[Cite as U.S. Bank Trust, N.A. v. Jacobs, 2015-Ohio-4632.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


U.S. Bank Trust, N.A., as Trustee for                        Court of Appeals No. L-14-1268
VOLT 2012-NPL1 Asset Holdings Trust
                                                             Trial Court No. CI0201303000
        Appellee

v.

Ronald O. Jacobs, Ind. and as Trustee
under The Ronald O. Jacobs and
Barbara J. Jacobs Family Trust dated
13th day of September 2007, etc., et al.                     DECISION AND JUDGMENT

        Appellants                                           Decided: November 6, 2015


                                                 *****

        Adam J. Turer, for appellee.

        Troy J. Doucet and Bridget M. Wasson, for appellants.

                                                 *****

        SINGER, J.

        {¶ 1} This is an appeal from the Lucas County Court of Common Pleas granting

default judgment against appellant Barbara Jacobs and granting summary judgment
against appellant Ronald Jacobs. Appellants appeal these trial court orders. For reasons

below, we affirm the trial court’s orders.

       {¶ 2} Appellants set forth two assignment of error:

              1. The trial court erred in finding appellant Barbara Jacobs is in

       default of motion or answer.

              2. The trial court erred in granting appellee’s summary judgment on

       its foreclosure claims against appellant Ronald Jacobs.

       {¶ 3} Appellants are a married couple who purchased a home in Maumee, Ohio in

2007. On November 30, 2007, appellants executed and delivered a promissory note to

Residential Finance Corp. in the amount of $283,500. The note was then specially

indorsed to several parties, including CitiMortgage, Inc., before it was specially indorsed

to appellee, U.S. Bank Trust, N.A., as trustee for VOLT 2012-NPL1 Asset Holdings

Trust. Appellee then indorsed the note in blank. All indorsements took place on allonges

attached to the note.

       {¶ 4} Also on November 30, 2007, appellants granted a mortgage to Mortgage

Electronic Registration Systems, Inc., as nominee for Residential Finance Corp., as

security for payment on the note. The collateral for the mortgage was appellants’

residence. The mortgage was recorded on December 12, 2007. The mortgage was then

assigned to the same parties as the note. Appellee was assigned the mortgage on

March 26, 2013.




2.
       {¶ 5} On March 19, 2009, appellants and CitiMortgage, Inc. entered into a loan

modification agreement. Appellants defaulted on the loan, as modified, on March 1,

2011. On March 30, 2011, a letter from CitiMortgage, Inc. was sent to appellants’

address informing them of their default and that acceleration would occur if the default

was not cured by April 30, 2011. Appellants did not cure the default and a balance of

$273,171.64 of principal remains unpaid. An interest rate of 4 percent is due from

February 1, 2011, and 6 percent from April 1, 2011.

       {¶ 6} On May 22, 2013, appellee filed its complaint in foreclosure based on

appellants’ default on the loan. In its complaint, appellee generally averred that it

performed all conditions precedent to the acceleration of the loan. The case was stayed

by appellant Ronald Jacobs’s filing for Chapter 13 bankruptcy. The case was reactivated

on February 19, 2014. On February 25, 2014, appellants filed a motion to prohibit the

foreclosure from proceeding while the bankruptcy case and adversary proceeding were

pending. The motion was denied by the trial court.

       {¶ 7} On March 17, 2014, appellant Ronald Jacobs filed an answer to the

complaint. The answer stated “Comes now, Ronald Jacobs, and Barbara Jacobs,” but

was only signed by appellant Ronald Jacobs. The answer denied all allegations by

appellee, stated appellant Barbara Jacobs’s name does not appear on any loan documents,

and claimed the trial court did not have subject-matter jurisdiction to hear the case. The

answer also stated appellee was not a holder in due course of the note and questioned the

validity of all allonges attached to the note. The answer did not deny appellee’s




3.
compliance with the conditions precedent. On March 21, 2014, appellant Ronald Jacobs

filed a “Notice of Fault and Opportunity to Cure and Contest Acceptance,” which the trial

court struck from the record on March 26, 2014.

       {¶ 8} On October 8, 2014, appellee filed a motion for summary judgment against

appellant Ronald Jacobs. The motion was supported by the affidavit of Melinda

Girardeau, a default service officer for Caliber Home Loans. Girardeau is an attorney in

fact and serves as a servicing agent for appellee. Girardeau averred that in her position

she had access to loan documentation and loan account records, that she had knowledge

of the operation and maintenance of the loan documents, and that she made the affidavit

based on her personal knowledge of those business records. Appellee filed a motion for

default judgment against appellant Barbara Jacobs on the same day.

       {¶ 9} Girardeau stated at the time of the filing of the complaint, and continually

since the filing, appellee has maintained possession of the note and attached allonges.

She also stated the last allonge attached to the note was indorsed in blank by appellee.

She also averred to the amount of the unpaid balance of the loan. Authenticated copies of

the note, attached allonges, mortgage, assignments of the mortgage, notice of the default,

and payment records were attached to the affidavit in support.

       {¶ 10} On October 24, 2014, appellant Ronald Jacobs filed an affidavit, averring

he sent correspondence to “Caliber Home Loan” on June 17, 2014. Appellants did not

file an opposition to appellee’s motion for default judgment or motion for summary




4.
judgment. On November 12, 2014, the trial court granted appellee’s motion for summary

judgment and motion for default judgment.

       {¶ 11} Appellants’ first assignment of error claims the trial court abused its

discretion when it granted default judgment against appellant Barbara Jacobs. We review

a trial court’s granting default judgment for an abuse of discretion. Wells Fargo Bank,

N.A. v. Bischoff, 6th Dist. Wood No. WD-13-045, 2014-Ohio-967, ¶ 12, citing Tikaradze

v. Kenwood Garden Apts., 6th Dist. Lucas No. L-11-1217, 2012-Ohio-3735, ¶ 6. A trial

court’s decision must be unreasonable, arbitrary, or unconscionable to be found to have

abused its discretion. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 12} Civ.R. 55 governs requests for default judgment. Default judgment can be

entered against a party who has “failed to plead or otherwise defend” when a judgment is

brought against them. Civ.R. 55(A). An “appearance” before the court is defined as “an

overt action by the party that clearly expresses an intention and purpose to defend the

suit.” Bischoff at ¶ 14, quoting CitiMortgage, Inc. v. Bumphus, 197 Ohio App.3d 68,

2011-Ohio-4858, 966 N.E.2d 278, ¶ 35 (6th Dist.). An intention to defend the suit can be

evidenced by filings, letters, or even a phone call. Miamisburg Motel v. Huntington Natl.

Bank, 88 Ohio App.3d 117, 125, 623 N.E2d 163 (2d Dist.1993), citing AMCA Intern.

Corp. v. Carlton, 10 Ohio St.3d 88, 90, 461 N.E.2d 1282 (1984). Civ.R. 11 requires a

party who is not represented to sign every pleading. If a party fails to sign a pleading, a

court may strike the pleading as a sham or false. Civ.R. 11.




5.
       {¶ 13} Here, appellant Barbara Jacobs failed to answer the complaint for

foreclosure. The mere placement of her name at the top of the answer does not evidence

her intent to defend the suit. Appellant did not sign the answer and her name does not

appear on any other filings by appellants. It was therefore not unreasonable, arbitrary, or

unconscionable for the trial court to find appellant Barbara Jones did not appear or

otherwise defend against the foreclosure. We therefore affirm the granting of default

judgment against appellant Barbara Jacobs.

       {¶ 14} Appellants’ second assignment of error argues the trial court erred when it

granted summary judgment against appellant Ronald Jacobs. He argues appellee lacked

standing to bring the foreclosure action, failed to satisfy the conditions precedent to the

foreclosure, and failed to establish the amount appellants owe on the loan.

       {¶ 15} Summary judgment decisions are reviewed by the appellate court de novo,

using the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio

App.3d 127, 129, 572 N.E.2d 298 (9th Dist.1989). To succeed on a motion for summary

judgment, a party must show (1) no genuine issues of material fact exist, (2) the moving

party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but

one conclusion, when viewing the evidence most favorable to the nonmoving party, and

that conclusion supports the moving party. Civ.R. 56(C). When a motion for summary

judgment is made and supported, the opposing party then has the burden of setting forth

specific facts showing there is a genuine issue for trial. Civ.R. 56(E).




6.
       {¶ 16} In order to succeed on a motion for summary judgment in a foreclosure

action, a plaintiff must demonstrate: (1) it is the holder of the note or otherwise entitled

to enforce the instrument, (2) the mortgagor is in default, (3) all conditions precedent

have been met, and (4) the amount of principal and interest due. Fed. Natl. Mtge. Assn. v.

Brunner, 2013-Ohio-128, 986 N.E.2d 565, ¶ 10 (6th Dist.); U.S. Bank, N.A. v. Coffey, 6th

Dist. Erie No. E-11-026, 2012-Ohio-721, ¶ 26.

       {¶ 17} Appellant first contends appellee lacked standing because appellee failed to

prove it had possession of the original note at the time of the filing of the complaint. A

plaintiff must show it is a holder of the note or a person entitled to enforce the instrument

in order to have standing to enforce the note and mortgage. Fed. Home Loan Mtge. Corp.

v. Schwartwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 28. A holder

of a note is entitled to enforce the instrument. R.C. 1303.31. A holder of a negotiable

instrument is the “person in possession of a negotiable instrument that is payable either to

bearer or to an identified person that is in possession.” R.C. 1301.201(B)(21)(a). As the

note was endorsed in blank, the note was bearer paper. R.C. 1303.10(A)(2). Appellee is

then required to show it had possession of the note at the time of the filing of the

complaint. R.C. 1303.201(B)(21)(a).

       {¶ 18} Appellee’s possession of the note was evidenced by a copy of the note

attached to the complaint and the affidavit to appellee’s motion for summary judgment.

Girardeau’s averments about appellee’s possession of the note before the time of the

filing of the complaint and keeping continuous possession of the note since also shows




7.
possession of the note. As we have held, this type of evidence shows possession of the

note in terms of establishing standing. U.S. Bank, N.A. v. Adams, 6th Dist. Erie No.

E-11-070, 2012-Ohio-6253, ¶ 18.

       {¶ 19} The recorded mortgage and all assignments thereafter were also attached to

the complaint and the affidavit for summary judgment. The assignment to appellee took

place two months before the complaint was filed. As possession was established by

appellee, the burden shifted to appellant to show a genuine issue of material fact existed.

Civ.R. 56(E).

       {¶ 20} In response, appellant argues a genuine issue of material fact exists because

appellee attached an allonge to the note indorsed in blank to the complaint. Appellant

argues a note indorsed in blank does not prove when appellee came into possession of the

note. However, as we held in Adams, possession of the note was evidenced by the

attachment of a copy of the note to the complaint. Adams at ¶ 18. The mere fact the last

allonge to the note was indorsed in blank does not create a genuine issue of material fact.

As appellant has failed to point to specific evidence creating a genuine issue of material

fact, we affirm the trial court’s ruling.

       {¶ 21} Appellant then contends all of the conditions precedent were not performed

prior to the complaint for foreclosure as he argues there is no proof the letter attached to

the affidavit in support of summary judgment was ever sent. Appellee generally averred

all conditions precedent were met in its complaint. Appellant generally denied appellee’s

claims.




8.
       {¶ 22} However, appellant failed to specifically deny appellee’s general averment

that all conditions precedent were performed. A general averment that all conditions

precedent were performed is sufficient. Adams, 6th Dist. Erie No. E-11-070, 2012-Ohio

6253, at ¶ 49, Coffey, 6th Dist. Erie No. E-11-026, 2012-Ohio-721, at ¶ 37. A party

alleging the satisfaction of conditions precedent may do so generally. Civ.R. 9(C). A

party denying the conditions were met must do so specifically and with particularity.

Civ.R. 9(C). “The effect of the failure to deny conditions precedent in the manner

provided by Civ.R. 9(C) is that they are deemed admitted.” Lewis v. Wal-Mart, Inc., 10th

Dist. Franklin No. 93AP-121, 1993 WL 310411, *3 (Aug. 12, 1993). Here, appellee

generally averred all conditions precedent were met in its complaint. Appellant failed to

deny the conditions were performed specifically and with particularity in his answer.

Therefore, this failure results in the conditions precedent being deemed performed. No

other issues of fact exist.

       {¶ 23} Finally, appellant argues summary judgment was improper because

appellee failed to prove the amount owed on the note. Appellant points to the payment

history computer printout attached to the affidavit in support of summary judgment, and

argues the document is insufficient to prove the amount due. However, “an averment of

the outstanding indebtedness made in the affidavit of a bank loan officer with personal

knowledge of the debtor’s account is sufficient to show the amount due and owing on the

note, unless the debtor refutes the averred indebtedness with evidence that a different




9.
amount is owed.” Natl. City Bank v. TAB Holdings, Ltd., 6th Dist. Erie No. E-10-060,

2011-Ohio-3715, ¶ 12.

       {¶ 24} In her affidavit, Girardeau avers the appellants owe $273,171.64 in

principal on the note as well as an interest rate of 4 percent starting in February 1, 2011

and 6 percent starting in April 1, 2011. Girardeau is a bank officer with personal

knowledge of Ronald Jacobs’ account. The amount owed is shown through the payment

history computer printout attached to Girardeau’s affidavit. The payment history

indicates the same amount is due that Girardeau stated was due. Appellant does not

claim to owe any other amount. Thus, appellee has sufficiently proven the amount due

on the loan and no genuine issue of material fact exist as to the amount owed.

       {¶ 25} Having found appellants’ assignments of error not well-taken, we affirm

the judgment of the Lucas County Court of Common Pleas. Costs are assigned to

appellants pursuant to App.R.24.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




10.
                                                              U.S. Bank Trust, N.A.
                                                              v. Jacobs
                                                              C.A. No. L-14-1268




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Arlene Singer, J.
                                              _______________________________
James D. Jensen, J.                                       JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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