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Citizens Bank, N.A. v. Duchene

Court of Appeals of Ohio, Eleventh District, Trumbull

July 22, 2019

CITIZENS BANK, N.A., f.k.a. RBS CITIZENS, N.A., f.k.a. CITIZENS BANK, N.A., SBMT CHARTER ONE BANK, N.A., et al., Plaintiff-Appellee,
ALAN F. DUCHENE, a.k.a. ALAN DUCHENE, et al., Defendants, STEVEN DUCHENE, Defendant-Appellant.

          Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CV 00942.

          Johna M. Bella, Goranson, Parker & Bella, 405 Madison Avenue, Suite 2200, Toledo, OH 43604 (For Plaintiff-Appellee).

          Bruce M. Broyles, The Law Offices of Bruce Broyles, 2670 North Columbus Street, Suite L, Lancaster, OH 43130 (For Defendant-Appellant).



         {¶1} Appellant, Steven DuChene, appeals the August 6, 2018, judgment of the Trumbull County Court of Common Pleas granting summary judgment in favor of appellee, Citizens Bank ("Citizens"). For the following reasons, we reverse the decision of the court below and remand for further proceedings.

         {¶2} This appeal stems from an action in foreclosure. In 2005 and 2006 Alan and Virginia DuChene signed certain subject Notes and Mortgages in favor of Citizens. Virginia DuChene died in 2009. Subsequently, Alan DuChene defaulted on the Notes and Mortgages, and in June 2017, Citizens filed the underlying complaint against him. Alan DuChene filed an answer but died shortly thereafter. His son, Steven DuChene, the appellant in the case sub judice, was named as a defendant, both in his capacity as the Administrator of his father's estate and individually as an heir who may have an interest in the property.

         {¶3} In June 2018, Citizens moved for summary judgment against Steven DuChene, who filed a memorandum in opposition asserting no notice of acceleration was provided as required by the terms of the Mortgage. Citizens filed a reply and attached an affidavit showing notice was sent to Alan and Virginia DuChene in Arcadia, Florida. Steven DuChene filed a sur-reply, specifically asserting that Citizens failed to comply with the notice requirements by sending the notice to an address that was not the Property Address and by not allowing a full 30 days to correct the default as provided by the terms of the Mortgage. On August 6, 2018, the trial court granted summary judgment against Steven DuChene, finding, "[t]he Notice complies with the terms of the Note and Mortgage. Defendant has failed to illustrate that a genuine issue remains for trial". On September 11, 2018, the Court entered a Judgment, Foreclosure, Order of Sale in favor of Citizens on all claims and motions.

         {¶4} Steven DuChene appealed from the August 6, 2018 entry. Citizens filed a motion to dismiss, alleging the appeal was not timely filed and that the August 6, 2018 Judgment was not a final, appealable order. On November 5, 2018, this court denied Citizens' motion, finding the appeal was timely filed pursuant to App.R. 4(C) and that the August 6, 2018 entry was a final, appealable order. Thus, we consider Steven DuChene's appeal on the merits.

         {¶5} Steven DuChene sets forth one assignment of error for our review:

         {¶6} "The trial court erred in granting summary judgment to Appellee when there were genuine issues of material fact still in dispute."

         {¶7} A trial court's decision to grant summary judgment is reviewed by an appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). "A de novo review requires the appellate court to conduct an independent review of the evidence before the trial court without deference to the trial court's decision." Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶27. In deciding a motion for summary judgment, a court may only consider the "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action * * *." Erie Ins. Co. v. Stalder, 114 Ohio App.3d 1, 4 (3d Dist.1996).

         {¶8} The moving party bears the burden of establishing that summary judgment is proper. Morris v. Ohio Cas. Ins. Co., 35 Ohio St.3d 45, 46-47 (1988). Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the evidence shows "there is no genuine issue as to any material fact" to be litigated, (2) "the moving party is entitled to judgment as a matter of law," and (3) "it appears from the evidence * * * 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, that party being entitled to have the evidence * * * construed most strongly in the party's favor."

         {¶9} "[T]he moving party bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent's case," by pointing to evidentiary materials of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant fails to meet this initial burden, the motion for summary judgment must be denied. If, however, this initial burden is met, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Civ.R. 56(E).

         {¶10} "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 it; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgager is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due." JPMorgan Chase Bank, Natl. Assn. v. Blank, 11th Dist. Ashtabula No. ...

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