[Cite as Bayview Loan Servicing, L.L.C. v. Woods, 2016-Ohio-185.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
BAYVIEW LOAN SERVICING, LLC C.A. No. 27658
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
AUGUSTUS WOODS, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CV 2014 01 0328
DECISION AND JOURNAL ENTRY
Dated: January 20, 2016
MOORE, Judge.
{¶1} Defendant-Appellant Derrick Woods appeals from the judgment of the Summit
County Court of Common Pleas granting summary judgment to Plaintiff-Appellee Bayview
Loan Servicing, LLC (“Bayview) and entering a decree of foreclosure. We affirm.
I.
{¶2} On September 28 2007, Augustus Woods, Mr. Woods’ father, executed an
adjustable rate note in the amount of $126,900 in favor of Real Living Mortgage, LLC for
property located at 51 Kuder Avenue, in Akron. At some point in time, the note was endorsed to
Wells Fargo Bank, N.A. and then from Wells Fargo Bank, N.A. to Bayview. The note was
secured by a mortgage on the same property in favor of Real Living Mortgage. The mortgage
was assigned on September 28, 2007, to Wells Fargo Bank, N.A. and the assignment was
recorded on October 10, 2007. On August 7, 2013, Wells Fargo Bank, N.A. assigned the
mortgage to Bayview. The assignment was subsequently recorded.
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{¶3} In April 2013, Augustus Woods passed away and his mortgage payments became
delinquent as of the June 1, 2013 payment. In August 2013, Bayview sent a notice of default and
intent to accelerate to the property.
{¶4} In January 2014, Bayview filed a complaint for foreclosure against Augustus
Woods, the unknown spouse of Augustus Woods, and the unknown heirs at law or under will of
Augustus Woods. Bayview asserted that it was the holder of the note and mortgage, that there
had been a default in payment, that $38,232.28 plus interest from May 1, 2013 was owed, and
that it had complied with all conditions precedent in the note and mortgage. Bayview sought
monetary judgment and foreclosure on the property. In February 2014, Bayview filed an
amended complaint adding Mr. Woods and Shannon Woods as Defendants in the action. In
April 2014, Mr. Woods filed a narrative answer.
{¶5} On August 20, 2014, Bayview filed a motion for a default judgment against
Augustus Woods, the unknown spouse of Augustus Woods, the unknown heirs at law or under
will of Augustus Woods, and Shannon Woods. Additionally, Bayview filed a motion for
summary judgment against Mr. Woods. Mr. Woods did not oppose the motion.
{¶6} On December 29, 2014, the trial court issued a judgment of foreclosure, granted
summary judgment to Bayview and found the remaining parties were in default for failing to
answer. Mr. Woods has now appealed, pro se, from that judgment, raising four assignments of
error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
TO [BAYVIEW] AS THERE WAS A GENUINE ISSUE OF[] MATERIAL
FACT WHEN [BAYVIEW] STATED THAT PROPERTY TAXES HAD NOT
BEEN PAID AT THE TIME OF THE FILING FOR SUMMARY JUDGMENT.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
TO [BAYVIEW] AS THERE WAS A GENUINE ISSUE OF MATERIAL FACT
WHETHER [BAYVIEW] PROVIDED THE PROPER NOTICES
SPECIFICALLY TO [MR. WOODS] OF DEFAULT PRIOR TO
ACCELERATION.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
TO [BAYVIEW] AS THERE WAS A GENUINE ISSUE OF MATERIAL FACT
IN VIOLATION OF ((1988), 62 OHIO APP.3D 277), THAT ACCORDING TO
THE LOAN AGREEMENT FILED WITH THE SUMMARY JUDGME[NT,]
AUGUSTUS WOODS WAS APPROXIMATELY 13 YEARS AHEAD OF HIS
MORTGAGE PAYMENTS PRIOR TO HIS DEATH.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
TO [BAYVIEW] AS THERE WAS A GENUINE ISSUE OF MATERIAL FACT
IN VIOLATION OF (1988), 62 OHIO APP.3D 277 SINCE [BAYVIEW]
NEVER PRESENTED A LOAN AGREEMENT SPECIFIC TO THIS DEBT. IF
YOU PAY CLOSE ATTENTION YOU WILL SEE THE TERMS OF THE
ATTACHED LOAN AGREEMENT DOES NOT MATCH THE TERMS OF
THE LOAN THEY HOLD. THEY DO NOT HOLD AN AGREEMENT
SIGNED BY AUGUSTUS WOODS FOR THIS DEBT. AUGUSTUS WOODS
ONLY SIGNATURE IS FOR THE LOAN PRESENTED BY [BAYVIEW].
AUGUSTUS WOODS MADE NO OTHER AGREEMENT WITH ANY
ENTITY, INCLUDING PAST DEBT SECURIT[IES]. THIS LOAN HAS BEEN
PAID 13 YEARS AHEAD. WHILE THE AMOUNT THAT IS OWED IS
CORRECT THERE IS NO OTHER AGREEMENT FOR THE TERMS SAVE
THE ONE FILED WITH THE SUMMARY JUDGMENT REQUEST MAKING
THIS AGREEMENT THE BINDING ONE IN THE ABSENCE OF ANY
OTHER AGREEMENT AND OR SIGNATURE. [SIC.]
{¶7} Mr. Woods asserts in his first assignment of error that a genuine issue of material
fact remained because Bayview misrepresented that the property taxes were unpaid. Mr. Woods
argues in his second assignment of error that the trial court erred in granting summary judgment
when Bayview failed to establish that it specifically sent him a notice of default prior to
acceleration. Mr. Woods appears to argue in his third and fourth assignments of error that
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summary judgment was inappropriate because Augustus Woods had made substantial
prepayments of principal.
{¶8} We first note that Mr. Woods has appeared pro se before this Court and in the trial
court. With respect to pro se litigants, we have said:
[P]ro se litigants should be granted reasonable leeway such that their motions and
pleadings should be liberally construed so as to decide the issues on the merits, as
opposed to technicalities. However, a pro se litigant is presumed to have
knowledge of the law and correct legal procedures so that he remains subject to
the same rules and procedures to which represented litigants are bound. He is not
given greater rights than represented parties, and must bear the consequences of
his mistakes. This Court, therefore, must hold [a pro se appellant] to the same
standard as any represented party.
(Internal quotations and citations omitted.) Stewart v. Hickory Hills Apts., 9th Dist. Medina No.
14CA0038-M, 2015-Ohio-5046, ¶ 6.
{¶9} While Mr. Woods has raised four assignments of error, he has not developed any
argument with respect to those assignments of error or cited to relevant authority that would
support his specific positions. See App.R. 16(A)(7). For example, Mr. Woods has pointed to no
case law or to anything in the mortgage or note that would require that Bayview serve him
specifically with a notice of default; Augustus Woods was the borrower under the note and
mortgage, not Mr. Woods. Further, Mr. Woods’ arguments could, and should have been, raised
in the trial court. However, Mr. Woods failed to oppose Bayview’s motion for summary
judgment. Thus, unfortunately, this Court cannot address the merits of Mr. Woods’ arguments as
they have been forfeited. “When the non-moving party fails to raise an argument when
responding to the motion for summary judgment, the party forfeits the right to raise that
argument on appeal.” Sovereign Bank, N.A. v. Singh, 9th Dist. Summit No. 27178, 2015-Ohio-
3865, ¶ 11. “Moreover, by failing to respond to the motion for summary judgment, [Mr. Woods]
failed to provide any Civ.R. 56 evidence to demonstrate the existence of a genuine issue of fact
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for trial.” Id. Nonetheless, “we must still review the trial court’s decision to determine whether
the grant of summary judgment was appropriate.” (Internal quotations and citations omitted.)
Id.
{¶10} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts
of the case in the light most favorable to the non-moving party and resolving any doubt in favor
of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶11} Pursuant to Civ.R. 56(C), summary judgment is proper only if:
(1) No genuine issue as to any material fact remains to be litigated; (2) 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., 50 Ohio St.2d 317, 327 (1977). The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for the motion and
pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher
v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the moving party fails to satisfy its initial burden,
the motion for summary judgment must be denied.” Id. at 293. If the moving party fulfills this
burden, then the burden shifts to the nonmoving party to prove that a genuine issue of material
fact exists. Id.
{¶12} “[A] foreclosure requires a two[-]step process. The prerequisites for a party
seeking to foreclose a mortgage are execution and delivery of the note and mortgage; valid
recording of the mortgage; default; and establishing an amount due.” (Internal quotations and
citations omitted.) Singh at ¶ 9. “Once a court has determined that a default on an obligation
secured by a mortgage has occurred, it must then consider the equities of the situation in order to
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decide if foreclosure is appropriate.” (Internal quotations and citation omitted.) Id. “With
respect to determining whether foreclosure is an equitable remedy, a majority of this Court has
taken the position that we will refrain from undertaking an equitable analysis under
circumstances such as this where the appellant did not properly raise the issue.” Id. at ¶ 12.
{¶13} Here, in support of its motion for summary judgment, Bayview offered the
affidavit of an employee of Bayview. The employee averred that Bayview or Bayview’s agent
had possession of the original note, that the employee had examined Augustus Woods’ loan
account and that there was due $38,232.28 in unpaid principal, plus interest as of May 1, 2013.
The employee further averred that the employee relied upon the “Notice of Intent to Foreclose”
issued on August 28, 2013 in making the affidavit and that a true and accurate copy of the notice
was attached to the affidavit as Exhibit D. Additionally, the employee stated that the documents
attached to the complaint were true copies of the original loan documents maintained as business
records by Bayview. Attached to the original complaint was a copy of the note, which included
an indorsement to Bayview, a copy of the mortgage, a copy of the adjustable rate rider, and a
copy of the assignments of the mortgage, which included an assignment to Bayview. Exhibit D
of the motion for summary judgment included not only the notice of intent to foreclose1, which
indicated it had been mailed but also various loan related printouts. The notice of intent to
foreclose indicated that the loan was due for the June 1, 2013 payment and, inter alia, indicated
an amount necessary to cure the default. The other loan related printouts, while somewhat
confusing due to the use of abbreviations that are not explained, do reflect a principal balance of
$38,232.28. Thus, we conclude Bayview satisfied its burden as the moving party. See Singh at ¶
1
The notice is actually entitled “Notice of Default and Intent to Accelerate” but for ease
of discussion we will refer to it as the affiant has.
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11. “Absent any evidence to the contrary, the trial court did not err in concluding that [Bayview]
satisfied the prerequisites for a party seeking to foreclose on a mortgage.” Id.
{¶14} Accordingly, in light of the lack of argument made below and on appeal, we can
only conclude that the trial court did not err in granting summary judgment to Bayview. Mr.
Woods’ four assignments of error are overruled.
III.
{¶15} The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
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WHITMORE, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
DERICK A. WOODS, pro so, for Appellant.
RACHEL M. KUHN and DARRYL E. GORMLEY, Attorneys at Law, for Appellee.