[Cite as Bank of Am., N.A. v. Moore, 2013-Ohio-3370.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BANK OF AMERICA, N.A.                            :      JUDGES:
                                                 :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       :      Hon. Sheila G. Farmer, J.
                                                 :      Hon. Craig R. Baldwin, J.
-vs-                                             :
                                                 :
RANDY MOORE, ET AL.                              :      Case No. 13CA1
                                                 :
        Defendants-Appellants                    :      OPINION




CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas, Case No. 12FR06-0319



JUDGMENT:                                               Affirmed




DATE OF JUDGMENT:                                       August 1, 2013




APPEARANCES:

For Plaintiff-Appellee                                  For Defendants-Appellants

BRADLEY P. TOMAN                                        BRIAN K. DUNCAN
24755 Chagrin Blvd.                                     155 East Broad Street
Suite 200                                               Suite 2200
Cleveland, OH 44122                                     Columbus, OH 43215
Knox County, Case No. 13CA1                                                             2

Farmer, J.

      {¶1}   On June 20, 2012, appellee, Bank of America, N.A., filed a complaint in

foreclosure against appellants, Randy and Cheryl Moore, for failure to pay on a note.

      {¶2}   On September 19, 2012, appellee filed a motion for summary judgment.

By judgment entry filed December 19, 2012, the trial court granted the motion and

entered a judgment of foreclosure.

      {¶3}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶4}   "THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE

ISSUES OF FACT AND PLAINTIFF WAS NOT ENTITLED TO JUDGMENT AS A

MATTER OF LAW."

                                           II

      {¶5}   "THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR

SUMMARY JUDGMENT BECAUSE DEFENDANTS WERE NEITHER AFFORDED A

FULL AND FAIR OPPORTUNITY TO CONDUCT DISCOVERY ON ALL FACTUAL

MATTERS IN DISPUTE NOR VERIFY THE MERIT OF PLAINTIFF'S COMPLAINT."

                                           I

      {¶6}   Appellants claim the trial court erred in granting summary judgment to

appellee as appellee was not the "holder in due course" of the underlying note. We

disagree.
Knox County, Case No. 13CA1                                                         3


       {¶7}   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, 1996-Ohio-211:



              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.



       {¶8}   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

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987).

       {¶9}   R.C. 1303.32 governs holder in due course. Subsection (A) states the

following:
Knox County, Case No. 13CA1                                                             4


              (A) Subject to division (C) of this section and division (D) of section

      1303.05 of the Revised Code, "holder in due course" means the holder of

      an instrument if both of the following apply:

              (1) The instrument when issued or negotiated to the holder does

      not bear evidence of forgery or alteration that is so apparent, or is not

      otherwise so irregular or incomplete as to call into question its authenticity;

              (2) The holder took the instrument under all of the following

      circumstances:

              (a) For value;

              (b) In good faith;

              (c) Without notice that the instrument is overdue or has been

      dishonored or that there is an uncured default with respect to payment of

      another instrument issued as part of the same series;

              (d) Without notice that the instrument contains an unauthorized

      signature or has been altered;

              (e) Without notice of any claim to the instrument as described

      in section 1303.36 of the Revised Code;

              (f) Without notice that any party has a defense or claim in

      recoupment described in division (A) of section 1303.35 of the Revised

      Code.



      {¶10} In their response to the motion for summary judgment, appellants argued

there was a genuine issue of material fact as to whether appellee was the holder in due
Knox County, Case No. 13CA1                                                              5


course. Appellants also argued other vague fact issues, but failed to assign them as

error. Attached to the complaint is a commitment to modify mortgage and modification

agreement dated May 18 2010, wherein appellants admitted to default. See, June 20,

2012 Complaint at Exhibit B. No evidentiary quality material was submitted to dispute

appellee's claims.

      {¶11} Appellee presented the affidavit of its officer, Denise Sipe, in support of its

motion. Ms. Sipe averred the following:



             4. BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO

      BAC HOME LOANS SERVICING, L.P., FKA, COUNTRYWIDE HOME

      LOANS SERVICING, L.P. directly or through an agent, has possession of

      the promissory note. The promissory note has been duly indorsed. BANK

      OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS

      SERVICING, L.P., FKA, COUNTRYWIDE HOME LOANS SERVICING,

      L.P. is the assignee of the security instrument for the referenced loan.



      {¶12} Attached to the complaint is an assignment of mortgage which

demonstrates the mortgage was assigned to appellee three years prior to the filing of

the complaint. See, June 20, 2012 Complaint at Exhibit C. We find the requirements of

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

5017, have been met.

      {¶13} Upon review, we find the trial court did not err in finding no genuine issue

of material fact on whether appellee was the holder in due course of the note.
Knox County, Case No. 13CA1                                                          6


      {¶14} Assignment of Error I is denied.

                                           II

      {¶15} Appellants claims the trial court erred in denying their Civ.R.56(F) motion

as they should have been afforded additional time for discovery to address the issues

raised in the motion. We disagree.

      {¶16} Civ.R. 56(F) states the following:



             Should it appear from the affidavits of a party opposing the motion

      for summary judgment that the party cannot for sufficient reasons stated

      present by affidavit facts essential to justify the party's opposition, the

      court may refuse the application for judgment or may order a continuance

      to permit affidavits to be obtained or discovery to be had or may make

      such other order as is just.



      {¶17} The decision of whether to grant or deny a Civ.R. 56(F) continuance is

within the sound discretion of the trial court. Beegle v. Amin, 156 Ohio App.3d 533,

2004-Ohio-1579 (7th Dist.). In order to find an abuse of discretion, we must determine

the trial court's decision was unreasonable, arbitrary or unconscionable and not merely

an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

      {¶18} Appellee filed the complaint on June 20, 2012. Appellants answered and

counterclaimed on July 19, 2012, and requested foreclosure mediation. The trial court

denied mediation on August 6, 2012. On September 19, 2012, appellee filed its motion
Knox County, Case No. 13CA1                                                                7


for summary judgment. Appellants filed their Civ.R. 56(F) motion on October 3, 2012,

and memorandum contra to the summary judgment motion on October 19, 2012.

       {¶19} In their answer to the complaint, appellants raised numerous defenses

including the Federal Truth and Lending Act, the Real Estate Settlement Practices Act,

the Fair Debt Collection Act, and the Ohio Consumer Sales Practices Act.               They

challenged real party in interest, the jurisdiction of the trial court and venue, and claimed

they were entitled to recoupment or a set off and some rescission.

       {¶20} We find no Civ.R. 56(F) affidavit was submitted to substantiate the reason

for the continuance. State, ex rel. Coulverson v. Ohio Adult Parole Authority, 62 Ohio

St.3d 12 (1991) [without a valid affidavit, "the court of appeals could not act under Civ.R.

56(F)"].

       {¶21} Upon review, we find the trial court did not abuse its discretion in denying

the Civ.R. 56(F) motion.

       {¶22} Assignment of Error II is denied.
Knox County, Case No. 13CA1                                                8


      {¶23} The judgment of the Court of Common Pleas of Knox County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




                                      _______________________________
                                      Hon. Sheila G. Farmer



                                      _______________________________
                                      Hon. W. Scott Gwin



                                      _______________________________
                                      Hon. Craig B. Baldwin


SGF/sg 717
[Cite as Bank of Am., N.A. v. Moore, 2013-Ohio-3370.]


                     IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



BANK OF AMERICA, N.A.                                   :
                                                        :
        Plaintiff-Appellee                              :
                                                        :
-vs-                                                    :       JUDGMENT ENTRY
                                                        :
RANDY MOORE, ET AL.                                     :
                                                        :
        Defendants-Appellants                           :       CASE NO. 13CA1




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Knox County, Ohio is affirmed. Costs to

appellants.




                                                        _______________________________
                                                        Hon. Sheila G. Farmer



                                                        _______________________________
                                                        Hon. W. Scott Gwin



                                                        _______________________________
                                                        Hon. Craig B. Baldwin
