Huntington Natl. Bank v. Thompson

[Cite as Huntington Natl. Bank v. Thompson, 2014-Ohio-5168.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

THE HUNTINGTON NATIONAL BANK :

Plaintiff-Appellee : C.A. CASE NO. 26265

v. : T.C. NO. 13CV835

VIVIAN L. THOMPSON, et al. : (Civil appeal from
Common Pleas Court)
Defendant-Appellant :

:

..........

OPINION

Rendered on the 21st day of November , 2014.

..........

MIKE L. WIERY, Atty. Reg. No. 0068898 and RACHEL M. KUHN, Atty. Reg. No.
0090220, 30455 Solon Rd., Solon, Ohio 44139
Attorneys for Plaintiff-Appellee

VIVIAN L. THOMPSON, 180 N. Ardmore, Dayton, Ohio 45417
Defendant-Appellant

..........

FROELICH, P.J.

{¶ 1} Vivian L. Thompson appeals from a judgment of the Montgomery

County Court of Common Pleas, which granted summary judgment to The Huntington
 2

National Bank on its claims for a monetary judgment on a note and a decree of foreclosure

regarding rental property that Thompson owned. For the following reasons, the trial court’s

judgment will be affirmed.

I. Factual and Procedural History

{¶ 2} In November 2003, Thompson borrowed $134,000 from The Huntington

National Bank to purchase the property located at 140 Lexington Avenue in Dayton, Ohio.

She signed an adjustable rate note, which identified Huntington as the lender, and an

accompanying mortgage. In March 2010, Thompson and Huntington entered into a loan

modification agreement.

{¶ 3} On February 8, 2013, Huntington filed a foreclosure action against

Thompson, seeking a monetary judgment on the note, foreclosure of the mortgage, and the

sale of the property. Huntington alleged that Thompson had defaulted on the note, the loan

modification agreement, and the mortgage as of July 1, 2012, and that there remained due

and owning $118,443.73, plus interest. The bank attached to the complaint a copy of the

adjustable rate note, the loan modification agreement, and the mortgage.

{¶ 4} On January 31, 2014, Huntington moved for summary judgment against

Thompson. In support of its motion, Huntington submitted the affidavit of Marvin DeLong,

a litigation specialist with Huntington, who authenticated various documents related to

Thompson’s loan and mortgage. The documents provided evidence of the loan and

mortgage, of Thompson’s default, of Huntington’s compliance with conditions precedent to

bringing its foreclosure action, and of the amount owed. Huntington further relied on the

request for admissions that it sent to Thompson; the bank argued that, because Thompson
 3

failed to respond to the request for admissions, those matters should be deemed admitted,

pursuant to Civ.R. 36(A)(1).

{¶ 5} In March 2014, Thompson filed several documents to oppose the summary

judgment motion. She claimed that the trial court lacked jurisdiction, that Huntington was

not the real party in interest, and that there was no evidence of default or the sending of a

letter of default. Thompson further claimed that DeLong’s affidavit was hearsay and

implicitly moved for the affidavit to be stricken. She further argued that the trial court

should not deem that she had admitted the statements in Huntington’s request for

admissions. Finally, she stated that Huntington could not bring its action because it had not

registered its fictitious name with the State of Ohio. Thompson reiterated her assertions in

an affidavit.

{¶ 6} On April 10, 2014, the magistrate issued a decision granting Huntington’s

motion for summary judgment and denying Thompson’s request to strike DeLong’s

affidavit. Thompson objected to the magistrate’s ruling. On May 13, 2014, the trial court

overruled her objections and adopted the magistrate’s decision. On May 28, 2014, the trial

court granted Huntington judgment on the note in the amout of $118,443.73, plus interest,

foreclosed the equity of redemption, and ordered the property sold.

{¶ 7} Thompson appeals from the trial court’s judgment, raising seven

assignments of error.

II. Jurisdiction of Common Pleas Court and the Bank’s Ability to Sue

{¶ 8} Thompson’s first assignment of error states:

The Trial Court erred in entering a Summary Judgment that is void ab initio
 4

because the Montgomery County, Common Pleas Court of Ohio is a foreign

corporation pursuant to 1703.01(C), Appellee is a foreign corporation

pursuant to 1703.01(A)(B) and the process is a foreign corporation pursuant

to 1703.01(E) and none of the foreign corporations above got consent from

the Department of State, United States District Court or the Appellant to give

the court jurisdiction.

{¶ 9} In her first assignment of error, Thompson claims that the trial court lacked

subject matter jurisdiction and that Huntington failed to get permission from the federal

government to bring its foreclosure action in the trial court. Thompson cites R.C. 1703.01,

which defines the terms “domestic corporation,” “foreign corporation,” “state,” “articles,”

and “process” for purposes of Ohio’s foreign corporation statutes, R.C. Chapter 1703. She

also references 28 U.S.C. 1330, which concerns the jurisdiction of federal district courts

regarding actions against foreign states.

{¶ 10} The Supreme Court of Ohio recently addressed whether courts of common

pleas have subject matter jurisdiction over foreclosure actions. Bank of Am., N.A. v.

Kuchta, Ohio St.3d , 2014-Ohio-4275, N.E.3d . It stated:

Subject-matter jurisdiction is the power of a court to entertain and

adjudicate a particular class of cases. A court’s subject-matter jurisdiction is

determined without regard to the rights of the individual parties involved in a

particular case. A court’s jurisdiction over a particular case refers to the

court’s authority to proceed or rule on a case that is within the court’s

subject-matter jurisdiction. This latter jurisdictional category involves
 5

consideration of the rights of the parties. If a court possesses subject-matter

jurisdiction, any error in the invocation or exercise of jurisdiction over a

particular case causes a judgment to be voidable rather than void.

Although courts created by statute, such as municipal courts, are a

different matter, this case involves a constitutionally created common pleas

court. Ohio’s common pleas courts are endowed with “original jurisdiction

over all justiciable matters * * * as may be provided by law.” Article IV,

Section 4(B), Ohio Constitution. Jurisdiction has been “provided by law” in

R.C. 2305.01, which states that courts of common pleas have “original

jurisdiction in all civil cases in which the sum or matter in dispute exceeds

the exclusive original jurisdiction of county courts.” This court has long

held that the court of common pleas is a court of general jurisdiction, with

subject-matter jurisdiction that extends to “all matters at law and in equity

that are not denied to it.” We have also long held that actions in foreclosure

are within the subject-matter jurisdiction of a court of common pleas. * * *

(Citations omitted.) Kuchta at ¶ 19-20. The supreme court has thus made clear that courts

of common pleas, including the Montgomery County Court of Common Pleas, have subject

matter jurisdiction over foreclosure actions, such as the case before us. Title 28 of the

United States Code, which addresses the federal judiciary, has no relevance.

{¶ 11} In addition, R.C. Chapter 1703 does not preclude an action by Huntington in

the Montgomery County Court of Common Pleas. R.C. 1703.03 requires foreign

corporations to obtain a license from the Ohio Secretary of State in order to transact business
 6

in Ohio. Under R.C. 1703.29, “no foreign corporation that should have obtained such

license shall maintain any action in any court until it has obtained such license.”

{¶ 12} Here, the mortgage identifies Huntington’s address as located in Columbus,

Ohio. Thus, the record suggests that Huntington is a domestic corporation, not a foreign

corporation. Thompson does not provide evidence that Huntington is a foreign corporation.

{¶ 13} Even accepting, for sake of argument, that Huntington is a foreign

corporation, “R.C. 1703.031(A) exempts a federally chartered bank, savings bank or

savings and loan from the licensing requirement of R.C. 1703.01 to R.C. 1703.31.”

Citibank v. Eckmeyer, 11th Dist. Portage No. 2008-P-69, 2009-Ohio-2435, ¶ 27. “Business

activities of national banks are controlled by the National Bank Act (NBA or Act), 12 U.S.C.

§ 1 et seq., and regulations promulgated thereunder by the Office of the Comptroller of the

Currency (OCC).” Watters v. Wachovia Bank, N.A., 550 U.S. 1, 6, 127 S.Ct. 1559, 167

L.Ed.2d 389 (2007). The mortgage indicates that Huntington is a national banking

association organized and existing under the laws of the United States. Thus, any

restrictions in R.C. Chapter 1703 on Huntington’s ability to bring suit in Ohio would be

preempted by federal law, and R.C. 1703.29 would not apply. Eckmeyer at ¶ 24-39;

MidFirst Bank v. Speigelberg, 8th Dist. Cuyahoga No. 98765, 2013-Ohio-587, ¶ 6.

{¶ 14} Thompson’s first assignment of error is overruled.

III. Right to Jury Trial in Civil Action

{¶ 15} Thompson’s second assignment of error states:

The Trial Court erred in entering a Summary Judgment that is void ab initio

because because [sic] the summary judgment violates her Seven[th]
 7

Amendment rights and the court only had jurisdiction for $15,000 or more.

{¶ 16} In this assignment of error, Thompson cites to the monetary limits set forth

in the Seventh Amendment to the United States Constitution and R.C. 1907.03 and 2305.01

to claim that the trial court lacked jurisdiction to enter summary judgment against her.

{¶ 17} R.C. 2305.01 provides that, except as stated in R.C. 2305.03, “the court of

common pleas has original jurisdiction in all civil cases in which the sum or matter in

dispute exceeds the exclusive original jurisdiction of county courts * * *.” “[C]ounty courts

have exclusive original jurisdiction in civil actions for the recovery of sums not exceeding

five hundred dollars and original jurisdiction in civil actions for the recovery of sums not

exceeding fifteen thousand dollars.” R.C. 1907.03. Thompson correctly states that this

action falls within the monetary jurisdiction of the common pleas court.

{¶ 18} The Seventh Amendment creates the right to a jury trial in civil matters. It

states that, “where the value in controversy shall exceed twenty dollars, the right of trial by

jury shall be preserved * * *.” Reading the Seventh Amendment and the jurisdictional

statutes together, Thompson asserts that summary judgment cannot be granted by a court of

common pleas if the amount in controversy exceeds $20.

{¶ 19} The Seventh Amendment does not apply to state courts. Gasperini v. Ctr.

for Humanities, Inc., 518 U.S. 415, 432, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). But

parties do have a constitutional right to a jury trial in civil matters under the Ohio

Constitution. See Ohio Constitution, Article I, Section 5 (“[t]he right of trial by jury shall

be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a

verdict by the concurrence of not less than three-fourths of the jury.”).
 8

{¶ 20} However, a trial court does not violate the Ohio Constitution by granting

summary judgment when no material issues of fact exist for a jury to decide. It is

well-established that “[s]ummary judgment pursuant to Civ.R. 56 is another method

available to a party seeking to avoid a trial and is used when the facts of a case are allegedly

undisputed.” Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, ¶ 13.

{¶ 21} Huntington’s claims fell within the monetary jurisdiction of the common

pleas court, and the trial court found that no genuine issues of material fact exist and that

Huntington was entitled to judgment as a matter of law. Accordingly, the trial court’s

grant of summary judgment was not void ab initio under the Ohio Constitution, the Seventh

Amendment to the United States Constitution, or Ohio’s statutes establishing the monetary

jurisdiction of the state courts.

{¶ 22} Thompson’s second assignment of error is overruled.

IV. Standing

{¶ 23} Thompson’s third assignment of error states:

The Trial Court erred in entering a Summary Judgment that is void ab initio

because Appellee lacked standing and the court lacked jurisdiction.

{¶ 24} Thompson asserts that Huntington lacked standing to bring its foreclosure

action, because it was not the “owner” of the note and mortgage at the time it commenced its

action. Thompson relies on a printout of a “Fannie Mae Loan Lookup” (Doc. #106,

Thompson’s Ex. B), dated September 7, 2013, which shows that Fannie Mae acquired

Thompson’s loan on March 1, 2004. The printout identified Thompson’s mortgage

company as The Huntington National Bank.
 9

{¶ 25} Initially, we reject Thompson’s suggestion that lack of standing by

Huntington would affect the jurisdiction of the trial court. Addressing a post-judgment

challenge to a foreclosure judgment, the Supreme Court of Ohio explained that standing

involves a “party’s ability to invoke the jurisdiction of a court” in a particular case, and it

does not affect the subject matter jurisdiction of the court. Kuchta, Ohio St.3d

, 2014-Ohio-4275, N.E.3d , at ¶ 22. The Court stated, “Lack of standing

is certainly a fundamental flaw that would require a court to dismiss the action, and any

judgment on the merits would be subject to reversal on appeal. But a particular party’s

standing, or lack thereof, does not affect the subject-matter jurisdiction of the court in which

the party is attempting to obtain relief.” Id. at ¶ 23. Accordingly, regardless of whether

Huntington had standing, the trial court had jurisdiction over the action before us.

{¶ 26} In order for Huntington to have standing to bring its foreclosure action,

Huntington must have had an interest in the note or mortgage at the time it filed suit. Bank

of Am., N.A. v. Thompson, 2d Dist. Montgomery No. 25952, 2014-Ohio-2300, ¶ 7, citing

Federal Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017,

979 N.E.2d 1214, ¶ 28. This court has held, however, that a party is not required to show

that it owned a note at the time a foreclosure action is filed, where the party has a right to

enforce the note and mortgage. LaSalle Bank Natl. Assn. v. Brown, 2014-Ohio-3261, 17

N.E.3d 81, ¶ 34 (2d Dist.); Nationstar Mtge., L.L.C. v. West, 2d Dist. Montgomery Nos.

25813, 25837, 2014-Ohio-735, ¶ 26.

{¶ 27} R.C. 1303.31(A) identifies three classes of persons who are “entitled to

enforce” an instrument, such as a note: (1) the holder of the instrument, (2) a nonholder in
 10

possession of the instrument who has the rights of a holder, and (3) a person not in

possession of the instrument who is entitled to enforce the instrument pursuant to R.C.

1303.38 or R.C. 1303.58(D). The term “holder” includes a “person in possession of a

negotiable instrument that is payable either to bearer or to an identified person that is the

person in possession.” R.C. 1301.201(B)(21)(a).

{¶ 28} Huntington supported its summary judgment motion with copies of

Thompson’s note, mortgage, and loan modification agreement. The note is made payable to

Huntington. In March 2010, Thompson and Huntington entered into a loan modification

agreement, which altered the payment terms of the note. In his affidavit, DeLong stated

that Huntington “has possession of the Note and had such possession of the Note prior to

filing the Complaint in this action.” The mortgage provides that the mortgagee was

Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the lender,

Huntington. On February 1, 2013, one week before the complaint was filed in this case,

MERS assigned the mortgage to Huntington.

{¶ 29} Huntington’s evidence established that it was in possession of the note prior

to filing this action and continues to have possession of the note, and that the note was

payable to Huntington. Accordingly, Huntington presented evidence that it is the holder of

the note and that, under R.C. 1301.31(A), it is entitled to enforce the note. In addition, the

assignment of the mortgage from MERS to Huntington provided another basis to

demonstrate that Huntington had standing in the foreclosure action. Bank of New York

Mellon v. Clancy, 2d Dist. Montgomery No. 25823, 2014-Ohio-1975, ¶ 28. Thompson’s

printout showing that Fannie Mae is the owner of the note does not create a genuine issue of
 11

material fact as to Huntington’s standing.

{¶ 30} Thompson’s third assignment of error is overruled.

V. Fifth Amendment and Civ.R. 36 Request for Admissions

{¶ 31} Thompson’s fourth assignment of error states:

The Trial Court erred in entering a Summary Judgment that is void ab initio

because the court abused its discretion by allowing admission in violation of

Appellant’s Fourth and Fifth Amendment rights.

{¶ 32} Thompson’s fourth assignment of error claims that the trial court erred in

deeming Huntington’s request for admissions to be admitted by Thompson, because she has

a right to remain silent under the Fifth Amendment to the United States Constitution and the

court’s actions in deeming those statements admitted denied her equal protection.

Thompson suggests that this foreclosure action should be considered a criminal case for

purposes of the Fifth Amendment because it involves a proceeding to forfeit her property.

{¶ 33} The Eighth District has summarized the scope of the right against

self-incrimination under the federal and Ohio constitutions.

By its own terms, the Self-Incrimination Clause of the Fifth

Amendment to the United States Constitution, as held applicable to the states,

applies only to criminal cases: “No person * * * shall be compelled in any

criminal case to be a witness against himself * * *.” Section 10, Article I,

Ohio Constitution is similarly applicable only in criminal proceedings: “No

person shall be compelled, in any criminal case, to be a witness against

himself.” The rule applies in civil proceedings to the extent that compelled
 12

testimony “may tend to incriminate” the witness in a future criminal

proceeding. Tedeschi v. Grover, 39 Ohio App.3d 109, 111, 529 N.E.2d 480

(10th Dist.1988). In this context, “incrimination” means not only evidence

that would directly support a criminal conviction, Cincinnati v.

Bawtenheimer, 63 Ohio St.3d 260, 264, 586 N.E.2d 1065 (1992), but

“information which would furnish a link in the chain of evidence that could

lead to prosecution, as well as evidence which an individual reasonably

believes could be used against him in a criminal prosecution.” Maness v.

Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975).

In re M.B., 8th Dist. Cuyahoga Nos. 101094, 101095, 101096, 2014-Ohio-4837, ¶ 9.

{¶ 34} A mortgage foreclosure action is a civil proceeding, and there is no

indication in the record that Huntington’s request for admissions would subject Thompson to

criminal prosecution or could lead to a criminal prosecution against her. Thompson’s claim

that she could invoke the Fifth Amendment to avoid responding to Huntington’s request for

admissions is unsupported by the record.

{¶ 35} Requests for admissions are governed by Civ.R. 36, which provides that “[a]

party may serve upon any other party a written request for the admission, for purposes of the

pending action only, of the truth of any matters within the scope of Civ.R. 26(B) set forth in

the request, that relate to statements or opinions of fact or of the application of law to fact,

including the genuineness of any documents described in the request. * * *” Civ.R. 36(A).

Under Civ.R. 36(A)(1), a request for admission is deemed admitted, unless the party to

whom the request was directed “serves upon the party requesting the admission a written
 13

answer or objection addressed to the matter, signed by the party or by the party’s attorney.”

{¶ 36} Any matter admitted under Civ.R. 36(A) is “conclusively established,”

unless the court on motion permits withdrawal or amendment of the admission. Civ.R.

36(B). “The word ‘conclusively’ establishes that evidence may not be used to contradict an

admission made pursuant to Civ.R. 36.” Crespo v. Harvey, 2014-Ohio-1755, 11 N.E.3d

1206, ¶ 7 (2d Dist).

{¶ 37} On November 1, 2013, Huntington certified that it sent hard and electronic

copies of its first set of request for admissions, interrogatories and request for production of

documents to Thompson. Upon Thompson’s motion, the trial court granted Thompson

until December 20, 2013 to respond to Huntington’s discovery requests. On January 3,

2014, Huntington sent a letter to Thompson indicating that it had not received any response

and requesting responses within seven days. In its January 31, 2014, summary judgment

motion, Huntington indicated that Thompson had not responded to its request for

admissions, and it asked the court to consider the requested matters admitted when ruling on

the summary judgment motion.

{¶ 38} Thompson neither argued nor provided evidence that she responded to

Huntington’s discovery requests. She did not explain to the trial court why she failed to

respond to the request for admissions, and she did not seek to have the admissions

withdrawn or amended under Civ.R. 36(B). Under the circumstances before us, we cannot

conclude that the trial court abused its discretion in deeming Huntington’s request for

admissions to be admitted under Civ.R. 36(A).

{¶ 39} Thompson’s fourth assignment of error is overruled.
 14

VI. Summary Judgment on Huntington’s Claims

{¶ 40} Thompson’s fifth assignment of error states:

The Trial Court erred to the prejudice of the appellant and abused its

discretion by granting appellee’s motion for summary judgment where, there

are clearly genuine issues of material facts and the appellee is not entitled to

judgment as a matter of law.

{¶ 41} In her fifth assignment of error, Thompson claims that the trial court erred in

granting summary judgment to Huntington on its claims. Thompson asserts that Huntington

failed to (1) send a notice of default before filing its action, (2) have a face-to-face meeting

with her, and (3) follow appropriate accounting principles in maintaining her account.

{¶ 42} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter

of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the

nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club,

Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the

initial burden of affirmatively demonstrating that no genuine issue of material fact remains

to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To

this end, the movant must be able to point to evidentiary materials of the type listed in

Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt,

75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). Those materials include “the

pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts

of evidence, and written stipulations of fact, if any, filed in the action.” Id. at 293; Civ.R.
 15

56(C).

{¶ 43} Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293, 662

N.E.2d 264; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to

respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts

that show that there is a genuine issue of material fact for trial. Id. Throughout, the

evidence must be construed in favor of the nonmoving party. Id.

{¶ 44} We review the trial court’s ruling on a motion for summary judgment de

novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. “De

novo review means that this court uses the same standard that the trial court should have

used, and we examine the evidence to determine whether as a matter of law no genuine

issues exist for trial.” Brewer v. Cleveland City Schools Bd. of Edn., 122 Ohio App.3d 378,

383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio

St.2d 116, 119-20, 413 N.E.2d 1187 (1980). Therefore, the trial court’s decision is not

granted deference by the reviewing appellate court. Powell v. Rion, 2012-Ohio-2665, 972

N.E.2d 159, ¶ 6 (2d Dist.).

{¶ 45} According to the documents attached to DeLong’s affidavit, Thompson

borrowed $134,000 from Huntington to purchase the property located at 140 Lexington

Avenue. Thompson signed a note for that amount, payable to Huntington, and secured the

debt with a mortgage. The note was subsequently modified through a loan modification

agreement. Huntington provided a detailed account history, itemizing Thompson’s

payments on the loan; the account history reflected that the last payment, processed on
 16

September 25, 2012, was for the July 2012 payment and left a balance due of $118,443.73.

DeLong stated that, prior to initiating foreclosure proceedings, Huntington sent a Notice of

Intention to Accelerate and Foreclose to Thompson; that notice was attached as Exhibit A-6.

{¶ 46} Many of the statements in Huntington’s request for admissions asked

Thompson to admit that she signed the note, mortgage, and loan modification agreement at

issue and that the documents accurately reflected the terms of the loan. By failing to

respond to the request for admissions, it was deemed that Thompson admitted to those

matters. In addition, she was deemed to have admitted that she last paid the note/loan

modification on July 1, 2012, that she breached the note, loan modification agreement, and

mortgage by nonpayment, that she owes $118,443.73 plus interest, that she received the

notice of default and written notification that her payments were past due, that Huntington

“duly performed all of its duties under the Note, Loan Modification Agreement and

Mortgage,” that she failed to make payments to bring her loan current, and that she failed to

mitigate her losses.

{¶ 47} Construing the evidence in Thompson’s favor, Huntington’s evidence (with

or without Thompson’s admissions) established that Thompson had defaulted on the note

in the amount $118,443.73, plus interest, and that Huntington was entitled to judgment on

the note and a decree of foreclosure.

{¶ 48} Thompson asserts that there is a genuine issue of material fact as to whether

Huntington provided evidence that a letter of default was sent to her, providing her an

opportunity to cure the default. The November 20, 2012 Notice of Intention to Accelerate

and Foreclose informed Thompson that she had “defaulted on your mortgage loan by failing
 17

to make one or more monthly payments when due as required by the terms of your mortgage

loan.” It provided her the “right to correct this default” and notified her that she could cure

the default by paying $4,363.95 by December 25, 2012. The note asked Thompson to

“please act now so that we can avoid taking further action” and indicated that Huntington

may accelerate the mortgage and initiate foreclosure proceedings if no payment were

received. A certified mail receipt indicates that Thompson received the notice. Thompson

has provided no evidence to contradict Huntington’s evidence. We find no genuine issue of

material fact as to whether Huntington sent Thompson a notice of default.

{¶ 49} Thompson next argues that Huntington never attempted to have a

face-to-face meeting with her and did not comply with federal servicing requirements. With

some exceptions, 24 C.F.R. 203.604(b) requires an FHA lender to have a face-to-face

interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before

three full monthly installments due on the mortgage are unpaid. In addition, 24 C.F.R.

203.606 requires the mortgagee to ensure, before initiating foreclosure, that all regulatory

servicing requirements have been met.

{¶ 50} Thompson has not provided evidence that she has an FHA loan with

Huntington or that these federal regulations have been incorporated into the note and

mortgage at issue. Accordingly, Thompson’s citation to federal regulations does not create

a genuine issue of material fact as to whether Huntington properly filed its action.

{¶ 51} Finally, Thompson asserts that Huntington’s bookkeeping entries do not

demonstrate that Huntington has strictly complied with its contractual obligations.

Huntington’s evidence established that Thompson’s last payment on the loan was for July
 18

2012, and that she has a remaining balance of $118,443.73, plus interest. Thompson has

presented no evidence to contradict or raise any questions regarding Huntington’s

accounting.

{¶ 52} Accordingly, we find no genuine issue of material facts as to whether

Thompson defaulted on the note and mortgage and whether Huntington satisfied

prerequisites for initiating this foreclosure action. The trial court did not err in granting

summary judgment to Huntington on its claims. Thompson’s fifth assignment of error is

overruled.

VII. Electronic Signature

{¶ 53} Thompson’s sixth assignment of error states:

The Trial Court erred in entering a Summary Judgment that is void ab initio

because all the orders were sign[ed] electronically which is a violation of law.

{¶ 54} In her sixth assignment of error, Thompson asserts that the trial court was

not permitted to sign and file its orders and judgment electronically. Thompson cites to

R.C. 1306.22 and federal law.

{¶ 55} R.C. Chapter 1306 is Ohio’s Uniform Electronic Transactions Act. R.C.

1306.22 specifically provides that nothing in the Act shall be construed to “require” courts in

Ohio “to use or permit the use of electronic records and electronic signatures.” R.C.

1306.22(A). It further provides that courts “may adopt rules pertaining to the use of

electronic records and electronic signatures.” R.C. 1306.23(B).

{¶ 56} The Montgomery County Court of Common Pleas, General Division, has

adopted rules regarding electronic filing of documents. Local Rule 1.15 states that,
 19

“[e]xcept as otherwise provided * * *, all civil and criminal cases, including all pleadings,

motions, briefs, memoranda of law, deposition transcripts, transcripts of proceedings, orders

or other documents, shall be filed electronically through the Court’s authorized electronic

filing system (‘eFile system’). * * *” This rule includes a requirement that the court eFile

all court initiated filings. Local Rule 1.15(B).

{¶ 57} Local Rule 1.15(F)(4)(e) addresses signatures of a judge or judicial officer.

It states that “eFiled documents may be signed by a Judge or judicial officer via a digitized

image of his or her signature combined with a digital signature. All orders, decrees,

judgments and other documents signed in this manner shall have the same force and effect as

if the Judge had affixed his or her signature to a paper copy of the order and journalized it.”

{¶ 58} The trial court’s signing and filing of documents electronically in this case

was authorized by Local Rule and was not improper. Thompson’s sixth assignment of error

is overruled.

VIII. Thompson’s Substantial Rights

{¶ 59} Thompson’s seventh assignment of error states:

The Trial Court erred in entering a Summary Judgment that is void ab initio

because the Court violated the Appellant’s “Substantial rights.”

{¶ 60} In her seventh assignment of error, Thompson asserts that the trial court

violated her substantial rights by entering orders without jurisdiction and proper parties.

She states that the court violated her substantial rights in eight ways:

(1) illegal electronic signed orders by the Courts; (2) refusal of Appellant’s

common law right to receive the contract; (3) refusal of the court to have the
 20

Appellee produce documents to show a injured party; (4) refuse to allow

Appellant to present oral argument; (5) refusal of court to allow a time

[where] Appellant could present witnesses in her case; (6) Appellee is a

foreign corporation pursuant to ORC 1703.01(A)(B) and must inform the

Department of State of any suit and the Department of [S]tate must inform

Appellant pursuant [to] Title 22 CFR 93.1-93.2 and Appellant must consent

to the court’s jurisdiction which in above case has not happen[ed]; (7) Title

28 USC 1602-1611 allows the jurisdiction of this court to be challenged, and

demand of proper jurisdiction to be stated. In the above case jurisdiction has

been challenged and proper jurisdiction has not been stated or addressed and;

(8) Common Pleas Court in Ohio have jurisdiction on cases fifteen thousand

dollars ($15,000) or more so summary [judgment] violates Appellant’s

Seventh Amendment right or the court didn’t have jurisdiction because the

Seventh Amendment only allows summary judgment for twenty dollars ($20)

or less and Common Pleas Courts don’t have jurisdiction over twenty dollars

($20) or less cases.

{¶ 61} In addressing Thompson’s other assignments of error, we have already

addressed and rejected most of her claims. The only new matter that she raises here is that

the trial court refused to allow her to present oral argument and present witnesses.

Thompson had asked for an oral hearing regarding Huntington’s motion for summary

judgment, but the trial court was not required to grant her request. Her substantial rights

were not violated by the trial court’s denial of her request for an oral hearing. And, because
 21

the trial court properly concluded that no genuine issues of material fact existed and that

summary judgment was appropriate, the trial court did not violate her substantial rights by

granting summary judgment, thereby precluding Thompson from presenting witnesses at a

trial.

{¶ 62} Thompson’s seventh assignment of error is overruled.

IX. Conclusion

{¶ 63} The trial court’s judgment will be affirmed.

..........

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Mike L. Wiery
Rachel M. Kuhn
Vivian L. Thompson
Yale Levy
Douglas Trout
Christine Kurilic
Hon. Dennis J. Langer