[Cite as CitiMortgage, Inc. v. Guarnieri, 2013-Ohio-4913.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99504



                                CITIMORTGAGE, INC.
                                                             PLAINTIFF-APPELLEE

                                                      vs.

                     WILLIAM T. GUARNIERI, ET AL.
                                                             DEFENDANTS-APPELLANTS




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-704677


        BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: November 7, 2013
FOR APPELLANT

William T. Guarnieri, pro se
10711 Greenhaven Parkway
Brecksville, Ohio 44141


FOR APPELLEES

Attorneys for Citimortgage, Inc.
Edward G. Bohnert
Reimer Arnovitz Chernek & Jeffrey Co., L.P.A.
30455 Solon Road
Solon, Ohio 44139
Harry W. Cappel
John C. Greiner
Graydon Head & Ritchey, L.L.P.
1900 Fifth Third Center
511 Walnut Street
Cincinnati, Ohio 45202

Attorneys for State of Ohio, Bureau of Employment Services
Mike DeWine
Ohio Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215

Donn D. Rosenblum
Assistant Attorney General
Collections Enforcement Section
150 East Gay Street, 21st Floor
Columbus, Ohio 43215

For Theresa L. Guarnieri
Theresa L. Guarnieri, pro se
370 South Green Road
South Euclid, Ohio 44121
FRANK D. CELEBREZZE, JR., P.J.:

      {¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.

      {¶2} Defendant-appellant, William T. Guarnieri, appeals the entry of summary

judgment in favor of plaintiff-appellee, CitiMortgage, Inc., in its foreclosure action.

After a careful review of the record and relevant case law, we affirm the trial court’s

judgment.

                          I. Factual and Procedural History

      {¶3} On April 14, 2008, appellant executed a note in the amount of $135,000 in

favor of Ohio U.S. Mortgage Corp. The note was secured by a mortgage on the property

located at 10711 Greenhaven Parkway, Brecksville, Ohio, in favor of Mortgage

Electronic Registration Systems, Inc. (“MERS”), as nominee for Ohio U.S. Mortgage

Corp. and its successors, executed on the same day.      In December 2008, appellant

defaulted on his repayment obligations as the borrower under the note and mortgage.

      {¶4} On September 14, 2009, MERS assigned the mortgage to CitiMortgage. As

provided in the note and mortgage, CitiMortgage exercised its option to accelerate the

balance due on the note.     The principal due was $134,461.04 plus interest from

November 1, 2008.

      {¶5} On September 22, 2009, CitiMortgage filed an action against appellant

seeking judgment on the note and foreclosure on the mortgage. CitiMortgage attached a

copy of the mortgage and note to its complaint. Attached to the note is an allonge
containing an executed specific endorsement from the original lender, Ohio U.S.

Mortgage Corp., to CitiMortgage.

      {¶6} On August 31, 2010, CitiMortgage moved for summary judgment arguing

that, as holder of the note and assignee of the mortgage at issue, it was entitled to

judgment as a matter of law. Following numerous attempts to resolve this matter in

mediation, appellant was granted leave to file a brief in opposition to CitiMortgage’s

motion for summary judgment on February 7, 2012. On January 17, 2013, the magistrate

issued its decision granting summary judgment in favor of CitiMortgage. On February

11, 2013, the magistrate’s decision was adopted in full by the common pleas court.

      {¶7} Appellant now brings this timely appeal, pro se, raising one assignment of

error for review, which contains two separate issues:

      I. The Cuyahoga County Court of Common Pleas erred in granting
      summary judgment where there remained issues of fact. There was
      insufficient testimony (evidence), to establish how the Plaintiff obtained the
      promissory note and mortgage and there was pending discovery requests
      directed to the Plaintiff.

                                 II. Law and Analysis

                                A. Summary Judgment

      {¶8} Appellant first argues that the trial court erred in granting summary judgment

in favor of CitiMortgage.

      {¶9} We review summary judgment rulings de novo, applying the same standard as

the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241
(1996). We accord no deference to the trial court’s decision and independently review

the record to determine whether summary judgment is appropriate.

       {¶10} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment is entitled

to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party.

       {¶11} On a motion for summary judgment, the moving party carries an initial

burden of setting forth specific facts that demonstrate its entitlement to summary

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the

moving party fails to meet this burden, summary judgment is not appropriate; if the

moving party meets this burden, summary judgment is appropriate only if the nonmoving

party fails to establish the existence of a genuine issue of material fact. Id. at 293.

       {¶12} To properly support a motion for summary judgment in a foreclosure action,

a plaintiff must present “evidentiary quality materials” establishing: (1) that the plaintiff

is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2)

if the plaintiff is not the original mortgagee, the chain of assignments and transfers; (3)

that the mortgagor is in default; (4) that all conditions precedent have been met; and (5)

the amount of principal and interest due. See, e.g., United States Bank, N.A. v. Adams,

6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10.
      {¶13} In challenging the trial court’s judgment, appellant’s argument focuses

solely on his contention that the affidavit attached to CitiMortgage’s summary judgment

motion “failed to demonstrate that the [relevant] mortgage and promissory note were

assigned [to CitiMortgage].” In support of his argument, appellant relies on First Union

Natl. Bank v. Hufford, 146 Ohio App.3d 673, 767 N.E.2d 1206 (3d Dist.2001). In

Hufford, the Third District found that summary judgment in favor of plaintiff, First Union

National Bank, was improper based on its failure to present documentation evidencing

that it had been assigned the note and mortgage from the original payee on the note and

lender on the mortgage, First Union Home Equity Bank, N.A., Charlotte, North Carolina.

The court explained that, “other than [First Union National Bank’s] inferences and bald

assertions, the record contains no clear statement or documentation * * * of a transfer of

the note or mortgage [from the original lender].” For the following reasons, we find the

evidentiary material submitted in the case at hand to be distinguishable from those

materials discussed in Hufford.

      {¶14} In the case sub judice, CitiMortgage’s motion for summary judgment was

supported by the affidavit of Dan Berra, a foreclosure analyst for CitiMortgage. In his

affidavit, Berra stated he had personal knowledge of appellant’s loan account and that the

attached note and mortgage were true and accurate copies of the original instruments.

While Berra does not specifically aver that the mortgage and note were assigned to

CitiMortgage, the attached copies of the note, the mortgage, and the recorded assignment

of the mortgage were sufficient to demonstrate that CitiMortgage was assigned the
mortgage on September 14, 2009, and subsequently recorded the assignment with the

Cuyahoga County Recorder’s office on September 18, 2009. Furthermore, the allonge

attached to the note contained a specific endorsement from Ohio U.S. Mortgage Corp. to

CitiMortgage, thereby evidencing the transfer of the note to CitiMortgage prior to the

time the complaint for foreclosure was filed in this matter.

       {¶15} Thus, the evidence offered by CitiMortgage demonstrates a clear chain of

assignments from the original lender, Ohio U.S. Mortgage Corp., to CitiMortgage and

established CitiMortgage’s right to enforce the note as the holder of the instrument. See

R.C. 1303.31. Accordingly, unlike the evidentiary material presented in Hufford, the

documentary evidence attached to CitiMortgage’s motion for summary judgment

sufficiently evidenced the assignment of the mortgage and note to CitiMortgage. See

Countrywide Home Loans Servicing, L.P. v. Shifflet, 3d Dist. Marion No. 9-09-31,

2010-Ohio-1266, ¶ 12-16.

       {¶16} Because appellant failed to present any evidence raising genuine issues of

material fact pertaining to the elements necessary for a successful foreclosure action, we

find the trial court did not err in granting summary judgment in favor of CitiMortgage.

                                     B. Civ.R. 56(F)

       {¶17} Appellant next argues that the trial court erred in granting summary

judgment in favor of CitiMortgage while requests for discovery were pending.

       {¶18} When a party finds itself having to respond to a summary judgment motion

before adequate discovery is completed, the proper remedy is to move the trial court to
delay judgment under Civ.R. 56(F).           Maschari v. Tone, 103 Ohio St.3d 411,

2004-Ohio-5342, 816 N.E.2d 579; Drake Constr. Co. v. Kemper House Mentor, Inc., 170

Ohio App.3d 19, 2007-Ohio-120, 865 N.E.2d 938 (11th Dist.); Alexander v. Tullis, 11th

Dist. Portage No. 2005-P-0031, 2006-Ohio-1454 (stating that when discovery is not yet

complete and a party files a motion for summary judgment, the nonmoving party’s

remedy is to move the trial court to delay judgment under Civ.R. 56(F)). When a party

fails to file a motion pursuant to Civ.R. 56(F), that party fails to preserve its right on

appeal, and a trial court does not err in determining the summary judgment motion.

Taylor v. XRG, Inc., 10th Dist. Franklin No. 06AP-839, 2007-Ohio-3209, ¶ 17;

Maschari, supra (upholding decision to grant summary judgment prior to the completion

of discovery where the nonmoving party failed to file a Civ.R. 56(F) motion for a

continuance); Tullis, supra (upholding the trial court’s grant of summary judgment where

the nonmoving party failed to file a Civ.R. 56(F) motion).

       {¶19} The record here is devoid of any indication that appellant attempted to

comply with Civ.R. 56(F); nor does his status as a pro se litigant excuse him from

complying with the same rules with which represented parties must comply. Because

appellant did not avail himself of the remedies Civ.R. 56(F) provides, any discovery he

lacked does not present a basis to reverse the trial court’s judgment.

       {¶20} Accordingly, appellant’s assignment of error is overruled.

       {¶21} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
PATRICIA A. BLACKMON, J., CONCUR
