[Cite as U. S. Bank N.A. v. Baginski, 2013-Ohio-4773.]


                                         COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



U.S. BANK N.A.                                    :      JUDGES:
                                                  :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        :      Hon. Sheila G. Farmer, J.
                                                  :      Hon. Patricia A. Delaney, J.
-vs-                                              :
                                                  :
DIANNE M. BAGINSKI, ET AL.                        :      Case No. 13 CA 7
                                                  :
        Defendant-Appellant                       :      OPINION




CHARACTER OF PROCEEDING:                                 Appeal from the Court of Common
                                                         Pleas, Case No. 10CV000485



JUDGMENT:                                                Affirmed




DATE OF JUDGMENT:                                        October 28, 2013




APPEARANCES:

For Plaintiff-Appellee                                   For Defendant-Appellant

PHILLIP BARRAGATE                                        D. DIANNE MARIE BAGINSKI
ASHLYN HEIDER                                            Pro Se
4805 Montgomery Road                                     19661 Mallet/Sparrow Roads
Suite 320                                                Salesville, OH 43778
Norwood, OH 45212
Guernsey County, Case No. 13 CA 7                                                      2

Farmer, J.

      {¶1}   On November 1, 2010, appellee, U.S. Bank N.A., as Trustee for the

Registered Holders of Structured Asset Securities Corporation, Mortgage Pass-Through

Certificates, Series 2005-SCI, filed a foreclosure complaint against appellant, Dianne M.

Baginski, for failure to pay on a note secured by a mortgage.

      {¶2}   On November 28, 2012, appellee filed a motion for summary judgment.

Appellant filed a motion for summary judgment on December 18, 2012. By entry filed

January 18, 2013, the trial court granted appellee's motion and denied appellant's. A

final judgment entry was filed on February 1, 2013.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶4}   "THE TRIAL COURT JUDGE ERRED IN GRANTING THE PLAINTIFF

DEFAULT FEES AT A RATE OF 10% OF THE REGULAR PAYMENTS."

                                           II

      {¶5}   "THE TRIAL COURT JUDGE ERRED IN GRANTING THE PLAINTIFF

INSURANCE PREMIUMS."

                                           III

      {¶6}   "THE TRIAL JUDGE ERRED IN AWARDING TO THE PLAINTIFF

ESCROW ITEMS NOT ITEMIZED."

                                           IV

      {¶7}   "THE TRIAL JUDGE ERRED IN ACCEPTING THE APPELLEES CLAIM

THAT THE LOAN WAS ACCELERATED."
Guernsey County, Case No. 13 CA 7                                                     3


                                           V

      {¶8}   "THE TRIAL COURT ERRED BY DISMISSING THE REQUEST OF

SPOUSE FOR JURY TRIAL SUA SPONTE."

                                          VI

      {¶9}   "THE TRIAL COURT DID NOT APPLY TENDERED PAYMENTS TO THE

ACCOUNT OR ALLEGED DEBT. 1321.58 D."

      {¶10} Preliminarily, we note the gravamen of any appeal is the judgment entry

appealed from. The judgment entry appealed in this case is the trial court's February 1,

2013 final judgment entry which is consistent with the summary judgment rulings from

the trial court's January 18, 2013 order granting appellee's motion for summary

judgment and denying appellant's motion for summary judgment. Therefore the issues

raised by this appeal are to be reviewed under a summary judgment standard.

      {¶11} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:



             Civ.R. 56(C)    provides that before summary judgment may be

      granted, it must be determined that (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 such

      evidence most strongly in favor of the nonmoving party, that conclusion is

      adverse to the party against whom the motion for summary judgment is
Guernsey County, Case No. 13 CA 7                                                      4

        made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

        628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

        Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.



        {¶12} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987).

                                        I, IV, V, VI

        {¶13} These assignments of error challenge the determination that appellee had

standing to pursue the action, default fees, specific interpretations of the acceleration

clauses, right to a jury trial, and unapplied tendered payments. As we noted in our

ruling on appellee's notice of suggestion of mootness and request to dismiss filed

August 19, 2013, these issues are deemed moot given the pay off of the debt by

appellant on June 21, 2013 and the release of the mortgage by appellee on August 13,

2013.

        {¶14} Assignments of Error I, IV, V, and VI are dismissed.

                                           II, III

        {¶15} These assignments of error claim the award of insurance premiums

advanced by appellee and the award of escrow amounts to appellee constitute error.

We disagree.

        {¶16} Both parties filed motions for summary judgment. Appellee's November

28, 2012 motion sought a final resolution regarding appellee's standing and appellant's
Guernsey County, Case No. 13 CA 7                                                    5


default, and a claim for reimbursement of insurance premiums advanced because of

appellant's failure to insure the premises. Attached to the motion is the affidavit of

Harrison Whittaker, an employee of appellee's servicing agent, OCWEN Loan Servicing,

LLC, wherein Mr. Whittaker averred to the following in pertinent part:



             16. Proof of Hazard Insurance was not provided by Defendant for

      the dates of April 1, 2004-April 1, 2009; therefore, lender placed insurance

      was obtained and charged to the account of Defendant. The dwelling

      coverage on the lender placed policy was based on the dwelling of the

      retail policy that Defendant obtained. See Exhibit E.

             17. Proof of Hazard Insurance was provided by Defendant for the

      period of May 1, 2009-May 1, 2010, so the lender placed insurance policy

      was cancelled and $1,325.00 was refunded to the escrow account of

      Defendant on May 18, 2009. However, that policy was then cancelled

      effective June 15, 2010 and no proof of current insurance was provided.

      Therefore, a lender placed insurance policy was again obtained and

      assessed to the account of Defendant.

             18. On October 4, 2010, a letter was mailed to Defendant which

      requested that the Declaration page of any hazard insurance policy that

      Defendant purchased from 2004-present be sent as proof of insurance

      and that upon such showing, Defendant account would be refunded. No

      additional proof of insurance was provided by Defendant.
Guernsey County, Case No. 13 CA 7                                                    6


             19. Payments have not been made as required by the terms and

      conditions of the Promissory Note and Mortgage, and by reason thereof,

      the Note and Mortgage are in default as prayed for in Plaintiff's Complaint.

             25. There is presently due thereon the sum of $62,292.63 plus

      interest at the Note rate of 7.75% from February 1, 2010 plus sums

      advanced by Plaintiff pursuant to the terms of the Mortgage for real estate

      taxes, hazard insurance premiums, and property protection; and that said

      account is in default of payment as alleged in Plaintiff's Complaint.



      {¶17} Appellant did not respond to the specifics of the affidavit as cited above,

but filed a motion for summary judgment on December 18, 2012, specifically

challenging whether appellee was the proper party to sue:



             Defendant Dianne Baginski's collateral file was lost so there is no

      way to determine if an allonge was attached to her original note, because

      that original note is gone. Since Plaintiff is not the original lender the

      Plaintiff is not entitled to a judgment of foreclosure as a matter of law.

             Furthermore, the note indorsed in blank by allonge directly

      contradicts the note attached [to] the complaint in this case. Since the

      note attached to the complaint is missing a page the allonge would not be

      sufficient to negotiate the note to the Plaintiff because a complete version

      of Dianne Baginski's note does not exist. In addition, since the trust does
Guernsey County, Case No. 13 CA 7                                                     7


       not have Defendant Dianne Baginski's original note that is evidence that

       her note and mortgage never became part of the trust res.



       {¶18} Appellant further argued:



                Furthermore, Plaintiff's attempt to substitute a different note not

       only runs afoul of Schwartzwald but is doubtful veracity because the note

       produced at the deposition came from Ocwen's records and not the

       records of the trust's custodian. Defendant Dianne Baginski respectfully

       requests that the Court grant summary judgment in her favor.



       {¶19} Appellant never contested the default, amount due, acceleration,

insurance reimbursement, or fees claimed via the affidavit of Mr. Whittaker. There is no

affirmative response to Mr. Whittaker's paragraph no. 25 cited above.           We note

appellant did file a motion to strike Mr. Whittaker's affidavit on January 15, 2013,

contesting his personal knowledge of appellee's records. However, Mr. Whittaker was

an employee of OCWEN Loan Servicing, LLC, the servicing agent and attorney-in-fact

for appellee.

       {¶20} Given our limited review with the pay off of the debt, we find no genuine

issues of material fact on the issues argued under these assignments of error as the

trial court granted judgment in accordance with paragraph no. 25 of the affidavit.

       {¶21} Assignments of Error II and III are denied.
Guernsey County, Case No. 13 CA 7                                              8


      {¶22} The judgment of the Court of Common pleas of Guernsey County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                        ______________________________
                                        Hon. Sheila G. Farmer




                                        ______________________________
                                        Hon. W. Scott Gwin




                                        ______________________________
                                        Hon. Patricia A. Delaney


SGF/sg 903
[Cite as U. S. Bank N.A. v. Baginski, 2013-Ohio-4773.]


                 IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



U.S. BANK N.A.                                           :
                                                         :
        Plaintiff-Appellee                               :
                                                         :
-vs-                                                     :       JUDGMENT ENTRY
                                                         :
DIANNE M. BAGINSKI, ET AL.                               :
                                                         :
        Defendant-Appellant                              :       CASE NO. 13 CA 7




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

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

to appellant Dianne M. Baginski.




                                                         _______________________________
                                                         Hon. Sheila G. Farmer



                                                         _______________________________
                                                         Hon. W. Scott Gwin



                                                         _______________________________
                                                         Hon. Patricia A. Delaney
