IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiff, : Case No. 11 CV 233. v. : Judge Berens

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO CHASE HOME FINANCE, LLC, : Plaintiff, : Case No. 11 CV 233 v. : Judge Berens RODNEY K. COTNER, et al., : ENTRY GRANTING PLAINTIFF S MOTION FOR SUMMARY JUDGMENT Defendants. : This matter is before the Court upon the Motion for Summary Judgment of substitute Plaintiff JP Morgan Chase Bank, N.A., filed September 28, Defendant Rodney Cotner filed a Response in Opposition on October 1, The Court has considered the written arguments of both parties and evidence attached thereto. For the following reasons, Plaintiff s motion is GRANTED. STATEMENT OF THE CASE This is an action in foreclosure. Defendant and an entity by the name of Chase Bank USA, N.A. executed a Promissory Note and Mortgage Agreement on June 25, Chase Bank USA, N.A. subsequently assigned its interest in the Note and Mortgage to the original Plaintiff in this matter, Chase Home Finance, LLC. See Exhibits A and C, Complaint. On May 27, 2011, Chase Home Finance, LLC moved the Court for an order substituting JPMorgan Chase Bank, N.A., successor by merger to Chase Home Finance, LLC, as the party plaintiff. On June 6, 2011, upon finding JP Morgan Chase Bank, N.A. to be the real party plaintiff in interest, the Court granted Chase Home Finance, LLC s Motion to Substitute Party Plaintiff. JP Morgan Chase Bank, N.A. will hereinafter be referred to as Plaintiff. 1

2 LAW & ANALYSIS Ohio Civ. R. 56(A) and (B) permit both plaintiffs and defendants to move for summary judgment on all or part of any claim. Summary judgment is appropriate 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. Ohio Civ. R. 56(C); Harless v. Willis Day Warehousing Co., 8 O.O.3d 73, 375 N.E.2d 46, 47 (1978). The party moving for summary judgment has the initial burden of demonstrating the absence of any genuine issues of material fact, and must specifically delineate the basis for which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond. Mitseff v. Wheeler, 38 Ohio St. 3d 112, 116, 526 N.E.2d 798, 802 (1988); Dresher v. Burt, 75 Ohio St. 3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264, 274. In so doing, the moving party cannot rest on bare conclusory assertions that the non-movant lacks evidence or cannot prove her case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ. R. 56(C)[.] Dresher, at 293. If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the burden then shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Id. at 294. If the non-movant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id; Egli v. Cong. Lake Club, 5th Dist. No CA-00216, 2010-Ohio-2444 (June 1, 2012), appeal not allowed, 126 Ohio St. 3d 1600, 2010-Ohio-4928, 935 N.E.2d 46; Ohio Civ. R. 56(E). 2

3 Plaintiff asserts that Defendant Rodney Cotner violated the terms and conditions of the said Promissory Note and Mortgage. Specifically, Plaintiff alleges default by reason of nonpayment. In support of its motion, Plaintiff submitted the affidavit of Michael Brown, Vice President of JPMorgan Chase Bank, N.A. The affiant stated that his statements were based on personal knowledge of the business records and that all records relied upon and attached to the motion were true and exact copies. In said affidavit, Mr. Brown swore that Plaintiff s loan records indicate that the Defendant owes Plaintiff a principal sum of $866, plus interest. Plaintiff also submitted a copy of the subject Note, Mortgage Agreement, and Assignment. See Exhibits A-C, Plaintiff s Motion for Summary Judgment. After reviewing the evidence provided, it appears that (1) the Defendant was party to a loan and corresponding security agreement, (2) a certain sum of money was advanced to the Defendant pursuant to those contracts, and (3) Defendant has failed to repay those monies under the terms of the agreements and is in default. Construing that evidence in a light most favorable to the Defendant, the Court finds that Plaintiff has met its burden to demonstrate the absence of any genuine issue of material fact and its entitlement to judgment as a matter of law. As mandated by Civ. R. 56, the burden then shifts to the Defendant to show the existence of a genuine issue of material fact. The Defendant asserts three arguments in opposition of Plaintiff s Motion for Summary Judgment: (1) Plaintiff has failed to provide the original Note; (2) the interest rate contained in the Note attached to Plaintiff s Complaint is incorrect; and (3) Plaintiff has failed to produce evidence of the loan modification referenced in Mr. Brown s affidavit. 3

4 First the Defendant argues that Plaintiff has not provided an original wet blue ink signature copy of the Note. Civ. R. 10(D) states in pertinent part: When any claim or defense is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. (emphasis added). Further, the affidavit of Plaintiff s Vice President Michael Brown states that the Note, Mortgage, and Assignment attached thereto are true and exact copies. Therefore, the Court finds Defendant s first argument not well-taken. The Defendant next argues that the interest rate on the attached Note is inaccurate. Specifically, the Defendant alleges that the correct note should reflect a 5.000% interest rate on a 5 year term, instead of the 9.625% interest rate reflected on the Note attached to the pleadings. After reviewing the record, the Court finds that Plaintiff has produced evidence of the loan modification agreement of which Defendant refers. On July 22, 2011, Plaintiff filed a Notice of Breached Modification Agreement. Said Loan Modification Agreement reflects the modified interest rate of 5.000% for the period from 09/01/2008 to 09/01/2013. Defendant s second argument is thus not well-taken. Defendant last argues that Plaintiff has not produced a copy of the Loan Modification Agreement referenced in Paragraph Six of Mr. Brown s affidavit. Paragraph Six of said affidavit reads, in pertinent part, The Loan was modified by Agreement effective As discussed above, Plaintiff filed a copy of the Loan Modification Agreement with the Court on July 22, The Court further finds that the submitted copy of the Loan Modification Agreement satisfies the requirements of Civ. R. 10(D). Therefore Defendant s third argument is not well-taken. CONCLUSION 4

5 The Court finds the Defendant has not met his reciprocal burden to show the existence of a genuine issue of material fact. Therefore, the Court GRANTS Plaintiff JP Morgan Chase Bank, N.A. s Motion for Summary Judgment. The Court further finds that all necessary parties have been served with summons according to law and are properly before the Court; that the Defendants Capital One Bank USA, N.A., and Jane Doe, Unknown Spouse, if any, of Rodney Cotner are in default of answer or other pleading and thereby confess the allegations of the Complaint to be true, and said Defendants are forever barred from asserting any right, title, or interest in and to the hereinafter described premises. The Court finds that there is due to the Treasurer of Fairfield County, Ohio, taxes, accrued taxes, assessments, and penalties on the premises hereinafter described, as shown on the County Treasurer s tax duplicate, the exact amount being unascertainable at the present time, but which amount will be ascertainable pursuant to R.C which are valid and subsisting liens thereon for that amount so owing. In addition, there may be due to Plaintiff sums advanced by it under the terms of the Note and Mortgage to pay real estate taxes, insurance premiums, and property protection, which sums are to be determined by further order of the Court. The Court further finds on the evidence adduced that there is due Plaintiff on the promissory note set forth in the First Count of the complaint and the Loan Modification Agreement, the sum of $865,357.00, plus interest thereon at the rate of 5.000% per annum from November 1, 2008, and at such interest rate as may change from time to time pursuant to the terms of the Note; plus all late charges due under the Note and Mortgage, all advances made for the payment of real estate taxes and assessments and insurance premiums, and all costs and 5

6 expenses incurred for the enforcement of the Note and Mortgage, except to the extent the payment of one or more specific such items is prohibited by Ohio law, for which sum judgment is hereby rendered in favor of Plaintiff against the Defendant, Rodney Cotner. The Court finds that in order to secure the payment of the promissory note aforesaid, the Defendant Rodney Cotner, an unmarried man, executed and delivered a certain mortgage deed, thereby conveying to Plaintiff or Plaintiff s predecessor the following described premises: See Legal Description Attached Hereto as Exhibit A That said mortgage was duly filed with the Fairfield County Recorder on July 13, 2007, and was thereafter recorded in Book 1470, Page 134, of the Mortgage Records of Fairfield County, and thereby became and is a valid first mortgage lien upon said premises, subject only to the lien of the Treasurer for taxes; that said conditions in the mortgage deed have been broken and the same has become absolute and the Plaintiff is entitled to have the equity or redemption and dower of all the defendants in and to said premises foreclosed. The Court finds that Plaintiff has and will from time to time advance sums for taxes, insurance and property protection. Plaintiff has the first and best lien for these amounts in addition to the amount set forth above. The Court makes no finding as to the amounts of the advances and continues same until the conformation of sale. The Court finds that as of the time of the filing of the Complaint herein on the 1st day of March, 2011, and pursuant to R.C , the present action was pending so as to charge third persons with notice of its pendency. From that time and date, no interest can be acquired by third persons in the property which is the subject of this action, as against Plaintiff s title. It is ORDERED, ADJUDGED, and DECREED that unless the sums hereinabove found due, together with the costs of this action, be fully paid within three days from the date of the 6

7 entry of this decree, the equity of redemption and dower of all the defendants in and to said premises shall be foreclosed, and said premises sold; that, upon the issuance of a Praecipe for Order of Sale by Plaintiff s attorney, shall an order of sale thereafter issue to the Sheriff of Fairfield County directing him to appraise, advertise in a paper of general circulation within the County, and sell said premises as upon execution and according to law, free and clear of the interest of all parties to this action. Further, the Court finds there is no just cause for delay. IT IS SO ORDERED. Judge Richard E. Berens Copies to: Pamela Fehring, PO Box 5480, Cincinnati, OH Rodney Cotner, 100 Rainbow Dr. NE, Lancaster, OH Plaintiff c/o Counsel Filed