[Cite as R.B.S. Citzens v. Adams, 2012-Ohio-1889.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




RBS CITIZENS, N.A. FKA
CITIZENS BANK, N.A.
SUCCESSOR BY MERGER TO
CHARTER ONE BANK, N.A.,
                                                         CASE NO. 13-11-35
        PLAINTIFF-APPELLEE,

        v.

LARRY M. ADAMS, ET AL.,                                  OPINION

        DEFENDANTS-APPELLANTS.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 11 CV 0339

                                     Judgment Affirmed

                             Date of Decision: April 30, 2012




APPEARANCES:

        Charles R. Hall, Jr. for Appellants

        Roger W. Goranson and Gretchen F.G. Weston for Appellee
Case No. 13-11-35


WILLAMOWSKI, J.

           {¶1} Defendants-Appellants, Larry M. Adams and Shannon B. Adams

(“Appellants”), appeal the judgment of the Seneca County Court of Common

Pleas granting summary judgment in favor of Plaintiff-Appellee, RBS Citizens,

N.A. (“the Bank”) in the Bank’s foreclosure action against Appellants. On appeal,

Appellants contend that the trial court erred in granting summary judgment in

favor of the Bank because they claim that the Bank failed to provide evidence that

it sufficiently complied with the Acceleration Notice Clause in their Mortgage

documents as a condition precedent to foreclosure. For the reasons set forth

below, the judgment is affirmed.

           {¶2} On November 8, 2005, Appellants executed a Note for $120,000, at

7.07% annual interest, in favor of the Bank1 and secured by a Mortgage on their

property at 5303 East Township Road 138, Tiffin, Ohio 44883. On August 18,

2011, the Bank filed a Complaint for foreclosure, seeking in rem judgment on the

Note and also seeking to foreclose its Mortgage lien interest on the subject

property. Appellants filed an answer of general denials and a list of non-specific

affirmative defenses.

           {¶3} On September 28, 2011, the Bank filed a motion for summary

judgment, stating that it was entitled to judgment as a matter of law. In addition to



1
    RBS Citizens, N.A., is successor by merger to Charter One Bank, N.A.

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the pleadings already filed, the Bank relied upon the affidavit of its employee

Linda Cross, verifying that the Bank was the owner and holder of the attached

promissory Note and Mortgage, and further attesting that the account was in

default for the payment due March 1, 2011, and all subsequent payments thereto

were not made. Ms. Cross further attested that the Bank had elected to call the

entire balance of the account due and payable, in accordance with the terms of the

Note and Mortgage, and that the balance due as of February 1, 2011 was

$112,764.56, plus interest, taxes, and fees owed, for a total of $119,336.36 due.

       {¶4} On October 4, 2011, Appellants filed a response to the motion for

summary judgment, claiming that the Bank was not entitled to summary judgment

because it had failed to establish that it had sufficiently complied with the

Acceleration Notice Clause requiring that the Bank give prior notice of a default

or acceleration. Appellants cited to LaSalle Bank, N.A. v. Kelly, 9th Dist. No.

09CA0067-M, 2010-Ohio-2668, ¶ 13, quoting First Financial Bank v. Doellman,

12th Dist. No. CA2006-02-029, 2007-Ohio-222, ¶ 20, for the proposition that if

prior notice of default and/or acceleration is required by a provision in a note or

mortgage instrument, that provision of such notice is a condition precedent to

filing for foreclosure.    Appellants did not provide any affidavit or other

evidentiary materials with their response.




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Case No. 13-11-35


       {¶5} On October 17, 2011, the Bank filed a reply, asserting that Appellants’

opposing response was not supported by any proper supporting evidence pursuant

to Civ.R. 56. In addition, the Bank provided the affidavit of Linda Cross, attesting

that the attached Notice and Demand letter was sent to Appellants by U.S. Mail,

postage pre-paid on May 5, 2011, and that the letter had never been returned as

undelivered. The affiant further stated the copy of the demand letter attached to

the affidavit was a true and accurate copy of the original letter giving Appellants

Notice of Default and Acceleration. The attached letter was addressed to the

Appellants, dated May 4, 2011, and it stated:

       As you know, your mortgage payments are delinquent from the 03-
       01-11 installment. This constitutes a default under the terms of your
       mortgage loan documents. The total amounted needed to cure this
       default as of 05-04-11 date is $3,407.36. * * *

       Failure to cure the above-stated default by 06-03-11 may result in
       the noteholder’s decision to accelerate the entire debt. This means
       that further payments may not be accepted on your loan and
       foreclosure proceedings may be instituted under the terms of your
       loan documents, resulting in foreclosure. * * *

(Oct. 17, 2011 Plaintiff’s Reply).

       {¶6} On November 4, 2011, after consideration of all pleadings and

evidence presented, the trial court found that there were no genuine issues as to

any material fact and that the Bank was entitled to judgment as a matter of law. It

is from this judgment that Appellants timely appeal, raising the following

assignment of error for our review.

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Case No. 13-11-35




                               Assignment of Error

       The trial court abused its discretion by granting [the Bank’s]
       Motion for Summary Judgment.

       {¶7} In their sole assignment of error, Appellants assert that the Bank failed

to establish that it sufficiently complied with the Acceleration Notice Clause as a

condition precedent to foreclosure. Appellants claim that they raised an “issue of

fact” when they responded to the Bank’s motion for summary judgment and

asserted that the bank failed to provide notice of acceleration as a condition

precedent according to provision number 22 of the Mortgage instrument.

Appellants contend that the Bank’s “self-serving affidavit that it had sent a notice

to the Appellants” was a conclusory statement that was not sufficient to “resolve

genuine issues of material facts in its favor.” (Appellants’ Brief, p. 7)

       {¶8} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th

Dist.1999). Pursuant to Civ.R. 56(C), summary judgment may be granted when:

(1) there is no genuine issue of material fact; (2) the moving party is entitled to

judgment as a matter of law; and (3) reasonable minds can come to but one

conclusion and that conclusion is adverse to the nonmoving party, who is entitled

to have the evidence construed most strongly in his or her favor. Horton v.

Harwick Chemical Corp., 73 Ohio St.3d 679, 686–687, 1995–Ohio–286.

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       {¶9} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996–Ohio–107. Once the

moving party meets its initial burden, the nonmoving party must then produce

competent Civ.R. 56(C) evidence demonstrating that there is a genuine, material

issue for trial. Id. at 293. In order to defeat summary judgment, the nonmoving

party must produce evidence beyond conclusory statements or denials set forth in

the pleadings; rather, the non-movant must submit evidentiary material sufficient

to create a genuine dispute over material facts at issue. Civ.R. 56(E); Dresher,

supra; Miller v. Potash Corp. of Saskatchewan, Inc., 3d Dist. No. 1–09–58, 2010–

Ohio–4291, ¶ 13.      Conclusory allegations by either party, without specific

supporting facts, have no probative value.

       {¶10} Based upon our de novo review of the evidentiary materials in the

record, we find that the trial court did not err when it granted summary judgment

in favor of the Bank. The record shows that: (1) Appellants never raised a

genuine issue of material fact as to whether or not the Bank had sent the Notice of

Acceleration; and, (2) the Bank did present summary judgment evidence that it

had sufficiently complied with the Acceleration Notice as a condition precedent to

foreclosure.




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          {¶11} In its response to the Bank’s motion for summary judgment,

Appellants simply claimed that the Bank had not submitted any evidence that it

had provided Appellants with required notice of default or acceleration, per the

terms of their Mortgage agreement. However, Appellants did not claim that the

Bank failed to send such notice or that they had not received any such notice. Nor

did they submit any Civ.R. 56(C) evidentiary materials demonstrating that the

Bank had not sent them the required notice. Appellants merely pointed out that

the Bank had failed to submit such evidence with its motion.

          {¶12} The Bank then supplemented its motion for summary judgment with

another affidavit from Ms. Cross and a copy of the Notice of Default and

Acceleration that it had sent. The trial court now had before it evidence from the

Bank that Appellants were in default; that they had failed to cure the default; and

that they had been provided with the proper notice before foreclosure actions were

commenced.        There was no evidence from Appellants disputing any of this

evidence, so there were no issues of fact before the trial court that would preclude

its finding that the Bank was entitled to judgment as a matter of law.

          {¶13} However, Appellants contend that the Bank’s “self-serving” affidavit

by Ms. Cross was not proper evidence, citing to this Court’s decision in Cornell v.

Rudolph, 3d Dist. No. 1-10-89, 2011-Ohio-4322, ¶ 12. However, in Cornell, we

stated:


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      “Generally, a party's unsupported and self-serving assertions, offered
      by way of affidavit, standing alone and without corroborating
      materials under Civ.R. 56, will not be sufficient to demonstrate
      material issues of fact. Otherwise, a party could avoid summary
      judgment under all circumstances solely by simply submitting such a
      self-serving affidavit containing nothing more than bare
      contradictions of the evidence offered by the moving party.”
      (Citations omitted.) TJX Cos., Inc. v. Hall, 183 Ohio App.3d 236,
      2009–Ohio–3372, 916 N.E.2d 862, ¶ 30.

(Emphasis added.) Id.

      {¶14} In this case, the Bank’s affidavit was submitted with corroborating

materials; it was considerably more than a “bare contradiction of the evidence.” A

copy of the Notice was attached, and it was authenticated by way of the affidavit.

And, as stated above, Appellants never submitted any evidentiary material

challenging the authenticity of the Notice or the fact that it had been sent. The

affidavit and copy of the letter providing Notice were proper summary judgment

evidence pursuant to Civ.R. 56.

      {¶15} It was undisputed that Appellants executed the subject Note and

Mortgage owned by RBS and it was also undisputed that Appellants defaulted on

their payments. Furthermore, Appellants did not dispute the amount that was

owed. Appellants’ only basis for claiming that the Bank was not entitled to

summary judgment was their allegation that the Bank failed to provide evidence

that it had notified them prior to accelerating the debt.       This unsupported




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contention was disproved by the Bank’s unchallenged evidence that notice had

been sent. Based on the above, Appellants’ assignment of error is overruled.

       {¶16} Having found no error prejudicial to the Appellants herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr




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