[Cite as JPMorgan Chase Bank v. Dattilo, 2014-Ohio-5286.]


                Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                        No. 101239



                                JPMORGAN CHASE BANK, N.A.

                                                            PLAINTIFF-APPELLEE

                                                   vs.

                                    ANN M. DATTILO, ET AL.

                                                            DEFENDANTS-APPELLANTS




                                            JUDGMENT:
                                             AFFIRMED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-13-809744


        BEFORE: E.T. Gallagher, J., Kilbane, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: November 26, 2014
ATTORNEY FOR APPELLANTS

David M. Lynch
333 Babbitt Road
Suite 333
Euclid, Ohio 44123


ATTORNEYS FOR APPELLEE

Stephen D. Williger
Nicole K. Wilson
Thompson Hine, L.L.P.
3900 Key Center
127 Public Square
Cleveland, Ohio 44114

John E. Codrea
Manley, Deas & Kochalski, L.L.C.
P.O. Box 165028
Columbus, Ohio 43216

Benjamin N. Hoen
Weltman, Weinberg & Reis Co., L.P.A.
323 West Lakeside Avenue
Suite #200
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Ann M. Dattilo (“Dattilo”), appeals from the trial court’s

granting of summary judgment in favor of plaintiff-appellee, JPMorgan Chase Bank, N.A.

(“Chase”). Finding no merit to the appeal, we affirm.

       {¶2} On July 27, 2006, Dattilo signed a note for the principal amount of $73,000. The

note was secured by a mortgage, for property located at 3691 East 63rd Street, Cleveland, Ohio

44105. The mortgage was signed by both Dattilo and her husband, Tony Dattilo (“Tony”). The

note and mortgage named Aegis Wholesale Mortgage Corporation (“Aegis”) as the lender and

holder. On the same date the note and mortgage were signed, an allonge was affixed to the note,

endorsed in blank.

       {¶3} In March 2013, Dattilo defaulted on her mortgage payments. On May 15, 2013, the

mortgage was assigned to Chase by Aegis. In June 2013, Chase filed a complaint against

Dattilo, Tony, and Fleet Area 3691 E. 63rd L.L.C., 1 alleging default under the terms of the

mortgage, and instituting foreclosure proceedings.

       {¶4} In December 2013, Chase filed for summary judgment.               Represented by new

counsel, Dattilo filed a motion for additional time to respond to Chase’s motion, which was

granted in January 2014. Dattilo filed her brief in opposition in February 2014. The trial court

granted Chase’s motion for summary judgment in March 2014. It is from this decision that

Dattilo now appeals.




           Neither Tony Dattilo nor Fleet Area 3691 E. 63rd L.L.C. joined Ann Dattilo on appeal.
       1
       {¶5} In her sole assignment of error, Dattilo argues the trial court erred in granting

summary judgment in favor of Chase because her uncontested affidavit established that

promissory estoppel barred Chase from foreclosing on the property.

       {¶6} An appellate court reviews a decision granting summary judgment on a de novo

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

judgment is properly granted when (1) there is no genuine issue as to any material fact, (2) the

moving party is entitled to judgment as a matter of law, and (3) 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. Civ.R. 56(C); State ex rel. Duganitz v. Ohio Adult Parole Auth., 77

Ohio St.3d 190, 191, 672 N.E.2d 654 (1996).

       {¶7} This court, in Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No.

98502, 2013-Ohio-1657, ¶ 17, held that to prevail on a motion for summary judgment 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.
In support of its foreclosure action, Chase attached to its complaint copies of (1) the original

note, (2) the allonge to the note, endorsed in blank, (3) the original mortgage, (4) a family rider,

and (5) the assignment of the mortgage, from Aegis to Chase.

       {¶8} In addition to these documents, Chase attached the affidavit of one of its vice

presidents, Samuel B. Muller (“Muller”), to its motion for summary judgment. Civ.R. 56(E)

provides in pertinent part that:

       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.

       Unless controverted by other evidence, a specific averment that an affidavit
       pertaining to business is made upon personal knowledge of the affiant satisfies the
       Civ.R. 56(E) requirement that affidavits both in support or in opposition to
       motions for summary judgment show that the affiant is competent to testify to the
       matters stated.

Muller averred that he is a mortgage servicer for Chase, that he was competent to testify, and that

he personally reviewed Chase’s business records. Muller averred that the copies of the note and

mortgage, attached to the complaint and motion, were true and accurate copies of the original

instruments. Muller averred that the loan records for Dattilo are maintained by Chase in the

course of regularly conducted business activities. Muller further averred that Chase, directly or

through its agent, is in possession of the original note and was in possession of it prior to the

filing of the complaint for foreclosure.       Finally, Muller averred that the bank’s records

demonstrated that appellant was in default since March 2013, and that the principal balance due

on the loan is $66,866.93, plus interest at 6.75 percent.

       {¶9} We find Muller’s affidavit and the supporting documentation were sufficient to meet

Chase’s initial burden under Civ.R. 56(C).        See RBS Citizens, N.A. v. Krasnov, 8th Dist.

Cuyahoga No. 100992, 2014-Ohio-4217, ¶ 15.            We note Dattilo did not rebut any of the

evidence Chase set forth regarding standing or interest at the trial level or on appeal.

       {¶10} In her brief in opposition to Chase’s motion for summary judgment, as well as on

appeal, Dattilo’s sole argument is that Chase should not be able to foreclose upon the property

because it failed to renegotiate the terms of her mortgage as promised. In her affidavit, Dattilo

averred that “[p]laintiff bank promised me in a telephone call several months ago to call again to

negotiate a modification in lieu of foreclosure but they never kept their promise.” Dattilo argues
Chase’s failure to negotiate as promised constitutes promissory estoppel, barring the foreclosure

claim.

         {¶11} In order to prove a claim of promissory estoppel, Dattilo must establish the

following elements: (1) a clear and unambiguous promise, (2) reliance on the promise, (3) that

the reliance is reasonable and foreseeable, and (4) that she was injured by her reliance. Pappas

v. Ippolito, 177 Ohio App.3d 625, 2008-Ohio-3976, 895 N.E.2d 610, ¶ 54 (8th Dist.).

         {¶12} In support of her claim that promissory estoppel has been established by way of her

affidavit, Dattilo cites to Huntington Natl. Bank v. Calvert, 9th Dist. Summit No. 25684,

2012-Ohio-2883. She argues that Calvert stands for the proposition that if a homeowner alleges

promissory estoppel, and the bank fails to refute the claim that a promise was made, then the

homeowner prevails.      However, Calvert does not stand for that proposition and is highly

distinguishable from the instant case. In Calvert, the bank moved for summary judgment on

defendant’s defense claim of promissory estoppel. The trial court granted the bank’s motion and

the appellate court reversed, finding that the bank had not set forth sufficient evidence to be

granted summary judgment on that issue.

         {¶13} In the instant case, Chase did not move for summary judgment on Dattilo’s defense

of promissory estoppel. Dattilo never raised promissory estoppel as a defense in her answer.

She raised it for the first time in her brief in opposition to Chase’s motion for summary

judgment. Chase’s motion for summary judgment was granted on Chase’s claim that Dattilo

was in default of her mortgage payments and they were therefore entitled to foreclose.

         {¶14} Chase argues the trial court did not err in granting summary judgment in its favor

because (1) it does not concede that it made such a promise to Dattilo, and (2) even if this court
were to assume it had made such a promise, Chase was not barred from filing a foreclosure

action against her by its failure to negotiate as promised.

       {¶15} As an initial matter, we find Dattilo has failed to satisfy the elements of promissory

estoppel. Despite listing the necessary elements in her brief, Dattilo’s affidavit only satisfies the

first element. Neither her affidavit nor her appellate brief contain any evidence or argument

concerning the remaining three elements.         Regardless, assuming arguendo that Chase did

promise Dattilo it would negotiate with her and subsequently failed to do so, such a failure does

not bar a foreclosure action against her.

       {¶16} “A lender has no duty to modify a loan. * * * Until both parties agree to the

modification, the original terms of the loan are still in force, and mere negotiations are

unenforceable.” (Citation omitted.) Wells Fargo Bank, N.A. v. Stevens, 7th Dist. Mahoning

No. 12 MA 219, 2014-Ohio-1399, ¶ 16, citing Huntington Natl. Bank v. R.R. Wellington, Inc.,

11th Dist. Portage No. 2012-P-0035, 2012-Ohio-5935, ¶ 25-27. “Mere negotiations do not

affect the validity or enforceability of a loan or mortgage.” Stevens at ¶ 2. See also BAC Home

Loans Servicing, LP v. Mullins, 12th Dist. Preble No. CA2013-12-015, 2014-Ohio-4761, ¶ 35

(bank’s ability to seek judgment on a note is not affected by parties’ potential for modification

and negotiation).

       {¶17} Therefore, the trial court did not err in granting summary judgment in favor of

Chase where Dattilo failed to establish a genuine issue of material fact.

       {¶18} Accordingly, Dattilo’s sole assignment of error is overruled.

       {¶19} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate be sent to 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.



EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR
