[Cite as M&T Bank v. Woods, 2017-Ohio-8500.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
M&T BANK : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JO E. WOODS, ET AL. :
:
Defendants-Appellees : Case No. 17 CAE 07 0050
:
and :
:
LISE M. LOGSDON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 16 CV E 10 0618
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 8, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MATTHEW J. RICHARDSON SUSAN N. HAYES
P.O. Box 165028 5878 North High Street
Columbus, OH 43216-5028 Worthington, OH 43085
Delaware County, Case No. 17 CAE 07 0050 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Lise M. Logsdon, appeals the June 28, 2017
decision of the Court of Common Pleas of Delaware County, Ohio, granting summary
judgment to Plaintiff-Appellee, M&T Bank, and issuing a decree in foreclosure.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 4, 2002, appellant and Jo E. Woods became the record owners
of property located on Center Village Road in Galena, Ohio.
{¶ 3} On June 27, 2006, Jo E. Woods, as "Borrower," executed a note with
appellee. Appellant signed the note as "Owner" (non-borrower), and agreed to be
legally bound by the terms of the note secured by a mortgage on the subject property.
Both parties purportedly signed the mortgage and it was duly recorded on July 12,
2006.
{¶ 4} On June 17, 2013, appellant and Jo E. Woods executed a mortgage on
the subject property with Peoples Bank, duly recorded on July 3, 2013. A subordination
agreement was signed on April 19, 2013, purportedly making appellee's mortgage
subordinate to the Peoples Bank mortgage.
{¶ 5} On December 14, 2015, Jo E. Woods quitclaimed her interest in the
property to appellant.
{¶ 6} On October 7, 2016, appellee filed a complaint for foreclosure against
appellant and others to recover monies due and owing on the note. The complaint
acknowledged Jo E. Woods's obligations under the note had been discharged under
bankruptcy. Appellee was seeking to enforce its security interest and foreclose on the
property.
Delaware County, Case No. 17 CAE 07 0050 3
{¶ 7} On October 24, 2016, appellant filed an answer and denied her signature
was on the mortgage and asserted the affirmative defense of fraudulent signature.
{¶ 8} On May 2, 2017, appellee filed a motion for summary judgment against
appellant, claiming no genuine issues of material fact to exist. Appellee also requested
default against non-answering defendants, including Mortgage Electronic Registration
System, Inc., as nominee for Peoples Bank. In support of its motion, appellee
submitted the affidavit of a Banking Officer who attested to the documents and averred
payments had not been made per the terms of the note and mortgage and a notice of
default was sent to "Borrower" on April 20, 2016. Per the terms of the loan, appellee
had accelerated the account, making the entire balance due ($33,176.28 plus interest).
{¶ 9} On May 16, 2017, appellant filed a memorandum in opposition to the
motion for summary judgment, claiming she did not sign the note and the mortgage did
not bear her signature. In support, appellant submitted her affidavit wherein she
averred she is the owner of the subject property, and in June 2006, she believed she
could not have physically signed the mortgage due to her health. Appellant had been
diagnosed with MS, Trigeminal Neuralgia, and Sjogrens Syndrome. Appellant also
contested the priority of appellee's mortgage because of the mortgage with Peoples
Bank in 2013.
{¶ 10} On June 12, 2017, appellee filed a reply, claiming appellant did not have
standing to contest lien priority, and the challenge to her signature was self-serving.
Appellee pointed out appellant did not specifically deny signing the mortgage, but stated
she believed she could not have physically signed it. Appellant did not present any
Delaware County, Case No. 17 CAE 07 0050 4
medical evidence to support her assertion, and did not conduct discovery relative to the
notary who notarized the signatures to the mortgage.
{¶ 11} By in rem judgment entry filed June 28, 2017, the trial court granted
appellee's motion for summary judgment, granted default against non-answering
defendants, and issued a decree in foreclosure.
{¶ 12} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 13} "THE JUDGE ERRED AS A MATTER OF LAW IN GRANTING
APPELLEE M&T BANK'S MOTION FOR SUMMARY JUDGMENT WHERE ISSUES OF
FACT REMAINED."
{¶ 14} Preliminarily, we note this case is before this court on the accelerated
calendar which is governed by App.R. 11.1. Subsection (E), determination and
judgment on appeal, provides in pertinent part: "The appeal will be determined as
provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the
statement of the reason for the court's decision as to each error to be in brief and
conclusionary form."
{¶ 15} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts, and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist.1983).
Delaware County, Case No. 17 CAE 07 0050 5
{¶ 16} This appeal shall be considered in accordance with the aforementioned
rules.
I
{¶ 17} In her sole assignment of error, appellant claims genuine issues of
material fact existed and therefore the trial court erred in granting summary judgment to
appellee. We disagree.
{¶ 18} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (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 nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is
made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,
628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50
Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
{¶ 19} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
Delaware County, Case No. 17 CAE 07 0050 6
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35, 506 N.E.2d 212 (1987).
{¶ 20} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.
15CA56, 2015-Ohio-4444, ¶ 13:
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 (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91
L.Ed.2d 265(1986). The standard for granting summary judgment is
delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * 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
Delaware County, Case No. 17 CAE 07 0050 7
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 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.
{¶ 21} To properly support a motion for summary judgment in a foreclosure
action, a plaintiff must present evidentiary quality materials establishing: (1) the plaintiff
is the holder of the note and mortgage, or is a party entitled to enforce the instrument;
(2) if the plaintiff is not the original mortgagee, the chain of assignments and transfers;
(3) the mortgagor is in default; (4) all conditions precedent have been satisfied; and (5)
the amount of principal and interest due. Wachovia Bank of Delaware, N.A. v. Jackson,
5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶ 40-45.
{¶ 22} In support of its May 2, 2017 motion for summary judgment, appellee
presented the affidavit of Banking Officer Sandy Korbut attesting to these issues at ¶ 5-
10, with the subject note and mortgage bearing appellant's signatures and the April 20,
2016 notice of default to Jo E. Woods attached.
{¶ 23} In her appellate brief at 7-8, appellant argues because of her MS, she
would have been unable to sign the mortgage in June 2006, she never received any
funds from the loan therefore the mortgage was not supported by any consideration to
her, and she never received notice of the terms and of the default. She argues these
issues raise "issues of conflicting facts and inferences."
Delaware County, Case No. 17 CAE 07 0050 8
{¶ 24} In her May 16, 2017 memorandum in opposition to the motion for
summary judgment, appellant argued she did not sign the note and the signature on the
mortgage is not hers. A review of the note evidences Jo E. Woods signed the note as
"Borrower" and appellant signed the note as an "Owner" on June 27, 2006. In signing
the note, appellant agreed she did not have the right to obtain loans under the note and
agreed "only to be legally bound by the terms of this Agreement relating to the
Mortgage, to the Mortgaged Property, and to insurance on the Mortgage Property. The
Owner's liability is limited to the Owner's interest in the Mortgaged Property." In
exchange, Jo E. Woods, co-owner of the subject property at the time, received loan
proceeds from appellee.
{¶ 25} Appellant's signature appears on the mortgage, also signed on June 27,
2006. In her affidavit filed May 16, 2017, appellant averred "I do not believe I could
have physically signed the mortgage being foreclosed * * * or at a minimum would not
have understood or been able to acknowledge that I signed it." The signature was
authenticated by a notary, Roger Rill. This same notary authenticated appellant's
signature on the note. The contents of the acknowledgments comply with R.C. 147.53.
{¶ 26} A self-serving affidavit that is not corroborated by any evidence is
insufficient to establish the existence of an issue of material fact. Wells Fargo Bank v.
Blough, 4th Dist. Washington No. 08CA49, 2009-Ohio-3672, ¶ 18. " 'To conclude
otherwise would enable the nonmoving party to avoid summary judgment in every case,
crippling the use of Civ.R. 56 as a means to facilitate "the early assessment of the
merits of claims, pre-trial dismissal of meritless claims and defining and narrowing
issues for trial." ' " Hooks v. Ciccolini, 9th Dist. Summit No. 20745, 2002 WL 1023172,
Delaware County, Case No. 17 CAE 07 0050 9
*2 (May 15, 2002), quoting Bank One, N.A. v. Burkey, 9th Dist. Lorain No. 99CA7359,
2000 WL 763341, *5 (June 14, 2000) (Slaby, P.J., dissenting).
{¶ 27} In her affidavit, appellant did not deny signing the mortgage, but believed
she could not have signed it given her physical condition. She did not corroborate her
belief with any evidentiary quality evidence from a doctor, family member, or friend
attesting to her inability to write her name in June 2006. She also did not present any
evidence from the notary to refute the acknowledgment of her signature.
{¶ 28} We find appellant's self-serving affidavit is not sufficient to preclude
summary judgment.
{¶ 29} As for consideration, although appellant did not personally receive loan
proceeds, the then co-owner of the subject property, Jo E. Woods, did.
{¶ 30} Notice of default on the note was sent to Jo E. Woods as "Borrower" as
set forth in the note and Korbut's affidavit at ¶ 9. The mortgage at ¶ 30 states: "If 2 or
more persons sign this mortgage, all of them will be, individually and together, liable
under it, and, except to the extent required by applicable law, we can send or deliver
any notice concerning it to any of them, and the notice will be effective for all of them."
The note includes a similar provision at ¶ 29.
{¶ 31} Appellant's argument relative to lien priority is not a factor in appellee's
ability to foreclose on the property. Appellee had a valid lien on the property and named
Peoples Bank's nominee as a defendant who failed to answer or otherwise defend.
{¶ 32} We find appellant has not met her reciprocal burden outlined in Civ.R.
56(E) to set forth specific facts showing there is a genuine issue for trial.
Delaware County, Case No. 17 CAE 07 0050 10
{¶ 33} Upon review, we find the trial court did not err in granting summary
judgment to appellee.
{¶ 34} The sole assignment of error is denied.
{¶ 35} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Wise, John, J. concur.
EEW/sg 103
Delaware County, Case No. 17 CAE 07 0050 11
Hoffman, P.J., concurring
{¶36} I generally concur in the majority’s analysis and disposition of Appellant’s
sole assignment of error.
{¶37} I write separately only to state my disagreement with the categorical
proposition of law a self-serving affidavit which is not corroborated by any evidence is
insufficient to establish the existence of an issue of material fact. Nevertheless, under
the unique circumstances of this case, I agree with the majority Appellant has failed to
present sufficient evidence of a genuine dispute as to the material fact concerning her
signature.
________________________________
HON. WILLIAM B. HOFFMAN