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Deutsche Bank National Trust Co. v. Gardner

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 11, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-817890

          ATTORNEY FOR APPELLANT A. Clifford Thornton

          ATTORNEYS FOR APPELLEE David A. Wallace Karen M. Cadieux Tyler K. Ibom Carpenter, Lipps & Leland, L.L.P., John E. Codrea Matthew P. Curry Matthew J. Richardson Manley, Deas & Kochalski L.L.C.

          BEFORE: McCormack, P.J., Blackmon, J., and Jones, J.



         {¶1} Defendant-appellant Amy L. Gardner appeals from a judgment of the Cuyahoga County Court of Common Pleas granting summary judgment in favor of plaintiff-appellee Deutsche Bank in this foreclosure action. For the following reasons, we affirm.

         {¶2} On June 2, 2005, Gardner borrowed $239, 000 from First Franklin, a division of National City Bank of Indiana, to purchase a house located in Shaker Heights, Ohio. She signed a 30-year adjustable-rate note and a mortgage on the real property to secure repayment of the loan. Subsequently, the note was specifically endorsed by First Franklin to First Franklin Financial Corporation, which then endorsed the note in blank. In 2006, First Franklin assigned the mortgage to First Franklin Financial Corporation. In 2008, First Franklin Financial Corporation assigned the mortgage to Deutsche Bank.

         {¶3} Gardner defaulted on the loan in 2009. On November 25, 2013, Deutsche Bank filed a foreclosure complaint against Gardner and her unknown spouse, if any. Gardner owed a principal balance of $248, 430 plus interest at 6.25% from May 1, 2009.

          {¶4} On August 30, 2015, Gardner sent a letter to Deutsche Bank rescinding the note and mortgage, claiming a right to do so under the Truth in Lending Act ("TILA"). On October 9, 2015, Gardner filed a counterclaim asserting Deutsche Bank violated the Fair Debt Collection Practices Act ("FDCPA"), the Ohio Consumer Sales Practices Act ("CPSA"), TILA, the Real Estate Settlement Procedures Act ("RESPA"), and the Equal Credit Opportunity Act ("ECOA"). Gardner also asserted negligence, breach of fiduciary duties, fraud, breach of contract, and unjust enrichment against Deutsche Bank, based on her allegation that Deutsche Bank did not have standing and was not entitled to enforce the note.

         {¶5} Deutsche Bank moved for summary judgment on its foreclosure complaint and Gardner's counterclaim. On August 3, 2016, a magistrate issued a decision granting the bank's motion for summary judgment. The decision included the advisement that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion unless the party timely and specifically objected to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).

         {¶6} On August 9, 2016, the trial court adopted the magistrate's decision and entered a judgment and decree in foreclosure against Gardner. Notably, despite the Civ.R. 53(D)(3)(b) language contained in the magistrate's decision, Gardner did not file an objection to the magistrate's decision.[1] On September 7, 2016, Gardner filed the instant appeal.

          {¶7} On appeal, Gardner claimed the trial court erred in granting summary judgment in favor of Deutsche Bank. She presents three assignments of error for our review: the first assignment of error concerns the summary judgment regarding Deutsche Bank's foreclosure complaint; the second concerns her counterclaim based on a purported right to rescind the loan under TILA; and the third concerns her FDCPA and CSPA claims, and her claims of breach of contract, breach of fiduciary duty, and fraud.

         {¶8} We review the trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate when: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Civ.R. 56(C).

         {¶9} A motion for summary judgment in a foreclosure action must be supported by evidentiary quality materials establishing: (1) that the plaintiff is the holder of the note and mortgage or is a party entitled to enforce the instrument; (2) that if the plaintiff bank is not the original mortgagee, the chain of assignments and transfers; (3) that the mortgagor is in default; (4) that all conditions precedent have been met; and (5) the amount of ...

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