[Cite as Fed. Natl. Mtge. Assn. v. Porter, 2017-Ohio-8852.]


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

FEDERAL NATIONAL MORTGAGE                                     C.A. No.   28600
ASSOCIATION ("FANNIE MAE"), a
corporation organized and existing under the
laws of the United States of America
                                                              APPEAL FROM JUDGMENT
        Appellee                                              ENTERED IN THE
                                                              COURT OF COMMON PLEAS
        v.                                                    COUNTY OF SUMMIT, OHIO
                                                              CASE No.   CV2016 04 1723
DONALD F. PORTER, et al.

        Appellants

                                  DECISION AND JOURNAL ENTRY

Dated: December 6, 2017



        TEODOSIO, Judge.

        {¶1}     Simraj Financial Services, Inc. appeals from the order of the Summit County

Court of Common Pleas granting summary judgment in favor of the Federal National Mortgage

Association (“Fannie Mae”). This Court affirms.

                                                       I.

        {¶2}     Fannie Mae initiated this action in March 2016, filing its complaint in foreclosure

against Donald F. Porter and Simraj Financial Services, Inc. (“Simraj”). Simraj’s interest in the

subject property stemmed from a land contract agreement it entered with Mr. Porter in 2010 and

the subsequent execution of a quitclaim deed by Mr. Porter to Simraj. Simraj answered the

complaint and filed a motion to refer the case to mediation, which was denied by the trial court.

In January 2017, Fannie Mae filed its motion for summary judgment, alleging that the borrower

defaulted under the terms of the note and mortgage by failing to make the payment due on
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December 1, 2014. Simraj filed an opposition brief, alleging that it had continued to make

mortgage payments on the property until such payments were refused first by JPMorgan Chase,

N.A., and then by Fannie Mae. The trial court granted summary judgment in favor of Fannie

Mae on March 15, 2017. Simraj now appeals, raising four assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION[] IN
       DENYING APPELLANT’S MOTION TO REFER THE CASE TO
       MEDIATION.

       {¶3}    In its first assignment of error, Simraj argues that the trial court erred by denying

its motion to refer the case to mediation. We disagree.

       {¶4}    Simraj states that the Supreme Court of Ohio “has mandated programs for

foreclosure mediation,” and cites to Summit County Loc.R. 22.03, which provides the procedure

for mediation. Simraj does not provide any support for the proposition that a trial court is

required to send foreclosure cases to mediation, and this Court can find no support for such a

contention. We conclude the trial court did not err in denying the motion to refer the case to

mediation.

       {¶5}    Simraj’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED [IN] HOLDING THAT APPELLEE HAD
       STANDING TO CHALLENGE THE TRANSFER FROM PORTER TO
       SIMRAJ.

       {¶6}    In its second assignment of error, Simraj argues the trial court erred in holding

that Fannie Mae had standing to challenge the transfer of the subject property from Donald F.

Porter to Simraj. We disagree.
                                                  3


       {¶7}    The trial court’s entry granting summary judgment did not find, hold, or otherwise

comment on the issue of Fannie Mae’s standing with regard to challenging the transfer of

property. This argument is without basis.

       {¶8}    Simraj’s second assignment of error is overruled.

                               ASSIGNMENT OF ERROR THREE

       [THE] TRIAL COURT ERRED AS THE TRANSFERS BETWEEN THE
       PORTERS AND SIMRAJ WERE MADE AND RECORDED PRIOR TO THE
       TRANSFER TO APPELLEE, HENCE, APPELLEE WAS ON NOTICE OF
       SIMRAJ’S POSTURE AS DEED HOLDER.

       {¶9}    In its third assignment of error, Simraj argues the trial court erred because the

transfer of the subject property to Simraj was made prior to Fannie Mae taking possession of the

note and mortgage, and that therefore Fannie Mae was on notice that Simraj was in possession of

the deed. We disagree.

       {¶10} In this assignment of error, Simraj contends that it obtained possession of the deed

prior to Fannie Mae’s acquisition of the note and mortgage. Simraj fails to demonstrate how this

creates a genuine issue of material fact or how it is otherwise relevant to the trial court’s entry of

summary judgment in this foreclosure action.

       {¶11} Simraj’s third assignment of error is overruled.

                                ASSIGNMENT OF ERROR FOUR

       THE TRIAL COURT ERRED IN FAILING TO HOLD THAT THE PATTERN
       AND HISTORY OF ACCEPTING PAYMENTS FOR A PERIOD OF YEARS
       DID NOT CONSTITUTE AN IMPLIED CONTRACT.

       {¶12} In its fourth assignment of error, Simraj argues the trial court erred in failing to

hold that a pattern and history of accepting payments did not constitute an implied contract. In

support of this argument, Simraj directs us to R.C. 1302.11, which has been repealed. Had it not

been repealed, it would not be applicable, as Chapter 1302 is the part of Ohio’s Uniform
                                                 4


Commercial Code specifically limited to the sale of goods. See R.C. 1302.01(A)(11); R.C.

1302.02. We need not address the merits of this argument, however, because the issue of an

implied contract was not raised in Simraj’s opposition to Fannie Mae’s motion for summary

judgment. “When the non-moving party fails to raise an argument when responding to the

motion for summary judgment, the party forfeits the right to raise that argument on appeal.”

Sovereign Bank, N.A. v. Chima, 9th Dist. Summit No. 27178, 2015–Ohio–3865, ¶ 11, citing

Kelley v. Ruf, 181 Ohio App.3d 534, 2009–Ohio–1215, ¶ 15 (9th Dist.). Simraj has therefore

forfeited this argument.

       {¶13} Simraj’s fourth assignment of error is overruled.

                                                III.

       {¶14} Simraj’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       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
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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.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT




HENSAL, P. J.
CONCURS.

CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶15} I concur in judgment only with respect to the third and fourth assignments of error

but I do so solely on the basis that Simraj did not meet its reciprocal burden to demonstrate that a

genuine issue of material fact remains to be litigated for trial. State ex rel. Zimmerman v.

Tompkins, 75 Ohio St.3d 447, 449 (1996).


APPEARANCES:

MICHAEL A. HELLER, Attorney at Law, for Appellant.

MIKE L. WIERY and JESSICA M. WILSON, Attorneys at Law, for Appellee.
