskey stated in his affidavit that Deutsche Bank was the holder of the Note. McCloskey averred appellants were in default because payments were not made as required under the terms of the Note and Mortgage and that all conditions precedent to the acceleration of the Note and foreclosure of the Mortgage had been met. Finally, McCloskey averred that as a result of their default, appellants had due and owing the principal sum of $287,183.23 plus interest and advances for taxes and insurance. As a result, Deutsche Bank established the elements necessary for the granting of a summary judgment in a foreclosure action.
{¶ 23} Therefore, because Deutsche Bank sustained its initial burden under
IV. Conclusion
{¶ 24} Having overruled appellants’ sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
BROWN and LUPER SCHUSTER, JJ., concur.
Judgment affirmed.