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Genoa Banking Co. v. Bergman

Court of Appeals of Ohio, Sixth District

July 12, 2013

Genoa Banking Company Appellee.
v.
John F. Bergman, et al. Appellants

Trial Court No. 12-CV-026E

Alan R. McKean and Martin D. Carrigan, for appellee.

Daniel L. McGookey, Kathryn M. Eyster and Lauren McGookey, for appellants.

DECISION AND JUDGMENT

YARBROUGH, J.

I. Introduction

{¶ 1} In this foreclosure action, appellants, John and Kathryn Bergman, appeal from the judgment of the Ottawa County Court of Common Pleas, which granted summary judgment in favor of appellee, Genoa Banking Company ("Genoa"). We affirm.

A. Facts and Procedural Background

{¶ 2} On January 17, 2012, Genoa initiated foreclosure proceedings against appellants, alleging that appellants were in default of their note and mortgage for failure to pay. Attached to the complaint was a copy of the original note and mortgage, naming Genoa as the lender and mortgagee and appellants as the borrowers and mortgagors. The note and mortgage have never been transferred or assigned.

{¶ 3} Genoa moved for summary judgment on July 18, 2012. In support of its motion, Genoa attached the affidavit of Joseph Baun, an assistant vice president. In his affidavit, Baun testified that he had reviewed the file and was personally familiar with its contents and with appellants. Baun stated that the loan was executed on December 21, 2009, and was evidenced by the note, a true and accurate copy of which was attached to the complaint and to the affidavit. Baun further testified that appellants have been in default of the note since November 16, 2011, that Genoa has exercised its option to accelerate the balance due on the note, that Genoa has sent a notice of default and demand for payment to appellants, and that appellants have not made full payment of the arrearage as required by the note. Baun testified that, as of January 11, 2012, the amount due on the note was $256, 502.46 plus interest and late charges. In addition, Baun stated that the note was secured by a mortgage, a true and accurate copy of which was attached to the complaint and to the affidavit, that Genoa is the holder of the mortgage, that the conditions of the mortgage have been broken by appellants, and that notice has been sent to appellants, thereby entitling Genoa to foreclose on the mortgage.

{¶ 4} Finally, Baun testified that a second loan existed, evidenced by another note that was attached to the complaint and affidavit. He further testified that the second note was in default, and that the amount due, as of January 11, 2012, was $827.89 plus interest and late charges.

{¶ 5} Pursuant to a local court rule, the matter was scheduled for a non-oral hearing on the motion. Notably, no actual hearing was to take place. Instead, the non-oral hearing date is designated as the date on which the motion becomes decisional. Appellants, having not yet filed an opposition to the motion for summary judgment, moved to continue the non-oral hearing until October 11, 2012, effectively seeking an extension of time to file their opposition for purposes of conducting additional discovery. The trial court granted the motion.

{¶ 6} Thereafter, appellants again moved to extend their time to respond to the motion for summary judgment, and concurrently moved to refer the case to mediation. The trial court granted their motion, ordering the non-oral hearing on the motion for summary judgment to be stayed pending resolution of mediation. On November 5, 2012, the mediator's report was filed, indicating that mediation was completed unsuccessfully.

{¶ 7} On November 15, 2012, the trial court determined that since mediation had been completed, the motion for summary judgment was decisional. The court proceeded to grant Genoa's motion, and a judgment and decree of foreclosure was entered in Genoa's favor. Appellants never filed an opposition to the motion for summary judgment.

{¶ 8} Subsequently, appellants filed a Civ.R. 60(B) motion for relief from the judgment and decree of foreclosure. Genoa filed its opposition, and appellants replied. However, the trial court has not ruled on the Civ.R. 60(B) motion because, on the same day they filed their reply in support of their Civ.R. 60(B) motion, appellants initiated ...


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