Gilchrist v. Saxon Mtge. Servs.Gilchrist v. Saxon Mtge. Servs.
Rendered on March 14, 2013
Doucet & Associates, LLC, Gregory A. Wetzel, and Troy J. Doucet, for appellant Timothy Gilchrist.
Dinsmore & Shohl LLP, David P. Fornshell, and Luke E. Anderson, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Plaintiff-appellant, Timothy Gilchrist, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Saxon Mortgage Services. For the following reasons, we affirm.
I. BACKGROUND
{¶ 2} On January 18, 2007, New Century Mortgage Corporation made a mortgage loan to appellant in the amount of $285,000, evidenced by a promissory note executed by appellant the same day. The note was secured by a mortgage on a residential property in New Albany. Appellee began servicing the mortgage on March 27, 2007. The mortgage was later assigned to Deutsche Bank National Trust Company as Trustee and Custodian
{¶ 3} While the foreclosure action was pending, appellant applied to participate in the federally sponsored Home Affordable Modification Program (“HAMP“). Morgan Stanley Mortgage Capital, Inc. (“Morgan Stanley“), as lender, and appellant, as borrower, executed a Home Affordable Modification Trial Period Plan (“TPP“) pursuant to appellant‘s HAMP application. Appellee acted as mortgage servicer and attorney in fact for Morgan Stanley. Pursuant to the TPP, appellant was to make three monthly payments of $1,425, due on or before September 1, October 1, and November 1, 2009. The TPP further provided that if appellant complied with the terms of the TPP and if his representations about his financial status on which the TPP was based remained true in all material respects, Morgan Stanley would provide him with a modification agreement that would permanently modify the terms of his mortgage loan.
{¶ 4} By written correspondence dated December 30, 2009, appellee notified appellant that the United States Treasury Department, in an effort to assist HAMP participants convert to permanent loan modifications, had extended the HAMP review period until January 31, 2010. Under the extended review period, appellant was required to make continued monthly payments of $1,425. The letter further informed appellant that he was at risk of losing eligibility for permanent mortgage loan modification due to his failure both to make all required trial period payments and to submit all required documentation. On February 24, 2010, appellee informed appellant in writing that he was ineligible for a permanent loan modification due to his failure to make the payments required by the TPP by the end of the trial period. By letter dated April 21, 2011, appellee notified appellant that servicing of his mortgage loan would transfer to Ocwen Loan Servicing, LLC, on May 16, 2011.
{¶ 5} On June 7, 2011, appellant and his wife, Debra Gilchrist, filed a complaint against appellee alleging claims for (1) breach of contract, (2) promissory estoppel, (3) violation of the Ohio Consumer Sales Practices Act (“OCSPA“), (4) fraud, (5) breach of the covenant of good faith and fair dealing, (6) violation of the Fair Debt Collection Practices Act, (7) bad faith, (8) negligent supervision, (9) unjust enrichment/quasi-
{¶ 6} On March 13, 2012, appellee filed a motion for summary judgment against both appellant and his wife. The motion was supported by the affidavit of Annette Anderson, appellee‘s assistant vice president, along with documentation detailing the history of the parties’ interactions. Appellee maintained that its evidence, when viewed in a light most favorable to appellant, established the absence of any genuine issue of material fact on all the claims asserted in the complaint, and that it was entitled to judgment as a matter of law.
{¶ 7} On April 18, 2012, appellant filed a memorandum contra,1 supported by his own affidavit with no supporting documentation. Therein, appellant stated that he was withdrawing his claims for violation of the Fair Debt Collection Practices Act and bad faith; he maintained, however, that summary judgment was not appropriate on any of the remaining claims.
{¶ 8} In a decision and entry issued June 1, 2012, the trial court found that no genuine issues of material fact remained for trial as to any of the claims asserted in appellant‘s complaint, and that appellee was entitled to judgment as a matter of law. Accordingly, the trial court granted appellee‘s motion for summary judgment.
II. ASSIGNMENT OF ERROR
{¶ 9} In a timely appeal, appellant presents a single assignment of error for our review:
The trial court erred when it improperly granted summary judgment in Appellee‘s favor.
A. Assignment of Error
{¶ 10} In his single assignment of error, appellant contends that the trial court erred by granting appellee‘s motion for summary judgment. We disagree.
{¶ 11} Appellate review of summary judgment is de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, ¶ 8. To obtain summary judgment, the movant must show that (1) there is no genuine issue of material fact, (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 when viewing evidence in favor of the nonmoving party and that conclusion is adverse to the nonmoving party.
{¶ 12} The movant bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The movant may not fulfill its initial burden simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Id. Rather, the movant must support its motion by pointing to some evidence of the type set forth in
{¶ 13} Preliminarily, we note that appellant raises arguments pertaining only to the trial court‘s grant of summary judgment on his claims for breach of contract, breach of the covenant of good faith and fair dealing, and violation of the OCSPA. Accordingly, appellant has waived any challenge to the trial court‘s disposition of summary judgment on the other claims.
{¶ 14} Appellant first contends the trial court improperly granted summary judgment in favor of appellee on his breach of contract claim. In his complaint, appellant asserted that the TPP constituted a contract between himself and appellee, and that
{¶ 15} Appellee noted in its motion for summary judgment that the TPP was executed by Morgan Stanley, as lender, and appellant, as borrower, and that appellee signed the TPP only in its representative capacity as attorney in fact for Morgan Stanley. Citing
{¶ 16} In his memorandum contra, appellant argued that whether appellee acted as an attorney in fact was irrelevant because “[t]he face of the TPP [did] not disclose that [appellee was] acting as an attorney-in-fact in any capacity, nor did it disclose to [appellant] that it was an attorney-in-fact.” (Memorandum Contra, 7.) In support, appellant cited his own affidavit, wherein he averred that he “did not have any actual knowledge that [appellee] was acting in any capacity as an attorney-in-fact for any other entity. When I dealt with [appellee], I believed I was dealing in all respects with [appellee].” (Gilchrist Affidavit, ¶ 6.) Appellant further argued that a genuine issue of material fact remained as to whether he satisfied the conditions precedent required under the TPP. Appellant supported this argument with citations to his affidavit, wherein he stated that he made the payments required under the TPP, including the September 2009 payment.
{¶ 17} In its decision and entry, the trial court noted that the signature page of the TPP clearly identified appellee as attorney in fact for Morgan Stanley. Accordingly, the trial court concluded that appellee was entitled to summary judgment as a matter of law on appellant‘s breach of contract claim pursuant to
{¶ 18} On appeal, appellant acknowledges that
{¶ 19}
(A) If an attorney in fact enters into a contract in the representative capacity of the attorney in fact, if the contract is within the authority of the attorney in fact, and if the attorney in fact discloses in the contract that it is being entered into in the representative capacity of the attorney in fact, the attorney in fact is not personally liable on the contract, unless the contract otherwise specifies. If the words or initialism “attorney in fact,” “as attorney in fact,” “AIF,” “power of attorney,” “POA,” or any other word or words or initialism indicating representative capacity as an attorney in fact are included in a contract following the name or signature of an attorney in fact, the inclusion is sufficient disclosure for purposes of this division that the contract is being entered into in the attorney in fact‘s representative capacity as attorney in fact.
(B) An attorney in fact is not personally liable for a debt of the attorney in fact‘s principal, unless one or more of the following applies:
(1) The attorney in fact agrees to be personally responsible for the debt.
(2) The debt was incurred for the support of the principal, and the attorney in fact is liable for that debt because of another legal relationship that gives rise to or results in a duty of support relative to the principal.
(3) The negligence of the attorney in fact gave rise to or resulted in the debt.
{¶ 20} Thus, while the statute sets forth a general rule that an attorney in fact is not personally liable on the contract if the attorney in fact enters into the contract as attorney in fact and discloses its representative capacity as attorney in fact in the contract, the statute also sets forth exceptions to that general rule, one of which appellant argues is applicable here. More particularly, appellant contends the trial court should have considered whether
{¶ 21} Appellee responds that appellant neither pleaded a claim of negligence in his complaint nor argued negligence under
{¶ 22} An appellant cannot change the theory of his case and present new arguments for the first time on appeal. See Havely v. Franklin Cty., Ohio, 10th Dist. No. 07AP-1077, 2008-Ohio-4889, fn. 3; Brewer v. Brewer, 10th Dist. No. 09AP-146, 2010-Ohio-1319, ¶ 23. Generally, appellate courts will not consider arguments that were never presented to the trial court whose judgment is sought to be reversed. Id., citing State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 (1997). Because appellant did not raise the
{¶ 23} Appellant‘s breach of contract claim fails because appellee was not a party to the TPP pursuant to
{¶ 24} Appellant next contends the trial court erred in granting summary judgment in favor of appellee on his claim that appellee breached the covenant of good faith and fair dealing. In his complaint, appellant alleged that appellee breached the implied duty of good faith and fair dealing by “failing to approve [him] for a permanent loan modification in accordance with the TPP.” (Complaint, ¶ 57.) Noting that “in every contract there exists an implied covenant of good faith and fair dealing,” but that “[t]here can be no implied covenants in a contract in relation to any matter specifically covered by the written terms of the contract itself,” the trial court concluded that appellant did not allege any implied claims that were not expressly governed by the written terms of the TPP. (June 1, 2012 Decision and Entry, 9.) Appellant misinterprets the trial court‘s conclusion, arguing that the court erroneously determined that claims for breach of the covenant of good faith and fair dealing can never exist alongside a written contract. As noted above, the trial court made no such determination. The trial court merely determined that the cause of action appellant asserted in his complaint, i.e., that appellee failed to approve him for a permanent loan modification, was specifically covered by the written terms of the contract. To the extent appellant‘s cause of action alleging breach of the implied covenant of good faith and fair dealing pertains to matters specifically covered by the written terms of the TPP, we agree with the trial court that no implied covenants lie as to those matters. Interstate Gas Supply, Inc. v. Calex Corp., 10th Dist. No 04AP-908, 2006-Ohio-638, ¶ 101.
{¶ 25} We note, however, that the trial court did not specifically address the argument raised by appellee in its motion for summary judgment regarding appellant‘s claim for breach of the covenant of good faith and fair dealing, i.e., that because no contractual relationship existed between it and appellant, appellee could not have breached any implied covenant of good faith and fair dealing. This court must affirm the trial court‘s decision if any of the grounds raised by the moving party support summary
{¶ 26} In our resolution of appellant‘s breach of contract claim, we concluded that no contract existed between appellant and appellee pursuant to
{¶ 27} Finally, appellant contends the trial court erred in granting summary judgment in favor of appellee on his claim for violation of the OCSPA. In his complaint, appellant alleged that appellee violated the OCSPA by “engag[ing] in a pattern and practice of unfair, deceptive, and unconscionable acts in violation of
{¶ 28} In his memorandum contra, appellant did not expressly respond to the arguments raised in appellee‘s motion for summary judgment. Rather, appellant alleged that appellee violated the OCSPA when it “deliberately and intentionally misled” him. (Memorandum Contra, 8.) Appellant supported this assertion with citations to his affidavit, wherein he averred that “[o]ne of the specific misrepresentations that Saxon
{¶ 29} The trial court noted that appellant had neither alleged in his complaint nor argued in his memorandum contra that appellee had committed any of the 16 actions deemed unconscionable under
{¶ 30} The OCSPA makes it unlawful for a “supplier” to commit an unconscionable act or practice in regard to a “consumer transaction” in connection with a residential mortgage.
{¶ 31} The parties initially debate whether appellee, a mortgage servicer, is a “supplier” under the definition set forth in
{¶ 32} We need not settle this dispute, however, because, even if we were to find that appellee is a “supplier” and thus subject to the OCSPA, we agree with the trial court that appellant does not allege that appellee committed any of the 16 specifically enumerated actions deemed unconscionable under
{¶ 33} Finally, to the extent appellant contends that the trial court should have broadly construed his allegations to constitute unfair, deceptive or unconscionable acts or practices under
III. CONCLUSION
{¶ 34} For all the foregoing reasons, we overrule appellant‘s single assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
CONNOR and DORRIAN, JJ., concur.
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