[Cite as U.S. Natl. Bank Assn., N.A. v. Bartholomew, 2012-Ohio-3703.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

U.S. NATIONAL BANK ASSOCIATION,                           JUDGES:
N. A.                                                     Hon. Patricia A. Delaney, P.J.
                                                          Hon. W. Scott Gwin, J.
        Plaintiff-Appellee                                Hon. William B. Hoffman, J.

-vs-                                                      Case No. 2011CA00151

DEBORAH C. BARTHOLOMEW
                                                          OPINION
        Defendant-Appellant




CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court of
                                                      Common Pleas, Case No. 2009CV02199


JUDGMENT:                                             Affirmed in part; Vacated in part; and
                                                      Remanded


DATE OF JUDGMENT ENTRY:                               August 13, 2012


APPEARANCES:


For Plaintiff-Appellee                                For Defendant-Appellant


SCOTT A. KING                                         KRISTINE W. BEARD
TERRY W. POSEY, JR.                                   4450 Belden Village St. N.W.
Thompson Hine LLP                                     Suite 703
Austin Landing I                                      Canton, Ohio 44718-2540
10050 Innovation Drive
Suite 400
Dayton, Ohio 45342
Stark County, Case No. 2011CA00151                                                      2

Hoffman, J.


      {¶1}    Defendant-appellant Deborah C. Bartholomew appeals the June 14, 2011

Judgment Entry entered by the Stark County Court of Common Pleas granting summary

judgment in favor of Plaintiff-appellee U.S. Nation Bank Association, N.A.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On April 22, 2005, Appellant executed an adjustable rate note with a six

month index, which note was secured by a mortgage wherein Ownit Mortgage

Solutions, Inc. was the lender and Mortgage Electronic Registration Systems, Inc.

("MERS") was the mortgagee. MERS acted solely as nominee for Lender and Lender's

successors and assigns of the mortgage. The mortgage was filed for record on April

22, 2005, in the Stark County Recorder's Office.

      {¶3}    On May 28, 2009, the mortgage was received by U.S. Bank National

Association (“U.S. Bank”) as trustee for the Structured Asset Investment Loan Trust,

2005-IIE2 by way of an assignment from MERS as nominee for the original lender

Ownit Mortgage Solutions, Inc.

      {¶4}    On June 4, 2009, U.S. Bank filed a complaint in foreclosure against

Appellant alleging Appellant had defaulted under the terms of the note and the

mortgage securing the same.         U.S. Bank declared Appellant owed a debt of

$128,974.73, together with interest, in the amount of 11.2500% per year from

December 1, 2008.

      {¶5}    Appellant filed an answer and amended answer summarily denying the

allegations in the complaint. On June 26, 2009, the trial court referred the matter to the

Stark County mediation program.
Stark County, Case No. 2011CA00151                                                      3


      {¶6}   On March 9, 2010, Appellant signed a Home Affordable Modification

Agreement indicating an effective date of April 1, 2010 with America's Servicing

Company named as Lender.

      {¶7}   On September 13, 2010, U.S. Bank filed a motion for summary judgment.

On the same date, U.S. Bank filed an affidavit in support of motion for summary

judgment stating an amount due on the account in the amount of $128,908.51 together

with interest from January 1, 2009, at 11.250 per annum.

      {¶8}   Appellant filed a motion to strike the motion for summary judgment

asserting the motion was in violation of the trial court's order to stay the proceedings

pending mediation. The trial court did not address the motion to strike. Appellant did

not otherwise respond to the motion for summary judgment.

      {¶9}   On November 23, 2010, U.S. Bank sent Appellant notice she had been

denied a HAMP modification, but had been approved for a traditional loan modification

agreement.

      {¶10} On December 14, 2010, Appellant filed a motion to enforce the terms of

the agreement executed on March 9, 2010, and requested a hearing on the motion to

enforce the purported settlement agreement. U.S. Bank responded by filing a motion to

strike the motion to enforce. On May 2, 2011, the trial court granted the motion to strike

filed by U.S. Bank, and denied Appellant's motion to enforce the settlement agreement

without hearing.

      {¶11} Via Judgment Entry filed June 14, 2011, the trial court granted summary

judgment in favor of U.S. Bank.

      {¶12} Appellant now appeals, assigning as error:
Stark County, Case No. 2011CA00151                                                   4


      {¶13} “I. THE TRIAL COURT ERRED IN SUMMARILY STRIKING AND/OR

SUMMARILY DENYING APPELLANT’S MOTION TO ENFORCE THE SETTLEMENT

AGREEMENT WITHOUT A HEARING ON THE MATTER.

      {¶14} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND/OR

ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION TO ENFORCE THE

SETTLEMENT AGREEMENT.

      {¶15} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED AS

A MATTER OF LAW IN GRANTING APPELLEE’S MOTION FOR SUMMARY

JUDGMENT.”

                                             I. & II.

      {¶16} Appellant's first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

      {¶17} This Court reviews a trial court's decision on a motion to enforce a

settlement agreement by determining whether "the trial court's order is based on an

erroneous standard or a misconstruction of law." Continental W. Condominium Unit

Owners Ass'n v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501 (1996).

      {¶18} In order to be enforceable, the modification to a contract affecting an

interest in land must be in writing and "signed by the party to be charged therewith or

some other person…authorized". R.C. 1335.04 and R.C. 1335.05.

      {¶19} The HAMP document at issue herein provides for a “Loan Trial Period” in

which America's Servicing Company provides Appellant with a supplemental loan

modification agreement for a trial period during which Appellant pays a set amount each

month. The trial period listed in the HAMP document herein began April 1, 2010, and
Stark County, Case No. 2011CA00151                                                          5


ended July 1, 2010. The HAMP document was not provided by U.S. Bank, was not

signed by U.S. Bank and does not guarantee a loan modification agreement would

result.     Rather, the record reflects U.S. Bank offered Appellant a permanent loan

modification on November 23, 2010, which she refused.

          {¶20} Appellant asserts the trial court erred in denying her motion to enforce the

settlement agreement without first holding a hearing.         However, a trial court is not

required to hold a hearing on the issue where there is no evidence of a full and

complete agreement reached between the parties. First Merit Bank, N.A. v. Ashland

Lakes, LLC. Ashland App. No. 11-COA-017, 2012-Ohio-549.

          {¶21} Accordingly, we find the trial court did not err in summarily denying the

motion to enforce the alleged settlement agreement as there is no evidence a final

settlement agreement was, in fact, reached herein.

          {¶22} The first and second assignments of error are overruled.

                                                  III.

          {¶23} In the third assignment of error, Appellant maintains the trial court erred in

granting summary judgment in favor of U.S. Bank on the foreclosure action.

          {¶24} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

          {¶25} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
Stark County, Case No. 2011CA00151                                                      6


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.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶26} 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 (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * 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 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
Stark County, Case No. 2011CA00151                                                       7


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, 309 N.E.2d 924.

         {¶27} As set forth in our analysis and disposition of Appellant's first and second

assignments of error, the record demonstrates there was not a final enforceable

settlement agreement executed by the parties. The record reflects Appellant did not file

a responsive pleading to U.S. Bank's motion for summary judgment, and did not offer

evidence demonstrating a genuine of issue of material fact. Rather, Appellant's only

remaining argument is the amount due on the note was not properly supported by the

affidavit offered with the motion for summary judgment.

         {¶28} Appellant asserts she made additional payments on the note pursuant to

the terms of the HAMP document after the date of the affidavit offered in support of U.S.

Bank's motion for summary judgment. U.S. Bank admits the same in their brief to this

Court,

         {¶29} "To the extent Bartholomew made payments after January 1, 2009 (as she

had claimed to have done under the TPA), she is entitled to a credit against the balance

due on the judgment. The fact that she is entitled to a credit on the judgment does not

destroy the original accuracy of its calculation."

         {¶30} Pursuant to the terms of the HAMP document, Appellant paid $609.47 for

a number of months which were not contemplated in the September 13, 2010 affidavit

offered in support of U.S. Bank’s motion for summary judgment to establish damages.

Upon our review of the record and the evidence presented, we find the trial court

properly granted summary judgment in favor of U.S. Bank on the complaint in

foreclosure. However, on the issue of damages, the record contains sufficient evidence
Stark County, Case No. 2011CA00151                                                  8


Appellant made payments on the note herein after January 1, 2009, which payments

were not reflected in the amount set forth in the affidavit offered in support of U.S.

Bank's motion for summary judgment. Therefore, we hereby vacate the amount of the

award issued and remand the matter to the trial court for the limited purpose of a

redetermination of the amount due herein.

      {¶31} The judgment of the Stark County Court of Common Pleas is affirmed in

part; vacated in part; and remanded.

By: Hoffman, J.

Delaney, P.J. and

Gwin, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY


                                            s/ W. Scott Gwin_____________________
                                            HON. W. SCOTT GWIN
Stark County, Case No. 2011CA00151                                                9


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


U.S. NATIONAL BANK ASSOCIATION,           :
N.A.                                      :
                                          :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
DEBORAH C. BARTHOLOMEW                    :
                                          :
       Defendant-Appellant                :        Case No. 2011CA00151


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed in part; vacated in part; and remanded for

further proceedings in accordance with our opinion and the law. Costs to be divided

equally.




                                          s/ William B. Hoffman_________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ W. Scott Gwin_____________________
                                          HON. W. SCOTT GWIN
