RBS CITIZENS, N.A. FKA CITIZENS BANK, N.A. SUCCESSOR BY MERGER TO CHARTER ONE BANK, N.A. v. LARRY M. ADAMS, ET AL.
CASE NO. 13-11-35
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
April 30, 2012
2012-Ohio-1889
Appeal from Seneca County Common Pleas Court, Trial Court No. 11 CV 0339
Charles R. Hall, Jr. for Appellants
Roger W. Goranson and Gretchen F.G. Weston for Appellee
{¶1} Defendants-Appellants, Larry M. Adams and Shannon B. Adams (“Appellants“), appeal the judgment of the Seneca County Court of Common Pleas granting summary judgment in favor of Plaintiff-Appellee, RBS Citizens, N.A. (“the Bank“) in the Bank‘s foreclosure action against Appellants. On appeal, Appellants contend that the trial court erred in granting summary judgment in favor of the Bank because they claim that the Bank failed to provide evidence that it sufficiently complied with the Acceleration Notice Clause in their Mortgage documents as a condition precedent to foreclosure. For the reasons set forth below, the judgment is affirmed.
{¶2} On November 8, 2005, Appellants executed a Note for $120,000, at 7.07% annual interest, in favor of the Bank1 and secured by a Mortgage on their property at 5303 East Township Road 138, Tiffin, Ohio 44883. On August 18, 2011, the Bank filed a Complaint for foreclosure, seeking in rem judgment on the Note and also seeking to foreclose its Mortgage lien interest on the subject property. Appellants filed an answer of general denials and a list of non-specific affirmative defenses.
{¶3} On September 28, 2011, the Bank filed a motion for summary judgment, stating that it was entitled to judgment as a matter of law. In addition to
{¶4} On October 4, 2011, Appellants filed a response to the motion for summary judgment, claiming that the Bank was not entitled to summary judgment because it had failed to establish that it had sufficiently complied with the Acceleration Notice Clause requiring that the Bank give prior notice of a default or acceleration. Appellants cited to LaSalle Bank, N.A. v. Kelly, 9th Dist. No. 09CA0067-M, 2010-Ohio-2668, ¶ 13, quoting First Financial Bank v. Doellman, 12th Dist. No. CA2006-02-029, 2007-Ohio-222, ¶ 20, for the proposition that if prior notice of default and/or acceleration is required by a provision in a note or mortgage instrument, that provision of such notice is a condition precedent to filing for foreclosure. Appellants did not provide any affidavit or other evidentiary materials with their response.
As you know, your mortgage payments are delinquent from the 03-01-11 installment. This constitutes a default under the terms of your mortgage loan documents. The total amounted needed to cure this default as of 05-04-11 date is $3,407.36. * * *
Failure to cure the above-stated default by 06-03-11 may result in the noteholder‘s decision to accelerate the entire debt. This means that further payments may not be accepted on your loan and foreclosure proceedings may be instituted under the terms of your loan documents, resulting in foreclosure. * * *
(Oct. 17, 2011 Plaintiff‘s Reply).
{¶6} On November 4, 2011, after consideration of all pleadings and evidence presented, the trial court found that there were no genuine issues as to any material fact and that the Bank was entitled to judgment as a matter of law. It is from this judgment that Appellants timely appeal, raising the following assignment of error for our review.
The trial court abused its discretion by granting [the Bank‘s] Motion for Summary Judgment.
{¶7} In their sole assignment of error, Appellants assert that the Bank failed to establish that it sufficiently complied with the Acceleration Notice Clause as a condition precedent to foreclosure. Appellants claim that they raised an “issue of fact” when they responded to the Bank‘s motion for summary judgment and asserted that the bank failed to provide notice of acceleration as a condition precedent according to provision number 22 of the Mortgage instrument. Appellants contend that the Bank‘s “self-serving affidavit that it had sent a notice to the Appellants” was a conclusory statement that was not sufficient to “resolve genuine issues of material facts in its favor.” (Appellants’ Brief, p. 7)
{¶8} 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). Pursuant to
{¶10} Based upon our de novo review of the evidentiary materials in the record, we find that the trial court did not err when it granted summary judgment in favor of the Bank. The record shows that: (1) Appellants never raised a genuine issue of material fact as to whether or not the Bank had sent the Notice of Acceleration; and, (2) the Bank did present summary judgment evidence that it had sufficiently complied with the Acceleration Notice as a condition precedent to foreclosure.
{¶12} The Bank then supplemented its motion for summary judgment with another affidavit from Ms. Cross and a copy of the Notice of Default and Acceleration that it had sent. The trial court now had before it evidence from the Bank that Appellants were in default; that they had failed to cure the default; and that they had been provided with the proper notice before foreclosure actions were commenced. There was no evidence from Appellants disputing any of this evidence, so there were no issues of fact before the trial court that would preclude its finding that the Bank was entitled to judgment as a matter of law.
{¶13} However, Appellants contend that the Bank‘s “self-serving” affidavit by Ms. Cross was not proper evidence, citing to this Court‘s decision in Cornell v. Rudolph, 3d Dist. No. 1-10-89, 2011-Ohio-4322, ¶ 12. However, in Cornell, we stated:
“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.” (Citations omitted.) TJX Cos., Inc. v. Hall, 183 Ohio App.3d 236, 2009–Ohio–3372, 916 N.E.2d 862, ¶ 30.
(Emphasis added.) Id.
{¶14} In this case, the Bank‘s affidavit was submitted with corroborating materials; it was considerably more than a “bare contradiction of the evidence.” A copy of the Notice was attached, and it was authenticated by way of the affidavit. And, as stated above, Appellants never submitted any evidentiary material challenging the authenticity of the Notice or the fact that it had been sent. The affidavit and copy of the letter providing Notice were proper summary judgment evidence pursuant to
{¶15} It was undisputed that Appellants executed the subject Note and Mortgage owned by RBS and it was also undisputed that Appellants defaulted on their payments. Furthermore, Appellants did not dispute the amount that was owed. Appellants’ only basis for claiming that the Bank was not entitled to summary judgment was their allegation that the Bank failed to provide evidence that it had notified them prior to accelerating the debt. This unsupported
{¶16} Having found no error prejudicial to the Appellants herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/jlr