[Cite as PHH Mtge. Corp. v. Galvin, 2012-Ohio-5997.]


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

PHH MORTGAGE CORPORATION, fka                               C.A. No.   26421
CENDANT MORTGAGE
CORPORATION dba COLDWELL
BANKER MORTGAGE CORPORATION
                                                            APPEAL FROM JUDGMENT
        Appellee                                            ENTERED IN THE
                                                            COURT OF COMMON PLEAS
        v.                                                  COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV 2010 08 5649
JOHN W. GALVIN, et al.

        Appellants

                                DECISION AND JOURNAL ENTRY

Dated: December 19, 2012



        BELFANCE, Judge.

        {¶1}    Defendant-Appellant John Galvin appeals, pro se, from the judgments of the

Summit County Court of Common Pleas which found in favor of Plaintiff-Appellee PHH

Mortgage Corporation fka Cendant Mortgage Corporation dba Coldwell Banker Mortgage

Corporation (“PHH”). For the reasons set forth below, we affirm.

                                                       I.

        {¶2}    Much of the history of this case was summarized in the prior appeal:

        In August 2010, PHH filed a complaint in foreclosure against [Mr.] Galvin and
        Stephanie Galvin, who were married at that time. John Galvin timely answered
        the complaint on behalf of himself and Stephanie Galvin. In his answer he
        asserted that the Galvins were not in default at the time the complaint was filed
        and that PHH had accepted and cashed the parties’ checks. However, according
        to Mr. Galvin, PHH then tendered a check to the Galvins refunding the payments.
        PHH moved for default judgment against Stephanie Galvin. It also moved for
        summary judgment against John Galvin. John Galvin responded to PHH’s motion
                                                2


       for summary judgment. PHH replied and argued that John Galvin had failed to
       attach documents or other evidence supporting his defenses.

       In February 2011, a pretrial conference took place. Stephanie Galvin appeared
       and filed a document indicating that she had never received any papers from PHH
       * * *. PHH withdrew its motion for default judgment against Stephanie. In
       addition, the court issued an order requiring Mr. Galvin to produce additional
       financial information to PHH and setting a telephone status conference for March
       22, 2011.

       On March 28, 2011, prior to the journalization of any order granting leave, PHH
       filed its supplemental motion for summary judgment. On March 31, 2011, the
       trial court issued an order in which it granted leave to PHH to file a motion for
       summary judgment on or before April 8, 2011. The order further stated that
       “[r]esponses to the Motion for Summary Judgment are due on or before April 22,
       2011.”

       Nine days later, on April 6, 2011, the trial court granted summary judgment in
       favor of PHH and against the Galvins. On April 22, 2011, John Galvin filed his
       response to PHH’s motion for summary judgment which contained documents in
       support of his response.

PHH Mtge. Corp. v. Galvin, 9th Dist. No. 25917, 2011-Ohio-6787, ¶ 2-5.

       {¶3}    In that appeal, this Court concluded that the trial court erred in “granting PHH’s

motion for summary judgment before [Mr. Galvin] had an opportunity to submit his response in

conformity with the trial court’s March 31, 2011 order.” Id. at ¶ 6. Accordingly, we reversed

the trial court’s decision and remanded for proceedings consistent with our opinion. Id. at ¶ 11.

       {¶4}    Upon remand, Mr. Galvin resubmitted the same response in opposition to PHH’s

motion for summary judgment.        The trial court granted summary judgment to PHH and

thereafter issued a decree of foreclosure. Mr. Galvin has appealed, pro se, raising a single

assignment of error for our review. Ms. Galvin has not appealed.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED ERROR BY GRANTING SUMMARY
       JUDGMENT TO PLAINTIFF PHH MORTGAGE DESPITE THE EXISTENCE
       OF GENUINE ISSUES OF MATERIAL FACTS WHICH WERE STILL TO BE
                                               3


       DETERMINED AND WHICH WERE ESSENTIAL TO THE OUTCOME OF
       THE CASE. IN GRANTING THE MOTION FOR SUMMARY JUDGMENT,
       THE COURT INCORRECTLY CLAIMED THAT IT WAS IMMATERIAL
       WHETHER OR NOT GALVIN HAD CORRECTED THE DEFAULT PRIOR
       TO THE COMPLAINT FOR FORECLOSURE, AND THE COURT
       INCORRECTLY CLAIMED THAT DEFENDANTS HAD A DUTY TO
       PROVE THAT THEIR PAYMENTS WERE CURRENT “AT ALL TIMES.” IN
       THE FACTUAL BACKGROUND SECTION OF THE JUDGMENT ENTRY,
       THE COURT STATED: “WHILE MORTGAGE PAYMENTS BEGINNING IN
       JULY OF[] 2010 MAY HAVE BEEN RETURNED, THIS DOES NOT
       ESTABLISH THAT, AT ALL TIMES, THE DEFENDANTS’ MORTGAGE
       WAS CURRENT. AGAIN IN THE ANALYSIS SECTION OF THE ENTRY,
       THE COURT STATED, “WHILE THE DEFENDANT HAS ESTABLISHED
       THAT MORTGAGE PAYMENTS BEGINNING IN JULY 2010 WERE
       RETURNED, HE HAS FAILED TO ESTABLISH THAT HIS LOAN WAS
       CURRENT AT ALL TIMES AND/OR THAT PLAINTIFF DID NOT
       PERFORM ALL REQUIRED CONDITIONS PRECEDENT PRIOR TO THE
       COMMENCEMENT OF THIS FORECLOSURE ACTION.” (Emphasis
       omitted.)

       {¶5}   Mr. Galvin essentially asserts in his assignment of error that the trial court erred

in granting summary judgment in favor of PHH because the documents he submitted in response

to PHH’s motion created a genuine issue of material fact with respect to whether any alleged

default had been cured and with respect to whether PHH itself created the default by returning

some of the Galvins’ payments. We do not agree.

       {¶6}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,

viewing the facts in the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. No. 25427, 2011–

Ohio–1519, ¶ 8.

       {¶7}   Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

       (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
                                                  4


         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). To succeed on a summary

judgment motion, the movant bears the initial burden of demonstrating that there are no genuine

issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt,

75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must

set forth specific facts showing that there is a genuine issue for trial.’” Id. at 293, quoting Civ.R.

56(E).

         {¶8}   “We note that [a] foreclosure requires a two[-]step process.” (Internal quotations

and citations omitted.) Natl. City Mtge. v. Skipper, 9th Dist. No. 24772, 2009-Ohio-5940, ¶ 25.

“The prerequisites for a party seeking to foreclose a mortgage are execution and delivery of the

note and mortgage; valid recording of the mortgage; default; and establishing an amount due.”

(Internal quotations and citations omitted.) CitiMortgage, Inc. v. Firestone, 9th Dist. No. 25959,

2012–Ohio–2044, ¶ 11. “Once a court has determined that a default on an obligation secured by

a mortgage has occurred, it must then consider the equities of the situation in order to decide if

foreclosure is appropriate.” (Internal quotations and citations omitted.) Skipper at ¶ 25. In the

instant matter, Mr. Galvin has not asserted that the remedy of foreclosure was inequitable.

Instead, he asserts that there was a genuine issue of material fact with respect to whether he was

in default.

         {¶9}   PHH submitted an affidavit and accompanying documents, including a copy of

the note, loan modification agreement, mortgage, and assignment, in support of its motion for

summary judgment. The affiant averred that PHH is the holder of the note, loan modification

agreement, mortgage and assignment, that there has been a default in payment, that the account

is due for the March 1, 2010 payment and all subsequent payments, that PHH elected to
                                                5


accelerate the loan, that all conditions precedent to foreclosure have been performed, and that

there is $157,391.65 due along with interest from February 1, 2010, at a rate of 3.875%.

       {¶10} In response, Mr. Galvin asserted that:

       [d]efendants contend that they had made all necessary payments to be current on
       their mortgage obligation at that time. However, plaintiff at some time after the
       filing of the complaint initiating this action mailed to the defendants checks which
       refunded five (5) months of payments, thus creating a default by virtue of
       plaintiff’s actions, not due to delinquency by defendants.

       {¶11} Mr. Galvin did not attach an affidavit to his response, although he did attach

several documents. Despite the fact that the documents were not authenticated via an affidavit, it

is clear the trial court considered them. Because there was no objection, our law is clear that the

trial court was permitted to consider them but did not have to do so. See Cheriki v. Black River

Industries, Inc., 9th Dist. No. 07CA009230, 2008-Ohio-2602, ¶ 6. One of the documents is a

letter from PHH to the Galvins, which is dated July 22, 2010. It states that “[t]he total amount

required to bring your loan current is $6,080.93.” It also indicates that the loan was due for the

March 1, 2010 payment and that a July payment of $1,157.83 was being returned because it was

insufficient to bring the loan current. The second letter is dated August 26, 2010, and indicates

that an August payment of $1,157.83 was being returned because it was insufficient to bring the

loan current. Finally, the third letter is dated September 7, 2010, and indicates that a separate

August payment of $3,473.49 was being returned because it was insufficient to bring the loan

current. Additional documents submitted by Mr. Galvin seem to verify that the Galvins paid the

above funds and also had them refunded.

       {¶12} Even viewing the documents in a light most favorable to Mr. Galvin, we cannot

conclude that there is a genuine dispute of material fact as to whether PHH manufactured the

default by improperly returning mortgage payments or that he cured the default alleged by PHH.
                                                6


From Mr. Galvin’s documents, it can be surmised that the Galvins submitted a total of $5,789.15

to PHH during the months of July and August, although $6,080.93 was required as of July 22,

2010, to cure the alleged default. Based upon the evidence that Mr. Galvin submitted, as of July

22, 2010, the total of the subsequent payments submitted was insufficient to bring the loan

current even as of July 22, 2010. Accordingly, Mr. Galvin has not demonstrated that there was a

genuine issue of material fact as to whether PHH manufactured a default prior to filing the

complaint by improperly returning the mortgage payments or that the Galvins cured the default

prior to the filing of the complaint. Moreover, the trial court could not consider Mr. Galvin’s

arguments to the contrary in his brief in opposition to summary judgment as they were not

supported by any affidavit or other evidence verifying the same. See Civ.R. 56(C),(E); Dresher,

75 Ohio St.3d at 293, quoting Civ.R. 56(E). In light of the evidence submitted by PHH and the

lack of rebuttal evidence which could suffice to create a dispute of material fact, we conclude the

trial court did not err in granting summary judgment in favor of PHH. Mr. Galvin’s assignment

of error is overruled.

                                               III.

       {¶13} In light of the foregoing, we affirm the judgment of the Summit County Court of

Common Pleas.

                                                                              Judgment affirmed.




       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 Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



MOORE, P.J.
CONCURS.

CARR, J.
DISSENTING.

       {¶14} I respectfully dissent. As the majority explains, a foreclosure suit involves a two-

step procedure. Although the trial court determined that Galvin was in default, it never weighed

the equities before granting foreclosure. I would remand the matter to the trial court to make that

determination.


APPEARANCES:

JOHN W. GALVIN, pro se, Appellant.

STACY L. HART, Attorney at Law, for Appellee.
