IN THE SUPREME COURT OF OHIO

BANK OF AMERICA, N.A.

Plaintiff-Appelleevs.

MELANIE LONGBERRY, ET AL.

Defendants-Appellants

f ^.Case No.

.r^.

On Appeal from theCourt of AppealsSecond Appellate District

Court of Appeals Case No. 2014 CA 00009

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTSMELANIE MOXLEY F.K.A. LONGBERRY AND CHAD MOXLEY

Brian K. Duncan (0080751) (COUNSEL OF RECORD)Bryan D. Thomas (0084659)DUNCAN LAW GROUP, LLC.600 South High St. Ste. 100Columbus, Ohio 43215Ph: (614) 220-9000Fax: (614) 222-0920bduncan@duncanlawgrp.comCounssel for Defendant/Appellant Vicki L. Bennett, et al.

Carrie L. Rouse (0083281) (COUNSEL OF RECORD)REISENFELD & ASSOCIATES, LPA3962 Red Bank RoadCincinnati, Ohio 45227Ph: (513) 322-7000Fax: (513) 322-8003Carrie.rouse@rslegal.comCounsel foN PlaintifflAppellee

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................. .................................................................... ... iii

EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL 1NTEREST.........................................................................................................................................................1

STATEMENT OF THE CASE AND FACTS ................................................................................2

ARGUMENT ................................................................................................................................... 3

Proposition of Law No. 1:

Summary Judgment is inappropriate where there are genuine issuesof material fact. There are significant genuine issues of materialfact, including, but not limited to, whether the Moxleys andAppellee had entered into a valid and enforceable settlementagreement pursuant to a certain loan modification agreemententered into by and between the Parties hereto on or about July 19,2013. Therefore, the Appellate Court erred in upholding the TrialCourt's decision, as the Trial Court failed to hold an evidentiaryhearing to either confirm or deny the existence of a validsettlement agreement.

CONCLUSION ...............................................................................................................................7

CERTIFICATE OF SERVICE . .......... ......................................................................................... 8

APPENDIX

A. Journal Entry of Status Conference (January 28, 2014) ..............................................10

B. Journal Entry Granting Plaintiff's Motion for Summary Judgment (January 31, 2014)...........................................................................................................................................12

C. Final Entry of Second Appellate District (June 27 2014) .......................................... 1S

D. Opinion of Second Appellate District (June 27 2014) ............................................... 17

ur

Cases:TABLE OF AUTHORITIES

Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248 ............................................................3

Artisan Mech., Inc. v. Beiser, 2010-Ohio-5427, 2010 Ohio App. LEXIS 4578, 2010 WL 4514275(Ohio Ct. App., Butler Count), Nov. 8, 2010) ................................................................................. 5

Bankers Trust Co. V. Wright, 2010-Ohio-1697, 2010 Ohio App. LEXIS 1400, 2010 WL 1511668(Ohio Ct. App., Fulton County Apr. 16, 2010) . ..............................................................................6

Cembex Care Solutions v. Gockerman, l st Dist. No. C-050623, 2006 Ohio 3173, at P8 ............... 7

Continental W Condominium Unit Owners Ass'n v. Howard E. Ferguson, Inc., 74 Ohio St. 3d501, 502, 1996 Ohio 158, 660 N.E.2d 431 .......... ...........................................................................7

Kostelnik v. Helper, 96 Ohio St.3d 1, 770 N.E.2d 58, 2002-Ohio-2985, 175 .......................... 4-5

Mentor v. Lagoons Point Land Co. (Dec. 17, 1999), 11th Dist. No. 98-L190 .. .............................4

Myatt v. Myatt, 2009-Ohio-5796, 2009 Ohio App. LEXIS 4865, 2009 WL 3617680 (Ohio Ct.App., Sununit County Nov. 4, 2009) ...........................................................................................5, 7

Noroski v. Fallet ( 1982), 2 Ohio St.3d 77, 79, 442 N.E.2d 1302 ....................................................4

Rulli v. Fan Co. (1997), 79 Ohio St. 3d 374, syllabus, 1997 Ohio 380, 683 N.E. 2D 337 ......... 1-7

Turner v. Turner, 67 Ohio St.3d 337, 340, 1993-Ohio-176 ..... .......................................................3

Ohio Rules:

Ohio Civil Rule 56(C) .....................................................................................................................3

Secondary Sources:

1 Corbin on Contracts (Perillo Rev. Ed. 1993) 530, Section 4.1 ......................................................5

iii

EXPLANATION OF WHY THIS CASE IS OF PUBLIC CONCERNOR GREAT GENERAL INTEREST

This case presents a timely opportunity for this Court to resolve a split in authority

among the various Appellate Courts in the State of Ohio, and to address several fundamental

issues in Ohio civil cases. The first question is when there is a factual dispute over the existence

of a settlement agreement is the trial court required to conduct an evidentiary hearing regardless

of whether it enforces or denies enforcement of the agreement and enters judgment pursuant to

the Ohio Supreme Court decision in Rulli? In light of the lack of clarity on this issue among Ohio

appellate districts, it is critically important that a definitive standard be established to promote

consistency in the legal standard used to decide whether or not an evidentiary hearing is required

pursuant to Rulli v. Fan Co. (1997), 79 Ohio St. 3d 374, syllabus, 1997 Ohio 380, 683 N.E. 2D

337, before judgment is entered that will either enforce, or deny enforcement, of a settlement

agreement.

Secondly, this case presents the Court with a timely opportunity to address mortgagor-

mortgagee obligations under a pending loan modification agreement. Specifically, whether

complete compliance by the mortgagor under the modification agreement is sufficient to

establish that a valid and enforceable agreement has been entered into by and between the parties

thereto? Homeowners in Ohio, like the Appellants here, should. be afforded the opportunity to

present evidence of a completed loan modification agreement. Should the same be deemed

sufficient to satisfy those obligations the Courts should enforce the same.

Despite the underlying issue being largely factual and dependent on the nature of each

individual case, a resolution is of great public interest, and would further promote consistency in

Ohio law and efficiency in Ohio courts.

Page 1 of 9

STATEMENT OF THE CASE AND FACTS

On September 14, 2012 Bank of America, N.A. (hereinafter "Appellee") filed a

Complaint in Foreclosure against Melanie D. Moxley f.k.a. Melanie D. Longberry and Chad M.

Moxley a married couple residing in the State of Ohio, County of Champaign (hereinafter

collectively referred to as the "Moxleys"). The Moxleys responded to said Complaint by filing a

letter, dated October 19, 2012, with the trial court. Said letter informed the trial court that the

Moxleys were working with their bank account manager to obtain a loan modification. On May

17, 2013, Appellee filed a Motion for Summary Judgment. The Moxleys filed a timely response

with the trial court in the form of a second letter. Subsequently, the Moxleys were approved for a

modification under the Home Affordable Modification Program on or about July 19, 2013.

Pursuant to the terms of the modification agreement, the Moxleys were required to submit three

consecutive monthly installments to Appellee in the amount of $867.11. Upon timely tendering

the three installments of $867.11, the loan modification would become permanent. The Moxleys

complied with these requirements throughout all times relevant herein. Indeed, Appellee had

accepted the Moxleys first payment in the month of September as well as their second payment

in the month of October. However, the Moxleys third and final payment, due in the month of

November, was rejected by Appellee. The reasons for said rejection of the third and final

payment are unclear.

The Moxleys contend that a valid and enforceable settlement agreement was reached by

and between the Parties hereto by virtue of said loan modification, as the Moxleys complied with

all of the requirements thereto. As such, the Moxleys were entitled to an evidentiary hearing

prior to the Trial Court's grant of Summary Judgment on January 31, 2014. Therefore, the

decision of the Appellate Court affirming the Trial Court's decision should be reversed and

Page 2 of 9

remanded so that a decision can be reached on the merits.

ARGUMENT

Appellants' Proposition f Law:

Summary Judgment is inappropriate where there are genuine issuesof material fact. There are significant genuine issues of materialfact, including, but not limited to, whether the Moxleys andAppellee had entered into a valid and enforceable settlementagreement pursuant to a certain loan modification agreemententered into by aiid between the Parties hereto on or about July 19,2013. Therefore, the Appellate Court erred in upholding the TrialCourt's decision, as the Trial Court failed to hold an evidentiaryhearing to either confirm or deny the existence of a validsettlement agreement.

As set forth supra, the matter before this Court presents a timely opportunity to resolve a

split in authority and/or a lack of clarity ainong the various Appellate Courts in the State of Ohio

with respect to whether or not an evidentiary hearing is required before a court can render a

judgment regardless of whether it enforces or denies enforcement of the agreement.

As this Court is aware, Summary judgment is appropriate when there is no genuine issue

of material fact, the moving party is entitled to judgment as a matter of law, and reasonable

minds can come to but one conclusion, that conclusion being adverse to the non-moving party.

Civ.R. 56(C). In order to determine if there is a genuine issue, the court must decide "whether

the evidence presents a sufficient disagreement to require submission to ajury, or whether it is so

one-sided that one party must prevail as a matter of law. Turner v. Turner, 67 Ohio St.3d 337,

340, 1993-Ohio-176 (citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248). The

non-moving party is entitled to have the evidence construed most strongly in that party's favor.

Civ.R. 56(C).

The Second District Court of Appeals erred in affirming the Trial Court's January 31,

2014 grant of summary judgment, as the Moxleys, in a status conference held in front of the trial

Page 3 of 9

court on January 24, 2014, set forth a genuine issue of material fact by contending that a valid

and enforceable settlement agreement was reached by and between the parties (See Journal Entry

of Status Conference at Page 2). As such, the trial court failed to conduct an evidentiary hearing

on the same pursuant to this Court's holding in Rulli, (1997), 79 Ohio St. 3d 374, syllabus.

("Where the meaning of terms of a settlement agreement is disputed, or where there is a dispute

that contests the existence of a settlement agreement, a trial court must conduct an evidentiary

hearing prior to entering judgment.").

I. The Trial Court erred by failing to conduct an evidentiary hearing inaccordance with this Court's decision in Rulli v. Fan Co. as there was a factualdispute regarding the existence of a valid settlement agreement.

As stated supra, the Moxleys averred that a valid and enforceable settlement agreement

had been reached between the parties. As this court is aware:

A valid settlement agreement is a binding contract between the parties

which requires a meeting of the minds as well as an offer and acceptance.Rulli v. Fan Co. (1997), 79 Ohio St.3d 374, 376, 683 N.E.2d 337, citingNoroski v. Fallet (1982), 2 Ohio St.3d 77, 79, 442 N.E.2d 1302. Thus, a

settlement agreement must meet the essential requirements of contract lawbefore it will be subject to enforcement. Id. Moreover, `it is within thesound discretion of the trial court to enforce a settlement agreement, and

its judgment will not be reversed where the record contains some

competent, credible evidence to support its findings regarding thesettlement.' Mentor v. Lagoons Point Land Co. (Dec. 17, 1999), 11th Dist.No. 98-L190.

In order to have a valid settlement agreement, the terms of the agreement must be

reasonably certain and clear. Rulli, (1997), 79 Ohio St.3d 374, 376, 377, 683 N.E.2d 337.

However, "[a]ll agreements have some degree of indefiniteness and some degree of uncertainty.

In spite of its defects, language renders a practical service. In spite of ignorance as to the

language they speak and write, with resulting error and misunderstanding, people anust be held to

Page 4 of 9

the promises they make." Kostelnik v. Helper, 96 Ohio St.3d 1, 770 N.E.2d 58, 2002-Ohio-2985,

1.75, quoting I Corbin on Contracts (Perillo Rev. Ed.1993) 530, Section 4.1. Furthermore,

"[w]here there is a dispute regarding the meaning of the terms of a settlement agreement or

where there is a dispute of whether a valid settlement agreement exists, a trial court must conduct

an evidentiary hearing. Rulli, (1997), 79 Ohio St.3d at, syllabus."

As noted supra, the Appellate Courts are split as to whether or not a trial court must

conduct an evidentiary hearing before rendering a judgment regardless of whether it enforces or

denies enforcement of the agreement. Artisan Mech., Inc. v. Beiser, 2010-Ohio-5427, 2010 Ohio

App. LEXIS 4578, 2010 WL 4514275 (Ohio Ct. App., Butler County Nov. 8, 2010) and Myatt v.

Myatt, 2009-Ohio-5796, 2009 Ohio App. LEXIS 4865, 2009 WL 3617680 (Ohio Ct. App.,

Summit County Nov. 4, 2009).

In Artisan Mech., Inc. v. Beiser the Twelfth Appellate District held that the trial court did

not err in granting summary judgment without holding an evidentiary hearing, as the parties

thereto had never actually reached a settlement agreement. However, in Myatt v. Myatt the Ninth

Appellate District held that where a dispute over whether or not the parties reached a settlement

agreement exists then "it is necessary for the trial court to conduct an evidentiary hearing prior to

ruling on the motion to enforce the settlement agreement." Id. at 12-15.

The instant matter is distinguishable from Artisan as it is unequivocal that a settlement

agreement was actually reached by and between the parties in the form of a loan modification

agreement. This loan modification agreement set forth clear and unambiguous terms which, if

met, would have extinguished Appellee's claims over the Moxleys. As stated supra, the Moxleys

complied with the terms of the loan modification by submitting the requested documents and

tendering timely payment to Appellee. However, Appellee refused to apply the Moxleys fmal

Page 5 of 9

payment and failed to provide any justifiable reason as to why such payment was unacceptable

and proceeded with litigation in the Trial Court.

The instant matter is analogous to Bankers Trust Co. V. 1Vright, 2010-Ohio-1697, 2010

Ohio App. LEXIS 1400, 2010 WL 1511668 (Ohio Ct. App., Fulton County Apr. 16, 2010). In

Bankers, a foreclosure suit, the appellants and appellee had entered into a verbal loan

modification agreement. After accepting the terms of the agreement, the debtor/appellants

challenged the same stating that the agreement was unenforceable due to their failure to sign the

agreement and tender the requested sum. The Sixth Appellate District; however, held that

"words, deeds and actions of the parties on December 3, 2008, and thereafter, up until the Ohio

Supreme Court released its decision in Gullotta, reveal that they had, and believed they had, a

binding settlement agreement." Id. at 20.

Like Bankers the parties hereto reached a mutual "meeting of the minds" as they believed

they had entered into a valid settlement agreement in the form of a loan modification. The

Moxleys performed their obligations under the settlement agreement by furnishing the requested

documents and tendering timely payments to Appellee. Subsequently, Appellee breached the

settlement agreement by refusing to accept the last and final payment in November of 2013. As

noted in the Trial Court's January 28, 2014 Journal Entry of Status Conference, which was held

January 24, 2014, the Moxleys described these efforts to the Trial Court. These assertions should

have been deemed by the Trial Court and/or the Appellate Court to be evidence of a settlement

agreement. Instead, the Appellate Court ruled that these assertions were not sufficient evidence

to be considered on appeal, effectively upholding the Trial Court's Journal Entry of Status

Conference, wherein the Trial Court stated that it could not order Appellee to modify the

Moxley's loan. See Opinion of Second Appellate District, dated June 27, 2014 at 7 and 14.

Page 6 of 9

However, "[i]t is axiomatic that a settlement agreement is a contract designed to terminate a

claim by preventing or ending litigation and that such agreements are valid and enforceable by

either party." Continental W. Condominium Unit Owners Ass'n v. Howard E. Ferguson, Inc., 74

Ohio St. 3d 501, 502, 1996 Ohio 158, 660 N.E.2d 431. A trial court may enforce such a motion

even if the parties do not agree on the interpretation of the terms of the settlement. Cembex Care

Solutions v. Gockerman, 1 st Dist. No. C-050623, 2006 Ohio 3173, at P8.

As the Moxleys presented oral evidence that a valid settlement agreement was and/or is

in dispute by and between the parties hereto this Court should find the Ninth Circuit's decision in

Myatt persuasive. Therefore, this issue should be remanded to the Trial Court for an evidentiary

hearing regarding whether a valid settlement agreement had been entered into by and between

the parties. Further, such a ruling will permit the Court to decide this case on its merits, rather

than on a procedural issue.

As in Myatt a dispute exists as to whether the parties reached a settlement agreement, and

in light of these factual disputes the Trial Court should have conducted an evidentiary hearing to

determine whether a valid and enforceable settlement agreement existed by and between the

parties hereto. As such this case should have been remanded to the trial court for an evidentiary

hearing in order to decide the case on the merits.

CONCLUSION

The question presented to this Honorable Court is whether or not a factual dispute over

the existence of a settlement agreement requires the trial court to conduct an evidentiary hearing

regardless of whether it enforces or denies enforcement of the agreemeilt and enters judgment

pursuant to the Ohio Supreme Court decision in Rulli? It is imperative to protect the rights of

homeowners in Ohio by setting fortli a standard on which they can rely. Moreover, homeowners

Page7of9

in Ohio must be afforded protection from lenders in arbitrary and unsupported actions and/or

inactions.

For the foregoing reasons, the Moxleys respectfully request that this Honorable Court

accept jurisdiction over this matter so as to subsequently determine the underlying issue set forth

herein, and to determine whether or not the June 27th Judgment Entry of the 2nd District Court

of Appeals should be reversed and whether or not this case should be remanded to the Trial

Court for a determination on the merits.

Respectfully submitted,

Brian K. I?uncan (008075 1)Bryan D. Thomas (0084659)Duncan Law Group, LLC600 South High Street, Suite 100Columbus, OH 43215Ph: (614) 220-9000Fax: (614) 222-0920bduncan@duncanlawgrp. comCounsel foN Appellants

CERTIFICATE OF SERVICE

I hereby certify that I have mailed the foregoing Memorandtun in Support of Jurisdiction

by United States regular mail, postage prepaid, on August 7, 2014 to the following:

Carrie L. RouseReisenfeld & Associates, LPA LLC3962 Red Bank RoadCincinnati, OH 45227

Brian K. Duncan (0080751)

Page 8 of 9

APPENDIX

Page 9 of 9

IN THE COURT OF COMMON PLEAS,CHAMPAIGN COUNTY, OHIO 20 14 J f,, N 2 8 PM 1: 32

BANK OF AMERICA, N.A.,

Plaintiff,

- vs. -

MELANIE D. LONGBERRY, et al.,

Defendants.

Case No. 2012 CV 288

Judge Nick A. Selvaggio

Magistrate Scott D. Schockling

MAGISTRATE'S ORDER

,LID

l^J!'i -iJ U. I ! U R TC ^v. i ^! if 0'-t1^

JOURNAL ENTRY OF STATUS CONFERENCE

On May 17, 2013, Plaintiff, Bank of America, N.A., filed a motion for default

judgment against Defendants, Unknown Spouse, if any, of Melanie D. Longberry and

Unknown Spouse, if any, of Chad M. Moxley. It also filed a motion for summary

judgment against Defendants, Melanie D. Longberry, now Melanie D. Moxley, and Chad

M. Moxley, the mortgagors in the case.

The mortgagors filed a response to the motion for summary judgment that

detailed their efforts to obtain a loan modification. The mortgagors also appeared at the

default judgment hearing held on June 28, 2013, where they informed the Court that

they were attempting to arrange a loan modification with the Making Home Affordable

Program. The Court withheld ruling on the motions until September 30, 2013, to give

the mortgagors time to pursue a modification.

Plaintiff filed a notice of status on September 30, 2013, indicating that the

mortgagors were not eligible for the Making Home Affordable Program. In response,

the mortgagors filed another document, updating their attempts to obtain a loan

modification.

On December 19, 2013, Plaintiff filed a motion seeking a ruling on its dispositive

motions. The Court scheduled a status conference for January 24, 2014, in response to

the receipt of this motion. Steven R, Fansler, Esq., appeared at the request of

Bank of America v. Longber-ry 2012 CV 288 Page 2

Reisenfeld & Associates, Plaintiff's Counsel of Record in this case. The mortgagors,

Chad and Melanie Moxley, were also present.

The mortgagors recounted their efforts to obtain a loan modification and also

suggested that Plaintiff was inhibiting these efforts. The Magistrate informed the

mortgagors that the Court does not have the authority to compel Plaintiff to grant them a

loan modification. They were also informed that a ruling needed to be made on

PlaintifF's motions, which have been pending for more than eight months. Attorney

Fansier also told the mortgagors that there was no reason they could not continue their

efforts to obtain a loan modification, even after resolution of Plaintiff's motions.

The parties were informed that Plaintiffs pending motions would be taken under

advisement and ruled upon in the ordinary course of business.

V

Scott D. SchocklingMagistrate

Copies by Clerk:

Matthew C. Gladwell, Carrie L. Rouse, Ryan F. Hemmerie, Robert A. Wood,Attorney for Plaintiff, Reisenfeld & Associates, LPA, 3962 Red Bank Road,Cincinnati, OH 45227

Steven R. Fansier, 212 N. Detroit St., P.O. Box 764, West Liberty, OH 43357-0764

Melanie D. Longberry, 8403 Stevenson Rd., Cable, OH 43009 Unknown Spouse, if any, of Melanie D. Longberry, 8403 Stevenson Rd., Cable,

OH 43009 Chad Moxley, 8403 Stevenson Rd., Cable, OH 43009 Unknown Spouse, if any, of Chad M. Moxley, 8403 Stevenson Rd., Cable, OH

43009

Jane A. Napier, Counsel for Def. Treasurer, 200 N. Main St., Urbana, OH 43078

IN THE COURT OF COMMON PLEAS,CHAMPAIGN COUNTY, OHIO

BANK OF AMERICA, N.A. Case No. 2012 CV 288-.a

Plaintiff,

Judge Nick A. Selvaggiovs. -

MELANIE D. LONGBERRY, et al.,'"7,:-.

Defendants.

JOURNAL ENTRY GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

On September 12, 2012, Plaintiff, Bank of America, N.A., filed this action seeking

to foreclose its mortgage on real property addressed as 8403 Stevenson Road, Cable,

Ohio. Plaintiff has filed a motion for summary judgment against Defendants, Melanie D.

Longberry, now Melanie D. Moxley, and Chad M. Moxley (collectively "the Mortgagors").

Summary judgment is appropriate where (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 nonmoving

party. Zivich V. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-70, 696 N.E.2d 201

(1998). The party seeking summary judgment initially bears the burden of informing the

trial court of the basis for the motion and identifying portions of the record demonstrating

an absence of genuine issues of material fact as to the essential elements of the

nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 288, 662 N.E.2d 264

(1996). Specifically, the moving party must support the motion by pointing to some

evidence in the record of the type listed in Civ.R. 56(C). Dresher, 75 Ohio St.3d at 293.

Bank of America v. Longberry 2012 CV 288 Page 2

A party seeking to foreclose a mortgage must show: (1) execution and delivery of

the note and mortgage; (2) valid recording of the mortgage; (3) default; and (4)

establishing an amount due. E.g., First Natl. Bank of Am. v. Pendergrass, 6th Dist. No.

E-08-048, 2009-Ohio-3208, 21. In addition, the party must possess an interest in the

note and mortgage at the time it filed suit, in order to invoke the jurisdiction of the

common pleas court. Fed. Home Loan Mortgage Corp. v. Schwartzwald, 134 Ohio St.

3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, 28.

In this case, Plaintiffhas submitted an affidavit from Kevin R. Drakeford, Jr., an

Assistant Vice-President. Mr. Drakeford states that he has reviewed the records

relevant to the Mortgagors' loan. He states that these records are compiled and

recorded as part of Plaintiff's regularly conducted business activity at or near the time of

occurrence of each event affecting the account by persons with knowledge of said

event.

Mr. Drakeford further states that the mortgagors defaulted on the note by failing

to make the prescribed payments due on September 1, 2011, that the default has not

been cured, and that Plaintiff has exercised its right to acceleration the loan, making the

entire balance due and owing. He also states that Plaintiff has possession of the

promissory note and that it held the note when suit was filed. Copies of the note,

mortgage, and assignment of mortgage accompany the complaint and are referenced

therein. See Civ.R. 10(C), (D)(1).

Generally, an affidavit stating that the plaintiff is the owner of the note and

mortgage, and that the loan is in default, is sufficient, for purposes of Civ.R. 56, to

permit the trial court to order foreclosure, in the absence of evidence controverting

Bank of America v. Longberry 2012 CV288 Page 3

those averments. See Bank One v. Swartz, 9th Dist. Lorain No. 03CA008308, 2004-

Ohio-1986, 14, citing Yorkwood S. & L Assoc. v. Jacobs, 2d Dist. Montgomery No.

11998, 1990 Ohio App. LEXIS 3143 (Jul. 31, 1990). In this case, the Mortgagors have

submitted two detailed documents to the Court outlining their attempts to secure a loan

modification from Plaintiff. These efforts represent an admission on their part that an

arrearage currently exists on their loan. They also represent an admission that Plaintiff

is entitled to the relief sought.

Therefore, the Court GRANTS Plaintiff's motion for summary judgment against

Defendant Cushman. A separate decree of foreclosure accompanies this entry.

Nick A. Seiv gi ,Judge

NAS/sds

Copies by Clerk:

Matthew C. Gladwell, Carrie L. Rouse, Ryan F. Hemmerle, Robert A. Wood,Attorney for Plaintiff, Reisenfeld & Associates, LPA, 3962 Red Bank Road,Cincinnati, OH 45227

Melanie D. Longberry, 8403 Stevenson Rd., Cable, OH 43009 Unknown Spouse, if any, of Melanie D. Longberry, 8403 Stevenson Rd., Cable,

OH 43009 Chad Moxley, 8403 Stevenson Rd., Cable, OH 43009 Unknown Spouse, if any, of Chad M. Moxley, 8403 Stevenson Rd., Cable, OH

43009 Jane A. Napier, Counsel for Def. Treasurer, 200 N. Main St., Urbana, OH 43078

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

CHAMPAIGN COUNTY

BANK OF AMERICA, N.A.

Plaintiff-Appellee

V.

MELANIE D. LONGBERRY, et al.

Defendant-Appellant

Appellate Case No. 2014-CA-9

Trial Court Case No. 2012-CV-288

(Civil Appeal fromCommon Pleas Court)

FINAL ENTRY

Pursuant to the opinion of this court rendered on the 27th day

of June , 2014, the judgment of the trial court is AFFIRMED.

'Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby ordered that the clerk of the Champaign

County Court of Appeals shall immediately serve notice of this judgment upon all parties and

make a note in the docket of the mailing.

MIKE FAIN, Judge

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

MICHAEL T. HALL, Judge

JE-FFFREY M. WELBAUM, Judge

Copies mailed to:

Gregory A. Stout3962 Red Bank RoadCincinnati, OH 45227

Brian K. DuncanBryan D. Thomas600 South High StreetSuite 100Columbus, OH 43215

Hon. Nick A. SelvaggioChampaign County Common Pleas Court200 North Main StreetUrbana, OH 43078

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

CHAMPAIGN COUNTY

BANK OF AMERICA, N.A.

Plaintiff-Appellee : Appellate Case No. 2014-CA-9

V. Trial Court Case No. 2012-CV-288

MELANIE D. LONGBERRY, et al.(Civil Appeal from

Defendant-Appellant : Common Pleas Court)

OPINION

Rendered on the 27th day of June, 2014.

GREGORY A. STOUT, Atty. Reg. No. 074673, 3962 Red Bank Road, Cincinnati, Ohio45227

Attorney for Plaintiff-Appellee

BRIAN K. DUNCAN, Atty. Reg. No. 0080751, BRYAN D. THOMAS, Atty. Reg. No.0084659, 600 South High Street, Suite 100, Columbus, Ohio 43215

Attorneys for Defendant-Appellant

WELBAUM, J.

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

1"

{ 1} Defendants-appellants, Melanie D. Moxley, f.k.a. Melanie D. Longberry, and

Chad M. Moxley, appeal from the decree of foreclosure issued by the Champaign County

Court of Common Pleas in favor of plaintiff-appellee, Bank of America, N.A. For the

reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

(121 In 2009, the Moxleys obtained a home loan from Bank of America, N.A.

("BOA"). Theyexecuted a promissory note for $107,908 in favor of BOA and gave a

mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS") as BOAs nominee.

On July 13, 2012, MERS assigned the mortgage to BOA.

{1t 3} The Moxleys defaulted on the terms of the note by failing to make the required

installment payments. As a result, BOA filed a complaint in foreclosure on September 14,

2012. Attached with BOA's complaint were copies of the promissory note, mortgage, and

assignment of mortgage. In response to the complaint, the Moxleys filed a letter dated

October 19, 2012, informing the court that they were working with their bank account

manager to determine whether they could get their loan modified.

(14) On May 17, 2013, BOA filed a motion for summary judgment and an affidavit

of one of BOA's assistant vice presidents averring that the Moxleys were in default of their

loan. Attached with the affidavit was an account information statement itemizing the

principal and interest due on the loan. The trial court gave the Moxleys until June 28, 2013,

to respond to BOA's motion.

{15} On June 7, 2013, the Moxleys filed a second letter with the court that included

documentation indicating they had been approved for a loan modification subject to

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

successfully corripleting a three-month trial payment plan. In the letter, the Moxleys

admitted that they had defaulted on the trial payment plan and that they were going to have

to reapply for a loan modification.

(16) On July 2, 2013, the trial court gave the Moxleys 90 days to work out the loan

modification and ordered BOA to advise the court of the loan modification status by

September 30, 2013. As ordered, BOA filed a notice on September 30, 2013, advising the

court that the Moxleys were ineligible for a loan modification. BOA also notified the court

of its intention to proceed with the foreclosure.

(17) The trial court held a status conference on January 24, 2014, and issued a

journal entry stating that the court could not order BOA to modify the Moxleys' loan. The

court also indicated that it would rule on BOA's pending motion for summary judgment,

which was unopposed. On January 31, 2014, the trial court granted summary judgment

in favor of BOA and entered a decree of foreclosure against the Moxleys.

{ 8) The Moxleys now appeal from the trial court's decree of foreclosure, raising

one assignment of error for review.

Assignment of Error

(19) The Moxleys' sole assignment of error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE

REMAINED GENUINE ISSUES OF MATERIAL FACTAND PLAINTIFF WAS

NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.

{ 10) Under their sole assignment of error, the Moxleys contend that the trial court

TI-IE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

should not have entered summary judgment in favor of BOA because genuine issues of

material fact remain.

{ 11} "A trial court may grant a moving party summaryjudgment pursuant to Civ.R.

56 if there are no genuine issues of material fact remaining to be litigated, the moving party

is entitled to judgment as a matter of law, and reasonable minds can come to only one

conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have

the evidence construed most strongly in his favor." (Citation omitted.) Smith v. Five Rivers

MetroParks, 134 Ohio App.3d 754, 760, 732 N. E.2d 422 (2d Dist.1999); Civ. R. 56(C). "`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.'" IVationstarMtge., L.L.C. v. West, 2d Dist. Montgomery No. 25813, 2014-Ohio-735,

16, quoting Wright-Patt Credit Union, Inc. v. Byington, 6th Dist. Erie No. E-12-002,

2013-Ohio-3963, 10. (Other citations omitted.) The defendant's response, by affidavit

or otherwise provided in Civ.R. 56, "must set forth specific facts showing that there is a

genuine issue for trial." Civ.R. 56(E). "If the party does not so respond, summary

judgment, if appropriate, shall be entered against the party." Id.

{ 12} In this case, BOA presented all of the required evidence entitling it to

summary judgment. Attached to BOA's complaint were the Moxleys' promissory note to

BOA, the mortgage to MERS, and the assignment of mortgage transferring the mortgage

from MERS to BOA. The complaint avers that all conditions precedent have been satisfied.

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

Additionally, BOA filed with its motion for summary judgment an affidavit of its assistant

vice president averring that the Moxleys were in default of their loan. Attached with the

affidavit was an account information statement showing the amount of principal and

interest due on the loan.

(113) The Moxleys did not file a response challenging BOA's motion for summary

judgment. Rather, they filed a letter with the trial court on June 7, 2013, which outlined

their failed atfempts to secure a loan modification. Through the letter, the Moxleys

effectively admitted that they were in arrears with their loan payments. Moreover, the letter

does not set forth specific facts establishing the existence of a genuine issue of material

fact, nor does it contradict BOA's evidence in support of summary judgment.

N 14) We also note that the Moxleys argue, for the first time on appeal, that they

have entered into an enforceable loan modification agreement to which they have been in

compliance. However, no evidence of this loan modification agreement was presented to

the trial court; therefore, the alleged agreement cannot be considered in this appeal. See

Barnett v. Combs, 2d Dist. Montgomery No. 24134, 2011-Ohio-5947, 28, citing Lamarv.

Marbuiy, 69 Ohio St.2d 274, 277, 431 N.E.2d 1028 ( 1982) ("In reviewing an assigned error

on appeal, pursuant to App. R. 12(A)(1)(b), we are confined to the record that was before

the trial court as defined in App. R. 9(A)").

{1 15) Because the record establishes that BOA presented sufficient evidence

entitling it to summary judgment, and because the Moxleys failed to file a response

establishing that a genuine issue of material fact exists, we find that summary judgment

was correctly granted in favor of BOA.

{116} The Moxleys' sole assignment of error is overruled.

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

Conciusion

{ 17} Having overruled the Mox(eys' sole assignment of error, the judgment of the

trial court is affirmed.

FAIN and HALL, JJ., concur.

Copies mailed to:

Gregory A. StoutBrian K. DuncanBryan D. ThomasHon. Nick A. Selvaggio

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

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