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Fifth Third Mortgage Co. v. Wizzard

Court of Appeals of Ohio, Twelfth District

July 15, 2013

FIFTH THIRD MORTGAGE CO., Plaintiff-Appellee,
v.
MAUREEN WIZZARD, et al., Defendants-Appellants.

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2011-12-4264

Nicholas M. Smith, for plaintiff-appellee, Fifth Third Mortgage Company

Worrell A. Reid, for defendants-appellants, Maureen Wizzard and Maureen C. Reid-Wizzard, Trustee of the Reid-Wizzard Family Trust

Cassaundra L. Edwards, for defendant, Providence Manor Home Owners Association

OPINION

HENDRICKSON, P.J.

{¶ 1} Defendants-appellants, Maureen Wizzard (Wizzard) and Maureen C. Reid-Wizzard, Trustee of the Reid-Wizzard Family Trust, appeal from a decision of the Butler County Court of Common Pleas granting summary judgment and a decree of foreclosure in favor of plaintiff-appellee, Fifth Third Mortgage Company (Fifth Third). For the reasons discussed below, we affirm the judgment of foreclosure.

I. FACTS

{¶ 2} On February 7, 2005, Wizzard executed a promissory note in favor of Fifth Third in the principal amount of $185, 000. Wizzard also executed a mortgage that secured the note and encumbered the property located at 7310 Ridge Meadow Court in West Chester, Ohio. On December 15, 2006, Wizzard transferred title of the Ridge Meadow property to herself, as trustee of the Reid-Wizzard Family Trust.

{¶ 3} On December 7, 2011, Fifth Third filed a complaint in foreclosure. In its complaint, Fifth Third alleged that it was the holder of the note secured by the mortgage on the Ridge Meadow property and that the note had been defaulted on in the amount of $171, 584.16, together with interest at the rate of 6 percent per annum from December 1, 2010. Fifth Third further alleged that it had a valid first lien on the property and it sought to have the mortgage foreclosed, the property sold, and the proceeds distributed.[1] Wizzard, individually and as trustee, filed an answer setting forth several defenses to the action, including that the mortgage was "invalidly executed, " that Fifth Third failed "to give the notices required by the terms of the note, " and that Fifth Third failed to give her the "opportunity to cure default."

{¶ 4} On April 10, 2012, Fifth Third filed a motion for summary judgment, arguing that Wizzard was delinquent in making payments on the note and that $171, 584.16 plus interest was due and owed. In support of its motion, Fifth Third attached the affidavit of Chris Roscoe, an authorized signer of Fifth Third Bank, the loan servicing agency for Fifth Third. Roscoe averred that Wizzard had defaulted under the terms of the note and mortgage by failing to make her monthly installment payments, that the debt had been lawfully accelerated, and that the total due under the note was the principal sum of $171, 584.16 plus interest. Attached to Roscoe's affidavit where copies of the note and mortgage.

{¶ 5} Wizzard filed multiple memoranda in opposition. Essentially, Wizzard argued that the mortgage was invalidly executed as it was not acknowledged in the presence of a notary. Wizzard contended that this made the mortgage "defective" and therefore invalid as to the subsequent lienholder-herself as trustee for the Reid-Wizzard Fam ily Trust. Wizzard stated that "the Trustee of the Trust is an intervening owner, who took for valuable consideration, and without notice of [Fifth Third's] defectively executed mortgage." In support of her argument, Wizzard averred in an affidavit, "[w]hen the mortgage attached to [Fifth Third's] complaint was filed, the notary, Robert E. Shepherd, was not present, nor was he at the closing."

{¶ 6} Wizzard also argued that Fifth Third could not enforce the mortgage as it had not complied with the terms of the note and mortgage by providing notice of default and the opportunity to cure the default prior to acceleration of the debt. In support of her argument, Wizzard averred that she "did not receive a notice of default and [was not] given an opportunity to cure the default prior to the filing of this foreclosure action."

{¶ 7} Fifth Third replied to Wizzard's memoranda in opposition, arguing that it had complied with the terms of the note and mortgage by mailing the notice of default to Wizzard. As evidence that notice of default was provided to Wizzard, Fifth Third attached the affidavit of Ben Heckort, an affidavit analyst, who attested that on September 26, 2011, notice of default was sent to Wizzard at the Ridge Meadow property. Attached to Heckort's affidavit was the September 26, 2011 notice of default.

{¶ 8} Fifth Third also argued that the mortgage was enforceable against Wizzard. First, Fifth Third argued that the mortgage had been properly notarized by Robert E. Shepherd. In support of its position, it submitted the affidavit of Shepherd, who averred that he "never notarized any document when [he] was not present for the signature, [which] includes the [subject] mortgage executed by Wizzard and notarized by [him] on February 7, 2005." Second, Fifth Third argued that even if the mortgage had been executed outside the presence of the notary, the mortgage ...


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