HUNTINGTON NATIONAL BANK v. IDA M. BLOUNT, ET AL.
No. 98514
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 18, 2013
2013-Ohio-3128
BEFORE: Rocco, J., Celebrezze, P.J., and McCormack, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-653194
AFFIRMED
RELEASED AND JOURNALIZED: July 18, 2013
Gregory J. Moore
Stafford Law Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEES
Matthew G. Burg
Robert H. Young
Weltman, Weinberg & Reis Co.
323 W. Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
{¶1} Defendant-appellant Ida Blount (“Ida“) appeals from the decision of the trial court granting summary judgment in favor of plaintiff-appellee Huntington National Bank (“Huntington“) in this action for foreclosure on a mortgage. For the reasons that follow, we affirm.
{¶2} On December 18, 2001, Ida‘s then-husband, Willie Blount Jr. (“Willie“), obtained a $40,000 personal line of credit from Huntington. The line of credit was secured by an open-end mortgage on real property located at 7215 Raynham Drive in Oakwood Village, Ohio (the “Raynham Drive property“), which was, at the time, Willie and Ida‘s residence. Ida was not a party to the line of credit agreement. However, both she and Willie executed the open-end mortgage securing the line of credit agreement. The mortgage was executed on December 18, 2001, and recorded on January 9, 2002. The mortgage references the line of credit agreement and providеs that if a default occurs under the line of credit agreement, the bank may declare all amounts secured by the mortgage to be immediately due and payable and may foreclose on the mortgage.
{¶3} Willie and Ida divorced in March 2007. Pursuant to an agreement reached during the divorce proceedings, Willie quit-claimed his interest in the Raynham Drive property to Ida. The quit claim deed was recorded on March 12, 2007. Despite the outstanding mortgage in favor of Huntington, both parties reprеsented that there were no liens or encumbrances on the Raynham Drive property during the divorce proceedings. A few months later, Willie filed for bankruptcy. Willie‘s obligation under the line of
{¶4} On March 7, 2008, Huntington filed a complaint for foreclosure in rem against Ida and the unknown spouse of Ida, claiming that a default had occurred under the line of credit agreement and seeking to foreclose on the mortgage on the Raynham Drive property that secured payment. On May 15, 2008, Ida filed an answer, generally denying the allegations in the complaint and asserting various alleged affirmative defenses.
{¶5} On July 31, 2008, Huntington filed a motion for summary judgment and a motion for default judgment against any unknown spouse of Ida. In support of its motion for summary judgment, Huntington submitted an affidavit from Huntington employee Kevin Bryant, the custodian of records for the line of credit agreement and mortgage at issue. In his affidavit, Bryant authenticated the line of credit agreemеnt and mortgage that had been attached to Huntington‘s complaint. He indicated that required payments had not been made under the line of credit agreement and that, pursuant to the terms of the agreement, the balance due had been accelerated. He also identified the principal balance owed.
{¶6} On September 30, 2008, Ida filed an amended answer, counterclaim, and third-party complaint, alleging that Huntington or Willie had engaged in fraud or other misconduct in conneсtion with the mortgage at issue, along with a “preliminary memorandum in opposition to the plaintiff‘s motion for summary judgment.” In an affidavit that accompanied her filings, Ida asserted that she did not intend to mortgage her
{¶7} On April 24, 2012, the magistrate issued his decision. After considering the arguments and evidence submitted by the parties, the magistrate determined that there were no genuine issues of material fact and that, based on the undisputed material facts, Huntington was entitled to foreclosure of the Raynham Drive property and judgment in its favor as a matter of law. Ida did not file any objections to the magistrate‘s decision. On May 16, 2012, the trial court adopted the magistrate‘s decision, granting Huntington summary judgment on its claims and ordering foreclosure on the Raynham Drive property. A default judgment was also entered against any unknown spouse of Ida.
{¶9} Ida‘s three assignments of error state:
ASSIGNMENT OF ERROR NUMBER ONE
The Trial Court Erred And/Or Abused Its Discretion By Granting The Appellee‘s Motion For Summary Judgment.ASSIGNMENT OF ERROR NUMBER TWO
The Trial Court Erred And/Or Abused Its Discretion By Granting The Appellee‘s Motion For Summary Judgment When There Are Genuine Issues Of Material Fact Which Remain To Be Litigated.ASSIGNMENT OF ERROR NUMBER THREE
The Trial Court‘s Judgment Is Against The Manifest Weight of the Evidence.
{¶10} Typically, an appellate court reviews a trial court‘s decision granting summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
{¶11}
Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any faсtual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii) , unless the party has objected to that finding or conclusion as required byCiv.R. 53(D)(3)(b) .
{¶12} When applying the plain error doctrine in the civil context, the Ohio Supreme Court has stated that reviewing courts “must proceed with the utmost caution.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The doctrine is limited to those “extremely rare cases” in which “exceptional circumstances require its application
{¶13} This is not that case. Ida has not claimed plain error, and upon review of the record, we find none here. Further, even considering the merits, we find no error in the trial court‘s entry of summary judgment in this case.
{¶14} In her first and second assignments of error, Ida argues that the trial cоurt erred in granting Huntington‘s motion for summary judgment because Huntington failed to present sufficient evidence establishing its right to foreclose on the Raynham Drive property. Specifically, Ida argues that the evidence submitted by Huntington in support of its motion for summary judgment did not comply with
{¶15} Under
{¶16} The moving party carries an initial burden of setting forth specific facts that demonstrate its entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, summary judgment is appropriate only if the nonmoving party fails to establish the existence of a genuine issue of material fact. Id. at 293.
{¶17} Ida contends that the affidavit of Kevin Bryant, which Huntington submitted in support of its summary judgment motion, fails to show that he has personal knowledge of the information сontained in his affidavit and, therefore, did not comply with
{¶18}
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. * * *
{¶20} Bryant‘s affidavit indicates that he is a Huntington employee, that his job duties include “the supervision and servicing of the loan” at issue, that he has personal knowledge of the loan, and that he is the records custodian of the records relating to the mortgage and line of credit agreement at issue. Accordingly, Bryant‘s affidavit complies with
{¶22} The “historic prerequisites” for a party seeking to foreclose a mortgage are: “execution and delivery of the note and mortgage; valid recording of the mortgage; default; and establishing an amount due.” United States Bank Natl. Assn. v. Turner, 8th Dist. Cuyahoga No. 97935, 2012-Ohio-4592, ¶ 12-14, citing Deutsche Bank Natl. Trust Co. v. Taylor, 9th Dist. Summit No. 25281, 2011-Ohio-435.
{¶23} The evidence Huntington submitted in supрort of its motion for summary judgment included signed copies of the line of credit agreement and mortgage, both identifying the Raynham Drive property as security for the line of credit, and an affidavit from a records custodian with personal knowledge of the transaction, authenticating the documents at issue, establishing that the mortgage was properly recorded and that the line of credit agreement was in default, and identifying the amount owed. Huntington, therefore, met its initial burden under
{¶24} There is nothing in the record contradicting this evidence. Once a plaintiff has met its burden of establishing that there is no genuine issue of material fact for trial, a
{¶25} In her opposition to Huntington‘s motion for summary judgment, Ida did not dispute that the line of credit agreement was in default, that Huntington had a right to accelerate the amount due upon default, or that under the terms of the mortgage and line of credit agreement, Huntington had a right to foreclose on the mortgaged property based on the default. Instead of challenging the facts establishing Huntington‘s right to foreclose on the mortgaged property, Ida sought to invalidate the mortgage based on her claim that the property description in the mоrtgage was “fraudulently or improperly” switched after she executed it. Ida argues that the trial court “failed to realize that there are claims set forth by Ida * * * which directly dispute the validity of Huntington‘s claims and the very instrument upon which it relies to support its Complaint.” Once again, we disagree.
{¶26} The record reflects that the trial court considered all of the pleadings, including Ida‘s amended answer, counterclaim, and third-party complaint, and the parties’ submissions on summary judgment prior to entering summary judgment in favor of Huntington. The mere fact that Ida asserted various claims and defenses in her pleadings does not preclude summary judgment. To avoid summary judgment, Ida needed to come forward with evidence of specific facts demonstrating a genuine issue of material fact for trial. Todd Dev. Co. v. Morgan, 116 Ohio St.3d 461, 464,
{¶27} A facially valid mortgage bears a strong presumption of validity. Zaptocky v. Chase Manhattan Bank (In re Zaptocky), 250 F.3d 1020, 1024-1025 (6th Cir.2001), citing Coshocton Natl. Bank v. Hagans, 40 Ohio App. 190, 178 N.E. 330 (5th Dist.1931), paragraph two of the syllabus (“[m]ortgage apparently duly executed and recorded is presumably valid“). In this case, Ida does not dispute that her signature appears on the mortgage at issue or that she executed the mortgage on December 18, 2001, as the document indicates. Likewise, she does not dispute that the mortgage, on its face, mortgages the Raynham Drive property or that the line of credit agreement specifically states that it is to be secured by a mortgage on the Raynham Drive property. Rather, Ida contends that, regardless of what the documents say, Huntington did not have a right to foreclose on the Raynham Drive property because she did not intend to mortgage her interest in that property to secure Willie‘s line of credit and that someone, therefore, must have switched the property descriptions after she executed the mortgage.
{¶28} The only evidence Ida has offered in support of her “fraudulent switch” theory is her own conclusory affidavit. Ida‘s affidavit states, in relevant part:
4. AFFIANT states further that at all times relevant to the transaction referred to in the Plaintiff‘s Complaint, the Plaintiff and/or Willie Blount, Jr. and/or other
individual [sic] and entities unknown to the Affiant represented to Affiant that the real property which was being utilized to secure the transaction was the commercial proрerty located at 12308 Saywell Avenue, Cleveland, Ohio and as 1001-1003 East 123rd Street, Cleveland, Ohio. 5. AFFIANT states further that the original paperwork which she personally saw and executed indicated that the real property which was being utilized to secure the transaction referred to in the Plaintiff‘s Complaint was the commercial property located at 12308 Saywell Avenue, Cleveland, Ohio and as 1001-1003 East 123rd Street, Cleveland, Ohio. * * *
6. AFFIANT states further that she reasonably relied upon the representations mаde by the Plaintiff, Willie Blount, Jr. and/or other individuals or entities not known by the Affiant, that the real property which was being utilized to secure the transaction was the commercial property located at 12308 Saywell Avenue, Cleveland, Ohio and as 1001-1003 East 123rd Street, Cleveland, Ohio when entering into the transaction referred to in the Plaintiff‘s Complaint.
7. AFFIANT states further the Plaintiff and/or Willie Blount, Jr. and/or other individual [sic] and entities unknown to the Affiant engaged in actions unknown to Affiant, including but not limited to, attaching a legal descriptiоn to an Open-End Mortgage, fraudulently and improperly indicating that the transaction would be secured by the real property located at 7215 Raynham Drive, Oakwood Village, Ohio 44146, without the knowledge and/or consent, express or implied of Ida Blount.
8. AFFIANT states further that she did not provide any consent express or implied to the Plaintiff or Willie Blount, Jr. or any other individual or entity, to utilize the real property located at 7215 Raynham Drive, Oakwood Village, Ohio 44146, to secure the transaction referrеd to in the Plaintiff‘s Complaint.
9. AFFIANT states further that she was deceived by the actions and representations of the Plaintiff and/or Willie Blount, Jr. and/or other individuals and entities unknown to the Affiant who were involved in the transaction referred to in the Plaintiff‘s Complaint.
10. AFFIANT states further that had the Plaintiff and/or Willie Blount, Jr. and/or other individuals and entities unknown to the Affiant, informed and represented to the Affiant that the transaction referred to in Plaintiff‘s Complaint would be secured by the real property located at 7215 Raynham Drive, Oаkwood
Village, Ohio 44146, the Affiant would not have entered into the transaction. 11. AFFIANT states further that upon information and belief that she never executed any documentation in regard to the transaction referred to in the Plaintiff‘s Complaint, which indicated that the transaction would be secured by the real property located at 7215 Raynham Drive, Oakwood Village, Ohio 44146.
12. AFFIANT states further that the only documentation that she entered into in regard to the transaction referred to in the Plaintiff‘s Complaint, was that which indicated that the real property which was being utilized to secure the transaction was the commercial property located at 12308 Saywell Avenue, Cleveland, Ohio and as 1001-1003 East 123rd Street, Cleveland, Ohio. * * *
{¶29} As this court has previously held:
Generally, a party‘s unsupported and self-serving assertions, offered by way of affidavit, standing alone and without corroborating materials under
Civ.R. 56 , will not be sufficient to demonstrate material issues of fact. Otherwise, a party could avoid summary judgment under all circumstances solely by simply submitting such a self-serving affidavit containing nothing more than bare contradictions of the evidence offered by the moving party. Bell v. Beightler, 10th Dist. Franklin No. 02AP-569, 2003-Ohio-88, ¶ 33.
Davis v. Cleveland, 8th Dist. Cuyahoga No. 83665, 2004-Ohio-6621, ¶ 23.
{¶30} Ida failed to present any evidence corroborating the theory set forth in her affidavit, i.e., that Willie or Huntington fraudulently switched the property descriptions on the mortgage from the commercial property to the Raynham Drive property after she signed it.
{¶31} Further, Huntington presented evidence undermining Ida‘s claim that the property description was switched aftеr she executed the mortgage. With its reply in support of its motion for summary judgment, Huntington submitted copies of the deed
{¶32} Only genuine issues of material fact preclude summary judgment. A factual dispute is “genuine” only if “it allows reasonable minds to return а verdict for the nonmoving party.” Sysco Food Servs. v. Titan Devs., 9th Dist. Medina No. 2429-M, 1995 Ohio App. LEXIS 4762, *7 (Oct. 25, 1995). The general, uncorroborated allegations set forth in Ida‘s affidavit do not create a genuine issue of fact as to Huntington‘s right to foreclose on the mortgage. Accordingly, the trial court did not err in granting summary judgment in favor of Huntington.
{¶33} Ida also contends that the trial court erred in granting Huntington‘s motion for summary judgment because Huntington failed to establish that it has standing to foreclose on the mortgage. Ida asserts that “the stated plaintiff does not appear to be
{¶34} The entity that extended the personal line of credit to Willie, the entity listed as mortgagee on the mortgage executed by Ida and Willie, the entity which brought this action, and the entity in favor of which the trial court entered summary judgment is all one and the same — Huntington. The current holder of the note and mortgage is the real party in interest in a foreclosure aсtion. United States Bank Natl. Assn., 8th Dist. Cuyahoga No. 97935, 2012-Ohio-4592 at ¶ 16, citing Chase Manhattan Mtge. Corp. v. Smith, 1st Dist. Hamilton No. C061069, 2007-Ohio-5874. In this case, Huntington presented evidence that it was both the holder of the mortgage at the time the complaint was filed and the original mortgagee. Accordingly, Ida‘s standing argument is meritless.
{¶35} Ida also contends that the trial court should have denied Huntington‘s motion for summary judgment because Huntington failed “to attach an accounting of its claim on account” to its complaint or present other evidence supporting the amount Huntington claimed was due under the line of credit agreemеnt. Ida asserts that “[u]nder Ohio law, Huntington is required to present such evidence when seeking to collect on an account.” In this case, however, Huntington is not seeking “to collect on an account.” Huntington acknowledges that Ida was not an obligor on the line of credit agreement and has not sought a money judgment against her. Huntington presented sufficient evidence, in the form of the affidavit of Kevin Bryant, supporting the amount it claimed was due under the line of credit agreement. Accordingly, this argumеnt fails as well.
{¶37} In her third assignment of error, Ida argues — based on the same facts and arguments as her previous assignments of error — that the trial court‘s judgment in favor of Huntington was against the manifest weight of the evidence. Manifest weight of the evidence is not the рroper standard for review of a trial court‘s ruling on summary judgment. “A claim that the court improperly weighed the evidence in a summary judgment motion is a non-sequitur.” Urbanek v. All State Home Mtge., 178 Ohio App.3d 493, 2008-Ohio-4871, 898 N.E.2d 1015, ¶ 38 (8th Dist.), citing Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emp., AFL-CIO, 93 Ohio App.3d 162, 165, 638 N.E.2d 94 (1st Dist.1994); Lopez v. Dave‘s Supermarket, 8th Dist. Cuyahoga No. 81549, 2003-Ohio-1350, ¶ 8. “[A] summary judgment cannot be entered upon any weighing of facts — the facts must all be viewed in a light most favorable to the nonmoving party.” Urbanek at ¶ 38. Accordingly, an appellate court may summarily overrule an assignment of error challenging summary judgment based on the manifest weight of the evidence. Id. We, therefore, overrule Ida‘s third assignment of error.
{¶38} Judgment affirmed.
It is ordered that appellee recоver from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
KENNETH A. ROCCO, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
TIM MCCORMACK, J., CONCUR