FARM CREDIT SERVICES OF MID-AMERICA, PCA, Plaintiff-Appellee, vs. CARL E. PERTUSET, et al., Defendants-Appellants.
Case Nos. 11CA3443
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
DATE JOURNALIZED: 2-5-13
2013-Ohio-567
ABELE, J.
DECISION AND JUDGMENT ENTRY; CIVIL APPEAL FROM COMMON PLEAS COURT
COUNSEL FOR APPELLANTS: Bruce M. Broyles, The Law Office of Bruce M. Broyles, 5815 Market Street, Suite 2, Boardman, Ohio 44512
COUNSEL FOR APPELLEE, AMERICAN SAVINGS BANK FSB: John E. Bowers, 233, North Street, Circleville, Ohio 43113, Jeffrey B. Sams, 10400 Blacklick Eastern Road, Ste. 140, Pickerington, Ohio, 43147, and Joshua D. Howard, 701 Sixth Street, Portsmouth, Ohio 45662
{¶ 1} This is an appeal from a Sciotо County Common Pleas Court summary judgment in favor of American Savings Bank, fsb (American), defendant/cross-claimant below and appellee herein, on its clаim against Carl E. Pertuset and Vera M. Pertuset, defendants below and appellants herein. Appellants’ brief does not set forth assignments of error as
FIRST ASSIGNMENT OF ERROR:
“PLAINTIFF/APPELLEE FAILED TO PRODUCE EVIDENCE THAT CONCLUSIVELY ESTABLISHED THAT THEY ARE THE PROPER PARTY IN INTEREST AND FAILED TO ESTABLISH PRIVITY WITH DEFENDANTS/APPELLEES [sic]. AS SUCH, THE TRIAL COURT‘S JUDGMENT WAS VOID AB INITIO.”
SECOND ASSIGNMENT OF ERROR:
“PLAINTIFF/APPELLEE FAILED TO CONCLUSIVELY ESTABLISH THE AMOUNT OF THEIR DAMAGES.”
{¶ 2} On June 5, 2009, Farm Credit Services of Mid-America, PCA commenced the instant action and alleged that appellants were in default of several promissory notes and sought foreclosure of mortgage and security interests given to secure those notes. American, also named as a defendant because it might also claim an interest in the mortgaged premises, filed an answer and cross-claim and asserted that appellants were in default of a promissory note previously executed in its favor. Furthermore, American claims that appellants gave them a mortgage on their property to secure payment of that note and the mortgage is the first and best lien on the premises.
{¶ 3} Despite asking for leave to obtain “competеnt counsel” before responding, appellants filed a pro se answer that spans twenty-one pages and is, at best, difficult to understand. The trial cоurt took the answer as a denial of all allegations. The case was stayed for a period of time when appellants filed for bankruptcy, but that case was dismissed the following year.
{¶ 4} American requested a summary judgment and argued that no genuine issues of material fact exist and that it was entitled to judgment in its favor as a matter of law. The motion included a supporting affidavit from Jack A. Stephenson, the Vice-President of
{¶ 5} Appellants filed several memoranda in opposition to that motion. Their first memorandum did not discuss the merits of American‘s motion, but rаther the bankruptcy court proceedings. Their second memoranda appears to allege, inter alia, that American did not possess the promissory note and is not the real party in interest.
{¶ 6} The trial court concluded that no genuine issue of material fact exists and that American is entitled to judgment as a matter of law and later filed a judgment of foreclosure.1 This appeal followed.2
I
{¶ 7} Our analysis begins with the premise that appellate courts review summary judgments dе novo. Sutton Funding, L.L.C. v. Herres, 188 Ohio App.3d 686, 2010-Ohio-3645, 936 N.E.2d 574, at ¶59; Broadnax v. Greene Credit Service, 118 Ohio App.3d 881, 887, 694 N.E.2d 167 ( 2nd Dist. 1997). In other words, an appellate court will afford no deference to a trial court decision, Sampson v. Cuyahoga Metro. Hous. Auth., 188 Ohio App.3d 250, 935 N.E.2d 98, 2010-Ohio-3415, at ¶19; Kalan v. Fox, 187 Ohio App.3d 687, 933 N.E.2d 337, 2010-Ohio-2951, at ¶13, and, instead, will conduct its own independеnt review to determine whether summary judgment is appropriate. Woods v. Dutta, 119 Ohio App.3d 228, 233-234, 695 N.E.2d 18 (4th Dist. 1997); McGee v. Goodyear Atomic Corp., 103 Ohio App.3d 236, 241, 659 N.E.2d 317 (4th Dist. 1995).
{¶ 8} Summary judgment under
{¶ 9} The aforementioned Stephenson affidavit established that (1) the copies of the note and mortgage attached to American‘s cross-claim аre “true and accurate copies of the originals,” (2) the note had “not been paid in accordance with [its] terms” and (3) American has the right to have the mortgage foreclosed and chose to exercise that right. This is sufficient for
{¶ 10} The burden then shifted to appellants to provide rebuttal evidentiary materials. Our review of their various memoranda contra, at least to the best of our ability to understand their contentions, do not contain anything sufficient to satisfy their burden of rebuttal. Thus, we believe that the trial court correctly awarded summary judgment in American‘s favor.
II
{¶ 11} In their first proposed assignment of error, appellants argue that American did not establish (1) privity of contract with them, and (2) that American is the proper party in interest. This argument fails, howеver, as the original note and mortgage show that they were executed in American‘s favor. In light of Stephenson‘s affidavit that the note and mortgage аre true and correct copies of the originals, American established both privity and that they are the correct party in interest. Appellаnts provided no
{¶ 12} For these reasоns, we find no merit in appellant‘s first proposed assignment of error and it is hereby overruled.
III
{¶ 13} Appellants assert in their second proposed assignment of error that American failed to conclusively establish the amount of their damages. We disagree with appellant. The Stephenson affidavit attested that appellants owed American “the sum of $160,001.52 as of June 15, 2009, together with interest thereon at the rate of $28.97 per day from June 15, 2009, until paid.” Appellants offered no evidentiary materials to counter that attestation. Accordingly, we find no merit in their second assignment of rule and it is hereby overruled.
{¶ 14} Hаving considered and rejected appellants’ proposed assignments of error and arguments we hereby affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that thе judgment be affirmed and that appellee recover of appellants costs herein taxed.
The Court finds there were reasonable grounds fоr this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into exeсution.
A certified copy of this entry shall constitute that mandate pursuant to
McFarland, P.J. & Kline, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.