CitiMortgage, Inc. Appellee
Jeffrey Byington, etc., et al. Appellants
Trial Court No. 2010-CV-1061
Harry J. Finke, IV, Harry W. Cappel, and Brittany L. Griggs, for appellee.
Jeffrey Byington, Kenneth Jensen, and Patricia Jensen, pro se.
DECISION AND JUDGMENT
(¶1} This is an appeal from a judgment of the Erie County Court of Common Pleas which granted summary judgment in favor of plaintiff-appellee, CitiMortgage, Inc., in its foreclosure action against defendant-appellant, Jeffrey Byington. Appellant now challenges that judgment through the following assignment of error:
The trial court erred to the prejudice of the defendant-appellant in granting the plaintiffs motion for summary judgment.
(¶2} The undisputed facts of this case are as follows. On November 8, 2007, appellant borrowed $48, 800 from appellee for the purchase of a property located at 1210 West Madison Street, in Sandusky, Ohio. Appellant executed a promissory note for that amount and secured the note with a mortgage on the premises. The promissory note identified CitiMortgage as the "lender" and "note holder." The mortgage further identified CitiMortgage as the "lender, " and granted the mortgage on the premises to the Mortgage Electronic Registration System, Inc. ("MERS") "solely as nominee for Lender and Lender's successors and assigns." On December 22, 2010, MERS executed an assignment of mortgage, transferring its interest in the mortgage to CitiMortgage. The assignment was recorded on December 28, 2010.
(¶3} On December 30, 2010, CitiMortgage filed a complaint in foreclosure against appellant, alleging that it was the holder of a promissory note and the securing mortgage deed on a home located at 1210 West Madison Street, in Sandusky, Ohio, that appellant was in default for failure to pay on the note, and that there was due and owing as of July 1, 2010, the sum of $47, 643.77 plus interest at the rate of 8.25 percent per year. CitiMortgage therefore demanded judgment in that amount, foreclosure of the mortgage and sale of the property.
(¶4} Following appellant's answer, CitiMortgage filed a motion for summary judgment in which it asserted that because it was undisputed that appellant had defaulted on the note, CitiMortgage was entitled to a judgment in foreclosure as a matter of law. CitiMortgage supported its motion with the affidavit of Janet Latessa, its document control officer. Latessa stated that in her capacity as the document control officer she has access to CitiMortgage's business records, including the records relating to appellant's loan, that the affidavit was based on her review of those records and from her own personal knowledge of how those records are kept, and that the loan records relating to appellant's loan are maintained by CitiMortgage in the course of its regularly conducted business activities. She further stated CitiMortgage's records regarding appellant's loan include the note and mortgage, true and exact copies of which were attached to the affidavit, and that she had reviewed those records as well as CitiMortgage's electronic servicing system. Based on her review of those records, Latessa stated that appellant was in default of the terms of the note and mortgage and that he owed the entire balance of $47, 643.77 as of August 1, 2011, plus interest of 8.25 percent per year from July 1, 2010. In addition to the Latessa affidavit, note and mortgage, CitiMortgage attached to its summary judgment motion a certified copy of the assignment of mortgage that had been filed with the Erie County Recorder.
(¶5} In his memorandum in opposition to summary judgment, appellant asserted that CitiMortgage had not established that it was the holder and owner of the note and mortgage. He further argued that given his efforts to reach a loan modification agreement with CitiMortgage, it would be inequitable to order a foreclosure on his property. He supported his motion with his own affidavit in which he stated that he has always been ready, willing and able to enter into a good faith loan modification to allow him to save his property but that CitiMortgage has been unwilling to work with him.
(¶6} The trial court granted CitiMortgage's motion for summary judgment. In particular, the court determined that the undisputed facts established that CitiMortgage was the holder and owner of the note and mortgage at the time that the complaint in foreclosure was filed. The court further determined that there was no question as to the existence of the debt, the fact that appellant had defaulted and the amount owed. Finally, the court determined that appellant had failed to set forth facts showing that it would be inequitable to grant the foreclosure. The court therefore ruled that CitiMortgage was entitled to judgment as a matter of law.
(¶7} In his sole assignment of error, appellant contends that the lower court erred in granting CitiMortgage summary judgment because he had presented sufficient evidence to raise genuine issues of material fact.
(¶8} Appellate review of a trial court's grant of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, we review the trial court's grant of summary judgment independently and without deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist. 1993). Summary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). The burden of showing that no genuine issue of material fact exists falls upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). However, once the movant supports his or her motion with appropriate evidentiary materials, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E).
(¶9} To properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due. U.S. Bank, N.A. v. Coffey, 6th. Dist. Erie No. E-11-026, 2012-Ohio-721, ...