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CitiMortgage, Inc. v. Guinther

Court of Appeals of Ohio, Tenth District

September 17, 2013

CitiMortgage, Inc. successor by merger to ABN AMRO Mortgage Group, Inc., Plaintiff-Appellee,
v.
Cindy S. Guinther et al., Defendants-Appellants.

APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 11CVE-08-10308

Graydon Head & Ritchey LLP, John C. Greiner, and Harry W. Cappel, for appellee.

Cindy S. Guinther, pro se.

DECISION

CONNOR, J.

(¶ 1} Defendant-appellant, Cindy S. Guinther ("appellant"), appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment and a decree in foreclosure to plaintiff-appellee, CitiMortgage, Inc., successor by merger to ABN AMRO Mortgage Group, Inc. ("CitiMortgage"). Because (1) appellant failed to present sufficient evidence in response to CitiMortgage's motion for summary judgment to establish that CitiMortgage was not a holder of the note and mortgage, (2) appellant failed to demonstrate any prejudice resulting from her delayed receipt of CitiMortgage's motion for summary judgment, and (3) appellant failed to object to the court's entry granting CitiMortgage summary judgment, we affirm.

I. FACTS AND PROCEDURAL HISTORY

(¶ 2} This case concerns a parcel of residential property located on East Lincoln Avenue in Columbus, Ohio. Appellant notes that the property has been in her family's possession for over 80 years.

(¶ 3} On September 4, 2003, appellant executed a promissory note in favor of Pinnacle Equity Group of Canton, Inc. ("Pinnacle") in the face amount of $64, 000. Appellant also granted Pinnacle a mortgage upon the East Lincoln Avenue property to secure the obligation under the note. Pinnacle subsequently assigned the note and mortgage to ABN AMRO Mortgage Group, Inc. ("ABN"). On September 1, 2007, ABN merged into CitiMortgage.

(¶ 4} On August 18, 2011, CitiMortgage filed a complaint for foreclosure, alleging that appellant had defaulted under the terms of the note. Appellant, appearing pro se, filed an answer to the complaint.

(¶ 5} On March 2, 2012, CitiMortgage filed a Civ.R. 56 motion for summary judgment. On March 27, 2012, appellant filed a motion for extension of time to file her response to the motion for summary judgment. In her motion for extension of time, appellant asserted that CitiMortgage sent her a letter on March 5, 2012, which misled her into believing that the court had already entered a judgment against her. The March 5 letter contained a proposed judgment entry drafted by CitiMortgage.

(¶ 6} On April 19, 2012, appellant filed a memorandum contra CitiMortgage's motion for summary judgment. Appellant asserted in her memorandum contra that CitiMortgage had not established ownership over either the note or the mortgage, that Freddie Mac claimed to be the owner of the mortgage, and that CitiMortgage violated the Fair Debt Collection Practices Act ("FDCPA") by sending appellant the proposed judgment entry on March 5, 2012. CitiMortgage filed a memorandum in support of its motion for summary judgment on May 7, 2012, noting that appellant failed to submit appropriate Civ.R. 56 evidentiary material to support her memorandum contra.

(¶ 7} On May 23, 2012, appellant filed an affidavit which incorporated several documents by reference. CitiMortgage filed a motion to strike appellant's affidavit on May 31, 2012.

(¶ 8} On July 30, 2012, the trial court filed an entry granting CitiMortgage's motion for summary judgment and a decree in foreclosure. The court granted appellant's motion for extension of time, but did not expressly rule on the motion to strike. The court found that the allegations in the complaint were true, and that a principal balance of $57, 180.86 was due and owing to CitiMortgage on the note with interest at the rate of 6.375 percent per annum from April 1, 2011. The court further found that the note was secured by the mortgage, and that the mortgage was a valid and first lien upon the property. The court ordered that, unless appellant paid the sums found to be due to CitiMortgage within three days of the date of the entry, the equity of redemption would be foreclosed and the real estate sold at a sheriffs sale.

II. ASSIGNMENTS OF ERROR

(¶ 9} Appellant appeals, assigning the following assignments of error:

I. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR CITIMORTGAGE, INC., BY FINDING THAT ALL NECESSARY PARTIES HAVE BEEN PROPERLY SERVED THE PLAINTIFF, CITIMORTGAGE, INC. DID NOT INCLUDE FREDDIE MAC IN THE FORECLOSURE SUMMONS THAT WAS FILED ON 08/18/2011.
II. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE PLAINTIFF, CITIMORTGAGE, INC., BECAUSE THE PLAINTIFF DID NOT SEND THE MOTION FOR DEFAULT JUDGMENT, THE MOTION FOR SUMMARY JUDGMENT, AND CRYSTAL BERRY'S AFFIDAVIT THAT WAS FILED ON 03/02/2012, UNTIL 03/20/2012.
III. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE PLAINTIFF, CITIMORTGAGE, INC. WHEN THERE STILL EXISTS A GENUINE ISSUE OF MATERIAL FACT, OHIO LAW 56 (C). I HAVE SUBSTANTIAL EVIDENCE THAT FREDDIE MAC IS THE TRUE OWNER OF MY MORTGAGE AND PROMISSORY NOTE, AND THE PLAINTIFF DOES NOT HAVE THE STANDING TO FORECLOSE.
IV. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE PLAINTIFF, CITIMORTGAGE, INC., WHEN THERE IS AN UNCERTAINTY OF THE COSTS. THE TOTAL AMOUNTS OWED FOR TAXES, INSURANCE, AND OTHER FEES WERE NOT SPECIFIED AS REQUIRED.

(¶ 10} For ease of discussion, we address appellant's first and third assignments of ...


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