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Pnc Mortgage, Division of Pnc Bank v. Eric Innis

October 31, 2011

PNC MORTGAGE, DIVISION OF PNC BANK,
NATIONAL ASSOCIATION, PLAINTIFF-APPELLEE,
v.
ERIC INNIS, ET AL., DEFENDANTS-APPELLANTS.



CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 10 CV 028319

The opinion of the court was delivered by: Piper, J.

Cite as PNC Mtge. v. Innis,

OPINION

{¶1} Defendants-appellants, Eric and Rhonda Innis, appeal the decision of the Preble County Court of Common Pleas granting summary judgment in favor of plaintiff- appellee, PNC Mortgage, a division of PNC Bank, National Association (PNC). We affirm the decision of the trial court.

{¶2} Eric and his wife Rhonda acquired property in West Alexandria, Ohio, in 2006, obtained a loan from Franklin Financial for the purchase price, and gave Franklin Financial a mortgage on the note. In 2007, Eric refinanced with National City Mortgage and signed a note for $164,000, but Rhonda did not sign the note. However, both Eric and Rhonda mortgaged the West Alexandria property in favor of National City Mortgage, who later merged with PNC.

{¶3} Payments were made according to the terms of the note for approximately two years before the Innises defaulted. PNC later filed a foreclosure action, claiming a default in the sum of $159,107.77 plus interest, tax advances, and fees. PNC did not seek any personal judgment against Eric, as he had filed bankruptcy. The Innises filed an answer with the trial court, setting forth several defenses.

{¶4} PNC moved for summary judgment and the Innises filed a motion in opposition. The trial court granted PNC's motion for summary judgment and signed a Decree in Foreclosure. The Innises now appeal the decision of the trial court, raising the following assignment of error.

{¶5} "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND DECREE IN FORECLOSURE."

{¶6} The Innises argue in their assignment of error that the trial court erred in granting summary judgment in favor of PNC, and raise several issues regarding the note and mortgage.

{¶7} This court's review of a trial court's ruling on a summary judgment motion is de novo. Broadnax v. Greene Credit Serv. (1997), 118 Ohio App.3d 881, 887. Civ.R. 56 sets forth the summary judgment standard and requires that (1) there be no genuine issues of material fact to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to only one conclusion being adverse to the nonmoving party. Slowey v. Midland Acres, Inc., Fayette App. No. CA2007-08-030, 2008-Ohio-3077, ¶8. The moving party has the burden of demonstrating that there is no genuine issue of material fact. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64.

{¶8} "Once the moving party's burden has been satisfied, the burden shifts to the non-moving party, as set forth in Civ.R. 56(E)." Jackson v. Walker, Summit App. No. 22996, 2006-Ohio-4351, ¶10. The nonmoving party "may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385, 1996-Ohio-389. Not all arguable facts are material. A dispute of fact can be considered "material" only if it affects the outcome of the litigation. Myers v. Jamar Enterprises (Dec. 10, 2001), Clermont App. No. CA2001-06-056, 2001 WL 1567352. Not all disputes of fact create a genuine issue. Instead, a dispute of fact can be considered "genuine" if it is supported by substantial evidence that exceeds the allegations in the complaint. Id.

{¶9} After reviewing the record, PNC's motion for summary judgment and supporting exhibits and affidavit effectively established PNC's right to relief because of the default. The summary judgment burden therefore shifted to the Innises to demonstrate that genuine issues remained. In order to do so, the Innises raised several issues regarding the execution of the note and mortgage, as well as issues concerning supporting information PNC provided the trial court. The Innises now argue on appeal that the trial court erred in granting summary judgment because of the issues they raised.

{¶10} First, the Innises argue that the trial court could not have ruled on PNC's motion for summary judgment because PNC failed to provide the underlying note to the trial court. However, the record is clear that PNC attached the note to its motion for summary judgment.

The note was properly authenticated by PNC's affidavit in support of summary judgment because "a party may properly introduce evidence not specifically authorized by Civ.R. 56(C) by incorporating it by reference through a properly framed affidavit pursuant to Civ.R. 56(E)." State ex rel. ...


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