[Cite as State Bank & Trust Co. v. Shoop, 2015-Ohio-5310.]




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


The State Bank & Trust Company                               Court of Appeals No. L-15-1064

        Appellee                                             Trial Court No. CI0201402032

v.

Melanie J. Shoop, et al.                                     DECISION AND JUDGMENT

        Appellant                                            Decided: December 18, 2015

                                                 *****

        James A. Hammer and Maria A. Sidiq Steiner, for appellee.

        Bryan D. Thomas, for appellant.

                                                 *****

        SINGER, J.

        {¶ 1} Appellant, Melanie Shoop, appeals from the February 24, 2015 judgment of

the Lucas County Court of Common Pleas finding appellee was entitled to foreclosure of

the judgment lien as a matter of law. For the reasons which follow, we affirm.
              A. First Assignment of Error.

              THE TRIAL COURT ERRED IN GRANTING APPELLEE’S

       MOTION FOR SUMMARY JUDGMENT ON FEBRUARY 24, 2015 AS

       APPELLANT IS ENTITLED TO THOSE PROTECTIONS AFFORDED

       BY R.C. 2329.66, AS SUFFICIENT EVIDENCE HAS BEEN

       SUBMITTED THAT THE REAL PROPERTY IN DISPUTE IN THE

       INSTANT MATTER FALLS WITHIN THE CURRENT HOMESTEAD

       EXEMPTION AMOUNT, THAT THIS REAL PROPERTY IS HER

       PERSONAL RESIDENCE, AND, THUS, CAN BE HELD EXEMPT

       FROM SALE TO SATISFY A JUDGMENT OR ORDER.

              B. Second Assignment of Error.

              THE TRIAL COURT ERRED IN GRANTING APPELLEE’S

       MOTION FOR SUMMARY JUDGMENT ON FEBRUARY 24, 2015 AS

       GENUINE ISSUES OF MATERIAL FACT REMAINED WITH

       RESPECT TO THE SUFFICIENCY AND/OR VALIDITY OF THE

       AFFIDAVIT OF GREG RITCHEY, AS THE SAME FAILED TO

       COMPORT WITH THE REQUIREMENTS OF Civ.R. 56(E).

       {¶ 2} On April 3, 2014, appellee, The State Bank & Trust Company, filed a

complaint in foreclosure against appellant and other parties having an interest in the

property at 2055 Cherrylawn Drive, Toledo, Ohio. Appellee asserted in its complaint that

it has a judgment lien interest in the property by virtue of a judgment rendered against




2.
appellant on January 31, 2008, which was revived on October 7, 2013, and remains

unpaid. Therefore, appellee sought foreclosure of the judgment lien and sale of the

property to satisfy the judgment. In its attached documentation, appellee indicated that

the property was owner occupied.

       {¶ 3} The case was transferred to mediation until the magistrate determined the

property at issue did not appear to be appellant’s residence. Appellant was ordered to

provide evidence that the residence was occupied and her intentions regarding retaining

or surrendering the real estate or the case would be returned to the trial docket.

       {¶ 4} Approximately four months later, appellee moved for summary judgment

stating that appellant had not filed any evidentiary documents. Appellee attached the

affidavit of its collections and resource recovery officer, who attested that the judgment

lien had not been satisfied. Appellant opposed the motion for summary judgment arguing

that she was entitled to protection from foreclosure pursuant to R.C. 2329.66(A), the

homestead exemption, and that appellee’s affidavit was invalid or insufficient. The trial

court found the judgment lien was valid and that appellee was entitled to foreclose on the

lien and sale of the home to satisfy the judgment lien.

       {¶ 5} On appeal, appellant argues in her first assignment of error that the trial

court erred as a matter of law by granting summary judgment because there was a

material question of fact as to whether the homestead exemption applies in this case.

       {¶ 6} The appellate court reviews the grant of summary judgment under a de novo

standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000),




3.
citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Applying the requirements of Civ.R. 56(C), we uphold summary judgment when it is

clear

        (1) that there is no genuine issue as to any material fact; (2) that the moving

        party is entitled to judgment as a matter of law; and (3) that reasonable

        minds can come to but one conclusion, and that conclusion is adverse to the

        party against whom the motion for summary judgment is made, who is

        entitled to have the evidence construed most strongly in his favor. Harless

        v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46

        (1978).

        {¶ 7} Appellant asserts that she uses this property as her primary residence. She

argues that an irrebutable presumption arose that the property is used as her primary

residence when service was issued by ordinary mail to her at the Cherrylawn address.

        {¶ 8} Appellee argues a different address was listed for appellant in the complaint

and the Cherrylawn address was listed as the address of an unknown tenant. Appellant

never objected to the addresses listed in the complaint. Furthermore, the certified mail

services of the complaint at both addresses were returned unclaimed and service was

made by ordinary mail on appellant at the address listed in the complaint. Finally,

appellant argues that appellee failed to present any evidence that she uses the premises as

her primary residence.




4.
       {¶ 9} Appellant was specifically directed to produce evidence that she used this

property as her personal residence. Furthermore, when the issue was raised in the

summary judgment motion, the burden was on appellant to produce evidence that this

property was her primary residence and establish that the homestead exemption was

applicable in this case. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).

       {¶ 10} Because appellant failed to submit any evidence that the Cherrylawn

address is her personal residence, we find that there was no material question of fact at

issue and the trial court properly granted summary judgment in favor of appellee.

Appellant’s first assignment of error is not well-taken.

       {¶ 11} In her second assignment of error, appellant argues that the affidavit of the

bank employee was invalid or insufficient because it was vague and overbroad.

Appellant argues that the affiant only asserted his title and did not indicate that he had

personal knowledge of appellant’s account. Furthermore, she argues that the affiant was

not competent to testify because the affidavit does not indicate that the affiant inspected

the account of appellant.

       {¶ 12} Appellant raised this issue in her memorandum in opposition to appellee’s

motion for summary judgment, but the trial court did not address the issue in its

judgment. Therefore, we must presume that the trial court overruled appellant’s

objections. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d

217, 223, 631 N.E.2d 150 (1994) (citation omitted).




5.
       {¶ 13} Pursuant to Civ.R. 56(E), an affidavit attached to a motion for summary

judgment motion must: “(1) * * *be made on personal knowledge; (2) * * * set forth

facts which would be admissible in evidence, and (3) * * * affirmatively show the affiant

to be competent to testify to the matters stated.” First Natl. Bank of Am. v. Pendergrass,

6th Dist. Erie No. E-08-048, 2009-Ohio-3208, ¶ 32. In the case of financial account

information, it is sufficient if an affiant states that he has personal knowledge of the

account because of his position, that he has access to the account, and that he actually

examined the account. Discover Bank v. Combs, 4th Dist. Pickaway No. 11CA25, 2012-

Ohio-3150, ¶ 14.

       {¶ 14} In this case, the affidavit stated that the affiant is the

       Collections & Resources Recovery Officer with Rurban Operations Center,

       owner of The State Bank & Trust Company. In such job position, affiant

       has custody of personal knowledge of the accounts of said financial

       institution, and specifically the account of Defendant, Melanie J. Shoop.

       {¶ 15} Upon a review of the affidavit, we find that while there was an obvious

typographical error, the affiant did indicate his position with the bank, that he had

personal knowledge of the account, and that he specifically had knowledge of appellant’s

account. Therefore, we find appellant’s second assignment of error not well-taken.




6.
       {¶ 16} Having found that the trial court did not commit error prejudicial to

appellant, the judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the court costs of this appeal 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.




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.




7.
