U.S. Bank, National Association, Successor Trustee to Bank of America, N.A., as Successor to LaSalle Bank, N.A. as Trustee for the Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-2, Plaintiff-Appellee, v. Ruby Goldsmith, Defendant-Appellant, John Doe, Unknown Spouse of Ruby Goldsmith et al., Defendants-Appellees.
No. 14AP-783
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
July 28, 2015
2015-Ohio-3008
(C.P.C. No. 13 CV 011867) (REGULAR CALENDAR)
Rendered on July 28, 2015
Thompson Hine LLP, John B. Kopf, Brad W. Stoll, and Todd M. Seaman, for appellee U.S. Bank, National Association.
Haynes Thompson Steward LLC, and Bryan O. Steward, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
{¶ 1} Ruby Goldsmith, defendant-appellant, appeals the judgment of the Franklin County Court of Common Pleas, in which the court granted the motion for summary judgment filed by U.S. Bank, National Association, Successor Trustee to Bank of America, N.A., as Successor to LaSalle Bank, N.A. as Trustee for the Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-2 (“the bank“), plaintiff-appellee.
{¶ 2} On February 21, 2007, appellant signed a mortgage and note in favor of First Franklin Financial (“First Franklin“). First Franklin indorsed the note to First Franklin Financial Corporation, which indorsed the note in blank. The bank is the owner and holder of the note. On April 25, 2011, appellant executed a loan-modification agreement. Appellant stopped paying on the mortgage in January 2013.
{¶ 3} On October 28, 2013, the bank filed a foreclosure action against appellant, as well as other defendants who are not relevant to this appeal. On April 28, 2014, appellant filed a letter with the court in which appellant stated that it was her intention to pay the reinstatement amount by the end of April. On August 15, 2014, the bank filed a motion for summary judgment contending that appellant was delinquent on her mortgage payments and it had performed all of the prerequisites required under the note and mortgage to accelerate the balance due on the note. Appellant failed to file a memorandum contra. The bank also filed a motion for default judgment on August 15, 2014, and appellant failed to reply to that motion. On September 15, 2014, new counsel for appellant filed an appearance and a motion for an extension of time to reply to the bank‘s motion for summary judgment.
{¶ 4} The next day, September 16, 2014, the trial court issued a judgment entry granting summary judgment in favor of the bank and ordering foreclosure. Appellant appeals the judgment of the trial court, asserting the following assignment of error:
The trial court erred in granting U.S. Bank‘s Motion for Summary Judgment as a genuine issue of material fact and U.S. Bank did not properly establish it was entitled to Summary Judgment as a matter of law.
{¶ 5} Appellant argues the trial court erred when it granted the bank‘s motion for summary judgment. Summary judgment is appropriate when the moving party
{¶ 6} When seeking summary judgment on the ground that the non-moving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the non-moving party‘s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden under
{¶ 7} Before addressing appellant‘s arguments, we first note that appellant failed to file a memorandum contra the bank‘s motion for summary judgment and, thus, is raising her present arguments for the first time on appeal. In the absence of plain error, failure to draw the trial court‘s attention to possible error at a time at which the error could have been corrected results in a waiver of the issue for purposes of appeal. In re H.D.D., 10th Dist. No. 12AP-134, 2012-Ohio-6160, ¶ 71. In civil cases, the plain error doctrine will only apply in the “extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic
{¶ 8} Appellant first argues that the affidavit of Jay Martinez, the assistant secretary for the bank‘s loan servicing contractor, that was attached to the bank‘s motion for summary judgment, failed to incorporate any documents by reference and is not supported by any attachments. The only specific argument appellant raises, in this respect, is that prior notice of acceleration is a condition precedent required by the note and mortgage, and Martinez‘s affidavit does not confirm that such prior notice was provided to appellant.
{¶ 9} However, in its complaint, the bank alleged that it complied with all the conditions precedent to recovery under the terms contained in the note and mortgage, and appellant failed to file an answer to the complaint. The trial court found that appellant was in default of an answer or other pleading and thereby confessed the allegations of the complaint to be true. We agree. Averments in a pleading to which a responsive pleading is required are admitted when not denied in a responsive pleading.
{¶ 10} Appellant next argues that the bank improperly attached the note and mortgage as exhibits to its motion for summary judgment. Appellant contends that
Judgment affirmed.
SADLER and LUPER SCHUSTER, JJ., concur.
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