[Cite as Bank of New York Mellon v. Ackerman, 2012-Ohio-956.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
THE BANK OF NEW YORK MELLON :
: Appellate Case No. 24390
Plaintiff-Appellee :
: Trial Court Case No. 09-CV-3194
v. :
:
GREGORY ACKERMAN, et al. : (Civil Appeal from
: (Common Pleas Court)
Defendant-Appellants :
:
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OPINION
Rendered on the 9th day of March, 2012.
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SCOTT A. KING, Atty. Reg. #0037582, and TERRY W. POSEY, JR., Atty. Reg. #0039666,
Austin Landing I, 10050 Innovation Drive, Suite 400, Dayton, Ohio 45342
and
ASHLEY ROTHFUSS, Atty. Reg. #0083605, and KIMBERLEE ROHR, Atty. Reg.
#0084207, 120 East Fourth Street, 8th Floor, Cincinnati, Ohio 45202
Attorneys for Plaintiff-Appellee, The Bank of New York Mellon
GREGORY ACKERMAN, et al., 556 Shadowlawn Avenue, Dayton, Ohio 45419
Defendant-Appellants, pro se
GEORGE B. PATRICOFF, Atty. Reg. #0024506, Montgomery County Prosecutor’s Office,
Civil Division, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Defendant-Appellee, Montgomery County Treasurer
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HALL, J.
{¶ 1} Pro se defendant-appellants Gregory and Joyce Ackerman appeal from a trial
court’s judgment entering summary judgment for plaintiff-appellee The Bank of New York
Mellon on its claim in foreclosure. Finding no error, we affirm.
{¶ 2} In 1995 the Ackermans obtained a $91,000 mortgage to buy their Dayton
home. The next year, according to the Ackermans’ brief, Joyce became disabled with a range
of medical problems. While the Ackermans had purchased a long-term disability insurance
policy, the policy apparently does not provide the coverage they thought it did. Eventually,
Gregory had to quit working to care for Joyce, and financial hardship for the family followed.1
{¶ 3} In April 2009, the bank filed a foreclosure action.2 But in October of that year
the bank asked the trial court to stay the case, saying that it and the Ackermans were working
on a loan-modification plan. The court agreed, administratively dismissing the case but
allowing it to be reactivated on the bank’s motion. In May 2010, the bank moved to reactivate
the case, saying that efforts to work out a plan had failed. In August 2010, the bank moved for
summary judgment. The Ackermans’ opposition to summary judgment asked the court to stay
1
In 2000 the Ackermans filed an action against the insurance company in common-pleas court. That case, Ackerman v. Fortis
Benefits Ins. Co., was soon removed to federal district court. From the documents in the record, it appears that the Ackermans did not prevail
on their claims. In 2008 they filed a document in the case with the original trial court. The court struck the document, saying that, since the
case had been removed to federal court, no action was pending, so it had no jurisdiction. The Ackermans appealed to this Court, and we
agreed with the trial court. Because the trial court lacked jurisdiction, we lacked jurisdiction, and we dismissed the appeal. The Ackermans
then appealed to the Ohio Supreme Court. That Court declined to hear their appeal.
The Ackermans refer to the disability case frequently in their brief. One of their requests for relief appears to be that we intervene in
their appeal before the Ohio Supreme Court, though in what way is not clear. Regardless, we do not have jurisdiction to grant relief in that
case. Nor is that case relevant to the present one.
2
Although the Ackermans did not obtain the mortgage from The Bank of New York Mellon, the bank came to hold their
mortgage. Documents attached to the affidavit supporting the bank’s summary-judgment motion show how this came to be.
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the case, saying that they and the bank were working on a plan.
{¶ 4} On November 11, 2010, the trial court entered summary judgment for the
bank, concluding that no genuine issue of material fact exists. The court found that all the
necessary parties had been properly served and were properly before it. The court also found
that the allegations in the bank’s complaint were true. In particular, it found that the bank
holds the promissory note and mortgage, a valid, first lien on the Ackermans’ house. The court
further found that the Ackermans breached a condition of the mortgage. According to the
bank’s affidavit, the Ackermans defaulted on their mortgage when they failed to make a
payment in October 2008, so the bank elected to accelerate their payments, making the entire
balance owing due. The court found that the Ackermans owed the bank $74,507.87 with
interest from September 1, 2008. Finally, the court found that the bank was entitled to
foreclose on the mortgage.
{¶ 5} The Ackermans appealed. They now present three assignments of error for our
review.
First Assignment of Error
{¶ 6} The Ackermans allege that by filing the foreclosure action the bank engaged in
frivolous conduct under R.C. 2323.51. The Ackermans assert that, at the time, they and the
bank were engaged in loan-modification discussions. This issue is not properly before us.
{¶ 7} Under R.C. 2323.51, a party may seek an award of court costs, attorney’s fees,
and other expenses incurred in connection with a frivolous claim, R.C. 2323.51(B)(1), which
“is a claim that is not supported by facts in which the complainant has a good-faith belief, and
which is not grounded in any legitimate theory of law or argument for future modification of
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the law.” Jones v. Billingham, 105 Ohio App.3d 8, 12, 663 N.E.2d 657 (2d Dist.1995). The
Ackermans never raised this frivolous-claim issue in the trial court. Nor did they ever seek an
award for the expenses they incurred in connection with the bank’s claim. Therefore the
Ackermans have forfeited their claim under the frivolous-conduct statute.
{¶ 8} Even if the issue were properly before us, we would likely find no error. That
modification discussions were ongoing did not bar the bank from seeking foreclosure. The
Ohio Supreme Court said in one foreclosure case that “[the lender]’s decision to enforce the
written agreements cannot be considered an act of bad faith.” Ed Schory & Sons, Inc. v. Soc.
Natl. Bank, 75 Ohio St.3d 433, 443, 662 N.E.2d 1074, 1996-Ohio-194. The Court then quoted
the Seventh Circuit Court of Appeals: “‘firms that have negotiated contracts are entitled to
enforce them to the letter, even to the great discomfort of their trading partners, without being
mulcted for lack of “good faith.”’” Id., quoting Kham & Nate’s Shoes No. 2, Inc. v. First Bank
of Whiting, 908 F.2d 1351, 1357 (7th Cir.1990). “Indeed,” said the Court, “[the lender] had
every right to seek judgment on the various obligations owed to it by [the borrower] and to
foreclose on its security.” Id. In a recent Tenth District foreclosure case, U.S. Bank Natl. Assn.
v. Mobile Assoc. Natl. Network Sys., Inc., 195 Ohio App.3d 699, 2011-Ohio-5284, 961 N.E.2d
715, (10th Dist.), before the bank filed a foreclosure action it and the borrowers had agreed in
a letter to negotiate about the borrowers’ obligations. The borrowers asserted that the letter
agreement was a binding contract that modified the loan to require the parties to negotiate.
They contended that the bank failed to negotiate, breaching the modified loan. Until the bank
negotiated, argued the borrowers, it should be estopped from foreclosing. The Tenth District
rejected this argument for several reasons. Pertinent among them, the court said that the bank
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had the right to initiate foreclosure proceedings. The court found that a provision in the loan
documents provided that “the bank was entitled to immediately initiate foreclosure
proceedings in the event of default.” U.S. Bank at ¶ 31. “The bank’s decision to pursue its
contractual remedies,” said the court, “cannot be considered to be an act of bad faith.” Id.,
citing Ed Schory at 443. Also, in a Fifth District foreclosure case, Key Bank Natl. Assoc. v.
Bolin, 5th Dist. Stark No. 2010 CA 00285, 2011-Ohio-4532, the trial court granted summary
judgment for the lender on its foreclosure complaint. The borrower argued that the trial court
erred and abused its discretion by doing so because the lender acted in bad faith and
misrepresented to the borrower that she could participate in a loan modification program. The
appellate court rejected this argument. It found that no provision in the mortgage document
“prevent[ed] the lender from insisting on the strict performance of the mortgage obligations.”
Key Bank at ¶ 37. And the court found that no provision required the bank to allow the
borrower to participate in loan modification.
{¶ 9} Here too, as the bank pointed out in its summary-judgment motion, no
provision of the mortgage (or note) requires the bank to participate in loan-modification
negotiations or requires it to wait until negotiations it chose to participate in are finished
before exercising its right to foreclose. Rather, a mortgage provision gives the bank the right,
on the Ackermans’ breach, to pursue full payment and foreclosure without first satisfying any
conditions.3 Specifically, paragraph 21 of the mortgage provides that if the Ackermans do not
timely cure any breach, the bank has the right to “require immediate payment in full of all
sums secured by this Security Instrument without further demand and may foreclose this
3
The only condition precedent is proper notice. The Ackermans do not claim that the bank failed to give them proper notice.
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Security Instrument by judicial proceeding.”
{¶ 10} The first assignment of error is overruled.
Second Assignment of Error
{¶ 11} The Ackermans allege that the trial court erred by entering the foreclosure
judgment on November 11, Veterans’ Day. They contend that this day is a “legal holiday”
under R.C. 1.14 and a day when courts are closed. We find no error.
{¶ 12} R.C. 1.14 provides that “the time within which an act is required by law to be
done shall be computed by excluding the first and including the last day; except that, when the
last day falls on Sunday or a legal holiday, the act may be done on the next succeeding day
that is not Sunday or a legal holiday.” This section also provides that “when a public office in
which an act, required by law, is to be performed is closed to the public for the entire day that
constitutes the last day for doing the act or before its usual closing time on that day, the act
may be performed on the next succeeding day that is not a Sunday or a legal holiday as
defined in this section.” Included in this section’s definition of “legal holiday” is November
11, Veterans’ Day. R.C. 1.14(H). But filing a judgment is not an act for which the law sets a
time for performance. Furthermore, as the bank points out, Local Rule 1.37 of the
Montgomery County Court of Common Pleas allows not only litigants but also courts to
electronically file documents “twenty-four (24) hours a day, seven (7) days a week.” Mont.
Co. C. P. R. 1.37(IX)(A). The rule makes no exception for holidays.
{¶ 13} The Ohio Supreme Court has said that, “in the absence of a statute containing
a mandatory provision forbidding the judges of courts to hear and determine matters on a legal
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holiday, a judicial proceeding upon such day is not void.” Norman v. State, 109 Ohio St. 213,
227, 142 N.E. 234 (1924). In a Third District case, State v. Turner, 3d Dist. Allen No.
1-11-01, 2011-Ohio-4348, the defendant argued that his trial was void because part of it was
held during the afternoon of election day, which is a legal holiday in Ohio, see R.C. 5.20. The
defendant contended that any court business conducted during that time was void. The Third
District disagreed. It said that “despite half of the first Tuesday of November being a legal
holiday in the State of Ohio, we find no law requiring public agencies, including courts, to
cease operations during that time.” Turner at ¶ 16, citing Norman at 227, and Powell v. New
York Cent. RR. Corp., 86 Ohio Law Abs. 286, 174 N.E.2d 556 (5th Dist.1960) (finding that it
is not unlawful to hold court on a legal holiday). “Rather,” continued the court, “we find that it
is within a court’s discretion to conduct its business on a legal holiday, which consequently
includes the afternoon of the first Tuesday of November.” Id., citing Dursa v. Dursa, 78 Ohio
Law Abs. 498, 150 N.E.2d 306, 308 (1958), citing State v. Thomas, 61 Ohio St. 444, 56 N.E.
276 (1900), and Norman. In Ohio, Veterans’ Day is the eleventh of November and is a legal
holiday. R.C. 5.21. Even so, like the Third District, we conclude that it was within the trial
court’s discretion to conduct business on that day, which included entering the appealed
judgment.
{¶ 14} The question becomes, then, whether by entering the judgment in this case the
trial court abused its discretion. The Third District, in considering whether the trial court
abused its discretion in holding court during a legal holiday, looked to the regularity of the
court’s proceedings, finding no abuse of discretion: “Upon review of the record, particularly
the trial proceedings, there is nothing to suggest that the trial proceeded in an inappropriate or
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irregular manner.” Turner at ¶ 17. Likewise, we find no abuse of discretion in this case.
Nothing appears irregular about the judgment entry. Each electronically filed document
receives an electronic stamp that includes the date and time it was filed. Mont. Co. C. P. R.
1.37(IX)(B). A judge signs an electronic document “via a digitalized image of his or her
signature combined with a digital signature.” Mont. Co. C. P. R. 1.37(VIII)(D)(4). The
foreclosure judgment here was electronically signed by the judge and bears an electronic
stamp. We observe too that notice of the judgment’s entry was sent to the Ackermans on
November 18 (according to the trial court’s docket) and the Ackermans timely appealed it on
December 13. The Ackermans do not claim that they were harmed by the court’s action. And
nothing in the record suggests that they were.
{¶ 15} The second assignment of error is overruled.
Third Assignment of Error
{¶ 16} Lastly, the Ackermans allege that the trial court erred by ordering foreclosure.
They contend that on June 16, 2010, they signed and notarized a loan-modification agreement
with the bank and they have been “willing and able to pay each month” under its terms. The
agreement they submitted may not properly be considered.
{¶ 17} “Civ.R. 56 defines the standard to be applied when determining whether a
summary judgment should be granted. Civ.R. 56(C) mandates the entry of summary judgment
if the evidence, properly submitted, shows that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Todd Dev. Co., Inc. v.
Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 11. Civ.R. 56(C) provides that
the only types of evidence that may be considered are pleadings, depositions, answers to
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interrogatories, written admissions, affidavits, transcripts of evidence, and any written
stipulations of fact. The rule is clear: “No evidence or stipulation may be considered except as
stated in this rule.” Civ.R. 56(C). “Other types of documents may be introduced as evidentiary
material only through incorporation by reference in a properly framed affidavit.” Mitchell v.
Internatl. Flavors & Fragrances, Inc., 179 Ohio App.3d 365, 2008-Ohio-3697, 902 N.E.2d
37, ¶ 17 (1st Dist.). The loan-modification agreement here is not one of the types of evidence
listed in the rule. And the Ackermans did not submit an affidavit in support of the document.
{¶ 18} “Civ.R. 56(E) states that when a motion for summary judgment is properly
made and supported, the nonmoving party may not rest upon the mere allegations or denials of
the pleadings. Instead, the burden shifts to the nonmoving party, and the nonmoving party’s
response must set forth specific facts showing that there is a genuine issue for trial.” Todd at ¶
11. The response may be “by affidavit or as otherwise provided in th[e] rule.” Civ.R. 56(E).
“If the nonmoving party does not so respond, summary judgment, if appropriate, may be
entered against the nonmoving party.” Todd at ¶ 11, citing Civ.R. 56(E).
{¶ 19} The bank submitted an affidavit from the vice president of loan documentation
for the bank’s servicing agent containing all the averments necessary to support the bank’s
motion, including that the Ackermans are in default under the terms of the note and mortgage.
The Ackermans’ response fails to present any Civ.R. 56 evidence showing that a genuine issue
of material fact exists. The Ackermans might have met their Civ.R. 56(E) burden on the
default issue if they had contested the averments in the bank’s affidavit with an affidavit of
their own incorporating the loan-modification agreement. But the Ackermans did not do so.
Summary judgment is appropriate, and the trial court properly entered it.
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{¶ 20} The third assignment of error is overruled.
{¶ 21} Finally, we respond briefly to what appears to be the Ackermans’ fundamental
desire in this case. In their reply brief, the Ackermans wrote:
The Appellant herein simply seeks the legal standard of a “trial by jury,” and
respectfully demand the legal compliance to the rule(s) of Ohio law and United
States law, upon a “jury demand” made in a court of law. A fundamental and
functional protection of all citizens of their “inalienable rights” and “inviolate”
right to a trial by jury on all genuine legal issues of material facts for a jury to
decide in civil and criminal actions.
The Ackermans do not have a right to trial by jury in this case because the trial court properly
granted summary judgment in favor of the plaintiff. See State Farm Mut. Auto. Ins. Co. v.
Advanced Impounding & Recovery Servs., 165 Ohio App.3d 718, 2006-Ohio-760, 848 N.E.2d
534, ¶ 19 (10th Dist.) (saying that a trial court’s grant of summary judgment does not violate
the constitutional right to a jury trial under Ohio’s constitution); Goodin v. Columbia Gas of
Ohio, Inc., 141 Ohio App.3d 207, 231, 750 N.E.2d 1122 (4th Dist.2000) (finding no merit in
the appellant’s argument that summary judgment violated his right to trial by jury, noting that
“the Rules of Civil Procedure expressly authorize the summary judgment procedure, and the
Ohio Supreme Court consistently has sanctioned the procedure”).
{¶ 22} All of the assignments of error presented are overruled. The judgment of the
trial court is affirmed.
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DONOVAN and FROELICH, JJ., concur.
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Copies mailed to:
Mathias H. Heck
George Patricoff
Scott A. King
Terry W. Posey, Jr.
Ashley Rothfuss
Kimberlee Rohr
Gregory Ackerman
Joyce Ackerman
Hon. Dennis J. Langer