[Cite as U.S. Natl. Bank Assn., N.A. v. Bartholomew, 2012-Ohio-3703.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
U.S. NATIONAL BANK ASSOCIATION, JUDGES:
N. A. Hon. Patricia A. Delaney, P.J.
Hon. W. Scott Gwin, J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
-vs- Case No. 2011CA00151
DEBORAH C. BARTHOLOMEW
OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2009CV02199
JUDGMENT: Affirmed in part; Vacated in part; and
Remanded
DATE OF JUDGMENT ENTRY: August 13, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SCOTT A. KING KRISTINE W. BEARD
TERRY W. POSEY, JR. 4450 Belden Village St. N.W.
Thompson Hine LLP Suite 703
Austin Landing I Canton, Ohio 44718-2540
10050 Innovation Drive
Suite 400
Dayton, Ohio 45342
Stark County, Case No. 2011CA00151 2
Hoffman, J.
{¶1} Defendant-appellant Deborah C. Bartholomew appeals the June 14, 2011
Judgment Entry entered by the Stark County Court of Common Pleas granting summary
judgment in favor of Plaintiff-appellee U.S. Nation Bank Association, N.A.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 22, 2005, Appellant executed an adjustable rate note with a six
month index, which note was secured by a mortgage wherein Ownit Mortgage
Solutions, Inc. was the lender and Mortgage Electronic Registration Systems, Inc.
("MERS") was the mortgagee. MERS acted solely as nominee for Lender and Lender's
successors and assigns of the mortgage. The mortgage was filed for record on April
22, 2005, in the Stark County Recorder's Office.
{¶3} On May 28, 2009, the mortgage was received by U.S. Bank National
Association (“U.S. Bank”) as trustee for the Structured Asset Investment Loan Trust,
2005-IIE2 by way of an assignment from MERS as nominee for the original lender
Ownit Mortgage Solutions, Inc.
{¶4} On June 4, 2009, U.S. Bank filed a complaint in foreclosure against
Appellant alleging Appellant had defaulted under the terms of the note and the
mortgage securing the same. U.S. Bank declared Appellant owed a debt of
$128,974.73, together with interest, in the amount of 11.2500% per year from
December 1, 2008.
{¶5} Appellant filed an answer and amended answer summarily denying the
allegations in the complaint. On June 26, 2009, the trial court referred the matter to the
Stark County mediation program.
Stark County, Case No. 2011CA00151 3
{¶6} On March 9, 2010, Appellant signed a Home Affordable Modification
Agreement indicating an effective date of April 1, 2010 with America's Servicing
Company named as Lender.
{¶7} On September 13, 2010, U.S. Bank filed a motion for summary judgment.
On the same date, U.S. Bank filed an affidavit in support of motion for summary
judgment stating an amount due on the account in the amount of $128,908.51 together
with interest from January 1, 2009, at 11.250 per annum.
{¶8} Appellant filed a motion to strike the motion for summary judgment
asserting the motion was in violation of the trial court's order to stay the proceedings
pending mediation. The trial court did not address the motion to strike. Appellant did
not otherwise respond to the motion for summary judgment.
{¶9} On November 23, 2010, U.S. Bank sent Appellant notice she had been
denied a HAMP modification, but had been approved for a traditional loan modification
agreement.
{¶10} On December 14, 2010, Appellant filed a motion to enforce the terms of
the agreement executed on March 9, 2010, and requested a hearing on the motion to
enforce the purported settlement agreement. U.S. Bank responded by filing a motion to
strike the motion to enforce. On May 2, 2011, the trial court granted the motion to strike
filed by U.S. Bank, and denied Appellant's motion to enforce the settlement agreement
without hearing.
{¶11} Via Judgment Entry filed June 14, 2011, the trial court granted summary
judgment in favor of U.S. Bank.
{¶12} Appellant now appeals, assigning as error:
Stark County, Case No. 2011CA00151 4
{¶13} “I. THE TRIAL COURT ERRED IN SUMMARILY STRIKING AND/OR
SUMMARILY DENYING APPELLANT’S MOTION TO ENFORCE THE SETTLEMENT
AGREEMENT WITHOUT A HEARING ON THE MATTER.
{¶14} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND/OR
ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION TO ENFORCE THE
SETTLEMENT AGREEMENT.
{¶15} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED AS
A MATTER OF LAW IN GRANTING APPELLEE’S MOTION FOR SUMMARY
JUDGMENT.”
I. & II.
{¶16} Appellant's first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶17} This Court reviews a trial court's decision on a motion to enforce a
settlement agreement by determining whether "the trial court's order is based on an
erroneous standard or a misconstruction of law." Continental W. Condominium Unit
Owners Ass'n v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501 (1996).
{¶18} In order to be enforceable, the modification to a contract affecting an
interest in land must be in writing and "signed by the party to be charged therewith or
some other person…authorized". R.C. 1335.04 and R.C. 1335.05.
{¶19} The HAMP document at issue herein provides for a “Loan Trial Period” in
which America's Servicing Company provides Appellant with a supplemental loan
modification agreement for a trial period during which Appellant pays a set amount each
month. The trial period listed in the HAMP document herein began April 1, 2010, and
Stark County, Case No. 2011CA00151 5
ended July 1, 2010. The HAMP document was not provided by U.S. Bank, was not
signed by U.S. Bank and does not guarantee a loan modification agreement would
result. Rather, the record reflects U.S. Bank offered Appellant a permanent loan
modification on November 23, 2010, which she refused.
{¶20} Appellant asserts the trial court erred in denying her motion to enforce the
settlement agreement without first holding a hearing. However, a trial court is not
required to hold a hearing on the issue where there is no evidence of a full and
complete agreement reached between the parties. First Merit Bank, N.A. v. Ashland
Lakes, LLC. Ashland App. No. 11-COA-017, 2012-Ohio-549.
{¶21} Accordingly, we find the trial court did not err in summarily denying the
motion to enforce the alleged settlement agreement as there is no evidence a final
settlement agreement was, in fact, reached herein.
{¶22} The first and second assignments of error are overruled.
III.
{¶23} In the third assignment of error, Appellant maintains the trial court erred in
granting summary judgment in favor of U.S. Bank on the foreclosure action.
{¶24} 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, 506 N.E.2d 212. As
such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
{¶25} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
Stark County, Case No. 2011CA00151 6
the moving party is entitled to judgment as a matter of law; and 3) it appears from the
evidence that reasonable minds can come to but one conclusion and viewing such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.
(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.
{¶26} It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for
granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280
at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that
the nonmoving party cannot prove its case, bears the initial burden of informing the trial
court of the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on the essential element(s)
of the nonmoving party's claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no
evidence to prove its case. Rather, the moving party must be able to specifically point to
some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the
nonmoving party has no evidence to support the nonmoving party's claims. If the
moving party fails to satisfy its initial burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its initial burden, the nonmoving party
then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing
there is a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.” The record on
Stark County, Case No. 2011CA00151 7
summary judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.
{¶27} As set forth in our analysis and disposition of Appellant's first and second
assignments of error, the record demonstrates there was not a final enforceable
settlement agreement executed by the parties. The record reflects Appellant did not file
a responsive pleading to U.S. Bank's motion for summary judgment, and did not offer
evidence demonstrating a genuine of issue of material fact. Rather, Appellant's only
remaining argument is the amount due on the note was not properly supported by the
affidavit offered with the motion for summary judgment.
{¶28} Appellant asserts she made additional payments on the note pursuant to
the terms of the HAMP document after the date of the affidavit offered in support of U.S.
Bank's motion for summary judgment. U.S. Bank admits the same in their brief to this
Court,
{¶29} "To the extent Bartholomew made payments after January 1, 2009 (as she
had claimed to have done under the TPA), she is entitled to a credit against the balance
due on the judgment. The fact that she is entitled to a credit on the judgment does not
destroy the original accuracy of its calculation."
{¶30} Pursuant to the terms of the HAMP document, Appellant paid $609.47 for
a number of months which were not contemplated in the September 13, 2010 affidavit
offered in support of U.S. Bank’s motion for summary judgment to establish damages.
Upon our review of the record and the evidence presented, we find the trial court
properly granted summary judgment in favor of U.S. Bank on the complaint in
foreclosure. However, on the issue of damages, the record contains sufficient evidence
Stark County, Case No. 2011CA00151 8
Appellant made payments on the note herein after January 1, 2009, which payments
were not reflected in the amount set forth in the affidavit offered in support of U.S.
Bank's motion for summary judgment. Therefore, we hereby vacate the amount of the
award issued and remand the matter to the trial court for the limited purpose of a
redetermination of the amount due herein.
{¶31} The judgment of the Stark County Court of Common Pleas is affirmed in
part; vacated in part; and remanded.
By: Hoffman, J.
Delaney, P.J. and
Gwin, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN
Stark County, Case No. 2011CA00151 9
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
U.S. NATIONAL BANK ASSOCIATION, :
N.A. :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DEBORAH C. BARTHOLOMEW :
:
Defendant-Appellant : Case No. 2011CA00151
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas is affirmed in part; vacated in part; and remanded for
further proceedings in accordance with our opinion and the law. Costs to be divided
equally.
s/ William B. Hoffman_________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN