[Cite as CitiMortgage Inc. v. Parrish, 2012-Ohio-3778.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
CITIMORTGAGE INC., Successor by : Hon. Patricia A. Delaney, P.J.
Merger to ABN AMRO Mortgage : Hon. W. Scott Gwin, J.
Group, Inc. : Hon. John W. Wise, J.
:
Plaintiff-Appellee :
:
-vs- : Case No. 12 CAE 02 0011
:
MATTHEW D. PARRISH, et al. :
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 11 CVE 06 0674
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 20, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
BILL A. PURTELL JOHN A. GLEASON
LERNER, SAMPSON & ROTHFUSS COOKE, DEMERS & GLEASON
120 East Fourth Street, Suite 800 Three North High Street, P. O. Box 714
Cincinnati, Ohio 45202 New Albany, Ohio 43054
[Cite as CitiMortgage Inc. v. Parrish, 2012-Ohio-3778.]
Wise, J.
{¶1} Defendants-appellants Matthew and Jill Parrish appeal the January 26,
2012, decision of the Court of Common Pleas of Delaware County, Ohio, granting
summary judgment and decree in foreclosure in favor of Appellee CitiMortgage, Inc.
STATEMENT OF THE FACTS AND CASE
{¶2} This case arose from a residential foreclosure action initiated as a result
of Appellants’ default under the terms of Note, Mortgage and Loan Modification
Agreement. The relevant facts and procedural history are as follows:
{¶3} On September 13, 2002, Appellants Matthew D. Parrish and Jill M.
Parrish executed a promissory note and mortgage in the amount of $265,000 to ABM
AMRO Mortgage Group, Inc. for the property located at 4103 Essex Court, Powell,
Ohio, 43065.
{¶4} Appellants subsequently defaulted on the Note and Mortgage by failing to
make payments and on February 3, 2009, CitiMortgage filed for foreclosure in action
09-CVE-02-0134. Thereafter, Appellants entered into an Interim Forbearance
Agreement with CitiMortgage and the foreclosure action as dismissed.
{¶5} The Interim Forbearance Agreement provided for Appellants to pay down
the principal balance ($247,608.87 at 7.5% from June 1, 2008) and moved the due date
on the loan from July 1, 2008 to June 1, 2009. During this 11 month period, Appellants
paid and were credited approximately $26,000.00.
{¶6} In July, 2010, a permanent loan modification was offered to Appellants.
An initial web page notice to Appellants included an estimated interest rate of 3.5% but
warned that “[t]he final modification may vary depending on the review and verification
Delaware County, Case No. 12 CAE 02 0011 3
of the financial information you have provided, and other restrictions.” The final
modification offer included a 6.125% interest rate. Appellants never accepted the
modification offer.
{¶7} On June 7, 2011, Appellee filed the foreclosure action which is the subject
of the instant appeal.
{¶8} On November 8, 2011, Appellee CitiMortgage, Inc. filed a Motion for
Summary Judgment.
{¶9} On December 13, 2011, Appellants filed a Memorandum in Opposition to
Plaintiff’s (Appellee) Motion for Summary Judgment.
{¶10} By Judgment Entry filed January 26, 2012, the trial court granted
Appellee’s Motion for Summary Judgment.
{¶11} Also on January 26, 2012, the trial court filed a Judgment Entry Decree in
Foreclosure in this matter.
{¶12} Appellants now appeal, assigning the following sole assignment of error.
ASSIGNMENT OF ERROR
{¶13} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION
FOR SUMMARY JUDGMENT.
{¶14} “A. WHERE THERE ARE DISPUTED ISSUES OF FACT AS TO THE
AMOUNT OWED, SUMMARY JUDGMENT IS NOT APPROPRIATE.
{¶15} “B. WHERE APPELLEE PREVIOUSLY AGREED TO MODIFY THE
TERMS OF A LOAN, IT CANNOT ENFORCE THE ORIGINAL TERMS OF THE LOAN
AND SUMMARY JUDGMENT BASED UPON THE ORIGINAL TERMS IS NOT
APPROPRIATE.”
Delaware County, Case No. 12 CAE 02 0011 4
I.
{¶16} In their sole assignment, Appellants argue that the trial court erred in
granting summary judgment in this matter. We disagree.
{¶17} “Summary Judgment Standard”
{¶18} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides,
in pertinent part:
{¶19} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence in the pending case, and written stipulations of fact, if any, timely filed in the
action, show 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. * * * A summary judgment shall not be
rendered unless it appears from such evidence or stipulation and only therefrom, that
reasonable minds can come to but one conclusion and that conclusion is adverse to the
party against whom the motion for summary judgment is made, such party being
entitled to have the evidence or stipulation construed most strongly in his favor.”
{¶20} Pursuant to the above rule, a trial court may not enter a summary
judgment if it appears a material fact is genuinely disputed. The party moving for
summary judgment bears the initial burden of informing the trial court of the basis for its
motion and identifying those portions of the record that demonstrate the absence of a
genuine issue of material fact. The moving party may not make a conclusory assertion
Delaware County, Case No. 12 CAE 02 0011 5
that the non-moving party has no evidence to prove its case. The moving party must
specifically point to some evidence which demonstrates the non-moving party cannot
support its claim. If the moving party satisfies this requirement, the burden shifts to the
non-moving party to set forth specific facts demonstrating there is a genuine issue of
material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing
Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
{¶21} It is based upon this standard that we review Appellants’ assignment of
error.
{¶22} Appellants herein argue that a material fact exists as to the amount owed,
claiming that Appellee failed to credit Appellants with amounts paid. Appellants further
argue that Appellee is attempting to collect an interest rate above that agreed to in
writing.
{¶23} The trial court reviewed the Interim Forbearance agreement as well as
the Affidavit by Laura Leigh Baum, the Document Control Officer with CitiMortgage, Inc.,
along with the Note and Mortgage in this case. The trial court also had before it an
Affidavit of Matthew Parrish with the following exhibits: “Exhibit 1” internet page dated
12/13/2011 captioned “Payment Information, “Exhibit 2” – a Consolidation Report,
“Exhibit 3” – e-mail correspondence dated July 6, 2010, containing a Citimortgage
account status, “Exhibit 4” – an internet page dated August 25, 2010, captioned “Your
Mortgage Modification”, and “Exhibit 5” – a series of e-mail correspondence between
counsel for the parties.
{¶24} In the trial court's decision, which was based upon an analysis of the
affidavits and exhibits, the trial court found that Appellants defaulted under the terms of
Delaware County, Case No. 12 CAE 02 0011 6
the Note and Mortgage and that the amount due upon the Note was $244,790.82 with
interest at a rate of 7.5% per annum. The trial court further found that Appellants failed
to submit evidence establishing that the parties had reached an enforceable loan
modification agreement lowering the interest rate.
{¶25} This Court reviews mortgages under general principles of contract law,
and we presume that the parties' intent “ ‘resides in the language they have chosen to
employ in the agreement.’ ” SFJV 2005, L.L.C. v. Ream, 187 Ohio App.3d 715, 2010-
Ohio-1615, citing in part Fountain Skin Care v. Hernandez, 175 Ohio App.3d 93, 2008-
Ohio-489. “ ‘If a contract is clear and unambiguous, then its interpretation is a matter of
law and there is no issue of fact to be determined.’ Inland Refuse Transfer Co. v.
Browning–Ferris Indus. of Ohio, Inc. (1984), 15 Ohio St.3d 321, 322. Id. In such a case,
“a court may not go beyond the plain language of the agreement to determine the
parties' rights and obligations, and it may not consider parole evidence of the parties'
intentions. (Citations omitted).” Id. The court, instead, “must give effect to the express
terms of the contract.” Id.
{¶26} In this case, the loan modification discussions, which were never accepted
by Appellants, 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, 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
Delaware County, Case No. 12 CAE 02 0011 7
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.
{¶27} 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, 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 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 ¶ 1. “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.
{¶28} 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. This Court rejected this argument, finding no provision in the mortgage
Delaware County, Case No. 12 CAE 02 0011 8
document “prevent[ed] the lender from insisting on the strict performance of the
mortgage obligations.” Key Bank at ¶ 37.
{¶29} In the case sub judice, no provision of the note or mortgage 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 Appellants’ breach, to pursue
full payment and foreclosure without first satisfying any conditions. We therefore find
that the bank did not act in bad faith in pursuing foreclosure in this case.
{¶30} Upon review, we concur with the trial court analysis and find summary
judgment to Appellee was appropriate
{¶31} For the foregoing reasons, the judgment of the Court of Common Pleas,
Delaware County, Ohio, is affirmed.
By Wise, J.
Delaney, P.J., and
Gwin, J., concur
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[Cite as CitiMortgage Inc. v. Parrish, 2012-Ohio-3778.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITIMORTGAGE, INC., Successor by :
Merger to ABN AMRO Mortgage Group, :
Inc., :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MATTHEW D. PARRISH, et al. :
:
:
Defendants-Appellants : CASE NO. 12 CAE 02 0011
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.
Costs to Appellants
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