[Cite as Deutsche Bank Natl. Trust Co. v. Byrd, 2014-Ohio-3704.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

DEUTSCHE BANK NATIONAL TRUST                               C.A. No.   27280
COMPANY, as Trustee for Freemont Home
Loan Trust Series 2006-3

        Appellee                                           APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
        v.                                                 COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
DENISE C. BYRD, et al.                                     CASE No.   CV-2012-06-3383

        Appellants

                                 DECISION AND JOURNAL ENTRY

Dated: August 27, 2014



        WHITMORE, Judge.

        {¶1}    Appellants, Denise and Eric Byrd (collectively, “the Byrds”), appeal from the

judgment of the Summit County Court of Common Pleas, granting summary judgment in favor

of Appellee, Deutsche Bank National Trust Company (“Deutsche Bank”). This Court reverses.

                                                      I

        {¶2}    In June 2006, the Byrds executed a promissory note in favor of Fremont

Investment & Loan (“Fremont”) to purchase a property in Akron, Ohio. Along with the note, the

Byrds signed a mortgage granting a security interest in the property to Mortgage Electronic

Registration Systems, Inc. (“MERS”), as nominee for Fremont. Subsequently, the promissory

note was endorsed in blank and MERS assigned the mortgage to Deutsche Bank. On June 8,

2012, Deutsche Bank filed a complaint of foreclosure against the Byrds, in which it alleged that

it had “complied with all conditions precedent.”
                                                2


       {¶3}    On March 26, 2013, with leave of court, the Byrds answered the complaint. In

their answer, the Byrds asserted that Deutsche Bank “failed to give the proper and requisite

notices * * * pursuant to the terms of the Note and Mortgage” and that it failed “to fulfill the

statutory and contractual conditions precedent to foreclosure.” In November 2013, Deutsche

Bank filed a motion for summary judgment. In support of its motion, Deutsche Bank filed an

affidavit of Yolanda Griffin, a Vice President of Loan Documentation for Wells Fargo, the loan’s

servicer. The Byrds filed a memorandum in opposition, arguing that “a genuine issue of fact

remains as to whether the requisite notice was in fact mailed to the [Byrds].” The Byrds attached

an affidavit of Eric Byrd, averring that he never received a notice of default and was not

provided an opportunity to cure any deficiency prior to the acceleration of the loan. Deutsche

Bank filed a reply, arguing that Eric Byrd’s affidavit failed to create a genuine issue of fact

because there was no evidence that Denise Byrd did not receive the default notice.

       {¶4}    On February 19, 2014, the court granted Deutsche Bank’s motion for summary

judgment and entered a decree of foreclosure. The Byrds now appeal and raise one assignment

of error for our review.

                                                II

                                      Assignment of Error

       THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
       IN DEUTSCHE BANK’S FAVOR AS THERE WAS A GENUINE ISSUE
       REGARDING WHETHER DEUTSCHE BANK SENT THE ACCELERATION
       NOTICE TO THE BYRDS IN ACCORDANCE WITH THE NOTICE
       PROVISION OF THE MORTGAGE.

       {¶5}    In their sole assignment of error, the Byrds argue that the court erred by granting

Deutsche Bank’s motion for summary judgment.           Specifically, the Byrds argue that there
                                                   3


remains a genuine issue of fact as to whether Deutsche Bank sent “the requisite [a]cceleration

[n]otice required by paragraph twenty-two of the [m]ortgage.” We agree.

        {¶6}    Pursuant to Civ.R. 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.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

        {¶7}    This Court reviews a trial court’s grant of summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). The moving party bears the initial burden of

informing the trial court of the basis for the motion and pointing to parts of the record that show

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293

(1996). If the moving party meets this burden, then the non-moving party bears the burden to

offer specific facts demonstrating a genuine issue for trial. Id.

        {¶8}    Paragraph twenty-two of the Byrds’ mortgage provides as follows:

        Lender shall give notice to Borrower prior to acceleration following Borrower’s
        breach of any covenant or agreement in this Security Instrument * * *. The notice
        shall specify: (a) the default; (b) the action required to cure the default; (c) a date,
        not less than 30 days from the date the notice is given to Borrower, by which the
        default must be cured; and (d) that failure to cure the default on or before the date
        specified in the notice may result in acceleration of the sums secured by this
        Security Instrument, foreclosure by judicial proceeding and sale of the Property.
        The notice shall further inform Borrower of the right to reinstate after acceleration
        and the right to assert in the foreclosure proceeding the non-existence of a default
        or any other defense of Borrower to acceleration and foreclosure.

        {¶9}    Paragraph fifteen of the mortgage details how notices must be sent.                That

provision, in relevant part, states that:

        [a]ll notices given by Borrower or Lender in connection with this Security
        Instrument must be in writing. Any notice to Borrower in connection with this
                                                4


       Security Instrument shall be deemed to have been given to Borrower when mailed
       by first class mail or when actually delivered to Borrower’s notice address if sent
       by other means. Notice to any one Borrower shall constitute notice to all
       Borrowers unless Applicable Law expressly requires otherwise.

       {¶10} Where the terms of a mortgage require a notice of default or acceleration to be

given, the notice is a condition precedent governed by the requirements of Civ.R. 9(C). Third

Fed. S. & L. Assn. v. Haydu, 9th Dist. Summit No. 25985, 2012-Ohio-2887, ¶ 9. “Pursuant to

Civ.R. 9(C), a plaintiff may generally allege that the conditions precedent to the filing of an

action have been satisfied, and, in order to refute such an allegation and put conditions precedent

at issue, the answering party must deny performance of the conditions ‘specifically and with

particularity.’” Id., quoting Civ.R. 9(C). “The effect of the failure to deny conditions precedent

in the manner provided by Civ.R. 9(C) is that they are deemed admitted.” Bank of Am., N.A. v.

Thompson, 2d Dist. Montgomery No. 25952, 2014-Ohio-2300, ¶ 16, quoting CitiMtge., Inc. v.

Byington, 6th Dist. Erie No. E-12-003, 2013-Ohio-3950, ¶ 11.

       {¶11} Deutsche Bank argues that the Byrds have waived any argument about the bank’s

alleged failure to fulfill a condition precedent because the Byrds did not deny performance with

specificity and particularity, in accordance with Civ.R. 9(C).       However, in its motion for

summary judgment, Deutsche Bank made no mention of the Byrds’ possible admissions based

on their purported general denial. “Because [Deutsche Bank] made no mention of possible

admissions in the pleadings in its motion for summary judgment, the question of whether the

purported general denial constituted an admission by the [Byrds] is not before us.” See Wells

Fargo Bank, N.A. v. Beirne, 9th Dist. Medina No. 09CA0103-M, 2011-Ohio-6678, ¶ 15. See

also Liberty Savs. Bank, F.S.B. v. Bowie, 9th Dist. Summit No. 27126, 2014-Ohio-1208, ¶ 13;

HSBC Mtge. Servs., Inc. v. Edmon, 6th Dist. Erie No. E-11-046, 2012-Ohio-4990, ¶ 36-37.
                                                5


       {¶12} It is well settled that the party seeking summary judgment “always bears the

initial responsibility of informing the [trial] court of the basis for its motion, and identifying

those portions of the pleadings, depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of

material fact.” (Alterations sic and internal quotations omitted.) Beirne at ¶ 15, quoting Dresher,

75 Ohio St.3d at 288. Deutsche Bank argues that it met its Dresher burden by incorporating into

its motion for summary judgment the affidavit of Yolanda Griffin, a Vice President of Loan

Documentation for Wells Fargo Bank, N.A., the servicing agent for the Byrds’ loan.

       {¶13} Griffin’s affidavit states that she is familiar with the business records maintained

by Wells Fargo, as servicing agent for Deutsche Bank. Griffin averred that, at the time the

foreclosure complaint was filed, Deutsche Bank had possession of the Byrds’ promissory note.

Griffin further swore that the Byrds were in default for non-payment “and [Deutsche Bank] or its

agent ha[d] accelerated the account, pursuant to the terms of the loan, making the entire balance

due.” This assertion, however, is a legal conclusion and does not set forth any facts. See Cent.

Mtge. Co. v. Elia, 9th Dist. Summit No. 25505, 2011-Ohio-3188, ¶ 15. “A proper affidavit must

set forth facts and not legal conclusions.”      Id., quoting Grendell v. Ohio Environmental

Protection Agency, 146 Ohio App.3d 1, 10 (9th Dist.2001), fn. 3.

       {¶14} Deutsche Bank argues that Griffin’s statement, in conjunction with the copy of

the demand letter attached to her affidavit, is sufficient to meet its Dresher burden. Under these

particular circumstances, we disagree. At the end of her affidavit Griffin lists documents that are

attached, including a demand letter addressed to the Byrds. Griffin makes no assertion that the

demand letter was ever mailed or otherwise sent to the Byrds and, therefore, there is no evidence

for purposes of summary judgment that Deutsche Bank complied with the notice provisions of
                                               6


the Note and Mortgage. We further observe that the demand letter appended to Griffin’s

affidavit is from America’s Servicing Company, and neither Griffin’s affidavit, which was made

in her capacity as Vice President of Loan Documentation for Wells Fargo, nor the demand letter

explains the relationship between Wells Fargo and America’s Servicing Company. Nor does

Griffin indicate how Wells Fargo came to be in possession of the demand letter. Thus, it is

unclear how Griffin could authenticate the letter or have knowledge of whether this letter had

actually been mailed by America’s Servicing Company.

        {¶15} Deutsche Bank, as the moving party, had the burden of establishing that it had

met all conditions precedent to foreclosure, including that the demand letter was mailed to the

Byrds after default and before acceleration of the loan. Viewing Deutsche Bank’s motion for

summary judgment and Griffin’s affidavit incorporated therein in a light most favorable to the

Byrds, we cannot conclude that Deutsche Bank has met its burden. The Byrds’ sole assignment

of error is sustained.

                                               III

        {¶16} The Byrds’ sole assignment of error sustained. The judgment of the Summit

County Court of Common Pleas is reversed and the cause is remanded for further proceedings

consistent with the foregoing opinion.

                                                                           Judgment reversed,
                                                                          and cause remanded.




        There were reasonable grounds for this appeal.
                                                 7


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

MICHAEL J. LUBES and MARK E. OWENS, Attorneys at Law, for Appellants.

ANITA L. MADDIX, Attorney at Law, for Appellee.

SCOTT A. KING and TERRY W. POSEY, JR., Attorneys at Law, for Appellee.
