[Cite as PHH Mtge. Corp. v. Carlisle, 2012-Ohio-2291.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




PHH MORTGAGE CORPORATION                          :      JUDGES:
                                                  :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                       :      Hon. Sheila G. Farmer, J.
                                                  :      Hon. Julie A. Edwards, J.
-vs-                                              :
                                                  :
VICKY L. CARLISLE, ET AL.                         :      Case No. 11CA000036
                                                  :
        Defendants-Appellees                      :      OPINION




CHARACTER OF PROCEEDING:                                 Appeal from the Court of Common
                                                         Pleas, Case No. 11CV35



JUDGMENT:                                                Affirmed/Reversed in Part and
                                                         Remanded



DATE OF JUDGMENT:                                        May 17, 2012




APPEARANCES:

For Plaintiff-Appellant                                  For Defendants-Appellees

PATRICIA K. BLOCK                                        DAVID A. LITTLE
120 East Fourth Street                                   422 Main Street
Suite 800                                                Suite 400
Cincinnati, OH 45202                                     P.O. Box 427
                                                         Zanesville, OH 43702-0427
Guernsey County, Case No. 11CA000036                                                    2

Farmer, J.

         {¶1}   On January 18, 2011, appellant, PHH Mortgage Corporation filed a

complaint in foreclosure against appellees, Vicky and Christopher Carlisle, for failure to

pay on a note and mortgage that had been executed in January of 2004. Payments

stopped in October of 2009 with the default amount being $100,167.24 plus interest and

costs.

         {¶2}   On March 1, 2011, appellees filed a motion to strike the complaint. On

July 6, 2011, appellees filed a supplemental memorandum requesting summary

judgment. By entry filed September 13, 2011, the trial court denied appellees' motion to

strike the complaint, granted their motion for summary judgment, and dismissed the

complaint.

         {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

         {¶4}   "THE TRIAL COURT ERRED IN GRANTING VICKY L. CARLISLE AND

CHRISTOPHER L. CARLISLE'S MOTION FOR SUMMARY JUDGMENT BECAUSE

APPELLANT PRESENTED EVIDENCE OF GENUINE ISSUES OF MATERIAL FACT

TO BE LITIGATED."

                                            II

         {¶5}   "THE TRIAL COURT ERRED IN IMPOSING TERMS NOT INCLUDED IN

THE CONTRACT UPON APPELLANT IN THE ABSENCE OF STRONG PUBLIC

POLICY REASONS TO DO SO."
Guernsey County, Case No. 11CA000036                                                    3


                                             I

       {¶6}   Appellant claims the trial court erred in granting summary judgment to

appellees. We disagree.

       {¶7}   In response to appellant's January 18, 2011 complaint in foreclosure,

appellees filed a "Motion to Strike Plaintiff's Complaint in Foreclosure or in the

Alternative, Motion for a Hearing-Show Cause for Dismissal" on March 1, 2011. The

remedy suggested by the motion was as follows:

       {¶8}   "Whether through striking the Complaint in Foreclosure or as a result of a

show cause or dismissal hearing, the Plaintiff should be required to return the loan to

the status quo ante February 1, 2010. Not one extra cent, particularly interest or fees,

should be added to the loan. The loan modification of July, 2009, should remain intact

and/or be reinstated.

       {¶9}   "***

       {¶10} "Therefore, if the Complaint is not stricken, then Plaintiff should be

immediately brought before the Court for show cause or dismissal.             They cannot

disprove the Carlisles timely submitted their payments in July, 2009, that included the

monthly payment for August, 2009. They cannot disprove the Carlisles timely submitted

their monthly payments for September, October, November, and December, 2009, and

January and February, 2010. When Plaintiff fails to refute the Carlisles' proof of timely

payment, they will thereby prove they forced the first nonpayment, forced a breach, and

caused the breach. The roles in this matter are reversed by the facts and truth. The

Carlisles are victims, and the Plaintiff is the perpetrator of egregious misconduct."
Guernsey County, Case No. 11CA000036                                                      4


        {¶11} Civ.R. 12(B) governs how answers and defenses are presented and

states the following:

        {¶12} "Every defense, in law or fact, to a claim for relief in any pleading, whether

a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the

responsive pleading thereto if one is required, except that the following defenses may at

the option of the pleader be made by motion: (1) lack of jurisdiction over the subject

matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of

process, (5) insufficiency of service of process, (6) failure to state a claim upon which

relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion

making any of these defenses shall be made before pleading if a further pleading is

permitted. No defense or objection is waived by being joined with one or more other

defenses or objections in a responsive pleading or motion. If a pleading sets forth a

claim for relief to which the adverse party is not required to serve a responsive pleading,

he may assert at the trial any defense in law or fact to that claim for relief. When a

motion to dismiss for failure to state a claim upon which relief can be granted presents

matters outside the pleading and such matters are not excluded by the court, the motion

shall be treated as a motion for summary judgment and disposed of as provided in Rule

56.    Provided however, that the court shall consider only such matters outside the

pleadings as are specifically enumerated in Rule 56.           All parties shall be given

reasonable opportunity to present all materials made pertinent to such a motion by Rule

56."

        {¶13} It appears the trial court treated the March 1, 2011 motion to strike as a

Civ.R. 12(B)(6) motion to dismiss and converted it to a motion for summary judgment as
Guernsey County, Case No. 11CA000036                                                   5


the July 6, 2011 supplemental memorandum for summary judgment was untimely and

leave had not been requested.

       {¶14} We note the averments in appellees' March 1, 2011 motion to strike do not

qualify under a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which

relief may be granted. The averments include denials of the amount due, breach of

contract, and missed payments.        The motion to strike also alleged a Civ.R. 12(F)

violation which governs motions to strike and states the following:

       {¶15} "Upon motion made by a party before responding to a pleading or, if no

responsive pleading is permitted by these rules, upon motion made by a party within

twenty-eight days after the service of the pleading upon him or upon the court's own

initiative at any time, the court may order stricken from any pleading any insufficient

claim or defense or any redundant, immaterial, impertinent, or scandalous matter."

       {¶16} We note the allegations in the foreclosure complaint do not qualify under

the parameters of Civ.R. 12(F) as argued by appellant in its March 14, 2011 reply in

opposition to the motion to strike.

       {¶17} By entry filed September 13, 2011, the trial court denied appellees' motion

to strike and granted appellees summary judgment after reviewing the exhibits and

affidavits.

       {¶18} Procedurally, the trial court without entry converted the motion to

strike/dismiss to a motion for summary judgment and considered the issue of payments

under Civ.R. 56. Although this is unorthodox, it is not procedurally flawed as to deny

consideration.
Guernsey County, Case No. 11CA000036                                                   6


       {¶19} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

       {¶20} "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (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 nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,

364 N.E.2d 267, 274."

       {¶21} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

       {¶22} The trial court reviewed the "Customer Account Activity Statement" which

was presented via appellant's affidavit filed August 24, 2011, and also reviewed exhibits

of checks supported by the March 1, 2011 affidavit of Vicky Carlisle. See, Defendants'

Exhibits 15-18 attached to Appellees' Supplemental Memorandum in Support of Motion

for Summary Judgment filed July 6, 2011.

       {¶23} The trial court's decision was based upon an analysis of the affidavits and

exhibits. After review, the trial court found the following:
Guernsey County, Case No. 11CA000036                                                   7


      {¶24} "In this case, Defendant provides copies of the checks sent to Plaintiff's in

accordance with their forbearance agreement. Further, at the June 1, 2011 hearing,

Plaintiff had found and cashed six of the eight checks that were supposedly not paid

and in default. Plaintiff would not accept any payments after a letter dated February 12,

2010. Since the June 1, 2011 hearing, Defendants have shown that the January 2010

payment was issued with the check number 1026 and was stamped by the Mortgage

Service Center on February 8, 2010. Defendants have also shown that the August

2009 payment was issued by a cashier's check from PNC Bank on July 24, 2009."

Entry filed September 13, 2011.

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

judgment to appellees was appropriate.

      {¶26} Assignment of Error I is denied.

                                            II

      {¶27} Appellant claims the trial court abused its discretion in modifying the terms

of the contract. We agree.

      {¶28} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.

      {¶29} The trial court dismissed the foreclosure complaint and added the

following terms:

      {¶30} "The Court ORDERS the loan reinstated, the loan modification of July

2009, as is and with no change in its terms except to due date of the next monthly

payment of $637.43 and the maturity date.
Guernsey County, Case No. 11CA000036                                                    8


      {¶31} "The Court ORDERS that not one cent be added to the terms and costs of

the loan so that said loan will be restored to its exact same stauts as it was immediately

prior to the February 1, 2010 payment.

      {¶32} "The Court ORDERS that the interest rate stay the same and that no fees,

costs, including late costs, since July 2009, advances including escrow advances, be

charged or added to the loan in any way or as some other debt that the Carlisles would

be required to pay.

      {¶33} "The Court ORDERS that the unpaid principal balance, the interest rate,

the monthly payment, and each and every monetary term of said loan remain exactly

the same.

      {¶34} "The Court ORDERS that the first monthly payment be due on the first of

October, 2011.

      {¶35} "The Court ORDERS that the Carlisles continue to work with PNC Bank

and if the July 24, 2009 cashier's check is proven to have been cashed by PHH, the

$637.43 August 2009 payment shall be credited to the Carlisles' loan account by PHH;

that if the check is found not to have been cashed and cannot now be cashed, the

Carlisles shall work with PNC to have it replaced, then paid to PHH, and credited to this

account; and that if PNC establishes that PHH is still holding that check, PHH shall work

cooperatively with PNC and the Carlisles to resolve that circumstance.

      {¶36} "The Court ORDERS PHH to identify or designate a contact person at

PHH to cooperatively work with the Carlisles at any and all times during the life of said

loan to resolve questions, problems, and issues, including any repeat occurrences of

missing payments. The Court further ORDERS Plaintiff to file the name, address, and
Guernsey County, Case No. 11CA000036                                                     9


phone number of said contact person with the Court within fourteen (14) days from the

date of this Entry.

       {¶37} "The Court ORDERS PHH to provide the Carlisles with a valid mailing

address where their payments shall be sent. The Court further ORDERS Plaintiff to file

the mailing address with the Court within fourteen (14) days from the date of this Entry."

       {¶38} We agree that the trial court modified the contract. With no answer or

counterclaim filed by appellees claiming a breach of contract, the trial court's orders

went beyond the scope of its authority.

       {¶39} Assignment of Error II is granted.

       {¶40} The judgment of the Court of Common of Guernsey County, Ohio is

hereby affirmed in part and reversed in part.

By Farmer, J.

Gwin, P.J. and

Edwards, J. concur.




                                                s/ Sheila G. Farmer_____________



                                                s/ W. Scott Gwin_______________



                                                s/ Julie A. Edwards ____________

                                                             JUDGES

SGF/sg 504
[Cite as PHH Mtge. Corp. v. Carlisle, 2012-Ohio-2291.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




PHH MORTGAGE CORPORATION                                 :
                                                         :
        Plaintiff-Appellant                              :
                                                         :
-vs-                                                     :        JUDGMENT ENTRY
                                                         :
VICKY L. CARLISLE, ET AL.                                :
                                                         :
        Defendants-Appellees                             :        CASE NO. 11CA000036



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

judgment of the Court of Common Pleas of Guernsey County, Ohio is affirmed in part

and reversed in part, and the matter is remanded to said court for further proceedings

consistent with this opinion. Costs to appellant.




                                                         s/ Sheila G. Farmer_____________



                                                         s/ W. Scott Gwin_______________



                                                         s/ Julie A. Edwards ____________

                                                                      JUDGES
