[Cite as Chase Home Fin., L.L.C. v. Wilkes, 2016-Ohio-3382.]



                           STATE OF OHIO, MAHONING COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

CHASE HOME FINANCE, LLC                               )
                                                      )
        PLAINTIFF-APPELLEE                            )
                                                      )           CASE NO. 13 MA 0184
VS.                                                   )
                                                      )                     OPINION
LARRY D. WILKES, et al.                               )
                                                      )
        DEFENDANTS-APPELLANT                          )

CHARACTER OF PROCEEDINGS:                             Civil Appeal from Court of Common
                                                      Pleas of Mahoning County, Ohio
                                                      Case No. 10 CV 4475

JUDGMENT:

APPEARANCES:
For Plaintiff-Appellee                                Attorney Stacy Hart
                                                      Lerner, Sampson & Rothfuss
                                                      P.O. Box 5480
                                                      Cincinnati, Ohio 45201-5480

For Defendant-Appellant                               Attorney Larry Wilkes
                                                      Friedman & Rummell Co., LPA
                                                      3801 Starrs Centre Drive
                                                      Canfield, Ohio 44406




JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                      Dated: June 9, 2016
[Cite as Chase Home Fin., L.L.C. v. Wilkes, 2016-Ohio-3382.]
DeGENARO, J.

        {¶1}    Defendant-Appellant, Larry D. Wilkes, appeals the November 7, 2013
judgment of the Mahoning County Court of Common Pleas granting summary
judgment in favor of Appellee, Chase Home Finance LLC, now JP Morgan Chase, in
a foreclosure action. On appeal, Wilkes asserts that the trial court erred by failing to
correctly compute the time allotted for him to file a response to JP Morgan Chase’s
motion for summary judgment; that the failure to serve notice of the date of the
hearing was in error; and that the trial court lacked jurisdiction over the action when it
issued the February 27, 2014 order of sale. These arguments are meritless for the
reasoning below and the judgment of the trial court is affirmed.
        {¶2}    On September 24, 2007, Wilkes signed a promissory note in favor of
JPMorgan Chase Bank, N.A., successor by merger to Chase Home Finance LLC, in
the amount of $145,500.00. As security, Wilkes signed a mortgage in favor of Chase
securing the note for his residence in Boardman, Ohio. After payment default, Chase
instituted foreclosure proceedings in 2010, and Wilkes filed an answer containing a
general denial and several affirmative defenses. In 2012, Chase moved for summary
judgment and default judgment. Shortly thereafter, Wilkes filed the first of two
bankruptcy petitions which resulted in stays during the course of the proceedings in
both the trial court and this Court. Ultimately summary judgment was granted in favor
of Chase, and the final bankruptcy stay was lifted enabling us to consider the merits
of this appeal.
        {¶3}    The automatic stay associated with the filing of bankruptcy acts as an
injunction. Donovan v. Sunmark Industries, Inc., 10 Ohio App.3d 219, 221, 461
N.E.2d 321 (8th Dist.1983). “The purpose of the automatic stay in bankruptcy is to
preserve the status quo as of the date of the commencement of bankruptcy
proceedings.” Cardinal Fed. Savings & Loan Ass'n v. Flugum, 10 Ohio App.3d 243,
245, 461 N.E.2d 932 (9th Dist.1983).
        {¶4}    As both the first and second assignment of error directly correlate to the
alleged lack of notice of a filing or hearing date, the two will be analyzed together.
Wilkes' first and second of three assignments of error assert:
                                                                                   -2-


              The Trial Court erred by not computing the correct time for
       Defendant-Appellant to file a response brief to Plaintiff-Appellee’s
       Motion for Summary Judgment.
              The Trial Court erred in granting Plaintiff-Appellee’s Motion for
       Summary Judgment without proper notice to the Defendant-Appellant.

       {¶5}   An appellate court reviews a trial court's summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan
v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for
summary judgment is properly granted if the court, viewing the evidence in a light
most favorable to the party against whom the motion is made, determines that: (1)
there are no genuine issues as to any material facts; (2) the movant is entitled to
judgment as a matter of law; and (3) the evidence is such that reasonable minds can
come to but one conclusion and that conclusion is adverse to the opposing party.
Civ.R. 56(C); Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶
10. “[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.” Dresher v. Burt, 75 Ohio St.3d 280, 296, 1996-Ohio-107, 662 N.E.2d
264. The nonmoving party has the reciprocal burden of specificity and cannot rest on
the mere allegations or denials in the pleadings. Id. at 293.
       {¶6}   At the time Chase filed its motion for summary judgment, the text of
Rule 56(C) provided: “The motion shall be served at least fourteen days before the
time fixed for hearing. The adverse party, prior to the day of hearing, may serve and
file opposing affidavits.” See Civ. R. 56(C); amended effective July 1, 1999.
       {¶7}   “[A] hearing on a summary judgment motion may not take place until at
least 14 days have passed from service of the motion.” Hooten v. Safe Auto Ins. Co.,
100 Ohio St.3d 8, 2003-Ohio-4829, 795 N.E.2d 648, ¶ 39, citing State ex rel. The V.
Cos., 81 Ohio St.3d 467, 470, 1998-Ohio-329, 692 N.E.2d 198. A court’s docket may
provide notice to parties in compliance with due process requirements. Ohio Valley
                                                                                                        -3-


Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 124, 502
N.E.2d 599 (1986).
         {¶8}     Loc. R. 6(A)(2) of the Court of Common Pleas of Mahoning County
provides that all responsive pleadings “shall be filed no later than fourteen (14) days
from the date of filing a motion unless, with leave of Court, an extension is granted.”
The rule further states that the first date upon which such motions may be heard is
“the day following the cut-off for filing briefs.” Civ. R. 6(A)(2)
         {¶9}     Wilkes claims that he had no notice of the motion hearing date and was
prejudiced in that he was unable to file a timely reply. Wilkes misconstrues Chase’s
October 10, 2013 motion which merely requested the court to schedule the
previously filed summary judgment motion for hearing. Chase’s summary judgment
motion had been filed over a year earlier, on June 20, 2012, and the matter stayed
on August 21, 2012, due to Wilkes filing his first bankruptcy petition.
         {¶10} Any reply to Chase’s summary judgment motion would have been
required to be filed by Wilkes on July 9, 2012 at the latest pursuant to Civ. R. 56
which is a longer timeframe than that established by the local rules.1 The record
demonstrates that Wilkes failed to file, attempt to file, or moved for leave to file any
response or opposing affidavit between June 20, 2012, the date Chase filed for
summary judgment, and August 21, 2012, the date the automatic bankruptcy stay
went into effect.
         {¶11} Wilkes has only averred that he did not receive notice for the November
2013 hearing, not that he did not receive service of notice of Chase’s motion for
summary judgment. Wilkes’ assertion that the time to respond commenced on
October 23, 2013 is incorrect. The docket indicates a date for a hearing on the
summary judgment motion in 2012. The docket and local rules put Wilkes on notice
and satisfy the requirements of due process and Civ. R. 56. See Lane, Ohio Valley

1
 Civ. R. 6(A) states that time to file includes the last day of the period unless such day falls on a “Saturday, a
Sunday, or legal holiday.” This occurrence would then extend the time to file to the end of the next day that is
not a “Saturday, a Sunday, or legal holiday.” In this case, Monday, July 9, 2012, is the next day that meets
these criteria.
                                                                               -4-


Radiology, supra. Accordingly, this argument is meritless.
      {¶12}    Wilkes relies upon three cases to support his argument: Gentile v.
Youngstown Osteopathic Hosp., 7th Dist. No. 04 MA 93, 2005-Ohio-2926; Ameritech
Publishing, Inc. v. Matejkovic, 12th Dist. No. CA2007-08-183, 2008-Ohio-2112; and
Wells Fargo, N.A. v. Aey, 7th Dist. No. 12 MA 178, 2013-Ohio-5381. However, these
cases are distinguishable from the present matter. Here, Wilkes failed to do anything
to defend his position between the time of filing the motion for summary judgment
before the first bankruptcy stay took effect and the entry of summary judgment after
the second bankruptcy stay was lifted. Wilkes had both constructive and actual notice
of Chase's summary judgment motion, and yet failed to oppose that motion.
      {¶13} Failure to respond to a motion for summary judgment will result in a
grant of summary judgment to the moving party if it is warranted. Reviewing Chase’s
motion de novo, there are no genuine issues of material fact. The attached affidavit
of Nicole L. Smiley, Vice President of JP Morgan Chase Bank averred that she had
access to the business records through her position, including those documents
relating to Wilkes’ loan and mortgage transactions, and upon review of those
documents that Chase was both the holder of the note and the servicer of the loan,
and that Wilkes had defaulted under the terms of the Note and Mortgage. Copies of
the note and mortgage were attached to the Affidavit, and sworn to by Smiley to be
true and exact copies. This complies with the personal knowledge requirement of
affidavits of Civ. R. 56. See Bank of Am. v. Saadey, 7th Dist. No. 12 MA 196, 2014–
Ohio–3569, ¶ 14, 18–19 (finding that personal knowledge for affidavit under Civ. R.
56 summary judgment in foreclosure case requires personal knowledge of the
movant being the holder of the note, that mortgagor defaulted, and the amount of
both principal and interest due); see also Beneficial Fin. 1, Inc. v. Edwards, 7th Dist.
No. 13 MA 106, 2014-Ohio-5514, ¶ 10 (citing Saadey).
      {¶14} In Beneficial Fin. 1, this court determined that the facts alleged in the
affidavit concerning the possession of the note and mortgage and amounts due
satisfy the business records hearsay exception, and would thus be admissible under
                                                                                 -5-


Civ. R. 56(E). Id. at ¶ 12 “To be admissible, the business record must be: 1)
transmitted by a person with knowledge, 2) kept in the course of regularly conducted
business activity, and 3) made at or near the time of the events recorded, as testified
to by a custodian of the business records.” Id. citing Evid.R. 803(6).
       {¶15} Chase and Smiley have provided a substantial basis for applying the
exception of Evid.R. 803(6). Smiley's affidavit and accompanying records
demonstrate that Chase is the holder of the note and mortgage, that Wilkes defaulted
and the amounts due in both interest and principal. This evidence satisfies Chase's
burden on summary judgment.
       {¶16} Wilkes’ answer to the complaint was a general denial, peppered with an
array of affirmative defenses with little support. A party may not “rest on the
pleadings” in defense of his claim in opposing a motion for summary judgment. See
Savransky v. City of Cleveland, 4 Ohio St.3d 118, 447 N.E.2d 98 (1983). Wilkes did
not file anything that would raise a genuine issue of material fact. Accordingly,
Wilkes' first and second assignments of error are meritless.
       {¶17} Wilkes asserts in his final assignment of error:

               The Trial Court lacked jurisdiction to issue an order of sale to the
       Sherriff after Defendant-Appellant filed his Notice of Appeal.

       {¶18}    An assertion that the trial court lacked jurisdiction is a question of law
reviewed de novo. Fifth Third Bank, N.A. v. Maple Leaf Expansion, Inc., 188 Ohio
App.3d 27, 31, 2010-Ohio-1537, 934 N.E.2d 366, ¶ 10. A filing of a notice of appeal
does not completely remove the action from the trial court’s jurisdiction, as the trial
court can maintain jurisdiction over that which does not conflict with the appellate
court. Hagood v. Gail, 105 Ohio App.3d 780, 784, 664 N.E.2d 1373 (1995). A trial
court continues to possess jurisdiction over a final judgment and its enforcement
unless a stay of execution is granted. Id.
       {¶19} The perfection of an appeal alone is not enough to divest a trial court of
its power to enforce execution of a final judgment. Various stays have been granted
                                                                              -6-


and lifted by the trial court and this Court. Currently the house has not been sold and
the sale was stayed at the trial court level pending the most recent bankruptcy filing.
As such, this assignment of error is moot and without merit.
       {¶20} In sum, Wilkes’ three assignments of error are meritless and the
judgment of the trial court is affirmed.

Donofrio, P.J., concurs.

Waite, J., concurs.
