[Cite as PNC Bank, N.A. v. Weaver, 2013-Ohio-2765.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

PNC BANK, N.A.                                        :

        Plaintiff-Appellee                            :            C.A. CASE NO.     25627

v.                                                    :            T.C. NO.    12CV6698

JAMES L. WEAVER, et al.                               :            (Civil appeal from
                                                                   Common Pleas Court)
        Defendants-Appellants                         :

                                                      :

                                            ..........

                                          OPINION

                        Rendered on the        28th       day of        June       , 2013.

                                            ..........

CHARLES F. ALLBERY III, Atty. Reg. No. 0006244 and CANICE J. FOGARTY, Atty.
Reg. No. 0010046, 137 N. Main Street, Suite 500, Dayton, Ohio 45402
      Attorneys for Plaintiff-Appellee

EDWARD J. DUFFY JR., Atty. Reg. No. 0018980, P. O. Box 76, 32 N. Dixie Drive,
Vandalia, Ohio 45377
      Attorney for Defendants-Appellants

DOUGLAS TROUT, Atty. Reg. No. 0072027, 301 W. Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Montgomery County Treasurer

                                            ..........
FROELICH, J.

                   {¶ 1} James and Yvonne Weaver appeal from a judgment of the

Montgomery County Court of Common Pleas, which granted summary judgment to PNC

Bank, N.A., on its foreclosure claims and entered a judgment and decree of foreclosure. For

the following reasons, the trial court’s judgment will be affirmed.

                                                             I.

         {¶ 2}      In September 2012, PNC Bank filed suit against the Weavers,1 claiming that

they had defaulted on their promissory note and mortgage concerning the property located at

2220 Cardinal Avenue in Dayton, Ohio. The bank alleged that the Weavers had promised

to pay National City Bank the principal amount of $60,700 with interest of 8.125%, that the

Weavers were in default, and that there was presently due $50,357.03, including interest

calculated through September 5, 2012. PNC Bank stated that it was successor in interest by

merger to National City Bank and that it was the holder of the note and mortgage. PNC

Bank sought judgment on the note, foreclosure of the mortgage, reimbursement of any

money advanced for the protection of the property during the pendency of the action, and the

sale of the property. PNC Bank attached copies of the note and mortgage to its complaint.

         {¶ 3}      Service on the Weavers of the complaint and summons by certified mail was

unsuccessful; the envelopes were returned to the clerk’s office as “unclaimed.”                                        The

Weavers were subsequently served by ordinary mail. The Weavers did not file an answer or

otherwise respond to the complaint.

         {¶ 4}      On November 28, 2012, the trial court issued a notice that several parties,


             1
               The complaint named other potentially interested parties, including the Montgomery County Treasurer, JP Morgan
   Chase Bank, Capital One Bank (USA), and the Ohio Department of Taxation. These parties are not relevant to this appeal.
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including the Weavers, were in default, and it asked PNC Bank to review whether a motion

for default judgment was appropriate. When PNC Bank failed to file a motion for default

judgment, the trial court issued a show cause order requiring PNC Bank to indicate why the

action should not be dismissed for lack of prosecution.

       {¶ 5}     Five days later, PNC Bank moved for summary judgment on its claims.

The bank supported its motion with an “Affidavit of Status of Account” by Rodney

Carpenter, an “authorized signer” of PNC Bank. Carpenter stated that he had reviewed

PNC Bank’s business records for the Weavers’ account and that PNC Bank is the holder of

and has the right to enforce the promissory note for $60,700 that was executed by the

Weavers, along with a mortgage, on October 13, 1995. Carpenter further stated that PNC

Bank “has not transferred possession of the Note since it was given possession of the Note

by National City Bank, Dayton * * *.” Carpenter indicated that the Weavers had failed to

make payments on the note as of April 1, 2011, that $42,308.17 was due and owing, with

interest of 8.125%, as of March 1, 2011, and that PNC Bank had elected to call the entire

balance due, in accordance with the terms of the note and mortgage. Carpenter stated that

“true copies” of the note and mortgage were attached as Exhibits A and B, but no documents

were attached to the affidavit.

       {¶ 6}     The Weavers were not served with the summary judgment motion and

affidavit. Rather, the motion and accompanying affidavit were served electronically on

Attorney Edward Duffy, Jr., who, at that juncture, had not entered an appearance in the trial

court as counsel for the Weavers.

       {¶ 7}    On December 24, 2011, the trial court filed an “entry setting submission
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date,” which stated that the Weavers’ response to the motion for summary judgment was due

on or before January 3, 2013 and that PNC Bank’s reply memorandum was due on January

10, 2013. The entry reflects that copies of the entry were to be sent to the Weavers by

ordinary mail.

       {¶ 8}     The Weavers failed to respond to the motion for summary judgment. On

January 11, 2013, the trial court granted the bank’s motion and, on January 17, issued a

judgment and decree of foreclosure in favor of PNC Bank. The Weavers timely appealed

from the trial court’s judgment.

                                              II.

       {¶ 9}     The Weavers raise two assignments of error on appeal.           Their first

assignment of error claims that the trial court set a deadline of January 3, 2013 for their

response to the motion for summary judgment, but they did not receive the court’s entry until

January 4, 2013. In support of their argument, the Weavers have attached to their appellate

brief a copy of an envelope, postmarked January 4, 2013, which purportedly contained the

entry setting the submission date and deadlines for responding to the motion for summary

judgment.    The Weavers state that the trial court “declined to change or extend [the]

deadline date and decided on Jan. 10, in favor of Plaintiff.”

       {¶ 10}    The Weavers’ second assignment of error claims that PNC Bank “failed to

show good faith or fair dealing in pursuing mortgage foreclosure” by sending out letters

indicating that the bank was considering “various types of relief on monthly mortgage

payments.”

       {¶ 11} At the outset, we emphasize that this matter is before us on a direct appeal
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from the trial court’s grant of summary judgment to PNC Bank. Pursuant to Civ.R. 56(C),

summary judgment is proper when (1) there is no genuine issue as to any material fact,

(2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds,

after construing the evidence most strongly in favor of the nonmoving party, can only

conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367,

369-370, 696 N.E.2d 201 (1998). In ruling on a motion for summary judgment, the trial

court considers the admissible evidentiary materials submitted by the parties in support of or

in opposition to the motion for summary judgment. See Civ.R. 56(C); Dresher v. Burt, 75

Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).           Those materials may include “the

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

of evidence, and written stipulations of fact, if any, filed in the action.” Dresher at 293;

Civ.R. 56(C).

       {¶ 12} In conducting an appellate review, this court is limited to the trial court

record as it existed at the time the trial court rendered judgment. E.g., Fifth Third Bank v.

Fin. S. Office Partners, Ltd., 2d Dist. Montgomery No. 23762, 2010-Ohio-5638. And, “[a]s

an appellate court reviewing summary judgment issues, we must stand in the shoes of the

trial court and conduct our review on the same standard and evidence as the trial court.”

Price v. Kaiser Aluminum Fabricated Prods., LLC, 5th Dist. Licking No. 12 CA 72,

2013-Ohio-2420, ¶ 12.

       {¶ 13}    When a party seeks to have a judgment set aside based on matters outside

of the record, the proper remedy generally is to file a motion for relief from judgment,

pursuant to Civ.R. 60(B). Civ.R. 60(B) permits trial courts to relieve parties from a final
                                                                                                  6

judgment for the following reasons: (1) “mistake, inadvertence, surprise or excusable

neglect;” (2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct of

an adverse party; (4) the judgment has been satisfied, released or discharged; or (5) any other

reason justifying relief from the judgment. To prevail on a motion brought under Civ.R.

60(B), the movant must demonstrate that (1) the party has a meritorious defense or claim to

present if relief is granted, (2) the party is entitled to relief under one of the grounds stated in

Civ.R. 60(B), and (3) the motion is made within a reasonable time and, for reasons under

Civ.R. 60(B)(1)-(3), not more than one year after judgment. GTE Automatic Elec., Inc. v.

ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the

syllabus. All of these requirements must be satisfied, and the motion should be denied if

any one of the requirements is not met. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637

N.E.2d 914 (1994); Cincinnati Ins. Co. v. Schaub, 2d Dist. Montgomery No. 22419,

2008-Ohio-4729, ¶ 15.

        {¶ 14}    Here, the Weavers argue that summary judgment was improper, because the

Weavers did not receive the trial court’s submission entry until after their time for

responding to the summary judgment had expired. They state that they contacted the trial

court after their time had expired, but before summary judgment was granted, and the trial

court refused to grant them a continuance to respond. Neither the envelope attached to their

appellate brief nor the Weavers’ alleged contact with the trial court regarding their time to

respond is part of the trial court record.

        {¶ 15} The Weavers also claim that PNC Bank did not act in good faith because it

sent letters to the Weavers indicating that the bank was considering “various types of relief
                                                                                          7

on monthly mortgage payments” while, at the same, pursuing its foreclosure action. As

with the envelope, the letters that PNC Bank purportedly sent are not part of the record and

were not before the trial court when the court ruled on the bank’s motion for summary

judgment.

       {¶ 16}    Although the Weavers’ allegations regarding their receipt of the submission

entry may support grounds for relief under Civ.R. 60(B), this is not a proper argument for a

direct appeal from the trial court’s grant of summary judgment. Similarly, their arguments

that the trial court failed to grant them a continuance and that PNC Bank acted in bad faith

are not appropriate on direct appeal from the summary judgment ruling, when the trial court

record contains no indication that such events occurred. If the Weavers believe they have

grounds for relief from judgment under Civ.R. 60(B), they may be able to pursue that avenue

with the trial court. We state no opinion on the merits of such a motion.

       {¶ 17}    In their reply brief, the Weavers cite to Fed. Home Loan Mtge. Corp. v.

Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, in which the Supreme

Court of Ohio held that standing is jurisdictional and must exist when a lawsuit is

commenced. A party need not rely on Civ.R. 60(B) if the basis for setting aside the

judgment is lack of subject matter jurisdiction.     “If a trial court lacks subject matter

jurisdiction to render a judgment, the order is void ab initio and may be vacated by the

court’s inherent power, even without the filing of a Civ.R. 60(B) motion.” State v. Wilfong,

2d Dist. Clark No. 2000-CA-75, 2001 WL 256326, * 2 (Mar. 16, 2001).

       {¶ 18}    The Weavers do not argue that PNC Bank lacks standing. Rather, they cite

to Schwartzwald to emphasize that financial institutions should be held “to the same
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standards as everyone else in seeking judgments.”

       {¶ 19}    Upon review of the record before us, we find no error in the trial court’s

grant of summary judgment. Carpenter’s affidavit in support of PNC Bank’s summary

judgment motion was sufficient to establish that PNC Bank had standing at the time the

complaint was filed and that it was entitled to judgment as a matter of law on its claims.

The Weavers did not respond to the motion for summary judgment. Accordingly, the trial

court properly found, based on the material before it, that PNC Bank was entitled to

judgment in its favor.

       {¶ 20}    The assignments of error are overruled.

       {¶ 21}    The trial court’s judgment will be affirmed.



                                        ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Charles F. Allbery III
Canice J. Fogarty
Edward J. Duffy Jr.
Douglas Trout
Hon. Timothy N. O’Connell
