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Federal Home Loan Mortgage Corporation v. Zuga

Court of Appeals of Ohio, Eleventh District

June 28, 2013

FEDERAL HOME LOAN MORTGAGE CORPORATION, Plaintiff-Appellee,
v.
ELIZABETH ZUGA f.k.a. ELIZABETH BROWN, et al., Defendant-Appellant, TRUMBULL COUNTY TREASURER, Defendant-Appellee.

Civil Appeal from the Trumbull County Court of Common Pleas. Case No. 2010 CV 02310.

David M. Gaunter, Felty & Lembright Co., L.P.A., 1500 West Third Street, Suite 400, Cleveland, OH 44113 (For Plaintiff-Appellee).

Bruce M. Broyles, 5815 Market Street, Suite 2, Youngstown, OH 44512 (For Defendant-Appellant).

Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Defendant-Appellee).

OPINION

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Elizabeth Zuga, f.k.a. Elizabeth Brown, appeals the judgment of the Trumbull County Court of Common Pleas granting the motion for summary judgment filed by appellee, Federal Home Loan Mortgage Corporation. For the following reasons, we affirm the judgment of the trial court.

{¶2} Appellee initiated a foreclosure action against appellant on August 31, 2010. After appellant failed to answer the complaint, appellee filed a motion for default judgment, which was granted by the trial court. A decree of foreclosure was entered in favor of appellee on March 15, 2011.

{¶3} Thereafter, appellant filed a motion for relief from judgment, as well as a motion to stay execution of judgment and cancel the sheriffs sale. The trial court granted appellant's motion for relief from judgment. In its judgment entry, the trial court reasoned that "there may be a meritorious defense, that the Affidavit underlying the Default Judgment in this case may be based on information outside the personal knowledge of the Affiant." Appellant was granted leave to file an answer to appellee's complaint in foreclosure.

{¶4} After appellant filed her answer, appellee moved for summary judgment. Attached to this motion was the affidavit of Kristen Kerrigan, an employee of Home Savings & Loan Company of Youngstown ("Home Savings"). In this affidavit, Kerrigan averred that: (1) she is employed as Assistant Vice President of Home Savings, which is the servicing agent for the Federal Home Loan Mortgage Corporation for the loan account of appellant; (2) in the regular performance of her job duties, she is familiar with business records maintained by Home Savings; (3) she has personally and independently reviewed the relevant records in connection with making the affidavit and has personal knowledge of the records; (4) plaintiff exercised the acceleration option contained in the Promissory Note and Mortgage Deed; and (5) review of the records reveals the copies attached are true and accurate copies of the original instruments. Attached to Kerrigan's affidavit was a copy of the note and mortgage.

{¶5} Appellee also attached the affidavit of Brian Blanton, a Collector for Home Savings. Blanton averred that Home Savings exercised the acceleration option in the Promissory Note and Mortgage Deed and that he personally sent the required notice by both regular and certified mail to appellant. This letter, dated February 28, 2009, was attached to Blanton's affidavit.

{¶6} After appellee filed its motion for summary judgment, appellant moved for leave to respond in order to conduct the deposition of Kerrigan. Based upon her affidavit and deposition testimony, appellant argued that appellee failed to present evidence that it was the "holder of the note and, furthermore, that appellee did not comply with the requirements of the promissory note when enforcing the Notice of Acceleration.

{¶7} The trial court awarded summary judgment to appellee. A sheriffs sale was scheduled for October 18, 2012. Appellant filed a motion to stay the sheriffs sale. The trial court entered judgment staying execution of the order of sale pending appeal on September 26, 2012.

{¶8} This appeal followed. Appellant's assignment of error for our review states:

{¶9} "The trial court erred in granting summary judgment to Appellee when there were genuine issues of material fact ...


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