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Deutsche Bank National Trust Co. v. Eversole

Court of Appeals of Ohio, Sixth District, Erie

March 31, 2017

Deutsche Bank National Trust Company, As Trustee for the Holders of Morgan Stanley ABS Capital I Inc., Trust 2005-HE3, Mortgage Pass-Through Certificates, Series 2005-HE3 Appellee
Susan J. Eversole, et al. Appellant

         Trial Court No. 2015 CV 0088

          John B. Kopf, for appellee.

          Daniel L. McGookey, for appellant.


          PIETRYKOWSKI, J.

         {¶ 1} Defendant-appellant Susan J. Eversole, appeals the January 19, 2016 judgment of the Erie County Court of Common Pleas which granted summary judgment in favor of plaintiff-appellee, Deutsche Bank National Trust Co., etc., on its foreclosure complaint. Because we agree that no genuine issues of fact remain, we affirm.

         {¶ 2} The action commenced on February 6, 2015, with appellee's filing of a complaint for foreclosure and declaratory judgment against appellant Eversole, Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Intervale Mortgage Corporation, State of Ohio Department of Taxation, Intervale Mortgage Corporation, Decision One Mortgage Company, and the Treasurer of Erie County. The complaint alleged that appellant had defaulted on the terms of a promissory note which was in appellee's possession and which it was entitled to enforce. Appellee claimed that the unpaid sum of $210, 502.38, plus interest at the rate of 6.84 percent per annum was due from April 1, 2008. The complaint indicated that because appellant was discharged in a bankruptcy proceeding, appellee was not pursuing a personal money judgment.

         {¶ 3} Appellee further claimed that it was the holder of a mortgage given to secure the indebtedness of the promissory note, that appellant defaulted on the terms of the mortgage, that the conditions precedent had been met and that appellee was entitled to foreclose on the mortgage. Several exhibits were attached to the complaint including a copy of the note executed on September 24, 2004, listing Intervale Mortgage Corporation as the lender; a copy of the mortgage recorded on September 30, 2004, with Decision One Mortgage Company as Servicing Agent for Intervale and MERS as nominee for the lender, its successors and assigns; the June 7, 2011 assignment of the mortgage to appellee; and the October 23, 2014 title insurance report.

         {¶ 4} On February 24, 2015, appellant filed her answer and cross-claim. Appellant denied "all of the allegations in Plaintiffs Complaint" and asserted multiple defenses including that appellee was not the holder of the note or mortgage and, thus, not entitled to enforce the documents and that appellee failed to meet the conditions precedent to pursuing the action. In her cross-claim for declaratory judgment against defendant MERS, appellant requested that the court declare that MERS had no interest in the promissory note or mortgage and that they be declared "null and void." On June 5, 2015, MERS filed a notice of its May 11, 2015 recordation of an assignment and release of mortgage. MERS stated that it had no interest in the subject property.

         {¶ 5} On August 24, 2015, appellee filed its motion for summary judgment. In support, appellee relied on the affidavits of Dan Dickey, Nationstar Document Execution Specialist (servicer of the subject loan mortgage beginning September 2013), and Rachel Valli, employee of appellee's counsel. Appellee also proffered the deposition testimony of Fay Janati, a Nationstar employee. Appellant filed her opposition to the summary judgment motion and filed motions to strike the affidavits of Dickey and Valli contending that they were not based on personal knowledge as required under Civ.R. 56(E).

         {¶ 6} The trial court granted summary judgment on January 19, 2016, finding that pursuant to the promissory note, $210, 502.38 plus interest at 6.84 percent per annum from April 1, 2008 was due and owing. The court found that in order to secure payment of the promissory note, appellant executed and delivered a mortgage deed to MERS as nominee of Intervale. MERS then assigned the mortgage deed to appellee. The court further found that the mortgage conditions had been broken and that appellee was entitled to have the equity of redemption. The court also denied appellant's motions to strike.

         {¶ 7} This appeal followed with appellant raising the following assignment of error:

The trial court erred in granting Deutsche Bank's motion for summary judgment.

         {¶ 8} We initially note that appellate review of a trial court's judgment granting a motion for summary judgment is de novo; that is, an appellate court applies the same standard in determining whether summary judgment should be granted as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). To prevail on a motion for summary judgment the moving party must demonstrate:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

         {¶ 9} The grant of summary judgment is limited to circumstances where there is no dispute of ...

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