Opinion
C. A. 29582
06-30-2023
U.S. BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE Appellees v. TRICIA PHANN, ET AL. Appellant
RICK D. DEBLASIS, Attorney for Appellee WORRELL A. REID, Attorney for Appellant
Civil Appeal from Common Pleas Court Trial Court Case No. 2022 CV 01303
RICK D. DEBLASIS, Attorney for AppelleeWORRELL A. REID, Attorney for Appellant
OPINION
HUFFMAN, J.
{¶ 1} Defendants-Appellants Ruby A. Carrico and Derrell A. Carrico ("the Carricos") appeal from a summary judgment rendered in favor of Plaintiff-Appellee U.S. Bank Trust National Association as Trustee of American Homeowner Preservation Trust Series 2015 A+ ("U.S. Bank") on its complaint for foreclosure in rem. The Carricos contend that the trial court erred in granting summary judgment in favor of U.S. Bank because there were genuine issues of material fact concerning (1) whether U.S. Bank was the holder of the promissory note, and, thus, had standing to bring the action, and (2) whether there was a break in the chain of allonges and assignments and the action on the promissory note was time-barred.
{¶ 2} We conclude that the trial court did not err in rendering summary judgment in favor of U.S. Bank. Accordingly, for the reasons outlined below, the judgment of the trial court is affirmed.
I. Facts and Procedural Background
{¶ 3} On December 12, 2002, Tricia Phann a.k.a. Tricia Jean Dillavou ("Phann") executed and delivered a promissory note in the amount of $53,600 to InvestAid Corporation on real property located at 428 Hart Street in Dayton, Ohio. Phann and Stuart Dillavou also executed and delivered a mortgage on the property at the same time. The note was later indorsed and transferred to U.S. Bank by a series of indorsements, which appeared either on the face of the note or by separate allonge. The mortgage was also assigned to U.S. Bank by a series of assignments and an affidavit of lost assignment of mortgage.
{¶ 4} Certain note indorsements and one unrecorded mortgage assignment were lost. U.S. Bank named as defendants those parties who, in the event those lost transfers were nonexistent or incorrect, would have had an interest in the subject loan; those parties were served and did not contest U.S. Bank's allegations.
{¶ 5} Payments were not made as required by the terms of the note and mortgage. Phann had filed a bankruptcy petition and had been discharged and released from the indebtedness due and owing to U.S. Bank on the note. On March 23, 2022, U.S. Bank filed a complaint for foreclosure in rem; it sought no personal money judgment against Phann. Copies of the original note and mortgage, note allonges, affidavits of lost allonge, assignments of mortgage, and one affidavit of lost assignment of mortgage were attached to U.S. Bank's complaint.
{¶ 6} The Carricos responded to U.S. Bank's complaint with a series of pro se answers and motions; they claimed that they had purchased the property in 2015 by way of a delinquent tax repayment agreement and asserted vague defenses, including lack of standing and expiration of the statute of limitations.
{¶ 7} On July 27, 2022, U.S. Bank filed its motion for summary judgment and submitted an affidavit of Shlomo Sahadeo in support. The Carricos did not oppose U.S. Bank's summary judgment motion or submit any proper evidence for the trial court's consideration in response to the motion.
II. U.S. Bank's Motion for Summary Judgment
{¶ 8} The Carricos assignments of error are as follows:
The Judgment (In Rem) And Decree In Foreclosure was contrary to law, as the pleadings and the facts clearly revealed that the Plaintiff was not the holder of the note and thus had no standing, making the grant of summary judgment inappropriate.
The Judgment (In Rem) And Decree In Foreclosure was contrary to law, as the pleadings and the facts clearly revealed that the Plaintiff was unable to comply with the substantive law pertaining to foreclosures, making
the grant of summary judgment inappropriate.
{¶ 9} Pursuant to Civ.R. 56(C), a movant is entitled to summary judgment when that party demonstrates that there is (1) no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and that conclusion is adverse to the non-moving party. Rhododendron Holdings, LLC v. Harris, 2021-Ohio-147, 166 N.E.3d 725, ¶ 22 (2d Dist.).
{¶ 10} "The burden of demonstrating that no genuine issues exist as to any material fact falls upon the moving party requesting a summary judgment." Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). Once the moving party has satisfied its burden of showing that there are no genuine issues of material fact, the burden shifts to the nonmoving party to set forth specific facts showing a genuine issue for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The nonmoving party cannot rely upon the mere allegations or denials in the pleadings but must give specific facts showing that there is a genuine issue for trial. Civ.R. 56(E); accord Geloff v. R.C. Hemm's Glass Shops, Inc., 2021-Ohio-394, 167 N.E.3d 1095, ¶ 14 (2d Dist.). When the standard is met, summary judgment must be awarded as a matter of law. We review the trial court's ruling on a summary judgment motion de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42.
{¶ 11} " 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 the instrument; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due.'" (Citations omitted) Nationstar Mtge., LLC. v. West, 2d Dist. Montgomery Nos. 25813 and 25837, 2014-Ohio-735, ¶ 16, quoting Wright-Patt Credit Union, Inc. v. Byington, 6th Dist. Erie No. E-12-002, 2013-Ohio-3963, ¶ 10.
{¶ 12} Under their first assignment of error, the Carricos contend that the trial court erred in rendering summary judgment in favor of U.S. Bank because there were genuine issues of material fact concerning whether U.S. Bank was the holder of the note and, thus, had standing to bring its foreclosure action. According to the Carricos, U.S. Bank did not prove that it was entitled to enforce the note when it filed its complaint because several relevant documents had been lost. Specifically, the Carricos argue that certain original loan documents were lost, destroyed, or misplaced, and thus there was no transfer and assignment of the note and mortgage to U.S. Bank from the original lender or from any entity in privity. The crux of the Carricos argument is that there were defects in the transfers and assignments of the note and mortgage, respectively, because of which U.S. Bank lacked standing to bring its foreclosure action. We disagree.
{¶ 13} "A mortgage is a conveyance of property to secure the performance of some obligation, which is designed to become void upon due performance thereof." Barnets, Inc. v. Johnson, 12th Dist. Preble No. CA2004-02-005, 2005 Ohio 682, ¶ 13, citing Brown v. First Natl. Bank, 44 Ohio St. 269, 274, 6 N.E. 648 (1886). In Ohio, a mortgage is characterized by statute as a "lien." Id. A mortgage is usually executed to secure the payment of money, including indebtedness. Id., citing Kerr v. Lydecker, 51 Ohio St. 240, 254, 37 N.E. 267 (1894). When a mortgagor defaults, a mortgagee "has three remedies available to enforce a mortgage or the obligation it secures: (1) an action on the debt or obligation secured by the mortgage; (2) an action to foreclose on the mortgage; and (3) an action in ejectment." Barnets at ¶ 14, citing 69 Ohio Jurisprudence 3d (2004) 371, 375 Mortgages and Deeds of Trust, Sections 256 and 260. Under Ohio law, an action in foreclosure is an equitable action. Natl. City Bank, NE v. Abdalla, 131 Ohio App.3d 204, 210, 722 N.E.2d 130 (7th Dist. 1999).
{¶ 14} The case before us involves a remedy of foreclosure of the mortgage, asking that the property be sold to satisfy the debt. An action in foreclosure has been defined as "a proceeding for the legal determination of the existence of a mortgage lien, the ascertainment of its extent, and the subjection to sale of the property pledged for its satisfaction." BAC Home Loans Servicing, LP. v. Mowery Properties, Ltd., 10th Dist. Franklin No. 10AP-396, 2011-Ohio-1596, ¶ 15, quoting Carr v. Home Owners Loan Corp., 148 Ohio St. 533, 540, 76 N.E.2d 389 (1947). A" 'foreclosure proceeding is the enforcement of a debt obligation,' * * * and the debt is established by the note." (Citations omitted.) U.S. Bank Natl. Assn. for Registered Holders of GE Commercial Mtge. Corp. v. Courthouse Crossing Acquisitions, LLC, 2d Dist. Montgomery No. 27648, 2017-Ohio-9231, ¶ 12.
{¶ 15} A bank can proceed in foreclosure against a debtor who has been discharged from any obligation on a promissory note in bankruptcy proceedings, so long as the bank can prove that "it is the party entitled to enforce the note-regardless of whether it can obtain a personal judgment on it against the [obligors]." Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d 1243, ¶ 27. A suit to foreclose on property securing a debt is not a suit directly against the debtor but, rather, is an action "in rem." BAC Home Loans Servicing, LP. at ¶ 15, citing United States v. Alvarado, 5 F.3d 1425, 1429 (11th Cir. 1993). In other words, "when debt on a promissory note secured by a mortgage has been discharged by a bankruptcy court, the holder of the note may not pursue collection against the maker of the note; however, the holder of the mortgage has standing to foreclose on the property and to collect the deficiency on the note from the foreclosure sale of the property." Holden at ¶ 35.
{¶ 16} Additionally, mortgage assignments do not alter a debtor's obligations under the note or mortgage. Courthouse Crossing Acquisitions at ¶ 30. A plaintiff files a foreclosure complaint based on the debtor's default under the note and mortgage, not because of the mortgage assignments. Id. It is the debtor's default that exposes him to foreclosure regardless of the party who actually proceeds with foreclosure. Id.
{¶ 17} Standing to sue is required to invoke the jurisdiction of the common pleas court and is to be determined as of the commencement of the suit. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 24. Invoking the jurisdiction of the court depends on the state of things at the time the action is brought. Id. As a result, "[p]ost-filing events that supply standing that did not exist on filing may be disregarded, denying standing despite a showing of sufficient present injury caused by the challenged acts and capable of judicial redress." (Citations omitted.) Id. In order to have standing to achieve a judgment in a foreclosure action, a party is required to demonstrate a justiciable claim on the note and the mortgage at the time it files suit. See Holden at ¶ 35.
{¶ 18} In the case before us, there is no dispute that the promissory note was a negotiable instrument. A note may be transferred by negotiation under R.C. 1303.21(A). "Negotiation" is the transfer of possession of the note "to a person who by the transfer becomes the holder of the instrument." R.C. 1303.21(A). Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. R.C. 1303.21 (B). The "transfer" of an instrument occurs when the note is physically delivered "for the purpose of giving the person receiving delivery the right to enforce the instrument." R.C. 1303.22(A).
{¶ 19} The parties entitled to enforce a negotiable instrument are: "(1) The holder of the instrument; (2) A nonholder in possession of the instrument who has the rights of a holder; (3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 1303.38 or division (D) of section 1303.58 of the Revised Code." R.C. 1303.31(A). A "holder" means: "(a) The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession; (b) The person in possession of a negotiable tangible document of title if the goods are deliverable either to bearer or to the order of the person in possession; or (c) The person in control of a negotiable electronic document of title." R.C. 1301.201 (21). "In foreclosure actions, the real party in interest is the current holder of the note and mortgage." (Citation omitted) HSBC Bank USA v. Thompson, 2d Dist. Montgomery No. 23761, 2010-Ohio-4158, ¶ 45, citing Wells Fargo Bank, N.A. v. Sessley, 10th Dist. Franklin No. 09AP-178, 2010-Ohio-2902, ¶ 11.
{¶ 20} In this case, the note identified InvestAid Corporation as the holder. The note, therefore, could have been negotiated only by InvestAid, through transfer of possession, and by either endorsing the note to a specific person or endorsing the note to "bearer."
{¶ 21} An indorsement can serve to transfer a negotiable instrument. A "special indorsement" is "an indorsement that is made by the holder of an instrument, whether payable to an identified person or payable to the bearer, and that identifies a person to whom it makes the instrument payble sic. An instrument, when specially indorsed, becomes payable to the identified person and may be negotiated only by the indorsement of that person." R.C. 1303.25(A).
{¶ 22} An allonge is a method of endorsing a note and is defined as "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." (Citations omitted) Courthouse Crossing Acquisitions, 2d Dist. Montgomery No. 27648, 2017-Ohio-9231, at ¶ 78. In general, "[t]he paper must be affixed to the instrument in order for the signature to be considered part of the instrument." HSBC Bank USA v. Thompson, 2d Dist. Montgomery No. 23761, 2010-Ohio-4158, ¶ 66. "The use of an allonge to add indorsements to an instrument when there is no room for them on the instrument itself dates from early common law." Id. at ¶ 56, citing Southwestern Resolution Corp. v. Watson, 964 S.W.2d 262, 263 (Tex.1997).
{¶ 23} Turning to the note in this case, it includes several allonges and affidavits of lost allonge as indorsements. R.C. 1303.38 provides for the enforcement of a lost, destroyed, or stolen instrument and states:
(A) A person not in possession of an instrument is entitled to enforce the instrument if all of the following apply
(1) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.
(2) The loss of possession was not the result of a transfer by the person or a lawful seizure.
(3) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
{¶ 24} A party seeking to enforce a lost instrument under R.C. 1303.38(A) must prove the terms of the instrument and the party's right to enforce the instrument. R.C. 1303.38(B). Where a note or instrument is lost, the court may consider a lost-note or instrument affidavit as evidence from a foreclosure plaintiff if the plaintiff satisfies the R.C. 1303.38(A) requirements by "producing testimony to indicate that (1) the servicer or its predecessor (as servicer or by merger) or the custodian, acquired possession of the note, (2) possession of the note cannot be reasonably determined because the note was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person, and (3) the loss of possession of the note is not the result of a rightful transfer or a lawful seizure of the note." Beneficial Fin. I Inc. v. Saunders, 4th Dist. Gallia No. 18CA5, 2019-Ohio-3577, ¶ 23, citing Bank of New York Mellon Corp. v. Erickson, 5th Dist. Stark No. 2016CA00155, 2017-Ohio-599, ¶ 28.
{¶ 25} Here, through a series of allonges and affidavits of lost allonge, InvestAid Corporation transferred the note by allonge to Home Servicing, LLC, without recourse, with The Bank of New York Trust Company, N.A. as successor to JPMorgan Chase Bank, N.A. as Trustee, Residential Funding Company, LLC fka Residential Funding Corporation, Attorney-in-Fact; Home Servicing transferred the note by allonge to Cadlerock Joint Venture, L.P., on November 4, 2008; Cadlerock transferred the note by an affidavit of lost allonge to Home Servicing on or around October 20, 2010; Home Servicing transferred the note by an affidavit of lost allonge to Stewardship Fund, L.P., on or around October 19, 2010; Stewardship transferred the note by an affidavit of lost allonge to Holland REIT Advisors, LLC, on or around May 6, 2013; Holland transferred the note by allonge to TM Property Solutions, LLC; TM Property Solutions transferred the note by allonge to 3 Star Properties, LLC; and the trustee of the chapter 7 bankruptcy estate of 3 Star Properties transferred the note by allonge to U.S. Bank on or around May 25, 2017.
{¶ 26} The affidavits of lost allonge set forth details from the note and stated that, following a diligent search of the original documents and records related to the note, the note allonge was determined to have been lost, misfiled, misplaced, or destroyed. The affidavits of lost allonge corresponded with the assignments of mortgage between those parties and were timely recorded in the county records. In this case, the indorsement at the end of the note shows that it was endorsed specifically to U.S. Bank.
{¶ 27} There were also a series of assignments and an affidavit of lost assignment with respect to the mortgage. The sole missing assignment of mortgage was from the original lender, InvestAid Corporation, to The Bank of New York Trust Company, N.A. as successor to JPMorgan Chase Bank, N.A. as Trustee, Residential Funding Company, LLC fka Residential Funding Corporation to Residential Funding Corporation, but the transfer was corroborated by an indorsement on the face of the note. The affidavit of lost assignment of mortgage stated that, after a diligent search of the original documents and records, it was determined that the mortgage assignment had been lost, misfiled, misplaced, or destroyed; that U.S. Bank was unable to obtain an original recorded or unrecorded assignment of the mortgage; and that U.S. Bank properly acquired the mortgage and serviced the same and has in its possession the mortgage and note and all of the other mortgage loan documentation pertaining to the mortgage ownership chain.
{¶ 28} As to the series of assignments, there was a corporation assignment of mortgage, dated May 30, 2007, from The Bank of New York Trust Company, N.A. as successor to JPMorgan Chase Bank, N.A. as Trustee, Residential Funding Company, LLC fka Residential Funding Corporation, Attorney-in-Fact to Home Servicing, LLC; an assignment of mortgage, dated November 4, 2008, from Home Servicing to Cadlerock Joint Venture, L.P.; an assignment of deed of trust/mortgage/security deed, dated October 20, 2010, from Cadlerock to Home Servicing; an assignment of deed of trust/mortgage/security deed, dated October 19, 2010, from Home Servicing to Stewardship Fund, L.P.; an assignment of mortgage, dated May 6, 2013, from
Stewardship Fund to Holland REIT Advisors, LLC as Trustee for Asset Trust No. MM00039; an assignment of mortgage, dated January 15, 2014, from Holland to TM Property Solutions, LLC; an assignment of mortgage, dated September 1, 2017, from TM Property Solutions to 3 Star Properties, LLC; and a nonrecourse assignment of mortgage, dated September 6, 2017, from the trustee of the chapter 7 bankruptcy estate of 3 Star Properties to U.S. Bank. Of note, the last assignment of mortgage was recorded on October 2, 2017, and indicated that the mortgage was assigned to U.S. Bank.
{¶ 29} To authenticate these documents and support its motion for summary judgment, U.S. Bank submitted Shlomo Sahadeo's affidavit as evidence in the trial court. As Senior Vice President Homeowner Preservation for AHP Servicing, LLC, Sahadeo testified that he was authorized to execute the affidavit and competent to testify; that he had access to business records, including loan documents and account records; that he had personal knowledge of the operation and maintenance of AHP Servicing's recordkeeping systems; that U.S. Bank had been in possession of the original note with all indorsement documents since before the commencement of this action; that the note was indorsed and transferred to U.S. Bank by a series of indorsements; that the mortgage was assigned to U.S. Bank; that payments had not been made as required by the terms of the note and mortgage; that notice addressed to the property was sent on April 2, 2020, in accordance with the terms of the note and mortgage; that the default on the account had not been cured; that the entire balance had been accelerated and was due and payable; and that the amount due on the account was a principal balance of $52,419.82, plus interest at the rate of 8.900% per annum. Sahadeo incorporated the documents attached to U.S. Bank's complaint into his affidavit by reference.
{¶ 30} The Carricos argue that Sahadeo's affidavit was not based on personal knowledge as required by Evid.R. 803(6). Specifically, the Carricos argue that Sahadeo's affidavit did not properly authenticate the documents attached to U.S. Bank's complaint. The Carricos also argue that Sahadeo's affidavit was insufficient to prove the amount of principal and interest due on the loan. We disagree.
{¶ 31} For an affiant to authenticate a business record under Evid.R. 803(6), he "must demonstrate that: (1) the record was prepared by an employee of the business who had a duty to report the information; (2) [he has] personal knowledge of the event or transaction reported; (3) the record was prepared at or near the time of the event or transaction"; and (4) the business created such records as a regular practice. U.S. Home Ownership, LLC v. Young, 2d Dist. Montgomery No. 27382, citing State v. Richardson, 2d Dist. Montgomery No. 26649, 2016-Ohio-8081, ¶ 39, citing State v. Hall, 2d Dist. Montgomery No. 19074, 2003-Ohio-2824, ¶ 34. Based on this rule, we conclude that Sahadeo had personal knowledge sufficient to authenticate the documents submitted for summary judgment and to prove the amount due on the loan.
{¶ 32} U.S. Bank presented evidentiary-quality materials proving that it was the holder of and was entitled to enforce the note. Sahadeo authenticated U.S. Bank's evidentiary documents and testified that U.S. Bank had been in possession of the original note with all indorsement documents at the time of the filing of its foreclosure complaint. U.S. Bank also presented evidence that it took possession of the note and mortgage in 2017 before filing its complaint against the Carricos. The Carricos did not oppose U.S.
Bank's motion for summary judgment or introduce any evidence in the trial court to dispute U.S. Bank's averments. As a result, we find that U.S. Bank established that it had possession of the note and mortgage at the time it filed its complaint and, thus, it had standing to pursue the instant action in foreclosure. The Carricos first assignment of error is overruled.
{¶ 33} Under their second assignment of error, the Carricos again argue that there was a break in the chain of allonges and assignments, which we have already addressed above and will not repeat here. They also argue that enforcement of the note was time-barred by the statute of limitations. According to the Carricos, the note had been previously accelerated in a prior foreclosure action in Montgomery County Common Pleas Court Case No. 2004 CV 4850, and, thus, U.S. Bank's foreclosure action was time-barred. We disagree.
{¶ 34} "[Arguments raised for the first time on appeal will not be considered by an appellate court." Budz v. Somerfield, 2d Dist. Montgomery No. 29550, 2023-Ohio-155, ¶ 30, citing Powell v. Cleveland, 8th Dist. Cuyahoga No. 111338, 2022-Ohio-4286, ¶ 53. "This rule applies when reviewing decisions on motions for summary judgment." Id; Whitson v. One Stop Rental Tool & Party, 2017-Ohio-418, 84 N.E.3d 84, ¶ 17 (12th Dist.). "[Although we review summary judgment decisions de novo, 'the parties are not given a second chance to raise arguments that they should have raised below.'" Id., citing Hamper v. Suburban Umpires Assn., Inc., 8th Dist. Cuyahoga No. 92505, 2009-Ohio-5376, ¶ 27, quoting Perlmutter v. People's Jewelry Co., 6th Dist. Lucas No. L-04-1271, 2005-Ohio-5031, ¶ 29. "Any error committed by the trial court in granting summary judgment is waived if the non-moving party fails to file a brief or evidence in opposition or fails to challenge the movant's evidence." Id., quoting USA Freight, LLC. v. CBS Outdoor Group, Inc., 2d Dist. Montgomery No. 26425, 2015-Ohio-1474, ¶ 21.
{¶ 35} Similarly, "if the nonmoving party fails to raise an issue when responding to the moving party's motion for summary judgment, the nonmoving party has waived that issue on appeal." Budz at ¶ 31, citing, e.g., Great Lakes Window, Inc. v. Resash, Inc., 11th Dist. Trumbull No. 2006-T-0114, 2007-Ohio-5378, ¶ 24; Sovereign Bank, N.A. v. Singh, 9th Dist. Summit No. 27178, 2015-Ohio-3865, ¶ 11 ("When the non-moving party fails to raise an argument when responding to the motion for summary judgment, the party forfeits the right to raise that argument on appeal."); Whitson at ¶ 17 (party appealing a summary judgment ruling cannot advance new theories or raise new issues to secure reversal); Hanick v. Ferrara, 7th Dist. Mahoning No. 19 MA 0074, 2020-Ohio-5019, ¶ 115 ("The appellate court need not rule on a new legal argument which was waived by failing to raise it with the trial court when responding to a summary judgment motion."); Tchankpa v. Ascena Retail Group, Inc., 10th Dist. Franklin No. 19AP-760, 2020-Ohio-3291, ¶ 20 (failure to raise an argument in response to a motion for summary judgment waives the argument for purposes of appeal); Bank of Am., N.A. v. Thompson, 2d Dist. Montgomery No. 26316, 2015-Ohio-456, ¶ 19 ("In a foreclosure action, a homeowner's grounds for challenging a summary judgment decision not raised in the trial court are waived, and may not be raised for the first time on appeal.").
{¶ 36} The expiration of the statute of limitations is an affirmative defense, upon which the defendant bears the burden of proof at trial. Civ.R. 8(C); Velotta v. Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 379, 433 N.E.2d 147 (1982). "[A] properly supported motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." (Citation omitted.) Evans v. S. Ohio Med. Ctr., 103 Ohio App.3d 250, 255, 659 N.E.2d 326 (4th Dist.1995). The Carricos had the burden of proof with respect to their statute of limitations defense, but they did not file a memorandum in opposition to U.S. Bank's motion for summary judgment or otherwise introduce any proper evidence for the trial court's consideration. The Carricos cannot raise and present evidence on their statute of limitations defense, or any other affirmative defense, now, for the first time, on appeal.
{¶ 37} In support of its motion for summary judgment, U.S. Bank set forth evidence establishing the elements to support its foreclosure claim by demonstrating that it was the holder of the note and mortgage; all conditions precedent had been met; Phann had defaulted on the note and mortgage; and the amount of principal and interest due. U.S. Bank also set forth evidence that notice had been sent to the property address by mail. The Carricos did not offer any evidence in opposition to U.S. Bank's evidence and, in fact, did not even respond to U.S. Bank's motion for summary judgment, thereby failing to meet their reciprocal burden under Civ.R. 56(E).
{¶ 38} Under these circumstances, the trial court did not err when it entered summary judgment in favor of U.S. Bank. The Carricos second assignment of error is overruled.
III. Conclusion
{¶ 39} The judgment of the trial court is affirmed.
TUCKER, J. and EPLEY, J., concur.