[Cite as Fed. Natl. Mtge. Assn. v. Ford, 2016-Ohio-919.]


                 Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                                No. 102395



                   FEDERAL NATIONAL MORTGAGE
                          ASSOCIATION
                                                            PLAINTIFF-APPELLEE

                                                      vs.


                               STANLEY FORD, ET AL.
                                                            DEFENDANTS-APPELLANTS




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-11-760032

        BEFORE: Kilbane, J., Jones, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                           March 10, 2016
ATTORNEYS FOR APPELLANT

Marc E. Dann
William C. Behrens
Grace M. Doberdruk
Paul Bellamy
The Dann Law Firm Co., L.P.A.
P.O. Box 6031040
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

For Federal National Mortgage Association

Eric T. Deighton
Richard J. Feuerman
Carlisle McNellie Rini Kramer & Ulrich, Co., L.P.A.
24755 Chargin Boulevard, Suite 200
Cleveland, Ohio 44122

Also Listed

For State of Ohio Department of Taxation

Kenneth Boukis
Hohmann Boukis & Curtis Co., L.P.A.
The Rockefeller Building
614 W. Superior Avenue, Suite 601
Cleveland, Ohio 44113

Joseph T. Chapman
Collections Enforcement
150 East Gay Street, 21st Floor
Columbus, Ohio 43215



                                                      Continued on page -ii-
For The United States of America

Marlon A. Primes
Assistant United States Attorney
U.S. Courthouse, Suite 400
801 West Superior Avenue
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, Stanley Ford (“Ford”), appeals from the trial court’s

judgment adopting the magistrate’s decision granting summary judgment in the

foreclosure action brought by Federal National Mortgage Association (“Federal”). For

the reasons set forth below, we reverse and remand the matter for further proceedings

consistent with this opinion.

       {¶2} In July 2011, Federal filed a foreclosure action against Ford, alleging that he

is in default on a mortgage and note for his home in Bedford Heights, Ohio. Federal

alleged that “it has performed all of the conditions precedent required to be performed by

it.” Federal further alleged that Ford owes it $57,634.57, plus interest and late charges

from April 25, 2009. In support of its complaint, Federal attached, as exhibits, a copy of

the promissory note, mortgage, preliminary judicial report, and notice of tax lien.

Federal also attached to its complaint a copy of the notice of debt as required under the

Fair Debt Collection Practices Act, but did not attach a copy of the notice of acceleration.



       {¶3} In response to the complaint, Ford, pro se, filed a motion to dismiss for

failure to state a claim. Ford alleges that Federal did not comply with the terms of the

agreement by failing to give him 30 days notice of its intention to accelerate the payments
on the mortgage prior to commencing the foreclosure action. The trial court denied

Ford’s motion to dismiss, finding that Federal’s complaint adequately stated a cause of

action. Ford then filed his answer and counterclaim.

       {¶4} The parties proceeded with discovery. In November 2012, Federal filed its

motion for summary judgment. In support of its motion, Federal attached an affidavit

and Ford’s responses to Federal’s first set of request for admissions, interrogatories, and

request for production of documents. The affidavit is from a foreclosure specialist for

Federal’s loan servicing contractor. This affiant averred that Federal examined the loan

and associated documents. Federal accelerated the loan after it performed all of the

prerequisites required under the note and mortgage necessary to accelerate the balance

due. Having examined Ford’s loan history, the affiant averred that Ford was in default

because no payments had been made on the loan since May 2009. The affiant stated that

Ford owes “the principal balance of $57,634.47, plus interest at the rate of 7.25% per

annum from April 25, 2009 until paid, plus late charges and, pursuant to the mortgage, all

sums advanced for the payment of real estate taxes and assessments, insurance premiums

and property protection.” Ford opposed Federal’s motion and filed an objection, seeking

to strike the exhibits attached to Federal’s summary judgment. According to Ford,

Federal failed to attach any documents supporting the affidavit.

       {¶5} In February 2014, the magistrate issued a decision granting Federal’s motion

for summary judgment. Ford objected to the magistrate’s decision, arguing Federal

lacked jurisdiction, Federal is not the holder in due course, and Federal lacks standing to
file the foreclosure action. In December 2014, the trial court overruled Ford’s objections

and adopted the magistrate’s decision.1 It is from this order that Ford appeals, assigning

the following two assignments of error for review, which shall be discussed together.

                                 Assignment of Error One

       It was error for the trial court to grant summary judgment in favor of
       [Federal] where the note and mortgage contract contained explicit condition
       precedent requirements for [Federal] to issue a notice of default to [Ford];
       the failure to provide such notice was raised by [Ford] in both his motion to
       dismiss the complaint and in his answer; and the putative notice of default
       itself was not attached to the motion for summary judgment, nor produced
       at any other stage of the proceedings below.

                                 Assignment of Error Two

       It was error for the trial court to sustain a motion for summary judgment
       where: [Federal] failed to demonstrate that [Ford] was in default and failed
       to prove the amount of principal and interest due on the note and mortgage.

       {¶6} Within these assigned errors, Ford challenges the trial court’s grant of

summary judgment in Federal’s favor. We review an appeal from summary judgment

under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,

105, 1996-Ohio-336, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124

Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer

Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme

Court set forth the appropriate test as follows:

       Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
       no genuine issue of material fact, (2) the moving party is entitled to

       1On  January 23, 2015, the trial court granted Ford’s motion to stay the
sheriff’s sale and waiver of supersedeas bond.
        judgment as a matter of law, and (3) reasonable minds can come to but one
        conclusion and that conclusion is adverse to the nonmoving party, said party
        being entitled to have the evidence construed most strongly in his favor.
        Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653
        N.E.2d 1196, paragraph three of the syllabus. The party moving for
        summary judgment bears the burden of showing that there is no genuine
        issue of material fact and that it is entitled to judgment as a matter of law.
        Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d
        264.

        {¶7} Once the moving party satisfies its burden, the nonmoving party “may not

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response,

by affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio

St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of

the nonmoving party.        Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359,

1992-Ohio-95, 604 N.E.2d 138.

        {¶8} To prevail on a motion for summary judgment claim in a foreclosure action,

the plaintiff must prove:

        (1) that the plaintiff is the holder of the note and mortgage, or is a party
        entitled to enforce the instrument; (2) if the plaintiff is not the original
        mortgagee, the chain of assignments and transfers; (3) that the mortgagor is
        in default; (4) that all conditions precedent have been met; and (5) the
        amount of principal and interest due.

Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657,

¶ 17.

        {¶9} In the instant case, Ford did not include in his objections to the magistrate

decision that Federal failed to comply with condition precedent requirements to issue a
notice of default and also failed to demonstrate the amount he was in default. We note

that Civ.R. 53 imposes an affirmative duty on parties to submit timely, specific, written

objections to the trial court, identifying any error of fact or law in the magistrate’s

decision. Hameed v. Rhoades, 8th Dist. Cuyahoga No. 94267, 2010-Ohio-4894, ¶ 14.

Civ.R. 53(D)(3)(b)(iv) provides:

      Except for a claim of plain error, a party shall not assign as error on appeal
      the court’s adoption of any factual finding or legal conclusion, whether or
      not specifically designated as a finding of fact or conclusion of law under
      Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or
      conclusion as required by Civ.R. 53(D)(3)(b).

      {¶10} As a result, Ford has waived all but plain error. Huntington Natl. Bank v.

Blount, 8th Dist. Cuyahoga No. 98514, 2013-Ohio-3128, ¶ 10, citing Morgan Stanley

Credit Corp. v. Fillinger, 2012-Ohio-4295, 979 N.E.2d 362 (8th Dist.2012); Fannie Mae

v. Hicks, 8th Dist. Cuyahoga No. 102079, 2015-Ohio-1955.

       {¶11} When applying the plain error doctrine in the civil context, the Ohio

Supreme Court has stated that reviewing courts “must proceed with the utmost caution.”

Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-Ohio-401, 679 N.E.2d 1099. The

doctrine is limited to those “extremely rare cases” in which “exceptional circumstances

require its application to prevent a manifest miscarriage of justice, and where the error

complained of, if left uncorrected, would have a materially adverse effect on the character

of, and public confidence in, judicial proceedings.” Id. Therefore, we consider the trial

court’s judgment applying the plain error standard of review.
      {¶12} Ford contends that summary judgment is improper because Federal failed to

attach a copy of the dated notice of default and payment history to its motion in violation

of Civ.R. 56(E). Civ.R. 56(E) sets forth the requirements for affidavits submitted with

motions for summary judgment. It provides in relevant part:

      Supporting and opposing affidavits shall be made on personal knowledge,
      shall set forth such facts as would be admissible in evidence, and shall show
      affirmatively that the affiant is competent to testify to the matters stated in
      the affidavit. Sworn or certified copies of all papers or parts of papers
      referred to in an affidavit shall be attached to or served with the affidavit.
      * * * When a motion for summary judgment is made and supported as
      provided in this rule, an adverse party may not rest upon the mere
      allegations or denials of the party’s pleadings, but the party’s response, by
      affidavit or as otherwise provided in this rule, must set forth specific facts
      showing that there is a genuine issue for trial. If the party does not so
      respond, summary judgment, if appropriate, shall be entered against the
      party.

(Emphasis added.)

      {¶13} We find the instant case analogous to Third Fed. S&L Assn. of Cleveland v.

Farno, 12th Dist. Warren No. CA 2012-04-028, 2012-Ohio-5245. In Farno, the lender

attached an affidavit from one of its legal analysts to its motion for summary judgment.

The affiant averred that it reviewed the loan documents, the homeowner was in default,

and the lender had performed all of the prerequisites required under the note and

mortgage necessary to accelerate the balance due. Id. at ¶ 9. The homeowner moved to

strike the lender’s affidavit. Id. at ¶ 4. On appeal, the homeowner argued that three

paragraphs in the lender’s affidavit should have been stricken from the record because of

the lack of supporting documentation, and the trial court’s grant of summary judgment

was improper. The Farno court agreed with the homeowner, finding that the lender
failed to satisfy its initial burden for summary judgment when the last three paragraphs of

the lender’s affidavit were stricken and none of the pertinent material was provided in the

record to the trial court. Id. at ¶ 13.

       {¶14} The Farno court noted that the lender “indicated it reviewed documents

pertaining to the loan history and evidence of payment default, but no documents or

portions of documents relative to those matters were attached or served with the affidavit,

or for that matter, found anywhere in the record.” Id. at ¶ 9. The court found that

       paragraphs five, six, and seven of [the lender’s] affidavit should have been
       stricken because its summary judgment motion was not supported as
       provided in Civ.R. 56(E), when no documentation referenced in those
       portions of the affidavit were attached to or served with the affidavit to
       show default of payment and payment history. See Civ.R. 56; see
       Cincinnati Bar Assn. v. Newman, 124 Ohio St.3d 505, 2010-Ohio-928, ¶ 7,
       924 N.E.2d 359 (requirement of Civ.R. 56[E] that sworn or certified copies
       of all papers referred to in the affidavit be attached is satisfied by attaching
       the papers to the affidavit, coupled with a statement therein that such copies
       are true copies and reproductions); see State ex rel. Varnau v. Wenninger,
       12th Dist. [Brown] No. CA2009-02-010, 2011-Ohio-3904, ¶ 10 (striking
       portions of affidavit where documents were reviewed and relied upon in
       drafting affidavit, but not attached to affidavit or served therewith).

Farno at ¶ 10.

       {¶15} The court acknowledged that its holding

       does not suggest that [the lender] was required to attach every document in
       its file on [the homeowner’s] note, but [the lender] needed to attach or serve
       with its affidavit some document or documents material to the issues in this
       case, to wit, the default in payment and applicable portions of the payment
       history.

Id. at ¶ 11, citing Countrywide Home Loans, Inc. v. Rodriguez, 9th Dist. Lorain Nos.

03CA008345, 03CA008417, 2004-Ohio-4723 (affiant attested to true record of payments
on homeowner’s account and attached to affidavit document chronicling the payment

history on the account).

       {¶16} Likewise, in the instant case, none of the documents referenced in Federal’s

affidavit were attached to its summary judgment motion. The only document Federal

attached was Ford’s responses to Federal’s first set of request for admissions,

interrogatories, and request for production of documents. Federal did not attach the note

or mortgage (although the affiant references those documents as attached to the

complaint); there are no documents to support the contention that all of the prerequisites

required under the note and mortgage necessary to accelerate the balance due on the note

have been performed; there is no loan history or relevant portions of loan histories

attached to the motion evidencing the sums allegedly owed by Ford; and there is no

documentary evidence to support the claim concerning late fees or advances on the loan.

See Nationstar Mtge., L.LC. v. Wagener, 8th Dist. Cuyahoga No. 101280,

2015-Ohio-1289 (summary judgment was proper when the bank attached to its summary

judgment motion copies of the note, the mortgage, the assignments, the notice of intent to

accelerate the loan, two notices advising homeowners that the servicing of their mortgage

loan was being transferred, and the payment history for the loan by reference into his

affidavit); RBS Citizens, N.A. v. Krasnov, 8th Dist. Cuyahoga No. 100992,

2014-Ohio-4217 (summary judgment was proper when the bank attached to its summary

judgment motion copies of the original note and mortgage, and affidavit of its foreclosure

specialist); Deutsche Bank Natl. Trust Co., 8th Dist. Cuyahoga No. 98502,
2013-Ohio-1657 (summary judgment was proper when the bank attached to its summary

judgment motion the affidavit of the bank’s representative, copies of the unendorsed note,

the note endorsed in blank, the mortgage, the assignment of mortgage, selected pages

from the payoff statement for the homeowner’s loan, and various notices of acceleration

and default for the loan.)

       {¶17} The dissent, relying on Chase Bank USA, NA v. Lopez, 8th Dist, Cuyahoga

No. 91480, 2008-Ohio-6000, maintains that Ford has waived any error with respect to

Federal’s affidavit in support of its motion for summary judgment. Chase, however, is

distinguishable from the matter before us.

       {¶18} In Chase, Chase sued Lopez for money he owed on a credit card account.

In support of its motion for summary judgment, Chase attached the card member

agreement, the affidavit of Chase’s custodian of records, and 11 monthly statements

addressed to Lopez, reflecting a $14,388.97 balance. Id. at ¶ 5. On appeal, Lopez

argued for the first time, that the affidavit Chase attached to its motion for summary

judgment did not meet the requirements of Civ.R. 56(E). Id. at ¶ 16. This court found

that Lopez could not raise this argument for the first time on appeal because this issue

was not raised in the trial court. Id., citing Republic Steel Corp. v. Bd. of Revision, 175

Ohio St.179, 192 N.E.2d 47 (1963), syllabus.

       {¶19} Unlike in Chase, in the instant case, Federal did not attach any of the

documents referenced in its affidavit to its summary judgment motion. Furthermore, the

procedural posture in Chase involved a motion for summary judgment in a credit account
action proceeding solely before the trial court. Whereas, the instant case involves a

foreclosure action that proceeded before a magistrate and was subject to a magistrate’s

decision and objections prior to proceeding before the trial court. Therefore, Chase does

not control the outcome of this matter.

       {¶20} Based on the record before us, it was plain error for the trial court to award

summary judgment to Federal without Federal providing the documents necessary to

substantiate:   (1) that the required prerequisites under the note and mortgage were

performed in order to accelerate the balance due on the note; (2) the relevant loan history;

and (3) the evidence to support the late fees. Therefore, summary judgment was not

appropriate.

       {¶21} Accordingly, the first and second assignments of error are sustained.

       {¶22} Judgment reversed and remanded.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., A.J., CONCURS IN JUDGMENT ONLY;
MELODY J. STEWART, J., DISSENTS (SEE SEPARATE OPINION)


MELODY J. STEWART, J., DISSENTING:

       {¶23} As the majority concedes, Ford did not object to the magistrate’s decision to

grant summary judgment on grounds that Federal failed to include in its motion proof that

it complied with its contractual obligation to provide Ford with notice of his default.

Ford’s failure to object to Federal’s affidavit filed in support of its motion for summary

judgment waived any error. In Chase Bank USA, NA v. Lopez, 8th Dist. Cuyahoga No.

91480, 2008-Ohio-6000, we addressed this same issue and stated:

        Chase notes that Lopez, in his appellate briefs, raises for the first time the
        issue that the affidavit of John Wells, attached to its motion for summary
        judgment, did not meet the requirements of Civ.R. 56(E). We agree that
        because this issue was not raised in the trial court, Lopez cannot raise it for
        the first time on appeal. Republic Steel Corp. v. Bd. of Revision, 175 Ohio
        St. 179, 192 N.E.2d 47 (1963), at syllabus. Furthermore[,] “[f]ailure to
        move to strike or otherwise object to documentary evidence submitted by a
        party in support of, or in opposition to, a motion for summary judgment
        waives any error in considering that evidence under Civ.R. 56(C).” Darner
        v. Richard E. Jacobs Group, Inc., 8th Dist. Cuyahoga No. 89611,
        2008-Ohio-959, at ¶ 15.
Id. at ¶ 16.
       {¶24} Even though the Ohio Supreme Court has made it clear in the context of a

plain error analysis that the “failure to follow procedural rules can result in forfeiture of

rights,”   Goldfuss, 79 Ohio St.3d 116, 122, 679 N.E.2d 1099 (1997), the majority

nonetheless finds it was plain error for the court to grant summary judgment in the

absence of evidentiary material showing that Federal gave notice of its intent to accelerate

the debt in the wake of Ford’s default.

       {¶25} The majority fails to acknowledge that Federal’s complaint contained a copy

of the notice of default and acceleration of the note it provided to Ford. Civ.R. 56(C)

states that summary judgment can be rendered if “the pleadings” show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law. Ford offered no evidence to contradict the notice of default. When Ford

answered the complaint, he raised the affirmative defense of “failure to comply with

notice provisions,” but he offered nothing to prove that affirmative defense in opposition

to the motion for summary judgment. Todd Dev. Co. v. Morgan, 116 Ohio St.3d 461,

2008-Ohio-87, 880 N.E.2d 88, syllabus (“A plaintiff or counterclaimant moving for

summary judgment does not bear the initial burden of addressing the nonmoving party’s

affirmative defenses.”).

       {¶26} Because of waiver and a failure of proof, Ford has failed to show the

existence of any error in this case. And to the extent that the majority finds plain error, it

says nothing about why this is the “exceptional” case in which ignoring the error would

result in a “manifest miscarriage of justice” and undermine the judicial process.
Goldfuss, 79 Ohio St.3d at 121. Apart from failing to prove his affirmative defense of

the failure to comply with notice provisions, Ford has never offered evidence to dispute

the amount that Federal claims he owes under the note. I would affirm the decision of

the trial court.
