The bank filed the affidavits of two of its employees in support of its motion for summary judgment. The first affidavit established the following facts: On November 22, 1982, Michael Franke signed a loan application, consumer note and *Page 193 withdrawal slip. On both the application and note "a notation was made that the note was to be secured by a certificate of deposit."
Photocopies of the loan application form and note were attached to the bank's motion. Both bank forms appear to have been drafted for motor vehicle financing purposes. The "security agreement" portion of the note was left blank. A certificate of deposit number appears on both the note and the loan application which refers to a joint and survivorship certificate in the names of Michael R. Franke or Dora Franke.
The second affidavit established the fact that Michael Franke died on June 27, 1983, and that the note installment due on September 20, 1983 was not paid prior to the setoff by the bank on September 23, 1983.
The plaintiff's motion for summary judgment was supported only by her affidavit which merely established the fact that she purchased the certificate of deposit with her sole funds.
The movant in summary judgment has the burden to show that no genuine issue exists as to all material facts and that the moving party is entitled to judgment as a matter of law. Harless v.Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 8 Ohio Op. 3d 73, 375 N.E.2d 46. The trial court is required to overrule a motion for summary judgment unless "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," who is "entitled to have the evidence * * * construed most strongly in his favor." Civ. R. 56(C).
Applying this test to the facts established by the affidavits, it is my view that both motions for summary judgment should have been overruled. I would reverse and remand for further proceedings.