[Cite as Residential Credit Solutions, Inc. v. Virgili, 2012-Ohio-506.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                                JUDGES:
RESIDENTIAL CREDIT SOLUTIONS,                           :       Hon. Patricia A. Delaney, P.J.
INC.                                                    :       Hon. W. Scott Gwin, J.
                                                        :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee            :
                                                        :
-vs-                                                    :       Case No. 2011-COA-024
                                                        :
LISA A. VIRGILI, ET AL                                  :
                                                        :       OPINION
                      Defendant-Appellant




CHARACTER OF PROCEEDING:                                    Civil appeal from the Ashland County Court
                                                            of Common Pleas, Case No. 09-CFR-350

JUDGMENT:                                                   Affirmed




DATE OF JUDGMENT ENTRY:                                     February 8, 2012


APPEARANCES:

For Plaintiff-Appellee                                      For Defendant-Appellant

WILLIAM T. MCINTYRE                                         BRIAN J. HALLIGAN
BROWN,BEMILLER MURRAY                                       VALERIE A. LANG
MCINTYRE & HARING, LLP                                      HALLIGAN & LANG CO., LPA
24 W. 3rd Street                                            1149 East Main Street, Box 455
Mansfield, OH 44902                                         Ashland, OH 44805
[Cite as Residential Credit Solutions, Inc. v. Virgili, 2012-Ohio-506.]


Gwin, P.J.

        {1}     Defendant-counterclaimant-appellant Lisa Virgili and her minor son, Blake

Stout (“Virgili”) appeal a summary judgment of the Court of Common Pleas of Ashland

County, Ohio, which found counterclaim defendant-appellee PNC (“PNC”) to be a bank

not subject to the Ohio Consumer’s Sales Practices Act, and not an agent of the seller,

defendant Lee A. Schlingman, who is not a party to this appeal. Appellant assigns two

errors to the trial court:

        {2}     “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

BECAUSE APPELLEE PNC MORTGAGE (FKA NATIONAL CITY MORTGAGE)

FAILED TO PRODUCE ANY EVIDENCE PERMITTED BY CIV. R. 56 (C) AND CIV. R.

56 (E).

        {3}     “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

BECAUSE REASONABLE MINDS COULD REACH DIFFERENT CONCLUSIONS AS

TO WHETHER APPELLEE ACTED AS A SELLER OR AGENT OF THE SELLER

WHERE APPELLEE VOLUNTARILY ASSUMED DUTIES THAT IT FAILED TO

DISCHARGE WITH ORDINARY CARE.”

        {4}     For the reasons that follow, we find neither assignment of error is well

taken, and we affirm the trial court’s judgment.

        {5}     At the outset, we note the judgment appealed from is a final appealable

order over which we have jurisdiction. Although issues remain pending against other

parties, the court’s judgment resolves all the claims set out in the counterclaim against

PNC. The court also found no just reason for delay pursuant to Civ. R. 54.
Ashland County, Case No. 2011-COA-024                                                     3


       {6}   The trial court’s judgment entry does not set out the facts it found to be

material and undisputed. Virgili’s statement pursuant to Loc. App. 9 states the judgment

is inappropriate as a matter of law because an issue remains regarding whether PNC

owed a duty as a seller of the real estate. Virgili also submits there is a genuine dispute

as to five facts: (1) Was PNC an agent of Schlingman or appellant’s belief of agency

reasonable under the circumstances? (2) Was there an agreement between PNC and

Schlingman whereby the former would prepare forms necessary to effectuate the sale

of the real estate? (3) Whether PNC is a financial institution, a mortgage company, or

non-bank lender? (4) Whether PNC employee Susan Jurjevic was a loan officer? And,

(5) Whether PNC breached any duties which arose by operation of law.

       {7}   The record indicates appellant Lisa Virgili purchased a home from

Schlingman under a contract provided to the parties by PNC. PNC also furnished the

residential real estate disclosure form and the lead-based paint hazard form. In order to

become eligible for the loan, Virgili had to reduce her debt-to-credit ratio. She alleged to

assist her in reducing her debt, Schlingman improperly purchased her truck to discharge

the loan on it, and also deposited funds into Virgili’s bank account, with the full

knowledge and consent of National City Mortgage, PNC’s predecessor in interest.

       {8}   Sometime after moving into the home, Virgili’s son, Blake, apparently

ingested lead-based paint, and became ill. Appellant was forced to move from the

home to an apartment, and she was unable to pay both rent and the mortgage payment.

Plaintiff Residential Credit Solutions, which is not a party to this appeal, foreclosed on

the mortgage, and Virgili filed a counterclaim against PNC. The counterclaim alleged

violations with the duty of good faith and a violation of Ohio Consumer Sales Practices
Ashland County, Case No. 2011-COA-024                                                   4


Act. PNC Bank alleges that it is the successor by merger to National City Mortgage, a

division of National City Bank, and the Ohio Consumer Sales Practices Act does not

apply to banks.

       {9}   Civ. R. 56 states in pertinent part:

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

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

evidence, 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. No evidence or stipulation may be considered except as

stated in this rule. A summary judgment shall not be rendered unless it appears from

the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to

have the evidence or stipulation construed most strongly in the party's favor. A summary

judgment, interlocutory in character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of damages.”

       {11} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts, Houndshell v. American States Insurance Company, 67 Ohio St. 2d

427 (1981). The court may not resolve ambiguities in the evidence presented, Inland

Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc., 15 Ohio St. 3d
Ashland County, Case No. 2011-COA-024                                                  5


321(1984) . A fact is material if it affects the outcome of the case under the applicable

substantive law, Russell v. Interim Personnel, Inc., 135 Ohio App. 3d 301(1999).

        {12} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court, Smiddy v. The

Wedding Party, Inc., 30 Ohio St. 3d 35 (1987). This means we review the matter de

novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186.

        {13}   The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party’s claim, Drescher v. Burt, 75 Ohio St. 3d 280 (1996). Once the

moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist, Id. The

non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary material showing a genuine dispute over material

facts, Henkle v. Henkle, 75 Ohio App. 3d 732 (1991).

                                               I.

      {14} In her first assignment of error, Virgili argues PNC filed its motion for

summary judgment without accompanying affidavits or other supporting materials.

      {15} Pursuant to Civ. R. 56(A), the movant is not required to support its motion

for summary judgment with evidentiary materials. Virgili did not file a cross motion for

summary judgment but responded to PNC’s motion, and raised various issues,

including violation of the Ohio Consumer Sales Practices Act, whether PCN acted as
Ashland County, Case No. 2011-COA-024                                                     6


Schlingman’s agent, and predatory lending. Virgili filed an affidavit in support of her

counterclaim.

       {16} The trial court granted leave for PNC to file a response to Virgili’s

memorandum opposing the motion for summary judgment. Virgili argues various

unsworn documents were attached to PNC’s reply, including a copy of an October 27,

2009 letter, a copy of the certificate for trade name renewal, and the mortgage note.

She challenges excerpts of the depositions of Virgili and Schlingman attached to the

PNC’s reply, asserting those depositions were never filed with the trial court and made a

part of the record.

       {17}   In Dick v. Tab Tool & Die Co., Inc., 5th Dist. No. L 2008-CA-0013, 2008-

Ohio-5145, 2008 WL 4444765, this court found in ruling on a motion for default, a court

has discretion to consider a portion of a deposition not filed with the court if the

opposing party does not dispute the accuracy of the pages. Dick at ¶ 22.

       {18} In the deposition of Susan Jurjevic, she identifies the notification of the loan

action and the promissory note. In Jurjevic’s deposition, she stated she was an

employee of National City Mortgage during the time in question. The deposition, filed

January 19, 2011, is sufficient verification of the documents. The deposition does not

address the trade name renewal for National City Mortgage Company.

       {19} R.C. 1345.04 defines the terms consumer transaction and loan officer.

                (A) “Consumer transaction” means a sale, lease, assignment,
                award by chance, or other transfer of an item of goods, a service,
                a franchise, or an intangible, to an individual for purposes that are
                primarily personal, family, or household, or solicitation to supply
                any of these things. “Consumer transaction” does not include
                transactions between persons, defined in sections 4905.03 and
Ashland County, Case No. 2011-COA-024                                                7


           5725.01 of the Revised Code, and their customers, except for
           transactions involving a loan made pursuant to sections 1321.35 to
           1321.48 of the Revised Code and transactions in connection with
           residential mortgages between loan officers, mortgage brokers, or
           nonbank mortgage lenders and their customers; transactions
           between certified public accountants or public accountants and
           their clients; transactions between attorneys, physicians, or
           dentists and their clients or patients; and transactions between
           veterinarians and their patients that pertain to medical treatment
           but not ancillary services.
           (H)(1) “Loan officer” means an individual who for compensation or
           gain, or in anticipation of compensation or gain, takes or offers to
           take a residential mortgage loan application; assists or offers to
           assist a buyer in obtaining or applying to obtain a residential
           mortgage loan by, among other things, advising on loan terms,
           including rates, fees, and other costs; offers or negotiates terms of a
           residential mortgage loan; or issues or offers to issue a commitment
           for a residential mortgage loan. “Loan officer” also includes a loan
           originator as defined in division (E)(1) of section 1322.01 of the
           Revised Code.
          (2) “Loan officer” does not include an employee of a bank, savings
          bank, savings and loan association, credit union, or credit union
          service organization organized under the laws of this state, another
          state, or the United States; an employee of a subsidiary of such a
          bank, savings bank, savings and loan association, or credit union; or
          an employee of an affiliate that (a) controls, is controlled by, or is
          under common control with, such a bank, savings bank, savings and
          loan association, or credit union and (b) is subject to examination,
          supervision, and regulation, including with respect to the affiliate's
          compliance with applicable consumer protection requirements, by the
          board of governors of the federal reserve system, the comptroller of
Ashland County, Case No. 2011-COA-024                                                   8


              the currency, the office of thrift supervision, the federal deposit
              insurance corporation, or the national credit union administration.


       {20}    The statute does not define the term “subsidiary”. Random House

Dictionary (2012) defines “subsidiary” as “serving to assist or supplement; auxiliary;

supplementary; subordinate or secondary”. “Division” is defined as a “partition; one of

the parts into which a thing is divided; a section”.

       {21} We find in the absence of any authority to the contrary, a division of a bank

to be the equivalent of a subsidiary. We find based upon the evidence before us

although PNC did not authenticate all of the documents presented, nevertheless, the

record contains sufficient competent and credible evidence from which the court could

find PNC, as a division of a bank, was exempt from claims made under the Ohio

Consumer’s Sales Practices Act.

       {22} The first assignment of error is overruled.

                                                 II.

       {23} In her second assignment of error, Virgili argues the trial court erred in

finding as a matter of law PNC did not act as a seller or agent of the seller, Schlingman,

when it voluntarily assumed duties associated with a seller.

       {24} Appellant accurately states an agency relationship may arise by

agreement, by implication, or by estoppel. Levin v. Nielse, 37 Ohio App. 2d 29, 306

N.E. 2d 173 (1973). Appellant asserts because PNC provided the various documents to

Schlingman and/or to Virgili to facilitate the sale, PNC and Jurjevic acted as agents for

Schlingman and assumed the duties of a seller.
Ashland County, Case No. 2011-COA-024                                                     9


          {25} Both parties cite the Lead-Based Paint Hazards Reduction Act, which

defines “agent” as any party who enters into a contract with a seller or lessor including

any party who enters into a contract with a representative of seller or lessor for the

purpose of selling or leasing target housing. The record does not contain any evidence

of a contract between PNC and Schlingman. In her deposition Jurjevic testified that she

always asked for all the disclosure statements but the parties did not always provide

them. Occasionally if the parties did not have attorneys or real estate agents she would

provide blank forms relating to the sale. Jurjevic did not review the documents, but

submitted them to the company’s processing site. The fact Jurjevic had the forms

necessary to the sale available to Virgili and Schlingham and may have included them

in the application packet does not imply she or her employer had assumed the role of

seller.

          {26} We find the trial court did not err by finding as a matter of law PNC was not

an agent of Schlingman.

          {27} The second assignment of error is overruled.
Ashland County, Case No. 2011-COA-024                                          10


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

Ashland County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur




                                         _________________________________
                                         HON. W. SCOTT GWIN

                                         _________________________________
                                         HON. PATRICIA A. DELANEY

                                         _________________________________
                                          HON. WILLIAM B. HOFFMAN




WSG:clw 0110
[Cite as Residential Credit Solutions, Inc. v. Virgili, 2012-Ohio-506.]


               IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


RESIDENTIAL CREDIT SOLUTIONS,
INC.                                                      :
                                                          :
                              Plaintiff-Appellee          :
                                                          :
                                                          :
-vs-                                                      :        JUDGMENT ENTRY
                                                          :
LISA A. VIRGILI, ET AL                                    :
                                                          :
                                                          :
                         Defendant-Appellant              :        CASE NO. 2011-COA-024




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

 the Court of Common Pleas of Ashland County, Ohio, is affirmed. Costs to appellant.




                                                              _________________________________
                                                              HON. W. SCOTT GWIN

                                                              _________________________________
                                                              HON. PATRICIA A. DELANEY

                                                              _________________________________
                                                              HON. WILLIAM B. HOFFMAN
