FLAGSTAR BANK, FSB, PLAINTIFF-APPELLEE, v. ERIC RICHISON, ET AL., DEFENDANTS-APPELLANTS.
CASE NO. 14-12-01
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
July 16, 2012
2012-Ohio-3198
Aрpeal from Union County Common Pleas Court Trial Court No. 2011-CV-0043 Judgment Affirmed
Brian K. Duncan for Appellants
Scott A. King and Terry W. Posey, Jr. for Appellee
{¶1} Defendants-Appellants, Eric and April Richison (“the Richisons“), appeal the judgment of the Court of Common Pleas of Uniоn County granting summary judgment in favor of Plaintiff-Appellee, Flagstar Bank, F.S.B. (“Flagstar“), in Flagstar‘s foreclosure action against the Richisons. On appeal, the Richisons contend that the trial сourt erred in granting summary judgment in favor of Flagstar because there were genuine issues of material fact and Flagstar was not entitled to judgment as a matter of law. Based on the fоllowing, we affirm the judgment of the trial court.
{¶2} On September 19, 2007, the Richisons executed a promissory note (“the Note“) with Nation One Mortgage Services, Ltd. (“Nation One“) for a loan in the amount of $214,200.00. The last page of the Note bears an endorsement from Nation One to Flagstar reading, “[p]ay to the order of Flagstar Bank, FSB without recourse.” (Docket No. 2, Ex. A, p. 3). The Note was secured by a mortgage (“Mortgage“) encumbering property located at 383 Triple Crown Way, Marysville, Ohio (“Property“).
{¶3} On February 4, 2011, Flagstar filed a complaint for foreclosure alleging that it was in possession of and the holder of the Note; that it was the holder of the Mortgage; that the Richisons were in default of payment on the Note and Mоrtgage securing the same; and, that a balance of $209,583.06, plus interest
{¶4} On April 1, 2011, the Richisons filed their answer.
{¶5} On October 5, 2011, Flagstar filed a motion for summary judgment arguing that there were no genuine issues of material fact and that it was entitled to judgment as а matter of law. In support of its motion for summary judgment, Flagstar attached a copy of the Note, Mortgage, and mortgage assignment. In addition to the foregoing documents, Flagstar filed an affidavit of its employee Barbara Dore (“Dore“). In her affidavit, Dore attested that she is a foreclosure analyst with Flagstar; that Flagstar is and was in possession of the Note prior to filing the complaint; that the copies of the Note and Mortgage attached to the complaint are true and accurate copies оf the original instruments; that the Richisons have not made payments on the Note since September 1, 2009 and, consequently, are in default of payment on the Note and Mortgage securing the same; and, that a balance of $209,583.06, plus interest remains outstanding on the Note.
{¶6} On November 16, 2011, the Richisons filed a memorandum in opposition to Flagstar‘s motion for summary judgment. The Richisons argued that
{¶7} On December 1, 2011, Flagstar filed a reply to the Richisons’ memorandum in opposition. Flagstar argued that status as holder in due course is irrelеvant because it is entitled to enforce the Note due to its status as a holder. Flagstar also argued that the assumption of risk doctrine has no application in a foreclosure action.
{¶8} On December 9, 2011, the trial court granted summary judgment in favor of Flagstar.
{¶9} It is from this judgment the Richisons appeal, presenting the following assignment of error for our review.
Assignment of Error No. I
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING PLAINTIFF‘S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE GENUINE ISSUES OF FACT AND PLAINTIFF WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.
{¶10} In their sole assignment of error, the Richisons contend that the trial court erred in granting summary judgment in favor of Flagstar. The Richisons’ contention is two-fold. First, the Richisons contend that there is а genuine issue of material fact as to whether Flagstar is a holder in due course. Second, the
{¶11} An appellate court reviews a summary judgment order de novo. Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist. 1999). Accordingly, a reviewing court will not reverse an otherwise correct judgment merely because the lower court utilized different or erroneous reasons as the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 222 (1994). Summary judgment is appropriate when, looking at the evidence as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law.
Holder In Due Course
{¶13} On appeal, the Richisons contend that there is a genuine issue of material fact as to whether Flagstar is a holder in due course of the Note. We disagree, finding that Flagstar‘s status as a holder in due course of the Note is irrelevant to the resolution of this case.
{¶14} Generally, a plaintiff producing an instrument is entitled to payment if the plaintiff proves that he or she is entitled to enforce the instrument pursuant to
{¶15} Here, there is no dispute as tо whether Flagstar is entitled to enforce the Note under
{¶16} Having determined that Flagstar is a holder, we must determine whether the Richisons have proven a defense or claim enumerated in
Assumption of Risk
{¶17} Next, the Richisons contend that there is a genuine issue of material fact as to whether the assumрtion of risk doctrine applies in a foreclosure action. We disagree.
{¶18} Determining whether the assumption of risk doctrine applies in a foreclosure action is an issue of law. The Richisons fail to cite any authority applying the assumption of risk doctrine in a foreclosure action, and a review of Ohio case law yields no suppоrt for this assertion. Because the Richisons fail to support their argument with authority as required by
{¶19} Accordingly, we overrule the Richisons’ sole assignment of error.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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