First Fin. Bank, N.A. v. Cooper

• Decision Date: 22 June 2016
• Docket Number: No. C–150664.,C–150664.
• Parties: FIRST FINANCIAL BANK, N.A., Plaintiff–Appellee, v. Douglas J. COOPER, Defendant–Appellant.
• Court: Ohio Court of Appeals

67 N.E.3d 140
2016 Ohio 3523

FIRST FINANCIAL BANK, N.A., Plaintiff–Appellee,
v.
Douglas J. COOPER, Defendant–Appellant.

No. C–150664.

Court of Appeals of Ohio, First District, Hamilton County.

June 22, 2016.

67 N.E.3d 142

Lange, Quill & Powers, PLC, and John E. Lange, for Plaintiff–Appellee.

The Blessing Law Firm and David S. Blessing, Cincinnati, for Defendant–Appellant.

OPINION

FISCHER, Presiding Judge.

{¶ 1} Defendant-appellant Douglas Cooper appeals from a judgment of the Hamilton County Court of Common Pleas requiring him to pay plaintiff-appellee First Financial Bank, N.A., ("First Financial") $61,408.19 plus interest and costs for breach of a promissory note. Because we determine that a genuine issue of material fact exists with regard to whether First Financial mitigated its monetary damages, we reverse that portion of the trial court's judgment and remand the cause for further proceedings. We affirm the remainder of the trial court's judgment.

{¶ 2} In 2006, Cooper assisted his daughter in buying a home on Eustis Court in Hamilton County, Ohio, through First Financial (formerly Peoples Community Bank). Cooper and his daughter cosigned a promissory note in the amount of $112,000. Cooper's daughter lived in the Eustis Court home for approximately two years, and then moved out of state. Instead of selling the property, Cooper's daughter rented the property to tenants, and Cooper continued to make the note payments.

{¶ 3} In September 2009, Hamilton County filed a foreclosure action against Cooper, his daughter, and his wife, for delinquent real-estate taxes in the amount of $7,242.87. It named the Coopers as defendants, as well as First Financial's predecessor Peoples Community Bank. The Coopers never answered or otherwise responded to the foreclosure complaint. First Financial filed an answer stating that it was the holder of a promissory note secured by the Eustis Court property, and that $106,435.41 with interest remained due and owing on the note. Without opposition from the Coopers, Hamilton County obtained a default judgment of foreclosure, and the property was sold at a sheriff's

67 N.E.3d 143

sale to First Financial for $50,000. In May 2011, First Financial filed a motion for distribution of the excess sale proceeds, claiming that $118,212.42 was still owed under the promissory note.

{¶ 4} In January 2015, First Financial filed a complaint against Cooper for breach of the promissory note. First Financial alleged that Cooper had failed to make monthly payments due under the note since September 2010, and alleged that $61,408.19 plus interest remained unpaid under the note. Cooper answered First Financial's complaint and asserted several affirmative defenses, including failure to mitigate damages and res judicata, and Cooper filed a counterclaim for fraud. Cooper alleged that he did not know about the foreclosure of the Eustis Court property because service of the summons and complaint had been sent to him, his wife, and his daughter at the Eustis Court property, where they did not reside. Cooper alleged that First Financial had knowledge of the Coopers' residential address because of their ongoing banking relationship, but that First Financial made no attempt to notify them of the pending foreclosure.

{¶ 5} First Financial filed a motion for summary judgment on its claim for breach of the promissory note and on Cooper's fraud counterclaim. First Financial supported its motion with an affidavit from a retail collections manager, who averred that Cooper had defaulted under the note by failing to make monthly payments since September 2010. Cooper responded with his own motion for summary judgment and memorandum in opposition. Cooper filed an affidavit in which he detailed that he had been a longtime customer of Peoples Community Bank, and now First Financial. Cooper had started his own business in 2009, and had received a business loan from First Financial in April 2010, during the pendency of the foreclosure lawsuit.

{¶ 6} According to Cooper's affidavit, no one at First Financial discussed the foreclosure lawsuit with him until he tried to make a monthly payment under the note in either September or October 2010, and First Financial refused to take the payment. At that point, First Financial informed Cooper that he no longer owned the property. Cooper stated that he offered to purchase the property back from First Financial for $103,825.23, plus costs and fees of $11,871.21, and he attached a copy of his written offer to the affidavit. According to Cooper, First Financial rejected his offer.

{¶ 7} Cooper also attached to his affidavit an email from a First Financial branch manager, Donna Farrell, in which Farrell discusses the Eustis Court property with what appears to be another First Financial employee. In the email, Farrell stated that Cooper is a valuable client who holds personal deposit and loan accounts with First Financial, as well as a commercial checking account, loan, and credit card. Farrell indicated that Cooper wanted to buy back the property, and that he wanted to finance the purchase through First Financial. Farrell acknowledged that First Financial had a policy "prohibiting us from financing the purchase of our REO properties[,]" but she wondered whether First Financial would reconsider this policy in light of this "unique situation."

{¶ 8} The trial court granted summary judgment in favor of First Financial on all claims and entered judgment against Cooper for $61,408.19 plus interest and costs. Cooper has appealed.

{¶ 9} At the outset, we note that our standard of review of a summary-judgment ruling under Civ.R. 56(C) is de novo. Schmidt v. Village of Newtown, 1st Dist. Hamilton No. C–110470, 2012-Ohio-890, 2012 WL 728052, ¶ 6. Summary judgment

67 N.E.3d 144

is proper only where no genuine issues of material fact remain, the moving party is entitled to judgment as a matter of law, and it appears from the evidence that reasonable minds can come to but one conclusion, and with the evidence...