Perpetual Fed. Sav. Bank v. TDS2 Property Mgt., L.L.C.Perpetual Fed. Sav. Bank v. TDS2 Property Mgt., L.L.C.
Rendered on December 22, 2009
Dinsmore & Shohl, LLP, and Adam R. Todd, for appellee.
John C. Nemeth & Associates, and David A. Herd, for appellants.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶1} Defendants-appellants, TDS2 Property Management, LLC, and Tim Seek, appeal the judgment of the Franklin County Court of Common Pleas in favor of plaintiff-appellee, Perpetual Federal Savings Bank, pursuant to appellee‘s motion for summary judgment. For the following reasons, we affirm the judgment.
{¶2} On or about February 13, 2006, appellants executed and delivered to appellee a note and mortgage in the principle amount of $536,250 secured by property located at 1294-1300 Norton Avenue in Columbus, Ohio. On November 13, 2008,
{¶3} On February 2, 2009, appellee filed a motion for summary judgment supported by an affidavit from Michelle Lehn. Lehn stated that she was employed “as an internal auditor/compliance” for appellee and that her affidavit was based upon her personal knowledge and belief. Lehn further stated that appellee was the owner and holder of the subject note and mortgage. She stated that appellants failed to make regular monthly payments as required by the note and mortgage and that appellants were in default thereof. Lastly, Lehn stated that appellants owed appellee $492,878.62 plus interest and other charges.
{¶4} On February 9, 2009, appellants filed a motion for continuance pursuant to
- I am counsel for Defendants TDS2 Property Management, LLC and Timothy Seek.
There has been insufficient time for proper review of this case, consultation with the clients and analysis of a proper response to Plaintiff‘s motion for summary judgment. Plaintiff‘s motion for summary judgment was filed within two weeks of the Complaint having been answered by Defendants. - This affidavit is presented in good faith and simply seeks an additional 30 days for Defendants to file a response to the motion for summary judgment.
{¶5} The record does not contain any response by appellee to appellants’
{¶6} On February 19, 2009, the same day that appellants’ response to appellee‘s motion for summary judgment was due, the trial court entered summary judgment in appellee‘s favor. The trial court‘s judgment does not contain any reference to appellants’
{¶7} Appellants appeal, assigning the following assignments of error:
ASSIGNMENT OF ERROR NO. 1.
The trial court improperly granted summary judgment to Perpetual without acknowledging or ruling upon TDS2‘s Motion for Continuance under
ASSIGNMENT OF ERROR NO. 2.
The trial court improperly granted summary judgment to Perpetual without a specific factual basis in the record.
{¶8} By their first assignment of error, appellants argue that the trial court erred by granting summary judgment in favor of appellee without ruling on appellants’
{¶10} Appellants suggest that the trial court may not have been aware of their pending
{¶11} We must now address whether the trial court erred by denying appellants’
{¶12}
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
{¶13} Thus,
{¶14} Here, appellants submitted an affidavit from their attorney in support of their
{¶15} By their second assignment of error, appellants contend that the trial court erred when it granted appellee‘s motion for summary judgment. Appellants argue that appellee failed to present a sufficient factual basis to support the motion. Again, we disagree.
{¶16} Appellate review of summary judgment is de novo. Anderson v. Highland House Co., 93 Ohio St.3d 547, 548, 2001-Ohio-1607. “When reviewing a trial court‘s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Abrams v. Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516, ¶11, quoting Mergenthal v. Star Bank Corp. (1997), 122 Ohio App.3d 100, 103. Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists, (2) the
{¶17} When a motion for summary judgment is made and supported as provided by
{¶18} Appellants have not disputed that they executed the note and mortgage and that appellee is the holder of the note and mortgage. Nor have appellants disputed that appellee is entitled to accelerate the debt if appellants are in default on these instruments. However, in their answer to the complaint, appellants denied that they were in default on the note.
{¶19} A party seeking to foreclose on a mortgage must establish execution and delivery of the note and mortgage; valid recording of the mortgage; it is the current holder of the note and mortgage; default; and the amount owed. Neighborhood Housing Servs. of Toledo, Inc. v. Brown, 6th Dist. No. L-08-1217, 2008-Ohio-6399, ¶16.
{¶20} In support of its motion for summary judgment, appellee attached an affidavit from Michelle Lehn, its internal auditor/compliance. Lehn states that appellee is the owner and holder of a note and corresponding mortgage secured by the subject property. Lehn further avers that the note and mortgage were executed and delivered
{¶21} For the foregoing reasons, we overrule appellants’ two assignments of error, and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
FRENCH, P.J., and SADLER, J., concur.