Court of Appeals of Ohio, Eleventh District, Trumbull
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.
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2017 CV 00942.
M. Bella, Goranson, Parker & Bella, 405 Madison Avenue,
Suite 2200, Toledo, OH 43604 (For Plaintiff-Appellee).
M. Broyles, The Law Offices of Bruce Broyles, 2670 North
Columbus Street, Suite L, Lancaster, OH 43130 (For
CYNTHIA WESTCOTT RICE, J.
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
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
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.
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.
Steven DuChene sets forth one assignment of error for our
"The trial court erred in granting summary judgment to
Appellee when there were genuine issues of material fact
still in dispute."
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).
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
"[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).
"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."
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