Deutsche Bank Natl. Trust Co. v. Mallonn

• Citation: 110 N.E.3d 765,2018 Ohio 1363
• Decision Date: 09 April 2018
• Docket Number: No. 2017CA00132,2017CA00132
• Parties: DEUTSCHE BANK NATL. TRUST COMPANY, as Indenture Trustee and Custodian FOR OCWEN REAL ESTATE ASSET LIQUIDATING TRUST 2007–1, ASSET BACKED NOTES, SERIES 2007–1, Plaintiff–Appellee v. Richard A. MALLONN II, et al., Defendants–Appellants
• Court: Ohio Court of Appeals

110 N.E.3d 765

2018 Ohio 1363

DEUTSCHE BANK NATL. TRUST COMPANY, as Indenture Trustee and Custodian FOR OCWEN REAL ESTATE ASSET LIQUIDATING TRUST 2007–1, ASSET BACKED NOTES, SERIES 2007–1, Plaintiff–Appellee

v.Richard A. MALLONN II, et al., Defendants–Appellants

No. 2017CA00132

Court of Appeals of Ohio, Fifth District, Stark County.

DATE OF JUDGMENT: April 9, 2018

CHRISSY M. DUNN, JOHN R. WIRTHLIN, Blank Rome, LLP, 1700 PNC Center, 201 E. 5^th Street, Cincinnati, Ohio 45202, For Plaintiff–Appellee

WILLIAM C. BEHRENS, MARC E. DANN, The Dann Law Firm, P. O. Box 6031040, Cleveland, Ohio 44103, For Defendant–Appellants

JUDGES: Hon. John W. Wise, P.J., Hon. William B. Hoffman, J,. Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

{¶ 1} Appellants, Freeway Tavern, Inc., Richard A Mallonn, II, and Jill Mallonn appeal the Stark County Court of Common Pleas' June 23, 2017, Judgment Entry and Decree in Foreclosure granting summary judgment to appellee. Appellee is Deutsche Bank National Trust Company, As Indenture Trustee and Custodian for Ocwen Real Estate Asset Liquidating Trust 2007–1, Asset–Backed Notes, Series 2007–1.

STATEMENT OF FACTS AND THE CASE

{¶ 2} Appellants executed a promissory note on December 22, 1998, payable to appellee's predecessor-in-interest, American Business Credit, Inc. ("ABC"), in the original principal amount of $100,000.00, plus interest. ABC endorsed the Note to The Bank of New York, as Indenture Trustee under the Indenture dated as of March 1, 1999, ABFS Mortgage Loan Trust 1999–1 ("BONY"). On August 18, 2006, BONY, through it is attorney-in-fact, Ocwen Loan Servicing, LLC endorsed the Note in blank. The Note was secured by an open-end mortgage executed by the appellants on December 22, 1998, in the amount of $100,000.00, pledging three parcels as collateral. The Mortgage was recorded December 28, 1998, as Instrument Number 1998094436, in the Stark County, Ohio records.

{¶ 3} American Business Credit, Inc. assigned the mortgage on March 10, 2015 to OMAT I REO HOLDINGS, LLC. On November 20, 2015 OMAT I REO HOLDINGS, LLC, assigned the mortgage to Deutsche Bank National Trust Company, As Indenture Trustee and Custodian for Ocwen Real Estate Asset Liquidating Trust 2007–1, Asset–Backed Notes, Series 2007–1. Both mortgage assignments were signed by Ocwen Loan Servicing, LLC as attorney in fact for the assignor.

{¶ 4} On January 1, 2015, appellee issued a notice of default and accelerating the balance due on the note. Appellee filed a complaint on February 5, 2016 seeking judgment against the appellants upon the note in the sum of $69,863.54 plus interest from May 22, 2014, plus additional costs and expenses as well as a foreclosure of the mortgage and an order that the property be sold.

{¶ 5} Appellants Richard and Jill Mallon and Freeway Tavern Inc. filed a motion for leave to file a motion to dismiss as well as a motion for leave to file an answer instanter on April 12, 2016. Both motions were granted October 21, 2016. Appellee filed its memorandum opposing the motion to dismiss on November 3, 2016. The motion to dismiss was denied on November 14, 2016.

{¶ 6} On May 8, 2017 appellee filed a motion for summary judgment supported by the affidavit of Jesse Rosenthal, a contract management coordinator of Ocwen Loan Servicing, LLC, loan servicer for the appellee. Appellants filed a memorandum contra on June 21, 2017 with the affidavits of Richard Mallonn, II and trial counsel, William C. Behrens attached. The court granted the motion for summary judgment and issued a decree of foreclosure on June 23, 2017. Appellants filed a motion to stay the sale and waive bond on July 26, 2017. On July 31, 2017 appellee withdrew its praecipe for order of sale and the court issued an entry withdrawing the praecipe for order of sale on August 4, 2017.

{¶ 7} Appellants filed a notice of appeal on July 17, 2017 and listed seven assignments of error:

{¶ 8} "I. THE TRIAL COURT COMMITED (sic) PLAIN ERROR IN ISSUING A FINAL JUDGMENT THAT WAS DEVOID OF SUFFICIENTLY DETAILED REASONING NECESSARY FOR MEANINGFUL APPELLATE REVIEW."

{¶ 9} "II. THE TRIAL COURT COMMITED (sic) PLAIN ERROR IN WEIGHING EVIDENCE, FAILING TO CONSTRUE ALL EVIDENCE IN FAVOR OF THE NON–MOVING PARTY, AND FAILING TO RESOLVE COMPETING INFERENCES AND QUESTIONS OF CREDIBILITY IN FAVOR OF THE NON–MOVING PARTY."

{¶ 10} "III. THE TRIAL COURT ERRED IN FINDING THAT THE AFFIDAVIT IN SUPPORT OF SUMMARY JUDGMENT WAS MADE ON PERSONAL KNOWLEDGE AND/OR TRUSTWORTHY BUSINESS RECORDS, AND WAS THEREFORE SUFFICIENT TO ESTABLISH THE MOVING PARTY'S INITIAL BURDEN UNDER CIV. R. 56."

{¶ 11} "IV. THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF–APPELLEE HAD ESTABLISHED ITS RIGHT TO ENFORCE THE NOTE AND MORTGAGE."

{¶ 12} "V. THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF–APPELLEE HAD ESTABLISHED A DEFAULT AND THE AMOUNT DUE."

{¶ 13} "VI. THE TRIAL COURT ERRED IN FINDING THAT THE AFFIRMATIVE DEFENSES OF THE DEFENDANTS–APPELLANTS DID NOT PRECLUDE SUMMARY JUDGMENT."

{¶ 14} "VII. THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF–APPELLEE WAS ENTITLED TO SUMMARY JUDGMENT WHERE THE ACTION WAS BARRED BY R.C.1303.16."

STANDARD OF REVIEW

{¶ 15} Appellants list seven assignments of error attacking the trial court's grant of appellee's motion for summary judgment.

{¶ 16} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. Wedding Party, Inc. , 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987).

{¶ 17} Civ.R. 56 provides summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain 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, 364 N.E.2d 267 (1977).

{¶ 18} It is well established the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment is delineated in Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996) : "* * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." The record on summary judgment must be viewed in the light most favorable to the opposing party. Williams v. First United Church of Christ , 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).

{¶ 19}* * *[t]o properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary quality materials establishing: (1) 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) the mortgagor is in default; (4) all conditions precedent have been satisfied; and (5) the amount of principal and interest due.

Wachovia Bank of Delaware, N.A. v. Jackson , 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, 2011 WL 2557039, ¶¶ 40–45.

ANALYSIS

{¶ 20} The appellant's first assignment of error, that the trial court's entry granting summary judgment lacks sufficient detail to permit review, requires that we review the breadth of our obligation to conduct a de novo review of the decision.

{¶ 21} A de novo review requires an independent review of the trial court's decision without any deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs. , 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993) as cited in State v. Standen , 9th Dist., 173 Ohio App.3d 324, 2007-Ohio-5477, 878 N.E.2d 657, ¶ 7. "Thus, viewing the pleadings in the light most favorable to the [appellee], we must determine whether [appellee] was entitled to judgment as a matter of law." Civ.R. 56(C). Troyer v. Janis , 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6 (2012). Accordingly, we apply the same standard as the trial court and court of appeals in this case.

Bonacorsi v. Wheeling & Lake Erie Ry. Co. , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24 (2002). "* * * we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate." Tornado Techs., Inc. v. Quality Control Inspection, Inc. , 8th Dist., 2012-Ohio-3451, 977 N.E.2d 122, ¶ 13.

{¶ 22} Considering the requirements imposed upon this court by precedent and the Ohio Civil Rules, the content of the trial court's entry has little influence. While the decision of the trial court must contain the basic requirements, our review is focused upon the record and not the written decision of ...