Opinion
No. 106315
06-07-2018
CITIZENS BANK, N.A. PLAINTIFF-APPELLEE v. KATHLEEN C. CONWAY, ET AL. DEFENDANTS-APPELLANTS
ATTORNEY FOR APPELLANT A. Clifford Thornton PDC Building, #305 3659 Green Road Beachwood, OH 44122 ATTORNEY FOR APPELLEE Kathleen A. Nitschke Giffen and Kaminski, L.L.C. 1300 East Ninth Street, Suite 1600 Cleveland, OH 44114
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-15-845180 BEFORE: McCormack, J., E.A. Gallagher, A.J., and Kilbane, J.
ATTORNEY FOR APPELLANT
A. Clifford Thornton
PDC Building, #305
3659 Green Road
Beachwood, OH 44122
ATTORNEY FOR APPELLEE
Kathleen A. Nitschke
Giffen and Kaminski, L.L.C.
1300 East Ninth Street, Suite 1600
Cleveland, OH 44114 TIM McCORMACK, J.:
{¶1} Defendant-appellant Kathleen Conway ("Conway") appeals from the trial court's order granting plaintiff-appellee Citizens Bank, N.A.'s ("Citizens") motion for summary judgment and entering a decree of foreclosure.
{¶2} For the reasons that follow, we affirm. Procedural and Substantive History
{¶3} The subject of the complaint in this case is real property located at 5250 Graham Road in Lyndhurst, Ohio. The former title owner of the property was Charles Callender ("Callender"), Conway's father. On April 20, 2012, Callender took out a $153,020 loan from RBS Citizens, N.A., now known as Citizens Bank, N.A. The loan was evidenced by a promissory note, of which Citizens is the owner and holder. The loan was collateralized by a mortgage, which Callender executed as mortgagor. The mortgage was filed in the land records of Cuyahoga County on April 23, 2012, as Instrument Number 201204230655. Citizens is the current owner and holder of the mortgage.
{¶4} Callender transferred the property to Conway with a quitclaim deed recorded on August 28, 2012. Callender passed away on November 10, 2012.
{¶5} On July 1, 2013, the mortgage entered default. No payments have been made since the date of default.
{¶6} On May 24, 2014, RBS Citizens, N.A. changed its name to Citizens Bank, N.A. On June 19, 2014, an assignment of mortgage was filed transferring the mortgage to Citizens.
{¶7} On May 6, 2015, as a result of the uncured default, Citizens filed a complaint for in rem relief, foreclosure, and other equitable relief against Conway. The trial court subsequently referred the case to a magistrate to try the issues of law and fact. On September 10, 2015, Citizens filed a Supplemental Complaint, correcting an error in the listed parcel number.
{¶8} On November 5, 2015, Conway filed an answer. On December 17, 2015, Citizens filed a motion for summary judgment. A default hearing was held before the magistrate on January 21, 2016. On January 25, 2016, the magistrate referred the case to the court's foreclosure mediation program and stayed discovery and motion practice pending a final determination regarding the case's suitability for mediation.
{¶9} A mediation hearing was held on August 9, 2016. The parties did not reach a settlement, and the case was returned to the foreclosure magistrate for further proceedings.
{¶10} On October 13, 2016, Citizens filed a motion for summary judgment, arguing that it was entitled to a judgment decree in foreclosure against Conway as a matter of law. Citizens supported its motion with an affidavit issued by its employee Ida Goode. The affidavit stated that, according to Goode's personal knowledge, Callender's account was in default as of July 1, 2013, and that the total balance due under the note as of January 1, 2016, was $187,184.56.
{¶11} On November 10, 2016, Conway filed a brief in opposition to Citizens' motion for summary judgment. Conway submitted a personal affidavit in support of her brief. Conway's affidavit stated that she sent a rescind letter to Citizens and disputed the amount due to Citizens without directly contradicting Goode's affidavit.
{¶12} On July 28, 2017, the magistrate granted Citizens' motion for summary judgment. Conway filed no objections to the magistrate's decision. On August 29, 2017, the trial court adopted the magistrate's decision and issued a corresponding journal entry.
{¶13} Conway appealed the trial court's adoption of the magistrate's decision. Law and Analysis
{¶14} Generally, a trial court's decision to grant summary judgment is reviewed de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. The reviewing court conducts an independent review of the record to determine whether summary judgment is appropriate. Summary judgment is appropriate under Civ.R. 56 when "(1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can only reach one conclusion which is adverse to the nonmoving party." Hull v. Sawchyn, 145 Ohio App.3d 193, 196, 762 N.E.2d 416 (8th Dist. 2001). The 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. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107, 662 N.E.2d 264. If the moving party fails to satisfy this burden, the motion for summary judgment must be denied. Id. at 293. If the moving party satisfies its initial burden, the nonmoving party must then set forth specific facts showing that there is a genuine issue for trial. Id.
{¶15} Civ.R. 53(D)(3)(b)(iv) provides that "except for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion as required" by the rule. Therefore, a party's failure to object to a magistrate's decision limits appellate review to plain error. Huntington Natl. Bank v. Cade, 8th Dist. Cuyahoga No. 103674, 2016-Ohio-4705, ¶ 9, citing Huntington Natl. Bank v. Blount, 8th Dist. Cuyahoga No. 97525, 2012-Ohio-1956, ¶ 13. Conway did not object to the magistrate's decision and therefore waived all but plain error.
{¶16} The Ohio Supreme Court has explained that in civil cases, review for plain error is to be conducted "'with the utmost caution, limiting the doctrine strictly to those rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice'" or errors that seriously impact public confidence in judicial proceedings. Watson v. Chapman-Bowen, 8th Dist. Cuyahoga No. 101295, 2014-Ohio-5288, ¶ 19, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-Ohio-401, 679 N.E.2d 1099.
{¶17} Conway presents the following assignments of error for our review:
1. The trial court erred to the prejudice of [Conway] by granting [Citizens'] Motion for Summary Judgment even though [Citizens] failed to prove that it satisfied all conditions precedent mandated by the National Housing Act of 1934 (12 U.S.C. § 1701 et seq.) and 42 U.S.C. § 3534(a) and rescission and other rights set forth in 15 U.S.C. § 1635 and The Truth [in] Lending Act, (15 U.S.C. § 1601, et seq.).
2. Reviewing [Citizens'] Motion for Summary Judgment de novo, the [r]ecord is clear and convincing that the trial court erred to the prejudice of [Conway] by granting [Citizens'] Motion for Summary Judgment.
3. The trial court erred to the prejudice of [Conway] by granting [Citizens'] Motion for Summary Judgment based upon the presence of genuine issues
of material fact regarding [Citizens'] failure to provide sufficient evidence of entitlement to foreclosure and/or damages.Conway does not assert or demonstrate any plain error on the face of the magistrate's decision, nor does she allege any error that has affected the integrity of the judiciary. After reviewing the record, we find no plain error.
{¶18} A motion for summary judgment in a foreclosure action must be supported by evidentiary materials that establish: (1) that the plaintiff is the holder of the note and mortgage or is a party entitled to enforce the instrument; (2) the relevant chain of assignments and transfers if the plaintiff bank is not the original mortgagee; (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.
{¶19} Goode's affidavit was appropriate evidentiary material and satisfied all of these elements. Although Conway disputed the content of Goode's affidavit with her own affidavit, she has not established any deficiency in the affidavit or any genuine issue of material fact.
{¶20} This is not a rare case in which exceptional circumstances require us to disturb the trial court's adoption of the magistrate's decision. The trial court properly adopted the magistrate's decision granting Citizens' motion for summary judgment. Therefore, Conway's assignments of error are overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
TIM McCORMACK, JUDGE EILEEN A. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR