[Cite as Victor Asset Acquisition, L.L.C. v. Woogerd, 2016-Ohio-1435.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                              JUDGES:
VICTOR ASSET ACQUISITION, LLC                         :       Hon. Sheila G. Farmer, P.J.
                                                      :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee           :       Hon. Patricia A. Delaney, J.
                                                      :
-vs-                                                  :
                                                      :       Case No.      15-CA-47
MICHAEL L. WOOGERD, ET AL                             :                     15-CA-69
                                                      :
                  Defendants-Appellants               :       OPINION




CHARACTER OF PROCEEDING:                                  Civil appeal from the Richland County Court
                                                          of Common Pleas, Case No. 2014CV0886


JUDGMENT:                                                 Affirmed

DATE OF JUDGMENT ENTRY:                                   April 1, 2016

APPEARANCES:

For Victor Asset Acquisition                              For Defendants-Appellants

DAVID VAN SLYKE                                           THOMAS MALLORY, JR.
300 E. Broad Street                                       Mallory Law Office
Columbus, OH 43215                                        720 East Broad Street, Suite 202
                                                          Columbus, OH 43215
For Citizens Banking
JEANNA WEAVER
JAMES MCGOOKEY
300 E. Broad Street
Columbus, OH 43215
[Cite as Victor Asset Acquisition, L.L.C. v. Woogerd, 2016-Ohio-1435.]


Gwin, J.

        {¶1}     Appellants appeal the May 6, 2015, July 14, 2015, and August 14, 2015,

judgment entries of the Richland County Court of Common Pleas.

                                           Facts & Procedural History

        {¶2}     On December 14, 2006, appellant Michael Woogerd (“Woogerd”),

individually and as president of appellant Turn Key Storage, Inc., (“Turn Key”) executed

a promissory note of $250,000 in favor of defendant/appellee Citizens Banking Company

(“Citizens”). An allonge attached to the note dated November 5, 2013 indorsed the note

from Citizens to appellee Victor Asset Acquisition, LLC (“VAA”). As security for the note,

Woogerd executed and delivered a mortgage on the real estate at 1435 Orchard Park

Road, Mansfield, Ohio. Citizens was the mortgagee. The real estate at 1435 Orchard

Park Road contains an outdoor storage facility.                   The mortgage was assigned from

Citizens to VAA on November 5, 2013 and recorded on November 25, 2013.

        {¶3}     On December 14, 2006, Woogerd, individually and as president of Turn

Key, executed a second promissory note of $250,000 in favor of Citizens. A November

5, 2013 allonge attached to the note indorsed the note from Citizens to VAA. As security

for the note, Woogerd executed and delivered a mortgage.                    While the face of the

mortgage states the real estate located at 3059 Fox Run Road, Mansfield, Ohio secures

the note, the legal description in the mortgage is that for 1435 Orchard Park Road.

Citizens assigned the mortgage to VAA on November 5, 2013 and recorded the

assignment on November 25, 2013.

        {¶4}     On May 23, 2007, Woogerd, individually and as president of Turn Key,

executed a promissory note of $200,000 to Citizens. A November 5, 2013 allonge
Richland County, Case No. 15-CA-47 & 15-CA-69                                       3


attached to the note indorsed the note from Citizens to VAA. As security for the note,

Woogerd executed and delivered a mortgage on the real estate at 1435 Orchard Park

Road. Citizens recorded the mortgage on June 4, 2007. Citizens assigned the mortgage

to VAA on November 5, 2013 and recorded the assignment on November 25, 2013.

       {¶5}   On April 6, 2010, Citizens filed a complaint on the cognovit provisions of the

three promissory notes and declared the notes in default. On April 9, 2010, the Richland

County Court of Common Pleas rendered judgment in favor of Citizens against Woogerd

and Turn Key on the three promissory notes. On January 6, 2014, Citizens assigned the

judgments to VAA. VAA renewed each of the judgments on January 13, 2015.

       {¶6}   On October 14, 2010, Citizens and Woogerd, individually and as president

of Turn Key, executed a forbearance agreement as to the three promissory notes. The

forbearance agreement required Woogerd to make interest-only payments at 5.5% each

month for October 15, 2010 and continuing to March 15, 2011. The total payment under

the forbearance agreement amounted to $3,175.39 per month on all three notes, to be

applied by Citizens “to any outstanding interest, principal, or costs * * * in its sole

discretion.” Further, the agreement required Woogerd and Turn Key to keep real estate

taxes current on the subject real estate to avoid default. The forbearance agreement

contemplated a formal loan modification. Under this formal loan modification, Citizens

agreed to retain the lower interest rate on the notes for five years, but with a twenty (20)

year amortization rate, while Woogerd agreed to increase the monthly payments to be

paid on the notes to a total of $4,889.17 per month.

       {¶7}   On March 15, 2011, at the end of the forbearance period, a formal loan

modification was not executed. However, Citizens continued to charge Woogerd the
Richland County, Case No. 15-CA-47 & 15-CA-69                                     4


lower monthly interest amount of 5.5% and applied any payments made to the

outstanding debts.

      {¶8}   On September 2, 2014, VAA filed a complaint against Woogerd, Turn Key,

and Citizens seeking reformation, foreclosure, and the appointment of a receiver. VAA

alleged in its complaint that Woogerd and Turn Key: did not make the increased payments

of $4,889.17 per month after March 15, 2011; did not make the October and November

2011 payments; did not keep the real estate taxes current on the property; and stopped

paying any monthly amounts in November of 2013. VAA sought reformation of the

second mortgage due to the mistake/scrivener’s error of the inclusion of the Fox Run

Road address on the face of the mortgage document.

      {¶9}   Woogerd and Turn Key filed an answer, counterclaims against VAA, and

cross-claims against Citizens.     Woogerd and Turn Key asserted the following

counterclaims against VAA:     breach of contract, fraudulent inducement, fraudulent

concealment, negligent misrepresentation, and specific performance. Woogerd and Turn

Key filed the same cross-claims against Citizens. The cross-claims and counterclaims

centered on the fact that Citizens never executed a formal loan modification on or after

March 15, 2011 and alleged Woogerd and Turn Key were damaged by this failure.

      {¶10} VAA filed a motion to dismiss counterclaims and a motion for summary

judgment on their complaint. Citizens filed a motion to dismiss cross-claims and a motion

for summary judgment.

      {¶11} Attached to VAA’s motion for summary judgment was the affidavit of an

authorized representative of VAA, Matthew Layton (“Layton”). Layton asserted Woogerd

and Turn Key “have defaulted under the Forbearance Agreement” as a result of non-
Richland County, Case No. 15-CA-47 & 15-CA-69                                      5


payment thereunder and the default “has not been cured.” Further, that the conditions of

defeasance contained in the three mortgages had been broken. Layton stated that,

applying every payment Woogerd and Turn Key made pursuant to the forbearance

agreement, the total amount due as of October 15, 2013 was $610,802.21, while applying

every payment made by Woogerd and Turn Key applying the terms of the proposed loan

modification agreement, the total amount due as of October 15, 2013 would have been

$618,763.02. Layton asserted “true and accurate copies of the instruments referenced

herein are attached to the motion for summary judgment.”

      {¶12} VAA also filed a motion to appoint receiver pursuant to R.C. 2735.01 on

April 24, 2015. The motion stated the real estate at issue contains a storage facility and

VAA requested a receiver to collect rents, profits, income, and manage or operate the

property. VAA attached to the motion the Richland County Auditor’s property report card

stating the real estate is appraised at $200,000.

      {¶13} The trial court entered an order appointing a receiver on May 6, 2015.

Woogerd and Turn Key filed a memorandum in opposition to the motion to appoint

receiver on May 8, 2015. The trial court issued a nunc pro tunc order appointing receiver

on May 11, 2015. The trial court ordered the receiver to take an oath and execute a bond.

Further, the trial court stated, pursuant to Local Rule 1.01(A) that requires an opposition

to a motion to be filed within ten (10) days, Woogerd and Turn Key’s response was

untimely, so it properly granted the motion without considering the memorandum in

opposition. The trial court further stated that even if it considered Woogerd and Turn

Key’s response, it would not re-consider its previous decision granting the receiver, as
Richland County, Case No. 15-CA-47 & 15-CA-69                                      6


Woogerd and Turn Key did not submit any evidentiary proof to cause such

reconsideration.

      {¶14} Woogerd and Turn Key responded to the motions for summary judgment.

Attached to the response was a “declaration” from Woogerd concerning when he received

the notices of default and the information contained in the notices of default.        The

statement was not sworn or acknowledged by a notary.

      {¶15} VAA submitted a reply brief and attached the affidavit of Bart Hamilton,

Richland County Treasurer. The affidavit stated the taxes on the 1435 Orchard Park

Road property had been delinquent since the first half of 2011.        The affidavit was

notarized, but was not signed by Hamilton. It was signed by Amanda Hike.

      {¶16} The trial court issued a judgment entry on July 14, 2015. As to Woogerd

and Turn Key’s counterclaims against VAA and cross-claims against Citizens, the trial

court found the release in the forbearance agreement barred the counterclaims and

cross-claims. With regard to VAA’s claims against Woogerd and Turn Key, the trial court

found VAA submitted sufficient evidence, including copies of the notes, mortgages,

assignments, the affidavit of Layton, payment history statements, and Woogerd and Turn

Key’s interrogatory No. 5 to satisfy their summary judgment burden. The trial court found

Woogerd and Turn Key failed to provide any Civil Rule 56 evidence to rebut VAA’s

assertion of default in payment and default by failing to pay real estate taxes. The trial

court found Woogerd’s “declaration” was not sworn or acknowledged by a notary, so it

was not proper Civil Rule 56 evidence. Further, even if it was considered, the declaration

fails to rebut any incidents of default as the declaration does not state that Woogerd

and/or Turn Key paid the taxes at issue or made the payments at issue.
Richland County, Case No. 15-CA-47 & 15-CA-69                                    7


       {¶17} The trial court thus granted VAA’s motion to dismiss counterclaims and

Citizens’ motion to dismiss cross-claims and granted VAA and Citizens’ motions for

summary judgment. On August 14, 2015, the trial court entered a judgment entry and

decree of foreclosure.

       {¶18} Woogerd and Turn Key filed two separate appeals from the judgment

entries of the Richland County Court of Common Pleas. In their first appeal, Woogerd

and Turn Key appeal the judgment entry of the trial court granting the motion to appoint

receiver and assign the following as error:

       {¶19} “I. THE COURT ERRED BY APPOINTING THE RECEIVER WITHOUT

PROVIDING APPELLANTS NOTICE OR A HEARING.

       {¶20} “II. THE COURT ERRED BY APPOINTING A RECEIVER BASED ON THE

ASSIGNMENT OF LEASES AND RENTS IN THE MORTGAGES.

       {¶21} “III. THE TRIAL COURT ERRED BY APPOINTING THE RECEIVER

WITHOUT DETERMINING THAT SUCH AN APPOINTMENT WAS NECESSARY.”

       {¶22} In their second appeal, Woogerd and Turn Key appeal the judgment entry

of the trial court granting summary judgment to VAA and Citizens and dismissing

Woogerd and Turn Key’s counterclaims and cross-claims. Woogerd and Turn Key assign

the following as error:

       {¶23} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DISMISSING

DEFENDANTS’ COUNTERCLAIMS AGAINST VICTOR AND DEFENDANTS’ CROSS-

CLAIMS AGAINST CITIZENS.

       {¶24} “II. THE TRIAL COURT ERRED BY GRANTING FORECLOSURE ON

DEFENDANTS’ PROPERTIES.
Richland County, Case No. 15-CA-47 & 15-CA-69                                        8


       {¶25} “III.   THE TRIAL      COURT      ERRED     BY HOLDING         DEFENDANTS

DEFAULTED UNDER THE TERMS OF THE FORBEARANCE AGREEMENT.”

                            Appointment of a Receiver (First Appeal)

       {¶26} The authority to appoint a receiver is an “extraordinary, drastic and

sometimes harsh power which equity possesses.” Hoiles v. Watkins, 117 Ohio St. 165,

157 N.E. 557 (1927). Due to the extreme nature of the remedy, the movant must

demonstrate the need for a receiver by clear and convincing evidence. Malloy v. Malloy

Color Lab, Inc., 63 Ohio App.3d 434, 579 N.E.2d 248 (10th Dist. 1989). In reviewing a

trial court order appointing a receiver, we must determine whether there is evidence

tending to prove the facts essential to sustain the order and we may not review the weight

of the evidence. Parker v. Elsass, 10th Dist. Franklin Nos. 01AP-1306, 02AP-15, 02AP-

144, 2002-Ohio-3340.

       {¶27} The decision to appoint a receiver is within the trial court’s sound discretion.

State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991). In exercising

that discretion, the trial court generally should consider “all the circumstances and facts

of the case, the presence of the conditions and grounds justifying the relief, the ends of

justice, the rights of all the parties interested in the controversy and subject matter, and

adequacy and effectiveness of other remedies.” Id. Absent an abuse of discretion, an

appellate court will not reverse a decision on whether to appoint a receiver. Id. A trial

court abuses it discretion when it makes a decision that is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Richland County, Case No. 15-CA-47 & 15-CA-69                                       9


                                         I. (First Appeal)

       {¶28} Appellants first argue the trial court erred in appointing a receiver without

notice and a hearing. We disagree.

       {¶29} VAA filed its motion for appointment of receiver on April 24, 2015. The trial

court granted the motion on May 6, 2015. Further, the trial court issued a nunc pro tunc

judgment entry on May 11, 2015 stating Woogerd and Turn Key’s responses were not

filed within deadline contained in the local rules, but, even if it considered the response,

the trial court would not re-consider its previous decision granting the receiver. According

to Local Rule 1.01(A) of the Richland County Court of Common Pleas, in civil motions, a

“party opposing the motion shall file, within ten days * * * after a copy of the motion has

been served upon it.” Here, the certificate of service on the motion for appointment of

receiver states VAA served Woogerd and Turn Key on April 23, 2015. Thus, Woogerd

and Turn Key had proper notice of the motion and the trial court did not issue its entry

until twelve days after the motion was filed, two days longer than required by Local Rule

1.01(A).

       {¶30} Further, receivership is statutory in nature. R.C. 2735.01 does not mandate

an evidentiary hearing prior to ruling on a motion seeking an order for appointment of a

receiver. See also Citizens Banking Co. v. Real Am. Inc., 6th Dist. Ottawa No. OT-11-

044, 2013-Ohio-1710. Additionally, courts have held that as long as sufficient evidence

is presented by the moving party to support the motion and enable the court to properly

consider the motion prior to ruling on it, no hearing is required. Id; Victory White Metal

Co. v. N.P. Motel Systems, Inc., 7th Dist. Mahoning No. 04 MA 245, 2005-Ohio-2706. In

this case, the record reflects VAA attached supporting documentation to its motion,
Richland County, Case No. 15-CA-47 & 15-CA-69                                               10


including the mortgages with the assignment of rents provisions, the auditor’s tax cards

demonstrating the appraised value of the property, and the affidavit of Layton. Woogerd

and Turn Key did not timely file a memorandum contra and, when they did file their

memorandum contra, they did not attach any evidence to rebut VAA’s evidence. Thus,

the trial court had sufficient evidence to properly consider the motion prior to ruling on it.

       {¶31} Woogerd and Turn Key’s first assignment of error is overruled.

                                          II. (First Appeal)

       {¶32} Woogerd and Turn Key contend the trial court erred by appointing a receiver

based on the assignment of leases and rents in the mortgages.                 They argue the

mortgages do not contain a consent of the mortgagor to the appointment of a receiver

and VAA provided no evidence of mortgage default in the motion for appointment of

appraiser.

       {¶33} R.C. 2735.01 provides that:

       (A) A receiver may be appointed by * * * the court of common pleas or a

       judge thereof in the judge’s county * * * in causes pending in such courts

       respectively, in the following cases:

                                               ***

              (3) To enforce a contractual assignment of rents and leases.

       The mortgages at issue in this case provide as follows:

       Mortgagor assigns, grants, bargains, conveys and mortgage to Lender as

       additional security all right, title and interest in the following (Property). * *

       * (B) Rents, issues and profits,        including but not limited to, security

       deposits, minimum rents, percentage rents, additional rents * * * and all
Richland County, Case No. 15-CA-47 & 15-CA-69                                      11


      rights and claims which Mortgagor may have that in any way pertain to on

      account of the use or occupancy of the whole or any part of the Property

      (Rents).

                                           ***

      Mortgagor may collect, receive, and enjoy and use the Rents so long as the

      Mortgagor is not in default.

      {¶34} In this case, the mortgages clearly contain a contractual assignment of rents

upon default. Woogerd and Turn Key contend that since the mortgages do not contain

an explicit agreement to a receiver, the trial court cannot utilize the provisions in the

mortgage to appoint a receiver. We disagree.

      {¶35} We must look to the plain language of the statute itself to determine the

legislative intent. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 1997-Ohio-310, 676

N.E.2d 519. Despite appellants’ argument, there is no indication in the statute that the

mortgage must contain a consent of the mortgagor to appoint a receiver in order to utilize

R.C. 2735.01(A)(3). The plain language of the statute provides that the trial court may

appoint a receiver to enforce a contractual assignments of rents or leases. Further, “the

law in Ohio is that a mortgagee may collect rents upon the default of the mortgagor only

upon taking possession of the property or upon appointment of a receiver.” MCM Funding

1997-I, Inc., v. Amware Distrib. Warehouses M&M, L.L.C., 8th Dist. Cuyahoga No. 87041,

2006-Ohio-3326; In re Sam Tisci, Inc., 133 B.R. 857 (N.D. Ohio 1991) (stating that “to be

entitled to the rents and profits specifically pledged, the mortgagee must have taken

possession of the premises or must have taken some action, such as the appointment of

a receiver to reduce the rents and profits to possession”). Thus, in the absence of VAA
Richland County, Case No. 15-CA-47 & 15-CA-69                                         12


taking possession of the Orchard Park Real Estate, VAA did not have a way in which to

enforce the assignment of rents provision without the appointment of a receiver.

       {¶36} Woogerd and Turn Key also argue VAA did not offer evidence of the default

of the mortgages in its motion to appoint receiver. We disagree.

       {¶37} In its judgment entry appointing receiver, the trial court specifically found

Woogerd and/or Turn Key were in default under the mortgages. This determination with

regard to the appointment of a receiver was not an abuse of discretion. In Layton’s

affidavit, attached to the motion to appoint receiver, he asserts that VAA is entitled to

enforce the notes and mortgages; Woogerd and Turn Key defaulted on the forbearance

agreement as a result of non-payment; the default has not been cured; and the conditions

of defeasance contained in the mortgages have been broken. The 2010 forbearance

agreement specifically dealt with the notes at issue, which are secured by multiple

portions of the three mortgages that explicitly secure “all future advances from Lender to

Mortgagor or other future obligations of Mortgagor to Lender under any * * * other

evidence of debt existing now or executed after this Mortgage whether or not this

Mortgage is specifically referred to in the evidence of debt.”           Appellants’ second

assignment of error is overruled.

                                         III. (First Appeal)

       {¶38} Woogerd and Turn Key argue the trial court erred in appointing a receiver

when not explicitly finding such an appointment was “necessary to prevent appellees from

irreparable harm.” We disagree. Woogerd and Turn Key cite to Ohio Bureau of Workers’

Compensation v. Am. Prof. Employer, Inc., 184 Ohio App.3d 156, 2009-Ohio-2991, 920

N.E.2d 148 (10th Dist.) which states that, “while satisfaction of the statutory criteria gives
Richland County, Case No. 15-CA-47 & 15-CA-69                                          13


rise to the trial court’s discretion to decide whether to appoint a receiver * * * the decision

to appoint a receiver remains discretionary despite a determination that at least one of

the statutory bases exist.”

       {¶39} We first note there is a question as to whether the trial court must make a

finding that the receiver is “necessary.” The Restatement provides that, “where the real

estate mortgage * * * contains language mortgaging the rents * * * upon default, the only

requirement for a receivership is that the mortgagor be in default.” Restatement of the

Law 3d, Mortgages, Section 4.3(b) (1997). As to R.C. 2735.01(A)(2)(a), the Sixth District

has held that a plaintiff is only required to show that a condition of the mortgage has not

been performed and the property is probably insufficient to discharge the debt.

Huntington Nat’l Bank v. PRS Investments, LLC, 6th Dist. Lucas No. L-12-1080, 2013-

Ohio-2245.

       {¶40} Additionally, the case upon which appellants based their argument is

distinguishable from the instant case, as the plaintiffs in the case upon which appellants

rely made their motion for appointment of receiver pursuant to different sections of R.C.

2735.01 such that the plaintiffs in that case were required to show more than an inference

that the appointment of a receiver was necessary.                Ohio Bureau of Workers’

Compensation v. American Professional Employer, Inc., 184 Ohio App.3d 156, 2009-

Ohio-2991, 920 N.E.2d 148 (10th Dist.).

       {¶41} Further, even if such a finding is required, the case cited to by appellants

provides that, “in certain circumstances, evidence necessary to meet one of the statutory

criteria in R.C. 2735.01 may also establish the need for a receivership to protect the

movant’s rights.” Id. As detailed above, pursuant to R.C. 2735.01(A)(3), in order for VAA
Richland County, Case No. 15-CA-47 & 15-CA-69                                       14


to enforce the assignment of rents provision in the mortgages absent taking possession

of the Orchard Park Real Estate, it was necessary for VAA to seek the appointment of a

receiver.

       {¶42} VAA also alternatively premised its motion for appointment of receiver upon

R.C. 2735.01(A)(2)(a), which provides that in an action by a mortgagee for foreclosure,

the court of common pleas may appoint a receiver when “the condition of the mortgage

has not been performed, and * * * (a) the property is probably insufficient to discharge the

mortgage debt.”

       {¶43} Here, as detailed above, VAA presented evidence that the conditions of the

mortgages had not been performed through Layton’s affidavit and presented evidence

that the property is probably insufficient to discharge the mortgage debt by submitting the

Auditor’s Tax Cards of the Richland County Auditor indicating the total value of the three

parcels that comprise Orchard Park Real Estate was significantly less than what was

owed to VAA. Based upon this information, the trial court concluded the conditions to

appoint a receiver were met. See Huntington Nat’l Bank v. SSA Ltd. And SSA-Stor, LLC,

5th Dist. Delaware No. 11CAE50048, 2011-Ohio-5264. Upon review of the record, we

find the trial court did not abuse its discretion in reaching this decision.

       {¶44} Woogerd and Turn Key’s third assignment of error is overruled.
Richland County, Case No. 15-CA-47 & 15-CA-69                                              15

                        Summary Judgment Standard (Second Appeal)

      {¶45} Civ.R. 56 states, in pertinent part:

              “Summary judgment shall be rendered forthwith if the pleadings,

      depositions, answers to interrogatories, written admissions, affidavits,

      transcripts of evidence, and written stipulations of fact, if any, timely filed in

      the action, show that there is no genuine issue of material fact and that the

      moving party is entitled to judgment as a matter of law. No evidence or

      stipulation may be considered except as stated in this rule. A summary

      judgment shall not be rendered unless it appears from the evidence or

      stipulation, and only from the evidence or stipulation, 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, that party being

      entitled to have the evidence or stipulation construed mostly strongly in the

      party’s favor. A summary judgment, interlocutory in character, may be

      rendered on the issue of liability alone although there is a genuine issue as

      to the amount of damages.”

      {¶46} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d

271 (1984). A fact is material if it affects the outcome of the case under the applicable
Richland County, Case No. 15-CA-47 & 15-CA-69                                          16

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d

1186 (6th Dist. 1999).

       {¶47} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

       {¶48} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrates absence of a genuine issue of fact on a material element of the non-

moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once

the moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist. Id. The

non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

                                         I. (Second Appeal)

       {¶49} In their first assignment of error, Woogerd and Turn Key argue the trial court

erred in dismissing their counterclaims against VAA and cross-claims against Citizens

based upon the waiver contained in the forbearance agreement.

       {¶50} Based upon our overruling of Woogerd and Turn Key’s second and third

assignments of error, infra, we find any arguments regarding the waiver of the cross-

claims and counterclaims by the forbearance agreement to be moot. Woogerd and Turn

Key’s cross-claims and counterclaims all centered on the fact that a formal loan
Richland County, Case No. 15-CA-47 & 15-CA-69                                      17


modification was not executed and relate to the same issue addressed in VAA’s complaint

and the dispositive motion briefing: VAA’s enforcement of the debts underlying the

mortgages and judgment liens. We found that the trial court did not err in granting

summary judgment to VAA on its foreclosure claim and in finding appellants defaulted on

the forbearance agreement. Accordingly, any other allegations based upon damages

resulting from these claims are moot upon the summary judgment. Wells Fargo Bank,

N.A. v. Jarvis, 7th Dist. Columbiana No. 08 CO 30, 2009-Ohio-3055.

       {¶51} Further, we find that, based upon our disposition of Woogerd and Turn

Key’s second and third assignments of error, appellants have failed to provide evidence

of economic damages. DeCastro v. Wellston City School Dist. Bd. of Education, 94 Ohio

St.3d 197, 761 N.E.2d 612 (2002). Additionally, as evidenced by Layton’s affidavit,

appellants would actually owe more than what VAA seeks in this action if a formalized

loan agreement had been executed. Appellants’ first assignment of error is overruled.

                                    II. & III. (Second Appeal)

       {¶52} In their second and third assignments of error, Woogerd and Turn Key

contend the trial court erred by granting foreclosure on the properties.

                                       Default In Payment

       {¶53} Appellants argue the trial court erred in finding a default of the forbearance

agreement due to the non-payment in October and November of 2011 because: the

forbearance agreement expired on March 15, 2011 and thus appellants could no longer

breach the agreement; there was no contract that set forth the obligations of the parties

after March 15, 2011; and VAA could not utilize the agreement to foreclosure on the

property after the March 15th date. We disagree.
Richland County, Case No. 15-CA-47 & 15-CA-69                                       18


       {¶54} The terms of the forbearance agreement clearly set forth the relationship

between Citizens and Woogerd/Turn Key during and after the forbearance period despite

the fact that a formal loan modification was not consummated. During and after the

forbearance period, Citizens was obligated to reduce the interest rate from 7.5% to 5.5%

per year and apply payments received from appellants to outstanding interest, principal,

or cost as determined by Citizens in its sole discretion. Appellants, during the forbearance

period, were required to make lower payments in the amount of $3,175.39 per month on

the three loans. The forbearance agreement also specifically set forth the obligations of

appellants after the March 15, 2011 period, as it states that appellants were required to

make increased payments of $4,889.17 for the three loans at issue, “beginning in April of

2011 and continuing until March 15, 2016.” The fact that a formal loan modification was

not executed does not negate the fact that the forbearance agreement explicitly required

appellants to make higher monthly payments on the three notes and judgments at issue

beginning in April of 2011.

       {¶55} In Layton’s affidavit, he states that appellants are in default of the

forbearance agreement, the default has not been cured, the conditions of defeasance

contained in the mortgages have been broken, and he set forth the amount due and owing

under the notes, mortgages, and forbearance agreement. Woogerd and Turn Key failed

to submit any Civil Rule 56 evidence to rebut Layton’s assertions. Further, in Woogerd’s

“declaration,” which was not notarized, he: does not say that he made the payments in

October or November of 2011; does not say he made the increased payments after March

15, 2011; and does not state he made the payments after December of 2013.

Accordingly, the court did not err in granting summary judgment.
Richland County, Case No. 15-CA-47 & 15-CA-69                                         19


       {¶56} Further, even if the forbearance agreement expired in March of 2011, the

underlying debt obligations and Citizens’ ability to enforce those obligations remained.

The forbearance agreement specifically provides, “Citizens is not willing to waive the

events of default * * * but is willing to defer the use of its remedies based upon those

provisions as set forth in this Forbearance Agreement.” Further, in the forbearance

agreement, the “Borrowers reaffirm the mortgages granted to Citizens as security for the

loans, which mortgages shall remain in full force and effect” and the “Bank shall continue

to have all rights and remedies resulting from any default under the provisions of the

Notes and applicable law * * *.” Each of the mortgages at issue explicitly secures “all

present and future borrowings” and specifically secures “all * * * future obligations to * * *

Lender or other evidence of debt existing now or executed after this Mortgage” and “all

obligations * * * owed to Lender, which now exists or may later arise.”

       {¶57} As noted above, Layton’s affidavit provides information regarding the

default, the conditions of defeasance of the mortgages, and sets forth the amounts due

and owing under the notes, mortgages, and forbearance agreement. Woogerd and Turn

Key failed to submit any Civil Rule 56 evidence to rebut Layton’s affidavit. Thus, the trial

court did not err in granting summary judgment.

                                        Real Estate Taxes

       {¶58} Woogerd and Turn Key also contend the trial court erred in finding they

breached the forbearance agreement by failing to pay their real estate tax payment

obligations. Specifically, Woogerd and Turn Key argue the trial court erred in relying on

Interrogatory Number 5 and the affidavit of Bart Hamilton because it is not a valid

summary judgment affidavit.
Richland County, Case No. 15-CA-47 & 15-CA-69                                          20


       {¶59} The forbearance agreement provides the “failure to keep real estate taxes

current constitutes forbearance default.”       In their summary judgment motion, VAA

attached an interrogatory submitted to Citizens by Woogerd and Turn Key. Woogerd and

Turn Key asked Citizens how they defaulted under the forbearance agreement and

Citizens answered the interrogatory as follows: “Woogerd and Turn Key defaulted under

the forbearance agreement when they failed to make payment. Payment was due for the

payment required to be made on 11/15/10 and by failing to keep all real estate taxes

current during one or more periods of the loan relationship * * *.”

       {¶60} Civil Rule 56(C) provides an exclusive list of materials a trial court may

consider when deciding a motion for summary judgment including pleadings, depositions,

answer to interrogatories, written admissions, affidavits, transcripts of evidence, and

written stipulations of fact. Walnut Creek Foods v. Johnny Apple Cheese, 5th Dist.

Holmes No. 09 CA 16, 2010-Ohio-4860. In this case, the interrogatory at issue was

submitted by Woogerd and Turn Key and answered by Citizens, who verified appellants’

breached the forbearance agreement as a result of the failure to keep real estate taxes

current. Citizens, a co-defendant in the case brought by VAA, was the original lender on

the notes and thus it is a party sufficiently adverse to the party submitting the interrogatory

(Woogerd and Turn Key) to provide a meaningful discovery response.

       {¶61} Further, upon Citizens’ sworn statement that the real estate taxes had not

been kept current and upon being served with VAA’s complaint and motion for summary

judgment, Woogerd and Turn Key could have submitted admissible evidence, pursuant

to Civil Rule 56(C), to counter the statement by Citizens’ that the taxes had not been kept

current. Here, Woogerd and/or Turn Key did not submit any Civil Rule 56 evidence to
Richland County, Case No. 15-CA-47 & 15-CA-69                                        21


rebut the answer to the interrogatory.      Notably, though Woogerd submitted an un-

notarized “declaration,” the declaration does not state that the taxes had been kept

current. Accordingly, the trial court did not err in granting summary judgment.

       {¶62} Woogerd and Turn Key argue the trial court erred in relying on the affidavit

of Bart Hamilton in granting the motion for summary judgment. Hamilton, the Richland

County Treasurer, submitted an affidavit stating the taxes on the Orchard Park Road

property had been delinquent since the first half of 2011. The affidavit was notarized, but

was not signed by Hamilton. Here, there is no indication that the trial court considered

the affidavit of Hamilton in granting the motion for summary judgment as the trial court

stated it relied on the interrogatory and lack of evidentiary materials by appellants.

Further, based upon the answer to the interrogatory as detailed above and the lack of

evidence submitted by Woogerd/Turn Key to create a genuine issue of material fact, the

trial court did not err in granting summary judgment even if the affidavit of Hamilton is not

considered.

       {¶63} Woogerd and Turn Key’s second and third assignments of error are

overruled.
Richland County, Case No. 15-CA-47 & 15-CA-69                              22


      {¶64} Based on the foregoing, we overrule Woogerd and Turn Key’s assignments

of error. The judgment entries of the Richland County Court of Common Pleas are

affirmed.



By Gwin, J.,

Farmer, P.J., and

Delaney, J., concur
