[Cite as Vanderbilt Mtge. & Fin., Inc. v. Lloyd, 2011-Ohio-4615.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



VANDERBILT MORTGAGE AND                                     JUDGES:
FINANCE, INC.                                               Hon. W. Scott Gwin, P. J.
                                                            Hon. John W. Wise, J.
        Plaintiff-Appellee                                  Hon. Patricia A. Delaney, J.

-vs-                                                        Case No. 10 CA 24

WESLEY R. LLOYD

        Defendant-Appellant                                 OPINION




CHARACTER OF PROCEEDING:                                Civil Appeal from the Court of Common
                                                        Pleas, Case No. 10 CV 13


JUDGMENT:                                               Affirmed



DATE OF JUDGMENT ENTRY:                                 September 14, 2011



APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant

ROBERT K. HOGAN                                         WESLEY R. LLOYD
JAVITCH, BLOCK & RATHBONE                               PRO SE
602 Main Street, Suite 500                              4091 County Road 52
Cincinnati, Ohio 45202                                  Glenmont, Ohio 44628
Holmes County, Case No. 10 CA 24                                                        2

Wise, J.

       {¶1}   Defendant-Appellant Wesley R. Lloyd appeals the decision of the Court of

Common Pleas, Holmes County, which granted summary judgment in a foreclosure

action in favor of Plaintiff-Appellee Vanderbilt Mortgage and Finance, Inc., mortgagee

herein. The relevant facts leading to this appeal are as follows.1

       {¶2}   In June 2008, appellant and co-defendant Jennifer Spitler executed a

note, mortgage, and manufactured home rider with Appellee Vanderbilt Mortgage for an

original principal amount of $95,323.00, to be paid initially in the amount of $873.03 per

month. Said documents designate appellant and Spitler as single persons. In October

2008, appellant and Spitler executed a loan modification agreement, increasing the

principal amount to $101,047.31.

       {¶3}   Appellee has remained the mortagee and holder of the promissory note

and mortgage, which concern a 6.138-acre parcel of land in Holmes County, Ohio,

owned by appellant and Spitler. Appellee also holds a security interest in a 2001

Champion mobile home titled to Spitler, as referenced in the aforesaid manufactured

home rider.

       {¶4}   Appellant and Spitler thereafter defaulted on their monthly payments.

       {¶5}   On January 25, 2010, Appellee Vanderbilt Mortgage filed a foreclosure

action, seeking judgment on the note and mortgage. Appellant filed an answer on

February 26, 2010. On April 26, 2010, appellant requested mediation.




1
   Appellant’s brief contains a combined “statement of case and facts” consisting of a
one-paragraph recitation of the pleadings filed in the trial court. Appellant does not
therein articulate any basic facts concerning the parties, mortgages, notes, or additional
background information pertinent to this appeal. See App.R.16(A)(6).
Holmes County, Case No. 10 CA 24                                                     3


      {¶6}   On August 9, 2010, appellee filed a motion for summary judgment. On

November 10, 2010, appellant filed a reply thereto, as well as his own motion for

summary judgment.

      {¶7}   On November 15, 2010, the trial court granted summary judgment in favor

of appellee. On the same day, the court issued a judgment entry and foreclosure

decree.

      {¶8}   On December 14, 2010, appellant filed a motion to dismiss, a notice of

appeal, and a motion for stay of execution. On January 12, 2011, the trial court denied

appellant’s motion to dismiss, although a stay of the summary judgment pending appeal

was granted on January 19, 2010.

      {¶9}   Appellant herein raises the following five Assignments of Error:

      {¶10} “I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT

WHERE THERE IS A GENUINE ISSUE OF MATERIAL FACT DETERMINING WHO

WAS RESPONSIBLE FOR SURRENDERING THE CERTIFICATE OF TITLE NEEDED

TO PROPERLY CONVEY THE PROPERTY.

      {¶11} “II. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S

MOTION TO DISMISS.

      {¶12} “III.    THE TRIAL COURT ERRED               BY GRANTING SUMMARY

JUDGMENT WHERE THERE IS A GENUINE ISSUE OF MATERIAL FACT THAT THE

APPELLEE FAILED TO PROVIDE AN APPROVED LEGAL DESCRIPTION OF SAID

PROPERTY.

      {¶13} “IV.     THE TRIAL COURT ERRED BY GRANTING SUMMARY

JUDGMENT WHERE THERE IS A GENUINE ISSUE OF MATERIAL FACT THAT THE
Holmes County, Case No. 10 CA 24                                                           4


APPELLEE FAILED TO PROVIDE EVIDENCE THAT APPELLANT WAS REQUIRED

TO PAY THE FULL YEAR'S TAXES BEFORE THE CERTIFICATE OF TITLE COULD

BE SURRENDERED.

       {¶14} “V. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT

WHERE THERE IS A GENUINE ISSUE OF MATERIAL FACT THAT THE APPELLEE

SUBMITTED A COPY OF THE ORIGINAL CERTIFICATE OF TITLE THAT DOES NOT

CONTAIN THE APPELLANT AS AN OWNER NOR THE APPELLEE AS THE

CURRENT LIEN HOLDER.”

                              Summary Judgment Standard

       {¶15} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, we must refer to Civ.R. 56 which provides, in pertinent part: “Summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,

written admissions, affidavits, transcripts of evidence in the pending case 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. * * * 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.”
Holmes County, Case No. 10 CA 24                                                           5


       {¶16} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates the non-moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating there is a genuine issue of material fact for

trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v.

Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

                                             I.

       {¶17} In his First Assignment of Error, appellant contends the trial court

erroneously granted summary judgment, claiming a genuine issue of material fact exists

concerning surrender of the title to the mobile home on the property. We disagree.

       {¶18} Title 45 of the Revised Code provides statutory procedures for legally

converting or affixing a mobile home to real estate and thereby subjecting it to taxation

along with the underlying realty. See R.C. 4503.06; R.C. 4505.11; Snyder v. Hawkins,

Coshocton App.No. 03-CA-007, 2004-Ohio-99. One of the steps in this procedure is a

requirement that either the mobile home owner or the lienholder surrender the certificate

of title to the mobile home to the county auditor. See R.C. 4505.11(H).

       {¶19} Appellant in the case sub judice appears to be raising an equitable

argument that faults appellee for allegedly failing to properly arrange the surrender of
Holmes County, Case No. 10 CA 24                                                         6


the certificate of title and thereby blocking him from refinancing the mortgage, thus

creating a genuine issue of material fact under a summary judgment analysis.2

However, we have recognized Civ.R. 56(E) requires that the non-moving party not rest

upon his pleadings, but rather must defend by affidavit or other evidentiary quality

materials. Doe v. Turner (July 11, 1994), Stark App.No. 94-CA-0027, 1994 WL 369956.

Furthermore, a mortgagor raising an equitable defense against summary judgment

bears the burden to affirmatively demonstrate the trial court did not consider the equities

of the foreclosure action. See First Knox National Bank v. Peterson, Knox App.No.

08CA28, 2009-Ohio-5096, ¶ 22. Appellant’s November 10, 2010 reply to appellee’s

summary judgment motion in the trial court record does not incorporate any affidavits or

other supporting documents. Therefore, upon review, we find no genuine issue of

material fact and hold summary judgment in favor of appellee was not erroneous as a

matter of law regarding the issue of surrender of title.

       {¶20} Appellant’s First Assignment of Error is overruled.

                                             II.

       {¶21} In his Second Assignment of Error, appellant contends the trial court erred

in denying his post-judgment “motion to dismiss,” which he filed on December 14, 2010.

       {¶22} In his motion, appellant relied on Holmes County Loc.R. 13(G), which

states: “Prior to the submission of any Entry or Decree transferring or affecting any

interest in real estate situated in Holmes County, Ohio, to the Court for execution,

counsel shall submit the legal description of the real estate contained in said Entry to



2
    Appellant nonetheless does not articulate if Jennifer Spitler would have participated
in any planned mortgage refinancing. Spitler, who has not appealed, is the sole owner
of the mobile home according to the title.
Holmes County, Case No. 10 CA 24                                                        7


the Holmes County Tax Map Office for review as to the legal sufficiency of said

description. The original of any such Entry shall bear the approval stamp of said Tax

Map Office prior to submission to the Court.”

       {¶23} We note appellant’s notice of appeal and docketing statement in the case

sub judice go only to the foreclosure decree of November 15, 2010. Appellant presently

claims his subsequently-filed “motion to dismiss” was based on Civ.R. 60(B). See

Appellant’s Brief at 10. However, a judgment granting or denying Civ.R. 60(B) relief is

separate and distinct from the order toward which the Civ.R. 60(B) motion was directed.

Brooks v. Merchant, Cuyahoga App.No. 89462, 2008-Ohio-932, ¶ 13. As such, we are

unable to review the denial of appellant’s motion to dismiss in the present appeal.

       {¶24} Appellant’s Second Assignment of Error is overruled.

                                            III.

       {¶25} In his Third Assignment of Error, appellant contends the trial court erred in

granting summary judgment, claiming a genuine issue of material fact exists concerning

whether appellee complied with Holmes County Loc.R. 13(G), supra, concerning a

proper legal description of the property at issue.

       {¶26} Generally, an affidavit stating the loan is in default is sufficient for

purposes of Civ.R. 56, in the absence of evidence controverting those averments. Bank

One v. Swartz, Lorain App.No. 03CA008308, 2004-Ohio-1986, ¶ 14, citingYorkwood S.

& L. Assoc. v. Jacobs (Jul. 31, 1990), Montgomery App.No. 11998, 1990 WL 107840. It

is undisputed that appellee herein supplied such an affidavit in support of its motion for

summary judgment. We find the issue of appellee’s compliance or non-compliance with

Loc.R. 13(G), which addresses the technical requirements of certain judgment entries
Holmes County, Case No. 10 CA 24                                                      8


and decrees, is irrelevant to the propriety of summary judgment in foreclosure under the

circumstances of the case sub judice.

      {¶27} Appellant’s Third Assignment of Error is therefore overruled.

                                           IV.

      {¶28} In his Fourth Assignment of Error, appellant contends the trial court

erroneously granted summary judgment, claiming a genuine issue of material fact exists

concerning the payment of taxes as a prerequisite to the surrender of the title to the

mobile home. We disagree.

      {¶29} We again note that appellant’s reply to appellee’s summary judgment

motion in the trial court record does not incorporate any affidavits or other supporting

documents. However, the security agreement between the parties clearly indicates that

escrow items such as taxes were the responsibility of appellant and Spitler in the

absence of a written waiver, which appellant did not allege or provide to the court. The

security agreement states in pertinent part:

      {¶30} "Borrower shall promptly furnish to Lender all notices of amounts to be

paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless

Lender waives Borrower's obligation to pay to Lender funds for any or all Escrow Items.

* * *. Any such waiver may only be in writing." Security Instrument at 4.

      {¶31} Therefore, upon review, we find summary judgment in favor of appellee

was not erroneous as a matter of law regarding the issue of tax payments.

      {¶32} Appellant’s Fourth Assignment of Error is overruled.
Holmes County, Case No. 10 CA 24                                                        9


                                            V.

        {¶33} In his Fifth Assignment of Error, appellant argues the trial court

erroneously granted summary judgment, claiming a genuine issue of material fact exists

concerning appellee’s status as the real party in interest. We disagree.

        {¶34} Civ.R. 17(A) sets forth the requirement that cases be prosecuted by the

real party in interest. In Provident Bank v. Taylor, Delaware App. No. 04CAE05042,

2005-Ohio-2573 and LaSalle Bank Natl. Assoc. v. Street, Licking App. No. 08CA60,

2009-Ohio-1855, we affirmed trial court decisions to grant summary judgment in favor of

the mortgagees, where the mortgagee in each case had filed motions for summary

judgment, attaching Civ.R. 56 evidence that the mortgagee was the lawful holder and

owner of the note and mortgage, and the mortgager had failed to respond with Civ.R. 56

evidence to create a genuine issue of fact to the contrary. See Taylor at ¶ 17; LaSalle at

¶ 28.

        {¶35} We herein apply the same reasoning and hold summary judgment in favor

of appellee was not erroneous as a matter of law regarding the issue of the real party-

plaintiff in interest.
Holmes County, Case No. 10 CA 24                                                   10


      {¶36} Accordingly, appellant’s Fifth Assignment of Error is overruled.

      {¶37} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Holmes County, Ohio, is hereby affirmed.



By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
JWW/d 0829
Holmes County, Case No. 10 CA 24                                             11


            IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




VANDERBILT MORTGAGE AND                   :
FINANCE, INC.                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
WESLEY R. LLOYD                           :
                                          :
       Defendant-Appellant                :        Case No. 10 CA 24




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

judgment of the Court of Common Pleas of Holmes County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                            JUDGES
