[Cite as CitiMortgage Inc. v. Parrish, 2012-Ohio-3778.]




                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                              JUDGES:
CITIMORTGAGE INC., Successor by                       :       Hon. Patricia A. Delaney, P.J.
Merger to ABN AMRO Mortgage                           :       Hon. W. Scott Gwin, J.
Group, Inc.                                           :       Hon. John W. Wise, J.
                                                      :
             Plaintiff-Appellee                       :
                                                      :
-vs-                                                  :       Case No. 12 CAE 02 0011
                                                      :
MATTHEW D. PARRISH, et al.                            :
                                                      :
                  Defendants-Appellants               :       OPINION




CHARACTER OF PROCEEDING:                                  Civil Appeal from the Court of Common
                                                          Pleas, Case No. 11 CVE 06 0674


JUDGMENT:                                                 Affirmed



DATE OF JUDGMENT ENTRY:                                   August 20, 2012



APPEARANCES:

For Plaintiff-Appellee                                    For Defendants-Appellants

BILL A. PURTELL                                           JOHN A. GLEASON
LERNER, SAMPSON & ROTHFUSS                                COOKE, DEMERS & GLEASON
120 East Fourth Street, Suite 800                         Three North High Street, P. O. Box 714
Cincinnati, Ohio 45202                                    New Albany, Ohio 43054
[Cite as CitiMortgage Inc. v. Parrish, 2012-Ohio-3778.]


Wise, J.

        {¶1}     Defendants-appellants Matthew and Jill Parrish appeal the January 26,

2012, decision of the Court of Common Pleas of Delaware County, Ohio, granting

summary judgment and decree in foreclosure in favor of Appellee CitiMortgage, Inc.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}      This case arose from a residential foreclosure action initiated as a result

of Appellants’ default under the terms of Note, Mortgage and Loan Modification

Agreement. The relevant facts and procedural history are as follows:

        {¶3}     On September 13, 2002, Appellants Matthew D. Parrish and Jill M.

Parrish executed a promissory note and mortgage in the amount of $265,000 to ABM

AMRO Mortgage Group, Inc. for the property located at 4103 Essex Court, Powell,

Ohio, 43065.

        {¶4}     Appellants subsequently defaulted on the Note and Mortgage by failing to

make payments and on February 3, 2009, CitiMortgage filed for foreclosure in action

09-CVE-02-0134. Thereafter, Appellants entered into an Interim Forbearance

Agreement with CitiMortgage and the foreclosure action as dismissed.

        {¶5}     The Interim Forbearance Agreement provided for Appellants to pay down

the principal balance ($247,608.87 at 7.5% from June 1, 2008) and moved the due date

on the loan from July 1, 2008 to June 1, 2009. During this 11 month period, Appellants

paid and were credited approximately $26,000.00.

        {¶6}     In July, 2010, a permanent loan modification was offered to Appellants.

An initial web page notice to Appellants included an estimated interest rate of 3.5% but

warned that “[t]he final modification may vary depending on the review and verification
Delaware County, Case No. 12 CAE 02 0011                                                3


of the financial information you have provided, and other restrictions.”       The final

modification offer included a 6.125% interest rate. Appellants never accepted the

modification offer.

       {¶7}   On June 7, 2011, Appellee filed the foreclosure action which is the subject

of the instant appeal.

       {¶8}   On November 8, 2011, Appellee CitiMortgage, Inc. filed a Motion for

Summary Judgment.

       {¶9}   On December 13, 2011, Appellants filed a Memorandum in Opposition to

Plaintiff’s (Appellee) Motion for Summary Judgment.

       {¶10} By Judgment Entry filed January 26, 2012, the trial court granted

Appellee’s Motion for Summary Judgment.

       {¶11} Also on January 26, 2012, the trial court filed a Judgment Entry Decree in

Foreclosure in this matter.

       {¶12} Appellants now appeal, assigning the following sole assignment of error.

                                  ASSIGNMENT OF ERROR

       {¶13} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION

FOR SUMMARY JUDGMENT.

       {¶14} “A. WHERE THERE ARE DISPUTED ISSUES OF FACT AS TO THE

AMOUNT OWED, SUMMARY JUDGMENT IS NOT APPROPRIATE.

       {¶15} “B. WHERE APPELLEE PREVIOUSLY AGREED TO MODIFY THE

TERMS OF A LOAN, IT CANNOT ENFORCE THE ORIGINAL TERMS OF THE LOAN

AND SUMMARY JUDGMENT BASED UPON THE ORIGINAL TERMS IS NOT

APPROPRIATE.”
Delaware County, Case No. 12 CAE 02 0011                                                 4




                                                I.

       {¶16} In their sole assignment, Appellants argue that the trial court erred in

granting summary judgment in this matter. We disagree.

       {¶17} “Summary Judgment Standard”

       {¶18} 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. Civ.R. 56(C) provides,

in pertinent part:

       {¶19} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case, and written stipulations of fact, if any, timely filed in the

action, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. * * * A summary judgment shall not be

rendered unless it appears from such evidence or stipulation and only therefrom, that

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, such party being

entitled to have the evidence or stipulation construed most strongly in his favor.”

       {¶20} Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed.       The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion
Delaware County, Case No. 12 CAE 02 0011                                                 5


that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving party to set forth specific facts demonstrating there is a genuine issue of

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

         {¶21} It is based upon this standard that we review Appellants’ assignment of

error.

         {¶22} Appellants herein argue that a material fact exists as to the amount owed,

claiming that Appellee failed to credit Appellants with amounts paid. Appellants further

argue that Appellee is attempting to collect an interest rate above that agreed to in

writing.

         {¶23} The trial court reviewed the Interim Forbearance agreement as well as

the Affidavit by Laura Leigh Baum, the Document Control Officer with CitiMortgage, Inc.,

along with the Note and Mortgage in this case. The trial court also had before it an

Affidavit of Matthew Parrish with the following exhibits: “Exhibit 1” internet page dated

12/13/2011 captioned “Payment Information, “Exhibit 2” – a Consolidation Report,

“Exhibit 3” – e-mail correspondence dated July 6, 2010, containing a Citimortgage

account status, “Exhibit 4” – an internet page dated August 25, 2010, captioned “Your

Mortgage Modification”, and “Exhibit 5” – a series of e-mail correspondence between

counsel for the parties.

         {¶24} In the trial court's decision, which was based upon an analysis of the

affidavits and exhibits, the trial court found that Appellants defaulted under the terms of
Delaware County, Case No. 12 CAE 02 0011                                                 6


the Note and Mortgage and that the amount due upon the Note was $244,790.82 with

interest at a rate of 7.5% per annum. The trial court further found that Appellants failed

to submit evidence establishing that the parties had reached an enforceable loan

modification agreement lowering the interest rate.

       {¶25} This Court reviews mortgages under general principles of contract law,

and we presume that the parties' intent “ ‘resides in the language they have chosen to

employ in the agreement.’ ” SFJV 2005, L.L.C. v. Ream, 187 Ohio App.3d 715, 2010-

Ohio-1615, citing in part Fountain Skin Care v. Hernandez, 175 Ohio App.3d 93, 2008-

Ohio-489. “ ‘If a contract is clear and unambiguous, then its interpretation is a matter of

law and there is no issue of fact to be determined.’ Inland Refuse Transfer Co. v.

Browning–Ferris Indus. of Ohio, Inc. (1984), 15 Ohio St.3d 321, 322. Id. In such a case,

“a court may not go beyond the plain language of the agreement to determine the

parties' rights and obligations, and it may not consider parole evidence of the parties'

intentions. (Citations omitted).” Id. The court, instead, “must give effect to the express

terms of the contract.” Id.

       {¶26} In this case, the loan modification discussions, which were never accepted

by Appellants, did not bar the bank from seeking foreclosure. The Ohio Supreme Court

said in one foreclosure case that “[the lender]'s decision to enforce the written

agreements cannot be considered an act of bad faith.” Ed Schory & Sons, Inc. v. Soc.

Natl. Bank, 75 Ohio St.3d 433, 1996-Ohio-194. The Court then quoted the Seventh

Circuit Court of Appeals: “ ‘firms that have negotiated contracts are entitled to enforce

them to the letter, even to the great discomfort of their trading partners, without being

mulcted for lack of “good faith.” ’ ” Id., quoting Kham & Nate's Shoes No. 2, Inc. v. First
Delaware County, Case No. 12 CAE 02 0011                                                7

Bank of Whiting, 908 F.2d 1351, 1357 (7th Cir.1990). “Indeed,” said the Court, “[the

lender] had every right to seek judgment on the various obligations owed to it by [the

borrower] and to foreclose on its security.” Id.

       {¶27} In a recent Tenth District foreclosure case, U.S. Bank Natl. Assn. v. Mobile

Assoc. Natl. Network Sys., Inc., 195 Ohio App.3d 699, 2011-Ohio-5284, before the bank

filed a foreclosure action, it and the borrowers had agreed in a letter to negotiate about

the borrowers' obligations. The borrowers asserted that the letter agreement was a

binding contract that modified the loan to require the parties to negotiate. They

contended that the bank failed to negotiate, breaching the modified loan. Until the bank

negotiated, argued the borrowers, it should be estopped from foreclosing. The Tenth

District rejected this argument for several reasons. Pertinent among them, the court said

that the bank had the right to initiate foreclosure proceedings. The court found that a

provision in the loan documents provided that “the bank was entitled to immediately

initiate foreclosure proceedings in the event of default.” U.S. Bank at ¶ 1. “The bank's

decision to pursue its contractual remedies,” said the court, “cannot be considered to be

an act of bad faith.” Id., citing Ed Schory at 443.

       {¶28} Also, in a Fifth District foreclosure case, Key Bank Natl. Assoc. v. Bolin,

5th Dist. Stark No. 2010 CA 00285, 2011-Ohio-4532, the trial court granted summary

judgment for the lender on its foreclosure complaint. The borrower argued that the trial

court erred and abused its discretion by doing so because the lender acted in bad faith

and misrepresented to the borrower that she could participate in a loan modification

program. This Court rejected this argument, finding no provision in the mortgage
Delaware County, Case No. 12 CAE 02 0011                                                    8


document “prevent[ed] the lender from insisting on the strict performance of the

mortgage obligations.” Key Bank at ¶ 37.

       {¶29} In the case sub judice, no provision of the note or mortgage requires the

bank to participate in loan-modification negotiations or requires it to wait until

negotiations it chose to participate in are finished before exercising its right to foreclose.

Rather, a mortgage provision gives the bank the right, on Appellants’ breach, to pursue

full payment and foreclosure without first satisfying any conditions. We therefore find

that the bank did not act in bad faith in pursuing foreclosure in this case.

       {¶30} Upon review, we concur with the trial court analysis and find summary

judgment to Appellee was appropriate

       {¶31} For the foregoing reasons, the judgment of the Court of Common Pleas,

Delaware County, Ohio, is affirmed.



By Wise, J.

Delaney, P.J., and

Gwin, J., concur

                                               _________________________________


                                               _________________________________


                                               _________________________________
[Cite as CitiMortgage Inc. v. Parrish, 2012-Ohio-3778.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




CITIMORTGAGE, INC., Successor by                          :
Merger to ABN AMRO Mortgage Group,                        :
Inc.,                                                     :
                                                          :
                      Plaintiff-Appellee                  :
                                                          :
                                                          :
-vs-                                                      :       JUDGMENT ENTRY
                                                          :
MATTHEW D. PARRISH, et al.                                :
                                                          :
                                                          :
                     Defendants-Appellants                :       CASE NO. 12 CAE 02 0011




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

judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.

        Costs to Appellants




                                                              _________________________________


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