[Cite as Sovereign Bank, N.A. v. Singh, 2015-Ohio-3865.]


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

SOVEREIGN BANK, N.A.                                       C.A. No.   27178

        Appellee

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
KALA SINGH CHIMA, et al.                                   COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
        Appellants                                         CASE No.   CV-2013-02-0814

                                DECISION AND JOURNAL ENTRY

Dated: September 23, 2015



        CARR, Judge.

        {¶1}    Appellants, Kala Singh Chima and Rajinder Kaur Chima, appeal the judgment of

the Summit County Court of Common Pleas. This Court affirms.

                                                     I.

        {¶2}    This foreclosure action was initiated on February 2, 2013, when Sovereign Bank,

NA, filed a complaint concerning two parcels of land located at 1035 Merriman Road, Akron,

Ohio. Sovereign Bank named numerous defendants in the complaint, including Kala Singh

Chima and Rajinder Kaur Chima, who are husband and wife. The Chimas filed an answer

admitting that they entered into a mortgage loan agreement with Sovereign Bank, but generally

denying the remaining allegations in the complaint.

        {¶3}    On October 17, 2013, Sovereign Bank filed a motion for summary judgment. The

Chimas did not respond to the motion. On November 7, 2013, the trial court granted summary

judgment in favor of Sovereign Bank and issued a judgment entry and decree of foreclosure.
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       {¶4}    The Chimas filed a timely notice of appeal. Now before this Court, they raise

four assignments of error.

                                               II.

                                ASSIGNMENT OF ERROR I

       WHEN TRIAL COURT GRANTED SUMMARY JUDGMENT IN
       SOVEREIGN BANK’S FAVOR, THERE WERE GENUINE ISSUES
       REGARDING WHETHER SOVEREIGN BANK HAD STANDING AND WAS
       ENTITLED TO JUDGMENT AS A MATTER OF LAW.

                                ASSIGNMENT OF ERROR II

       WHEN THE TRIAL COURT GRANTED SUMMARY JUDGMENT IN
       SOVEREIGN BANK’S FAVOR, PREREQUISITE STANDARDS HAD NOT
       BEEN COMPLIED WITH AND/OR FALSE MISREPRESENTATION OF
       INFORMATION.

                               ASSIGNMENT OF ERROR III

       WHEN THE TRIAL COURT GRANTED SUMMARY JUDGMENT TO
       SOVEREIGN BANK, THE DUE PROCESS RIGHTS OF THE CHIMA[]S
       UNDER THE OHIO AND FEDERAL CONSTITUTIONS WERE VIOLATED.

                               ASSIGNMENT OF ERROR IV

       WHEN THE TRIAL COURT GRANTED SUMMARY JUDGMENT ON THE
       LOAN MODIFICATION OF 2011, IT WRONGFULLY PLACED THE
       CHIMAS IN A PROHIBITED AND UNFAIR PREDATORY LOAN.

       {¶5}    In their first assignment of error, the Chimas argue that Sovereign Bank does not

have standing. In their second, third, and fourth assignments of error, the Chimas argue that the

trial court made substantive errors in ruling on the motion for summary judgment. This Court

disagrees.

       {¶6}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and
                                                 3


resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

       {¶7}    Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (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 party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶8}    The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact.      Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).

Specifically, the moving party must support the motion by pointing to some evidence in the

record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d

447, 449 (1996).

       {¶9}    We note that “[a] foreclosure requires a two[-]step process.” (Internal quotations

and citations omitted.) Natl. City Bank v. Skipper, 9th Dist. Summit No. 24772, 2009-Ohio-

5940, ¶ 25. “The prerequisites for a party seeking to foreclose a mortgage are execution and

delivery of the note and mortgage; valid recording of the mortgage; default; and establishing an

amount due.” CitiMortgage, Inc. v. Firestone, 9th Dist. Summit No. 25959, 2012-Ohio-2044, ¶
                                                 4


11. “Once a court has determined that a default on an obligation secured by a mortgage has

occurred, it must then consider the equities of the situation in order to decide if foreclosure is

appropriate.” (Internal quotations and omitted.) Skipper at ¶ 25.

       {¶10} With respect to standing, the Chimas argue that Sovereign Bank merged into

Santander Bank, but there are no recorded documents of the merger, buyout, or the assignment of

their mortgage. A review of the record reveals that in their answer to the complaint, the Chimas

“admit[ted] to entering into a mortgage loan agreement with Plaintiff Bank.” Subsequently, in

support of its motion for summary judgment, Sovereign Bank attached the affidavit of its

representative, Nicole Julian, who averred that Sovereign Bank was in possession of the note and

that the documents attached to the motion demonstrated that Sovereign Bank had standing. In

addition to certified copies of the note and mortgage, Sovereign Bank attached an assignment

evidencing that the mortgage was assigned to Sovereign Bank in 2001. The Chimas did not

respond to the motion for summary judgment. Absent a response to the motion for summary

judgment, the Chimas did not satisfy their reciprocal burden, and the trial court did not err in

determining that Sovereign Bank had standing.

       {¶11} In their second, third, and fourth assignments of error, the Chimas raise numerous

arguments pertaining to questions of material fact, misrepresentations in the certificate of

readiness, possible due process violations, and various public policy issues. Unfortunately, this

Court cannot address the merits of the appellants’ remaining arguments as they have been

forfeited because the Chimas did not raise them in the trial court by responding to Sovereign

Bank’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. Kelley v. Ruf, 181 Ohio App.3d 534, 2009-Ohio-1215, ¶ 15 (9th Dist.).
                                                  5


While the Chimas make numerous arguments on appeal, they did not raise those arguments

before the trial court. Moreover, by failing to respond to the motion for summary judgment, they

failed to provide any Civ.R. 56 evidence to demonstrate the existence of a genuine issue of fact

for trial. See Coleman v. Beachwood, 8th Dist. Cuyahoga No. 92399, 2009-Ohio-5560, ¶ 36.

“However, we must still review the trial court’s decision to determine whether the grant of

summary judgment was appropriate.” Id. Here, in addition to providing certified copies of the

note and mortgage, as well as an assignment evidencing that the mortgage was duly assigned to

Sovereign Bank, the bank attached an affidavit from its foreclosure administrator indicating that

the Chimas had failed to make payments since October 1, 2012, and owed $181,828.78.

Sovereign Bank also attached a notice of default sent to Kala Singh in December 2012. As

Sovereign Bank presented evidence in support of its motion showing that it was the valid holder

of the note and mortgage, verifying default, and establishing an amount due, Sovereign Bank

satisfied its burden as the moving party. Dresher, 75 Ohio St.3d at 292-293. Absent any

evidence to the contrary, the trial court did not err in concluding that Sovereign Bank satisfied

the prerequisites for a party seeking to foreclose on a mortgage.

       {¶12} With respect to determining whether foreclosure is an equitable remedy, a

majority of this Court has taken the position that we will refrain from undertaking an equitable

analysis under circumstances such as this where the appellant did not properly raise the issue.

See Skipper at ¶ 26; Chase Home Fin. LLC v. Byrd, 9th Dist. Summit No. 26572, 2013-Ohio-

3217, ¶ 12, but see Byrd at ¶ 18 (Carr, P.J., dissenting).

       {¶13} For the foregoing reasons, the Chimas’ four assignments of error are overruled.

       {¶14} We further note that the Chimas have filed a motion for admission of exhibits in

this Court. Upon due consideration, the motion is denied.
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                                                III.

       {¶15} The 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

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 Appellants.




                                                       DONNA J. CARR
                                                       FOR THE COURT




HENSAL, P. J.
WHITMORE, J.
CONCUR.
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APPEARANCES:

ROBERT L. OLDHAM, Attorney at Law, for Appellants.

MATTHEW J. RICHARDSON, Attorney at Law, for Appellee.
