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) [email protected] 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) [email protected] 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 BOA°s 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
