[Cite as VFC Partners 18, L.L.C. v. Snider, 2014-Ohio-4129.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


VFC PARTNERS 18 LLC, SUCCESSOR                          :          OPINION
BY ITS ASSIGNMENT FROM
RBS CITIZENS, NA, SUCCESSOR BY                          :
ITS MERGER WITH CHARTER ONE                                        CASE NO. 2014-L-024
BANK, NA,                                               :

                 Plaintiff-Appellee,                    :

        - vs -                                          :

LOUIS S. SNIDER, et al.,                                :

                 Defendant-Appellant.                   :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 2012 CF 002543.

Judgment: Affirmed.


Michael J. Palumbo and Anthony J. Gingo, Gingo Palumbo Law Group, LLC, 6100 Oak
Tree Boulevard, Suite 200, Park Center Plaza I, Independence, OH 44131 (For
Plaintiff-Appellee).

Ron M. Graham, 6988 Spinach Drive, Mentor, OH 44060 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Louis S. Snider1, appeals the judgment of the Lake County

Court of Common Pleas granting summary judgment and a decree of foreclosure in

favor of appellee, VFC Partners 18 LLC (“VFC Partners”), successor by its assignment

from RBS Citizens, NA (“RBS Citizens”), successor by its merger with Charter One


1. Louis S. Snider is the only name on this court’s notice of appeal.
Bank, NA (“Charter One”). For the reasons that follow, we affirm the decision of the trial

court.

         {¶2}   Appellant took title to property located at 7856 Euclid-Chardon Road,

Kirtland, Ohio. Appellant signed a promissory note in favor of Charter One. The note

was transferred to RBS Citizens by virtue of its merger with Charter One. RBS Citizens

transferred the note to appellee, evidenced by an allonge attached to the note. The

allonge referenced the $215,000 term note dated April 9, 2003, and assigned the note

payable to appellee; it was executed prior to the filing of the instant complaint. Appellee

also had possession of the original note at the time of filing the foreclosure complaint.

         {¶3}   Appellant also granted a mortgage on the property to Charter One and

executed an assignment of rents in favor of Charter One. On February 12, 2012, RBS

Citizens assigned the mortgage and assignment of rents to appellee.

         {¶4}   Appellant failed to make any of the required monthly payments and was

sent notice of default advising appellant of the conditions to cure default. Appellant

failed to cure default, and on September 19, 2012, appellee initiated the instant

foreclosure action.

         {¶5}   The complaint alleged that appellee was the holder in due course of the

note and assignee of the mortgage and assignment of rents; appellant was in default; all

conditions precedent were met; and the balance due under the note had been

accelerated.

         {¶6}   Appellant filed an answer admitting that he issued the note and mortgage

in favor of Charter One.     Appellant also asserted four affirmative defenses: lack of

authority, unclean hands, incorrect charges added to balance, and waiver.




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         {¶7}   In December 2012, appellee moved for summary judgment. In response,

appellant filed a brief in opposition or, in the alternative, leave of court to conduct

discovery. Following the withdrawal of appellant’s counsel, appellant filed a second

answer. In June 2013, the court entered a journal entry in which it provided appellant

until June 24, 2013, to file a memorandum in opposition to appellee’s motion for

summary judgment. Appellant filed such memorandum but failed to provide support

with an affidavit or any other evidentiary material. Appellant, however, maintained that

appellee was required to address the various affirmative defenses in its motion for

summary judgment.

         {¶8}   In August 2013, appellee filed a first amended complaint to join certain

parties. Appellant filed an answer, again asserting affirmative defenses. Appellee filed

a renewed motion for summary judgment. Appellant filed a “motion to dismiss renewed

summary judgment.” The entire motion consisted of the following:

                The plaintiff in this case has filed a motion for summary judgment
                and was responded to by defendants citing many factual disputes
                between the parties. The court has taken the matter under
                advisement. The additional motion is unnecessary and should be
                dismissed. There is no basis for a renewed motion to be filed.

The trial court granted appellee’s motion for summary judgment. The trial court entered

a decree of foreclosure and order of sale.

         {¶9}   Appellant filed a notice of appeal and assigns the following assignment of

error:

         {¶10} “The trial court erred in granting appellee[’s] motion for summary

judgment.”

         {¶11} On appeal, appellant argues granting a motion for summary judgment is

improper when the moving plaintiff did not address the non-moving defendant’s


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affirmative defenses set forth in the answer. Before we address appellant’s argument

on appeal, we first discuss the summary judgment exercise.

      {¶12} We review a trial court’s decision on a motion for summary judgment de

novo. Fed. Home Loan Mtge. Corp. v. Zuga, 11th Dist. Trumbull No. 2012-T-0038,

2013-Ohio-2838, ¶13. Under Civil Rule 56(C), summary judgment is proper if:

             ‘(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 party against whom the motion for summary judgment
             is made, that conclusion is adverse to that party.’

Id. at ¶10-11, quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

      {¶13} The moving party bears the initial burden to demonstrate from the

pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, that there is no genuine

issue of material fact to be resolved in the case. Zuga at ¶12. “If this initial burden is

met, the nonmoving party then bears the reciprocal burden to set forth specific facts

which prove there remains a genuine issue to be litigated, pursuant to Civ.R. 56(E).” Id.

at ¶12.

      {¶14} To support his argument on appeal, appellant cites to the Second

Appellate District’s opinion in ABN AMRO Mtge. Group v. Meyers, 159 Ohio App.3d

608, 2005-Ohio-602, (2d Dist.), where the court considered the following question:

“when a plaintiff moves for summary judgment, which party has the initial burden of

informing the trial court as to the existence of a genuine issue of material fact with

respect to affirmative defenses?” ABN AMRO Mtge. Group, Inc. v. Arnold, 2d Dist.

Montgomery Case No. 20530, 2005-Ohio-925, ¶13, citing Meyers at ¶5.



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      {¶15} The Meyers Court stated, at ¶7:

               In such a case, a moving plaintiff bears the initial burden to
               demonstrate the absence of a genuine issue of material fact on its
               claim and on a non-moving defendant’s affirmative defenses. If the
               moving plaintiff fails to meet its burden as to the affirmative
               defenses, then the defendant bears no burden on that issue. If the
               plaintiff does satisfy its initial burden as to the affirmative defenses,
               however, then the defendant has a reciprocal burden to establish a
               genuine issue of material fact on them.

      {¶16} In Meyers, the court found the trial court erred in finding that the mortgage

company, the moving plaintiff, was entitled to foreclosure and in entering final judgment.

Id. at ¶14. The court reasoned that although the non-moving defendant did not have a

claim for relief, he did assert two affirmative defenses in his answer. Id. at ¶13. As

such, in order to demonstrate the absence of any genuine issue of material fact and to

obtain a complete summary judgment, the moving plaintiff bore the initial burden to

address the affirmative defenses in its motion for summary judgment. Id. The court

stated the moving plaintiff did, in fact, file a properly-supported motion for summary

judgment on the issue of default under the terms of the promissory note, as the non-

moving defendant failed to demonstrate a genuine issue of material fact as to whether

he was in default under the agreement. Id. Consequently, the moving plaintiff was

entitled to only a partial summary judgment on the default issue—not an entry of final

judgment in its favor.     The non-moving defendant’s affirmative defenses remained

pending. Id.

      {¶17} Here, appellant claims that because appellee did not address his

affirmative defenses in the motion for summary judgment, the trial court erred in its

granting of appellant’s summary judgment motion. We disagree.




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       {¶18} After the decision in Meyers, the Ohio Supreme Court was asked to

resolve the following question: “Does a plaintiff or counterclaimant moving for summary

judgment granting affirmative relief on its own claims bear the initial burden of

addressing the non-moving party’s affirmative defenses in its motion?” Todd Dev. Co.,

Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, ¶1.           The Court answered the

question in the negative. Id.

       {¶19} The Morgan Court stated, “[t]he language of Civ.R. 56 and our case law

do not support the proposition that a party moving for summary judgment has the

burden to prove its case and disprove the opposing party’s case as well.” Id. at ¶13

(emphasis sic.).

              To the contrary, Civ.R. 56(E) states that a party opposing summary
              judgment may not rest upon its pleadings, but must set forth
              specific facts showing there is a genuine issue for trial. If a moving
              party meets the standard for summary judgment required by Civ.R.
              56, and a nonmoving party fails to respond with evidence of a
              genuine issue of material fact, a court does not err in granting
              summary judgment in favor of the moving party.

              ***

              We decline the opportunity to alter the summary judgment
              procedure in Ohio to require a moving party to bear the initial
              burden of addressing and negating the nonmoving party’s
              affirmative defenses. Our holding today encourages the just and
              timely disposition of civil actions by requiring a nonmoving party to
              respond to a motion for summary judgment with evidence creating
              a genuine issue of material fact.

              A plaintiff or counterclaimant moving for summary judgment does
              not bear the initial burden of addressing the nonmoving party’s
              affirmative defenses.

Id. at ¶14, 23-24.

       {¶20} Finding no merit in appellant’s argument that appellee, as the moving

plaintiff, was required to address the nonmoving party’s affirmative defenses in its


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motion for summary judgment, we must determine whether appellee filed a properly-

supported Civ.R. 56(C) motion for summary judgment. To properly support a motion for

summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality

materials showing: (1) the movant is the holder of the note and mortgage, or is a party

entitled to enforce it; (2) if the movant is not the original mortgagee, the chain of

assignments and transfers; (3) the mortgager is in default; (4) all conditions precedent

have been met; and (5) the amount of principal and interest due. Wachovia Bank v.

Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶40-45.

       {¶21} With regard to the first requirement, the movant must establish it was the

holder or entitled to enforce the note as of the time the complaint was filed. Fed. Home

Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶3. “[S]tanding

is a jurisdictional requirement which must be met before a common pleas court can

proceed.” Fed. Home Loan Mtge. Corp. v. Koch, 11th Dist. Geauga No. 2012-G-3084,

2013-Ohio-4423, ¶24, citing Schwartzwald at ¶22.             The mortgage lender must

demonstrate an interest in either the mortgage or promissory note to establish standing;

this interest must exist at the time the foreclosure complaint was filed in the trial court.

Koch at ¶24, citing Schwartzwald at ¶25-27. The holder of an instrument is a “person

entitled to enforce” the instrument under R.C. 1303.31(A)(1). R.C. 1301.201(B)(21)(a)

defines a holder of a negotiable instrument as “[t]he person in possession of a

negotiable instrument that is payable either to bearer or to an identified person that is

the person in possession.” Appellee presented the note and mortgage depicting the

assignments, the allonge, the assignment and assumption of security instruments from

RBS Citizens to appellee.      These assignments occurred prior to the filing of the

complaint. See R.C. 5301.32. The evidence also established that appellee was in


                                             7
possession of the note and entitled to enforce it at the time the complaint was filed. See

Citimortage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894, ¶21

(holder of note has standing to foreclose).

         {¶22} Further, appellee’s complaint made a general allegation that it had

complied with all conditions precedent for foreclosure. “Where prior notice of default

and/or acceleration is required by a provision in a note or mortgage instrument, the

provision of notice is a condition precedent subject to Civ.R. 9(C).” First. Fin. Bank v.

Doellman, 12th Dist. Butler No. CA2006-02-029, 2007-Ohio-222, ¶20.             By stating

generally that it had complied with all conditions precedent, appellee met the

requirements of Civ.R. 9(C). In the answer, appellant failed to allege he did not receive

notice of default or that the notice was not properly sent prior to the acceleration of the

loan.     See Civ.R. 9(C) (“A denial of performance or occurrence shall be made

specifically and with particularity.”).

         {¶23} The record also contains evidence of the amount of principal and interest

due. The record contains the Payoff Statement, sent to appellant, documenting the

current balance, the unpaid interest, and other associated fees.

         {¶24} The mere fact that appellant asserted various affirmative defenses in his

answer does not preclude summary judgment. As discussed above, appellee provided

evidentiary material necessary to satisfy the foregoing criteria. At this point, the burden

shifted to appellant to set forth specific facts demonstrating that a genuine issue of

material fact remained to be litigated. Appellant, however, failed to meet its reciprocal

burden by submitting evidence that would create a genuine issue of material fact for

trial.   Therefore, we conclude the trial court did not err in ruling that appellee was

entitled to summary judgment as a matter of law.


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      {¶25} Appellant’s sole assignment of error on appeal is without merit.

      {¶26} The judgment of the Lake County Court of Common Pleas is hereby

affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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