Court of Appeals of Ohio, Eighth District, Cuyahoga
U.S. BANK NATIONAL ASSOCIATION, Plaintiff-Appellee,
PATRICK J. O'MALLEY, ET AL., Defendants-Appellants.
Appeal from the Cuyahoga County Court of Common Pleas Case
Dinsmore & Shohl L.L.P., H. Toby Schisler, and Alicia
Bond-Lewis, for appellee.
Law Office of Grace M. Doberdruk, and Grace M. Doberdruk, for
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, JUDGE
1} Defendants-appellants Patrick and Madeleine O'Malley
("the O'Malleys") appeal the trial court's
ruling granting plaintiff-appellee U.S. Bank National
Association's ("U.S. Bank") motion for summary
judgment, in part, and granting an in rem foreclosure. For
the reasons that follow, we affirm.
Factual and Procedural History
2} On November 16, 2004, the O'Malleys executed
a note payable to Finance America, L.L.C., in the principal
amount of $297, 600. To secure payment of the note, the
O'Malleys executed a mortgage on real property located in
Westlake, Ohio ("the property") in favor of
Mortgage Electronic Registration Systems, Inc.
("MERS"), acting as a nominee for Finance America,
L.L.C. The mortgage was recorded in the Cuyahoga County
Recorder's Office on November 19, 2004.
3} The note contains two undated
allonges. The first allonge attached to the note
endorses the note from Finance America, L.L.C. to Bank of
America, National Association as successor by merger to
LaSalle Bank National Association, as Trustee for Structured
Asset Investment Loan Trust, Mortgage Pass Through
Certificates, Series 2005-2 ("Bank of America").
The second allonge contains an endorsement from Bank of
America to U.S. Bank.
4} On June 25, 2009, MERS assigned the note and
mortgage to Bank of America. The assignment was recorded with
the Cuyahoga County Recorder's Office on May 3, 2010. A
second assignment of the mortgage dated September 29, 2015,
reflects an assignment and transfer from Bank of America to
U.S. Bank. The second assignment was recorded on October 30,
5} The O'Malleys failed to make the payments due under
the note and, on December 1, 2015, U.S. Bank filed a
complaint in foreclosure. The complaint alleged as follows: the
note and mortgage were in default; U.S. Bank satisfied the
conditions precedent; the entire balance was due and payable;
and U.S. Bank was entitled to enforce the note and mortgage.
The following documentation was attached to the complaint:
the note, two allonges, the mortgage, and the assignments of
the mortgage. The O'Malleys filed an answer and
counterclaim on January 29, 2016. The counterclaim was
dismissed on September 12, 2016, pursuant to U.S. Bank's
motion for dismissal. On April 28, 2017, both U.S. Bank and
the O'Malleys filed competing motions for summary
judgment. After the parties fully briefed the motions, a
magistrate rendered a decision on July 14, 2017.
6} The magistrate's decision found R.C. 1303.16(A)'s
six-year statute of limitations barred U.S. Bank's claim
on the note seeking a personal money judgment. However, U.S.
Bank's foreclosure action on the mortgage was not barred
by the applicable statute of limitations.
7} U.S. Bank filed objections to the magistrate's
decision on July 24, 2017. Before the deadline passed for the
O'Malleys to file their objections, the trial court
entered an order adopting the magistrate's decision. The
O'Malleys subsequently filed their objections on July 28,
2017, as well as a motion to vacate on August 24, 2017. On
August 24, 2017, and August 30, 2017, U.S. Bank and the
O'Malleys, respectively, filed notices of appeal that
were dismissed on August 31, 2017, due to a lack of a final
appealable order. On September 21, 2017, the trial court
denied the O'Malleys' motion to vacate the trial
court's adoption of the magistrate's order.
8} On September 25, 2017, the trial court overruled the
parties' objections and adopted the magistrate's
decision. The O'Malleys filed a notice of appeal on
October 17, 2017, and U.S. Bank filed a cross-appeal on
October 26, 2017. Those appeals were dismissed on November 1,
2018, for lack of a final, appealable order.
9} The trial court's amended judgment entry adopting the
magistrate's decision and overruling all objections was
filed on January 8, 2019. On February 6, 2019, the
O'Malleys filed a timely notice of appeal, presenting the
following assignments of error for our review:
First Assignment of Error: The trial court erred by
not finding that appellee U.S. Bank's claim for
foreclosure was barred by the statute of limitations and by
not granting appellants Patrick and Madeleine
O'Malley's motion for summary judgment.
Second Assignment of Error: Appellee was not
entitled to judgment as a matter of law because the affidavit
of Mark Syphus never stated that appellee U.S. Bank had
possession of the original note when the complaint was filed.
Third Assignment of Error: The trial court erred by
granting a judgment of foreclosure because a material issue
of fact existed for trial regarding whether the allonges
[we]re affixed to the original note.
Fourth Assignment of Error: The trial court erred by
granting appellee's motion for summary judgment when the
affidavit of Mark Syphus was not made upon personal knowledge
and material issues of fact existed for trial.
Law and Analysis
Standard of Review
10} Before a trial court grants a motion for summary
judgment, pursuant to Civ.R. 56(C), the court must determine
(1) No genuine issue as to any material fact remains 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 viewing
such evidence most strongly in favor of the party against
whom the motion for summary judgment is made, that conclusion
is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327,
364 N.E.2d 267 (1977).
11} On a motion for summary judgment, the moving party's
initial burden is to identify specific facts in the record
that demonstrate its entitlement to summary judgment.
Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662
N.E.2d 264 (1996). If the moving party does not satisfy this
burden, summary judgment is not appropriate. If the moving
party meets the burden, the nonmoving party has a reciprocal
burden to point to evidence of specific facts in the record
that demonstrate the existence of a genuine issue of material
fact for trial. Id. at 293. Where the nonmoving
party fails to meet this burden, summary judgment is
12} In a foreclosure action, a plaintiff must prove the
following to prevail on a motion for summary judgment:
(1) that the plaintiff is the holder of the note and
mortgage, or is a party entitled to enforce the instrument;
(2) if the plaintiff 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 principal and interest due.
Deutsche Bank Natl Trust Co. v. Najar, 8th Dist.
Cuyahoga No. 98502, 2013-Ohio- 1657, ¶ 17.
13} An appellate court applies a de novo standard when
reviewing a trial court's decision that granted summary
judgment. Bayview Loan Servicing, L.L.C. v. St. Cyr,
2017-Ohio-2758, 90 N.E.3d 321, ¶ 11 (8th Dist.).
Statute of Limitations
14} The note at issue was accelerated in May 2009. The
O'Malleys made no payments following the acceleration
date, and U.S. Bank filed a complaint on December 1, 2015
("2015 complaint"). The complaint sought a personal
judgment on the note and foreclosure based upon the mortgage.
In their motion for summary judgment, the O'Malleys
argued U.S. Bank's complaint - both the action on the
note and the action on the mortgage - was barred by R.C.
1303.16(A)'s six-year statute of limitations. The trial
court found U.S. Bank's action on the note was barred
when it was filed outside R.C. 1303.16(A)'s statute of
limitation, but U.S. Bank could proceed on its foreclosure
action because it was subject to a longer statute of
15} The O'Malleys contend the foreclosure action was
subject to R.C. 1303.16(A) and because this action was filed
outside R.C. 1303.16(A)'s six-year statute of
limitations, the action was barred and the O'Malleys'
motion for summary judgment should have been granted. U.S.
Bank argues that (1) the foreclosure action is governed by
either R.C. 2305.04, which provides a 21-year statute of
limitations or R.C. 2305.06, which applies an 8-year statute
of limitations and, (2) because the foreclosure action was
filed within either the 21-year or 8-year statute of
limitations, the trial court did not err when it granted U.S.
Bank's motion for summary judgment.
16} Upon a mortgagor's default, the mortgagee bank has
three separate and independent remedies that it may pursue in
an attempt to collect the debt secured by the mortgage: a
personal judgment against the mortgagor to obtain the amount
owing on the promissory note; an action in ejectment based on
the mortgage; and an action in foreclosure based upon the
mortgage. D ...