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«IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT The Bank of New York Mellon, as Trustee : on Behalf of the Registered Certificateholders of ...»

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[Cite as Bank of New York Mellon v. Rankin, 2013-Ohio-2774.]



The Bank of New York Mellon, as Trustee :

on Behalf of the Registered

Certificateholders of GSAMP Trust :

2004-SEA2, Mortgage Pass-Through

Certificates, Series 2004-SEA2, :

Plaintiff-Appellee, : No. 12AP-808 (C.P.C. No. 2010 CV 11414)

v. :


John A. Rankin, :

Defendant-Appellant. :


Rendered on June 28, 2013 Dinn, Hochman & Potter, LLC, and Benjamin D. Carnahan, for appellee.

John Rankin, pro se.

APPEAL from the Franklin County Court of Common Pleas DORRIAN, J.

Defendant-appellant, John A. Rankin ("appellant"), appeals from a { 1} summary judgment of foreclosure granted by the Franklin County Court of Common Pleas to plaintiff-appellee, The Bank of New York Mellon, as Trustee on Behalf of the Registered Certificateholders of GSAMP Trust 2004-SEA2, Mortgage Pass-Through Certificates, Series 2004-SEA2 ("BNYM"). For the following reasons, we affirm.

On July 22, 2000, appellant executed a promissory note in the amount of { 2} $185,000 in connection with a loan in the same amount. The note identified the lender as No. 12AP-808 2 Bank One, NA, and was secured by a mortgage on real property located in Worthington, Ohio.

On August 4, 2010, BNYM filed a complaint for foreclosure alleging that it { 3} was the owner and holder of the promissory note, that appellant had defaulted on his payment obligations under the note, and that BNYM had declared the debt due. BNYM sought judgment against appellant in the sum of $98,605.01, plus interest and advances it had made pursuant to the terms of the mortgage, including payments for real estate taxes and insurance premiums. BNYM sought sale of the premises to satisfy the amounts due it.

On August 18, 2010, appellant, appearing pro se, timely filed an answer { 4} denying the allegations in the complaint. Appellant further asserted that BNYM had incorrectly calculated the principal and interest owing on the loan. The case then followed a complicated procedural path as discussed below.

On June 8, 2011, and after the matter had been scheduled for trial, { 5} appellant sought leave to file an amended answer for the sole purpose of asserting a counterclaim against BNYM. The following day BNYM filed (1) a memorandum in opposition to appellant's motion for leave to file an amended answer, and (2) a motion seeking summary judgment in its favor. On that same day, June 9, 2011, the court granted appellant leave to amend his answer "only for the purpose of asserting a Counter Claim."

(June 9, 2011 Entry.) Appellant thereafter filed a memorandum in opposition to BNYM's { 6} summary judgment motion. In the certificate of service, appellant stated that he served the document on BNYM on June 22, 2011. The clerk of courts, however, time-stamped the document as having been filed approximately two weeks later on July 7, 2011. On June 27, 2011, the court entered summary judgment in favor of BNYM, prior to the date on which the clerk filed appellant's memorandum in opposition to the summary judgment motion but after the date recorded on the certificate of service.

On July 5, 2011, appellant filed two documents, apparently unaware that the { 7} court had already entered summary judgment against him. The first document was the amended answer for which he had obtained leave and included counterclaims sounding in breach of contract and fraud, as well as a request that the court certify the case as a class No. 12AP-808 3 action. The second document filed by appellant was a motion asking the trial court to designate the case as complex litigation pursuant to Loc.R. 37.03 and 39.04 and Sup.R. 42.

On July 6, 2011, appellant filed a motion for reconsideration of the entry of { 8} summary judgment against him. Appellant suggested that the court may not have had the opportunity to review his memorandum in opposition to BNYM's motion for summary judgment and the affidavit supporting it, due to the clerk's apparent delay in filing that memorandum.1 On July 20, 2011, BNYM filed a motion to strike appellant's July 5, 2011 { 9} amended answer and counterclaim.2 BNYM argued that appellant's amended answer had been filed "after the case had been decided on its merits [and raised issues] that are now moot as a result of the [j]udgment entry rendered by [the trial] court." (BNYM's July 20, 2011 Memorandum in Support, 3.) On that same day, the trial court entered an order granting BNYM's motion, stating that "[f]or good cause shown * * * [appellant's] * * * Amended Answer and Counterclaim with Jury Demand and Class Action Claims * * * are stricken from the record." (July 20, 2011 Order.) { 10} On July 22, 2011, appellant filed in this court an appeal of the trial court's June 27, 2011 entry of summary judgment against him and in favor of BNYM.

{ 11} On September 15, 2011, and despite the fact that an appeal in this court was pending, appellant filed a motion in the trial court asking it to vacate the summary judgment entered on June 27, 2011. In support, appellant asserted that he had several meritorious defenses to the complaint. He did not, however, request leave to file a second amended answer.

{ 12} On December 28, 2011, we filed an entry disposing of appellant's appeal, noting that the parties had agreed to vacate the trial court judgment. Bank of New York Mellon v. Rankin, 10th Dist. No. 11AP-630 (Dec. 28, 2011 Journal Entry of Dismissal). We remanded the case to the trial court for purposes of vacating the June 27, 2011 judgment Appellant speculated that the delay of the filing of his memorandum in opposition might have been due to 1 the court's move into a newly built courthouse, which occurred in early June 2011, or an incident involving the mail.

2 BNYM's July 20, 2011 motion also asked the court to strike (1) appellant's motion for reconsideration of

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and dismissed the appeal effective upon remand. On February 10, 2012, the trial court reinstated the case and set it for trial on June 19, 2012.

{ 13} On February 12, 2012, the trial court filed an agreed entry vacating its earlier summary judgment in favor of BNYM, noting that "it has been represented to this Court that * * * judgment was entered prior to expiration of Defendants' time to file their response to [BNYM's] motion for summary judgment." (Feb. 12, 2012 Agreed Entry Vacating Judgment, 1.) In its entry, the court granted BNYM leave to refile its motion for summary judgment and expressly provided that appellant could timely file his opposition, if any, to such a motion. The court did not reference the fact that it had previously struck appellant's amended answer, nor did it discuss the legal implications of that action.

{ 14} Nevertheless, on February 12, 2012, appellant again filed an amended answer with counterclaims and a request for class-action status. Appellant had not first sought or obtained leave of court or the consent of BNYM to file a second amended answer.

{ 15} On March 12, 2012, BNYM filed a new motion for summary judgment.

BNYM attached to its motion copies of the note and the mortgage, and an affidavit evidencing that the note had been endorsed to appellee BNYM, Trustee, and that the mortgage had been assigned by JPMorgan Chase Bank, N.A., as successor in interest to Bank One, N.A., to appellee, BNYM, Trustee. The affidavit further stated that both the note and the assignment had been filed with the Franklin County Recorder and that appellant had not made payments as required by the terms of the note and mortgage.

BNYM attached to the affidavit a computer printout showing appellant's payments and other financial transactions relative to the note and mortgage. The affidavit stated that the note and mortgage were in default and that appellant had failed to cure the default after having been notified of default and acceleration of the loan.

{ 16} Appellant opposed BNYM's motion for summary judgment and attached evidentiary materials, including an affidavit signed by him. The affidavit stated that appellant had reviewed BNYM's record of his payments and that it was his position that the bank had not properly allocated his payments between principal and interest. As a result of this misapplication of payments, appellant stated that the balance of principal due on the note was $82,927—approximately $6,000 less than the amount BNYM claimed was No. 12AP-808 5 owed. He stated that the note required that he submit payments totaling $225,369.30 by the end of June 2011 and that he had, in fact, paid BNYM $242,448.76 by that date. He stated that he had, more often than not, paid amounts greater than the monthly $1,733.61 payment amount set forth in the note and that BNYM had not correctly applied his overpayments to reduce the principal, resulting in subsequent interest calculations that were incorrect. He further asserted that he had reviewed relevant records and that it was his conclusion that BNYM had not made any property tax or insurance payments anytime during the duration of the note for which it should be compensated.

{ 17} On August 31, 2012, the trial court granted BNYM's motion for summary judgment and entered a decree of foreclosure. The court found that reasonable minds could only conclude that appellant owed BNYM the sum of $98,605.01, the sum alleged in the complaint, plus interest. The court ordered sale of the mortgaged property in the event that appellant did not pay that amount within three days. The court further struck from the record appellant's amended answer and counterclaims, observing that it had reactivated the case on February 10, 2012, and that "on February 12, 2012 [appellant] filed a subsequent Amended Answer and Counterclaims without first obtaining leave and/or consent from [BNYM] to file same." (Aug. 31, 2012 Final Judgment Entry, 2.) { 18} Appellant timely filed a notice of appeal from the trial court's judgment and

asserts in this court the following two assignments of error:

1. The Trial Court erred by granting the Appellee's Motion for Summary Judgment, while issues of material fact were still to be litigated.

2. The Trial Court erred by failing to allow the Appellant's amended answer, previously granted by the Court's Order of June 9th, 2011.

Summary Judgment Review { 19} Summary judgment is appropriate where "the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made." Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, No. 12AP-808 6

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{ 20} Moreover, "appellate review of summary-judgment motions is de novo."

Geczi v. Lifetime Fitness, 10th Dist. No. 11AP-950, 2012-Ohio-2948, 8, citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "De novo appellate review means that the court of appeals independently reviews the record and affords no deference to the trial court's decision." (Internal citations omitted.) Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, 9. "We stand in the shoes of the trial court and conduct an independent review of the record applying the same summary judgment standard. As such, we must affirm the trial court's judgment if any of the grounds raised by the moving party are found to support it, even if the trial court failed to consider those grounds." Heider at 9.

{ 21} In his first assignment of error, appellant asserts that the trial court erred in granting summary judgment to BNYM as the parties' affidavits evidenced the existence of unresolved material facts as to whether appellant had, in fact, defaulted on the loan;

whether BNYM had accurately calculated amounts due pursuant to the note; and whether BNYM had paid real estate taxes and insurance for which it should be reimbursed.

{ 22} Both parties acknowledge that the note contained the following provisions:

PAYMENT. This Note shall be payable as follows: The principal of and interest on this Note shall be due and payable in 179 equal No. 12AP-808 7

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(Emphasis added.) { 23} "A party seeking to foreclose on a mortgage must establish execution and delivery of the note and mortgage; valid recording of the mortgage; it is the current holder of the note and mortgage; default; and the amount owed." Perpetual Fed. Sav. Bank v.

TDS2 Prop. Mgmt., LLC, 10th Dist. No. 09AP-285, 2009-Ohio-6774, 19, citing Neighborhood Housing Servs. of Toledo, Inc. v. Brown, 6th Dist. No. L-08-1217, 2008Ohio-6399, 16. Moreover, in a mortgage foreclosure case, " '[a]n affidavit stating the loan is in default, is sufficient for purposes of Civ.R. 56 in the absence of evidence controverting those averments.' " Id., quoting Bank One, N.A. v. Swartz, 9th Dist. No. 03CAOhio-1986, 14; and citing Deutsche Bank Natl. Trust Co. v. Ingle, 8th The formula omitted above calculating the amount of interest to be allocated to interest on each monthly 3

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Dist. No. 92487, 2009-Ohio-3886, 33; and JPMorgan Chase Bank, N.A. v. Brown, 2d Dist. No. 21853, 2008-Ohio-200, 54.

{ 24} In this case, BNYM provided with its summary judgment motion an affidavit supporting the existence of the loan and mortgage, the fact that the mortgage had been recorded, appellant's default, and the amount due BNYM under the terms of the note. This evidence was sufficient to shift the burden to appellant to demonstrate that a genuine issue of material fact existed for trial. In response, appellant provided an affidavit he himself had executed.

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