FIFTH THIRD MORTGAGE COMPANY, Plaintiff-Appellee v. JEFFREY A. FANTINE AKA JEFFREY ADRIAN FANTINE, ET AL., Defendant-Appellant
Case No. 15-CA-5
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 9, 2015
[Cite as Fifth Third Mtge. Co. v. Fantine, 2015-Ohio-4260.]
Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Sheila G. Farmer, J.
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 2014-CV-00425. JUDGMENT: Affirmed.
For Plaintiff-Appellee
HARRY J. FINKLE IV.
HARRY W. CAPPEL
BRITTANY L. GRIGGS
Graydon Head & Ritchey LLP
1900 Fifth Third Center
511 Walnut Street
Cincinnati, Ohio 45202-3157
For Defendant-Appellant
MARC E. DANN
GRACE M. DOBERDRUK
PAUL B. BELLAMY
The Dann Law Firm
P.O. Box 6031040
Cleveland, Ohio 44103
Hoffman, J.
{¶1} Defendant-appellants Jeffrey A. Fantine appeals the January 9, 2015 Judgment Entry entered by the Fairfield County Court of Common Pleas, which granted summary judgment in favor of plaintiff-appellee Fifth Third Mortgagе Company (“Fifth Third“) and entered a decree of foreclosure.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 13, 2005, Appellant executed a promissory note and mortgage deed with Fifth Third in the amount of $69,300, for real property located at 123 Behrens Court, Lancaster, Fairfield County, Ohio. The mortgage was filed with the Fairfield County Recorder on May 17, 2005, and recorded thereafter.
{¶3} On March 1, 2010, following а period of delinquency, Appellant entered into a loan modification agreement with Fifth Third. Appellant again became delinquent on the loan in September, 2013. On June 6, 2014, Fifth Third filеd a complaint, seeking judgment on the Note and foreclosure of the mortgage. On July 2, 2014, Appellant filed a pro se document captioned “Motion for Additional Time in which to Answer or Respond to Plaintiff‘s Complaint.” Fifth Third filed a motion for default judgment on September 5, 2014. Appellant filed a pro se response on September 11, 2014. Via Entry filed October 20, 2014, the trial court denied Fifth Third‘s motion for default judgment.
{¶4} Thereafter, Fifth Third filed a motion for summary judgment on December 3, 2014. In support of the motion, Fifth Third attached the Affidavit of Kimberly Hoff, the Affidavit Analyst for Fifth Third Bank аnd the loan servicer for Fifth Third Mortgage Company; a copy of the Note; a copy of the mortgage; a copy of the loan modification
{¶5} Via Judgment Entry filed January 9, 2015, the trial сourt granted Fifth Third‘s motion for summary judgment, and entered a decree of foreclosure.
{¶6} It is from this judgment entry Appellant appeals, raising the following assignments of error:
{¶7} “I. IT WAS ERROR FOR THE TRIAL COURT TO GRANT FIFTH THIRD MORTGAGE COMPANY A DECREE OF FORECLOSURE WHEN THE LOAN MODIFICATION AGREEMENT WAS NOT FILED OF RECORD WITH THE FAIRFIELD COUNTY RECORDER‘S OFFICE PURSUANT TO THE MANDATORY TERMS OF
{¶8} “II. IT WAS ERROR FOR THE TRIAL COURT TO GRANT FIFTH THIRD MORTGAGE COMPANY A DECREE OF FORECLOSURE WHEN THE MORTGAGE COMPANY FAILED TO PRODUCE ANY BUSINESS RECORDS THAT WOULD SUPPORT A HISTORY OF PAYMENT DELINQUENCY AND DEFAULT AND PROVIDE A DOCUMENTARY SUMMARY FOR THAT CALCULATION OF THE DOLLAR AMOUNT SOUGHT IN THE UNDERLYING FORECLOSURE ACTION.”
Summary Judgment
{¶9}
{¶10} “Summary judgment shall bе 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 of material fact and that the moving party is entitled to
{¶11} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Trаnsfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.1999).
{¶12} When reviewing a trial court‘s decision to grаnt summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
I
{¶14} In his first assignment of error, Appellаnt contends the trial court erred in entering a decree of foreclosure when the loan modification agreement was not filed of record pursuant to
{¶15}
{¶16} In Ohio, the “failure or success of recording an instrument has no effect on its validity as between the parties to that instrument.” Bank of New York Mellon v. Loudermilk, 5th Dist. Fairfield No.2012-CA-30, 2013-Ohio-2296, citing Bank One, N.A. v. Dillon, 9th Dist. No. 04CA008571, 2005-Ohio-1950, ¶ 9. “The purpose of the recording statutes is to put other lien holders on notice and to prioritize the liens.” Id.,
{¶17} In support of his position, Appellant cites Community Action Commt. of Pike Cty., Inc. v. Maynard, 4th Dist. Pike No. 02CA695, 2003-Ohio-4312, 2003 WL 21949715, ¶ 8-10, for the proposition an unrecorded mortgage modification is ineffective. We find Appellant‘s reliance on Maynard is misplaced. While the Fourth District Court of Appeals concluded a mortgage modification which is not recorded is an ineffective modification, it did so in the context of a mortgage modification‘s effectiveness as to the priority of lienholders. Id. Although
{¶18} Based upon thе foregoing, we find the lack of recording of the loan modification agreement does not provide a defense for Appellant. The trial court properly grantеd summary judgment in favor of Fifth Third and did not err in entering the decree of foreclosure.
{¶19} Appellant‘s first assignment of error is overruled.
II
{¶20} In his second assignment of error, Appellant maintains the trial court erred in entering a decree of foreclosure when Fifth Third failed to produce business records which support a history of payment delinquency and default, and failed to provide
{¶21} There is no requirement that a party sеeking a foreclosure submit a payment history to demonstrate entitlement to summary judgment. Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 40. Rather, an affidavit establishing a loan is in default is sufficient to demonstrate entitlement to summary judgmеnt where there is no evidence controverting the affiant‘s averments. See e .g. Cent. Mortg. Co. v. Elia, 9th Dist. Summit No. 25505, 2011-Ohio-3188, ¶ 7.
{¶22} Fifth Third submitted Kimberly Hoff‘s affidavit in support of its motion for summary judgment. In her affidavit, Hoff averred Appellant wаs in default under the terms of the Note, the mortgage, and the loan modification agreement as the result of “his failure to make all required payments.” Hoff Affidavit, para. 11. Additionally, Hoff stated the amount due and payable on the account was “$66,982.93 plus interest at the rate of 6.625% from September 1, 2013, plus court costs, advances, and other charges allоwed by the Note and Mortgage and Ohio law.” Id. at para. 13. Hoff added, “The default has not been cured.” Id.
{¶23} Appellant did not dispute the evidentiary quality of the affidavit and did not provide evidence which would controvert Hoff‘s averments regаrding the status or balance of the account.
{¶24} In Wachovia Bank v. Jackson, 5th Dist. Stark No.2010-CA-00291, 2011-Ohio-3203, this Court held in order to properly support a motion for summary judgment
{¶25} Fifth Third, via the Hoff affidavit, provided evidence to satisfy all the foregoing criteria. We, therefore, find Fifth Third set forth sufficient evidence to support its motion for summary judgment. And, because Appellant failed to meet his reciprocal burden of submitting evidence which would create a genuine issue of material fact for trial, we conclude the trial court did not err in granting summary judgment in favor of Fifth Third as a matter of law, and entering the decree of foreclosure.
{¶26} Appellant further submits Fifth Third failed to establish its damages due to a lack of proper documentation. We disagree.
{¶27} Ohio courts have held “an averment of outstanding indebtedness made in the affidavit of a bank loan officer with personal knowledge of the debtor‘s account is sufficient to establish the amount due and owing on the note, unless the debtor refutes the averred indebtedness with evidence that a different amount is owed.” JPMorgan Chase Bank, N.A. v. Salazar, 6th Dist. Lucas No. L-13-1038, 2014-Ohio-1002, ¶ 13; Natl. City Bank v. TAB Holdings, Ltd. 6th Dist. Erie No. E-10-060, 2011-Ohio-3715, ¶ 12.
{¶28} We find Hoff‘s affidavit was sufficient to establish Fifth Third‘s damages.
{¶29} Appellant‘s second assignment of error is overruled.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur