[Cite as PHH Mtge. Corp. v. Albus, 2011-Ohio-3370.]




                            STATE OF OHIO, MONROE COUNTY

                                 IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


PHH MORTGAGE CORPORATION fka )                        CASE NO. 09 MO 9
CENTURY 21 MORTGAGE          )
                             )
     PLAINTIFF-APPELLEE      )
                             )
VS.                          )                        OPINION
                             )
MARIA S. ALBUS, et al.       )
                             )
     DEFENDANT-APPELLANT     )

CHARACTER OF PROCEEDINGS:                             Civil Appeal from the Court of Common
                                                      Pleas of Monroe County, Ohio
                                                      Case No. 2008-234

JUDGMENT:                                             Reversed and Remanded.

APPEARANCES:
For Plaintiff-Appellee:                               Atty. Amy Carr
                                                      Shapiro, Van Ess, Phillips & Barragate
                                                      4805 Montgomery Road, Suite 320
                                                      Cincinnati, Ohio 45212

                                                      Atty. James L. Peters
                                                      Monroe County Prosecutor
                                                      101 North Main Street, Room 15
                                                      P.O. Box 430
                                                      Woodsfield, Ohio 43793-0430

For Defendant-Appellant:                              Atty. Robin A. Bozian
                                                      Southeastern Ohio Legal Services
                                                      427 Second Street
                                                      Marietta, Ohio 45750

JUDGES:
Hon. Cheryl L. Waite
                                                                                   -2-

Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                               Dated: June 30, 2011

WAITE, P.J.

      {1}     Appellant, Maria S. Albus, appeals the entry of summary judgment

against her and in favor of Appellee, PHH Mortgage Corporation, formerly Century 21

Mortgage, in this foreclosure action.    In her first assignment of error, Appellant

contends that Appellee failed to attach an affidavit in support of the motion for

summary judgment, and consequently, the trial court erred in granting the

unsupported motion. Although Appellee filed an affidavit in support of the motion, it

appears from the record that the affidavit, which was filed separately from the motion

for summary judgment, was never served on Appellant. Civ.R. 5 prohibits the trial

court from considering the affidavit because it was not served. Without the affidavit,

there is no evidence to establish the amount due and owing on the promissory note.

Accordingly, Appellant’s first assignment of error has merit and the decision to grant

summary judgment is reversed. Appellant asserts in her second assignment of error

that the judgment entry does not award a sum certain, thus, compromising her right

to redemption.    Because we must reverse the underlying summary judgment,

Appellant’s argument is premature and can be addressed by the trial court after the

case is remanded.     Accordingly, the judgment of the trial court is reversed and

remanded for further proceedings.

      {2}     An appellate court conducts a de novo review of a trial court’s decision

to grant summary judgment, using the same standards as the trial court as set forth
                                                                                       -3-

in Civ.R. 56(C). Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671

N.E.2d 241.      Before summary judgment can be granted, the trial court must

determine 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 the

evidence most favorably in favor of the party against whom the motion for summary

judgment is made, the conclusion is adverse to that party. Temple v. Wean United,

Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267. When a court considers a

motion for summary judgment, the facts must be taken in the light most favorable to

the nonmoving party. Id.

      {3}      “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party's claim.” (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St.3d

280, 296, 662 N.E.2d 264. If the moving party carries its burden, the nonmoving

party has the reciprocal burden of setting forth specific facts showing that there is a

genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, in the face of a

properly supported motion for summary judgment, the nonmoving party must produce

some evidence that suggests that a reasonable factfinder could rule in that party’s

favor. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 386, 701

N.E.2d 1023.
                                                                                     -4-

       {4}    On June 22, 2004, Appellant borrowed the sum of $58,000 from

Appellee in order to purchase her current residence.         As security for the loan,

Appellant executed a mortgage on the property in favor of Appellee.           Appellant

defaulted on the loan on November 1, 2006.

       {5}    Although Appellant attempted to negotiate a loan modification, the

parties were unable to reach an agreement and Appellee filed its complaint on July

21, 2008 seeking judgment on the unpaid balance of a promissory note and

foreclosure of the mortgage. Simultaneously with the filing of the answer, Appellee

filed a motion for default judgment and for summary judgment.

       {6}    Appellee also filed the affidavit of Tracy Johnson, the loan supervisor

assigned to Appellant’s account. According to the affidavit, Appellant defaulted on

the note and Appellee exercised the acceleration option contained in the note.

(Johnson Aff., ¶4-5.) Johnson avers that an unpaid principal balance exists in the

amount of $56,874.74, with interest to accrue at the rate of 8.308% per annum from

November 1, 2006, “plus sums advanced by Plaintiff pursuant to the terms of the

Mortgage Deed for real estate taxes, hazard insurance premiums and property

protection* * *.” (Johnson Aff., ¶5.) An illegible loan history statement is attached to

the affidavit, as well as a customer activity statement and a loan activity statement.

No certificate of service is included in the record with the document.

       {7}    During the pendency of the motions, the parties continued their efforts

to negotiate a loan modification agreement. Appellant filed a response to the motion

for summary judgment on January 30, 2009. A reply was filed on February 17, 2009.
                                                                                          -5-

On October 8, 2009, the trial court entered summary judgment in favor of Appellee.

The judgment entry reads, in pertinent part:

        {8}        “Judgment on Plaintiff’s Promissory Note in the amount of $56,874.74,

plus interest at a rate of 8.308% from November 1, 2006 together with its advances

made pursuant to the terms of the mortgage for sums, including but not necessarily

limited to, real estate taxes, insurance premiums; and property inspections,

preservation and protection.” (10/8/08 J.E., pp. 3-4.)

                               ASSIGNMENT OF ERROR NO. 1

        {9}        “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

BECAUSE APPELLEE FAILED TO PRESENT EVIDENCE THAT THE AMOUNT

CLAIMED DUE AND OWING WAS CORRECT.”

        {10}       The evidence used to support summary judgment in favor of the bank in

this case was an affidavit of Tracy Johnson filed November 6, 2008. The record

reflects that the Johnson affidavit was filed with the trial court, but the record does not

include a certificate of service for the affidavit. Civ.R. 5(D), captioned “Filing,” reads,

in its entirety:

        {11}       “All papers, after the complaint, required to be served upon a party shall

be filed with the court within three days after service, but depositions upon oral

examination, interrogatories, requests for documents, requests for admission, and

answers and responses thereto shall not be filed unless on order of the court or for

use as evidence or for consideration of a motion in the proceeding. Papers filed with

the court shall not be considered until proof of service is endorsed thereon or
                                                                                       -6-

separately filed. The proof of service shall state the date and manner of service and

shall be signed in accordance with Civ. R. 11.”

       {12}   Ohio courts have strictly enforced Civ.R. 5(D). Where there is no proof

of service either attached to a filing or separately filed with the trial court, the trial

court may not consider the filing. Civ.R. 5(D); Nosal v. Szabo, 8th Dist. Nos. 83974,

83975, 2004-Ohio-4076, ¶21; Manor Care Healthcare Corp. v. Cook (Jan. 7, 1993),

8th Dist. No. 64003. In this case, since there is no proof of service for the Johnson

affidavit, it cannot be used to support Appellee’s motion for summary judgment. We

also note that some of the supporting financial documents attached to the affidavit

are illegible and do not, then, qualify as competent credible evidence supporting

summary judgment.

       {13}   In Vivo v. Markovsky (May 2, 1996), 94 C.A. 152, we addressed the trial

court’s failure to consider a motion for continuance before proceeding to trial. The

record indicated that the trial court was not aware that the motion for continuance had

been filed, and also that no certificate of service was endorsed on the motion. We

stated, “[e]ven had the court been aware of the motion, it was precluded from ruling

on it until proof of service had been filed.” Id. at *3.

       {14}   Here, Appellee failed to include a certificate of service or proof of

service to accompany the affidavit in support of the motion for summary judgment.

According to the strict mandates of Civ.R. 5(D), the trial court should not have

considered the affidavit.     Without the attestations in the affidavit, there was no

evidence before the trial court to establish the amount due and owing on the note.
                                                                                         -7-

Therefore, the trial court erred when it entered summary judgment in favor of

Appellee. For these reasons, Appellant’s first assignment of error is sustained.

                           ASSIGNMENT OF ERROR NO. 2

       {15}    “THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN THE

AMOUNT        OF $56,874, WITH INTEREST               AND OTHER CHARGES                 NOT

SPECIFIED,       WITHOUT        EVIDENCE,        NEGATING        ALBUS’      RIGHT       TO

REDEMPTION.”

       {16}    Appellant contends that the judgment in this case is not based on any

evidence of an actual accounting of the debt owed, and does not set forth a sum

certain that would enable her to redeem her property pursuant to the redemption

statute. The redemption statute, R.C. 2329.33, allows the debtor to redeem the

mortgaged property at any time before the sale is confirmed by the court.

Redemption consists of depositing with the clerk of courts the amount of the

judgment along with all costs, including poundage and interest. See Women’s Fed.

Sav. Bank v. Pappadakes (1988), 38 Ohio St.3d 143, 146, 527 N.E.2d 792; R.C.

2329.22. Appellant contends that the final judgment in this case is ambiguous as to

the amount actually owed because it does not define what she owed for “advances

made pursuant to the terms of the mortgage for sums, including but not necessarily

limited to, real estate taxes, insurance premiums; and property inspections,

preservation and protection.” (10/8/09 J.E., pp. 3-4.) Appellant submits that she

could not exercise her right to redemption without knowing what amount she is

actually required to deposit with the clerk of court to effectively assert the right.
                                                                                     -8-

      {17}   Appellee responds that this argument is premature because Appellant

has not actually attempted to the redeem the property, nor has she deposited any

amount of money with the clerk of court. Appellee also argues that the judgment

entry does describe a sum certain in the amount of $56,874.74 plus interest at a rate

of 8.308 percent from November 1, 2006. Appellee contends that Appellant could

have submitted this amount to the clerk of court in order to redeem the property.

      {18}   Both parties are partially correct. The trial court’s judgment entry does

state the exact amount due as the personal judgment on the promissory note, and it

is clear that the right of redemption has not yet been attempted since the foreclosure

sale was stayed by the trial court.     However, as Appellant correctly argues, the

judgment entry is vague and confusing. At first glance, it appears to be intended as a

final judgment on the promissory note, even though it includes some, but not all, of

the elements of a final judgment in foreclosure. It does include a demand to marshal

liens, appraise, and sell the property.      The entry includes standard language

declaring that the right of redemption is being foreclosed. But the judgment entry

cannot serve as a final judgment in foreclosure because it also states that the final

decree of foreclosure is “to be submitted” at some point in the future. (10/8/09 J.E.,

p. 4.) Further, the entry does not contain a number of elements that are necessary to

a final order of foreclosure, including the description and amount of other liens, the

priority of the liens, and how the funds should be distributed to the various claimants.

Second Natl. Bank of Warren v. Walling, 7th Dist. No. 01-C.A.-62, 2002-Ohio-3852,
                                                                                     -9-

¶18; Mortgage Electronic Registration Systems, Inc. v. Green Tree Servicing, LLC,

9th Dist. No. 23723, 2007-Ohio-6295, ¶9.

       {19}   Because we must remand this matter pursuant to Appellant’s first

assignment, any ruling we would issue in assignment two would be advisory, only.

On remand, if the trial court does issue a final judgment of foreclosure, the court will

be required to inform Appellant of the amount required for her to redeem the property

pursuant to R.C. 2329.33, with specifity. Because no final order in foreclosure has

issued, Appellant’s second assignment of error in this regard is overruled.

       {20}   In conclusion, the affidavit submitted by Appellee in support of its

motion for summary judgment did not contain a certificate of service. Hence, it could

not be used by the trial court as evidence in this matter. Because there was no other

evidence in the record to establish the amount due on the note, it was error to grant

summary judgment to Appellee. The judgment of the trial court is hereby reversed

and this matter is remanded for further proceedings. Appellant’s second assignment

of error is overruled.


Vukovich, J., concurs.

DeGenaro, J., concurs.
