[Cite as Fifth Third Mtge. Co. v. Rankin,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

Fifth Third Mortgage Company, : : Plaintiff-Appellee, : Case No: 10CA45 : v. : : DECISION AND John Rankin, et al., : JUDGMENT ENTRY : Defendants-Appellants. : File-stamped date: 6-02-11

APPEARANCES:

John Rankin, Williamsport, Ohio, pro se, Appellant.

Melissa N. Meinhart, Manley Deas Kochalski, L.L.C., Columbus, Ohio, for Appellee.

Kline, J.:

{¶1} Fifth Third Mortgage Company (hereinafter “Fifth Third”) filed a complaint in

foreclosure against John Rankin (hereinafter “Rankin”), and the Pickaway County Court

of Common Pleas found for Fifth Third on summary judgment. On appeal, Rankin

contends that the trial court erred in granting summary judgment to Fifth Third. We

disagree. Instead, we find the following: (1) there are no genuine issues of material

fact; (2) Fifth Third is entitled to judgment as a matter of law; and (3) reasonable minds

can come to just one conclusion, and that conclusion is adverse to Rankin. Next,

Rankin contends that the trial court erred when it denied his motion for a continuance.

Because the trial court acted within its discretion, we disagree. Finally, Rankin

contends that the trial court erred when it denied his motion for leave to file an amended Pickaway App. No. 10CA45 2

answer and counterclaim. We, however, disagree. Because of the vagueness of

Rankin’s motion, we cannot find that the trial court abused its discretion. Accordingly,

we overrule Rankin’s assignments of error and affirm the judgment of the trial court.

I.

{¶2} Rankin had an adjustable-rate mortgage with Fifth Third. Under the

mortgage, Rankin’s interest rate was subject to change on the first day of each year,

starting January 1, 2007.

{¶3} On July 29, 2010, Fifth Third filed a complaint for foreclosure against Rankin.

Fifth Third alleged that Rankin had defaulted on his mortgage and owed $127,904.69 in

principal, plus interest and late fees. In his answer, Rankin stated that he reserved the

right to amend his “answer with a Counterclaim as may be appropriate following further

discovery.”

{¶4} On August 17, 2010, Rankin filed his first set of discovery requests. Rankin’s

request included sixteen interrogatories, fourteen requests for the production of

documents, and nine requests for admission. Fifth Third responded to Rankin’s

discovery request on September 23, 2010.

{¶5} On September 24, 2010, Fifth Third filed its motion for summary judgment.

Along with its motion, Fifth Third produced the affidavit of a “duly authorized

representative of Fifth Third Mortgage Company [who had] custody of, and maintain[ed]

records related to, the promissory note and mortgage that are the subject of this

foreclosure action.” The affiant testified, in part, (1) that Rankin was “in default because

monthly payments have not been made” and (2) that “principal in the amount of

$127,904.69” is due on the note. Pickaway App. No. 10CA45 3

{¶6} On September 27, 2010, Rankin filed his second set of discovery requests.

{¶7} On September 28, 2010, Rankin filed his motion for a continuance.

Essentially, Rankin claimed that Fifth Third did not comply with his discovery requests,

and, as a result, Rankin asked for a ninety-day continuance so that he could obtain the

appropriate discovery and properly oppose the motion for summary judgment. On

October 1, 2010, the trial court (1) denied the request for a continuance and (2) stated

that Rankin’s response to the motion for summary judgment would have “to be filed by

the deadline of October 8, 2010[,] as provided in Local Rule [section] 6.08.”

{¶8} On September 30, 2010, Rankin filed his motion for leave to file an amended

answer. Essentially, Rankin asked for leave to file an unspecified counterclaim. The

trial court, however, never expressly ruled on this particular motion.

{¶9} On October 6, 2010, Rankin filed his motion to reconsider ruling on motion for

continuance. This time, Rankin asked for a sixty-day continuance. However, before the

trial court ruled on his motion to reconsider, Rankin filed his opposition to Fifth Third’s

motion for summary judgment. Then, on October 20, 2010, the trial court denied

Rankin’s motion for reconsideration.

{¶10} Eventually, the trial court granted Fifth Third’s motion for summary judgment.

Furthermore, the trial court ordered that, “unless the sums found to be due to [Fifth

Third] are fully paid within three (3) days from the date of the entry of this decree, the

equity of redemption * * * shall be foreclosed and the Property shall be sold free of the

interests of all parties to this action.” Judgment Entry and Decree in Foreclosure at 5.

{¶11} Rankin appeals and asserts the following three assignments of error: I. “The

Trial Court erred by granting the Appellee’s Motion for Summary Judgment. Decision, Pickaway App. No. 10CA45 4

November 24th, 2010 (Record 63, Appendix C); and Judgment Entry, December 6th,

2010 (Record 64, Appendix D).” II. “The Trial Court erred by not granting a continuance

to the Appellant so that discovery could be obtained. Order, October 1st, 2010 (Record

43); Order, October 20th, 2010 (Record 50). Failure to rule; Objection was filed on

November 1st, 2010 (Record 58).” And, III. “The Trial Court erred by not granting leave

to the Appellant to amend [h]is answer and assert a Counter-Claim. Failure to rule;

Motion was fully briefed on October 8th, 2010 (Record 41,79,45).”

II.

{¶12} In his first assignment of error, Rankin contends that the trial court erred in

granting Fifth Third’s motion for summary judgment. “Because this case was decided

upon summary judgment, we review this matter de novo, governed by the standard set

forth in Civ.R. 56.” Comer v. Risko,

,

, at ¶8.

Summary judgment is appropriate only when the following have been established: (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 only one

conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C). See,

also, Bostic v. Connor (1988),

; Grimes v. Grimes, Washington

App. No. 08CA35,

, at ¶14. In ruling on a motion for summary

judgment, the court must construe the record and all inferences that arise from it in the

opposing party’s favor. Doe v. First United Methodist Church,

,

, superseded by statute on other grounds.

{¶13} The burden of showing that no genuine issue of material fact exists falls upon

the party who moves for summary judgment. Dresher v. Burt,

, Pickaway App. No. 10CA45 5

. However, once the movant supports his or her motion with appropriate

evidentiary materials, the nonmoving party “may not rest upon the mere allegations or

denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise

provided in [Civ.R. 56], must set forth specific facts showing that there is a genuine

issue for trial.” Civ.R. 56(E). See, also, Dresher at 294-295;

.

{¶14} “In reviewing whether an entry of summary judgment is appropriate, an

appellate court must independently review the record and the inferences that can be

drawn from it to determine if the opposing party can possibly prevail.”

(citation omitted). “Accordingly, we afford no deference to the trial court’s decision in

answering that legal question.” Morehead v. Conley (1991),

.

See, also, Schwartz v. Bank One, Portsmouth, N.A. (1992),

;

.

A. Overview

{¶15} “The prerequisites for a party seeking to foreclose a mortgage are execution

and delivery of the note and mortgage; valid recording of the mortgage; default; and

establishing an amount due.” First Natl. Bank of Am. v. Pendergrass, Erie App. No. E-

08-048,

, at ¶21, citing Neighborhood Housing Servs. of Toledo, Inc. v.

Brown, Lucas App. No. L-08-1217,

. Rankin does not dispute

the execution, delivery, or recording of the mortgage. Moreover, Rankin does not claim

that he is up-to-date on his monthly payments. Instead, Rankin argues that Fifth Third

has failed to establish the proper amount due. Under this argument, Rankin claims that

Fifth Third erred in two distinct ways. First, Rankin argues that Fifth Third erred in

determining the adjustable interest rate for 2008. And second, Rankin argues that Fifth Pickaway App. No. 10CA45 6

Third miscalculated his daily interest rate throughout the life of the mortgage. For these

reasons, Rankin contends that Fifth Third misapplied his mortgage payments, which

created “an incorrect principal balance.” Brief of Appellant at 12. We will address these

arguments in the next three sections.

B. The Current Index Under the Adjustable Rate Rider

{¶16} Rankin argues that there is a genuine issue of material fact as to whether

Fifth Third miscalculated the interest on his Adjustable Rate Mortgage. To address this

argument, we must interpret the mortgage agreement between Rankin and Fifth Third.

“The construction and interpretation of contracts are matters of law.” Boggs v.

Columbus Steel Castings Co., Franklin App. No. 04AP-1239,

,

citing Latina v. Woodpath Dev. Co. (1991),

. “We review matters

of law on a de novo basis.” Ervin v. Oak Ridge Treatment Ctr. Acquisition Corp.,

Lawrence App. No. 05CA27,

.

{¶17} “In construing any written instrument, the primary and paramount objective is

to ascertain the intent of the parties.” Aultman Hosp. Assn. v. Community Mut. Ins. Co.

(1989),

. “‘The intent of the parties to a contract is presumed to

reside in the language they chose to employ in the agreement.’” McLaughlin v.

McLaughlin, Athens App. No. 00CA14,

, quoting Kelly v. Med. Life Ins.

Co. (1987),

, at paragraph one of the syllabus. “Language in the

contract must be given its plain and ordinary meaning unless another meaning is clearly

apparent from the contents of the contract.” McLaughlin v. McLaughlin,

,

, citing Westfield Ins. Co. v. Galatis,

,

, at ¶11 (other citation omitted). Pickaway App. No. 10CA45 7

{¶18} The mortgage agreement’s Adjustable Rate Rider contains the following

language: “Beginning with the first Change Date, my interest rate will be based on an

Index. The ‘Index’ is the weekly average yield on United States Treasury securities

adjusted to a constant maturity of one year, as made available by the Federal Reserve

Board. The most recent Index figure available as of the date 45 days before each

Change Date is called the ‘Current Index.’

{¶19} “* * *

{¶20} “Before each Change Date, the Note Holder will calculate my new interest

rate by adding Three and Three-Quarters (3.7500%) to the Current Index. The Note

Holder will then round the result of this addition to the nearest one-eighth of one

percentage point (0.125%). Subject to the limits stated in Section 4(D) below, this

rounded amount will be my new interest rate until the next Change Date.”

{¶21} Essentially, Rankin argues that Fifth Third used the wrong Index figure to

determine the Current Index for the January 1, 2008 Change Date. Rankin and Fifth

Third agree that November 17, 2007, was forty-five days before the Change Date and,

therefore, the appropriate day for determining the Current Index. But Rankin and Fifth

Third disagree as to how the Current Index should have been determined.

{¶22} The Federal Reserve releases statistical information in weekly H.15 reports.

(In the proceedings below, Fifth Third produced several hard copy printouts from the

Federal Reserve’s website. One of these printouts states that the Federal Reserve

releases H.15 statistical information “each Monday, generally at 2:30 p.m., unless

Monday is a federal holiday, in which case the data will be released on Tuesday,

generally at 2:30 p.m.”). According to the November 13, 2007 H.15 report, the weekly Pickaway App. No. 10CA45 8

average yield on United States Treasury securities was 3.72%. Therefore, from the

evidence, we can determine the following: (1) Saturday, November 17, 2007, was the

appropriate day to determine the Current Index; (2) based on the November 13, 2007

H.15 report, Fifth Third determined that 3.72% was the Current Index; and (3) the

Federal Reserve did not release another weekly H.15 report until November 19, 2007.

Despite all this, Rankin contends that Fifth Third should have calculated the weekly

average yield based on the daily yields reported on November 13, 14, 15, and 16

(according to Rankin, the Federal Reserve makes the daily numbers available at 6pm).

Thus, Rankin argues Fifth Third should have determined that the Current Index would

have been 3.58% – even if the Federal Reserve had not yet released the November 19,

2007 H.15 report.

{¶23} Here, the plain language of the Adjustable Rate Rider clearly contradicts

Rankin’s argument. As the language indicates, the Index “is the weekly average yield

on United States Treasury securities adjusted to a constant maturity of one year, as

made available by the Federal Reserve Board.” (Emphasis added.) And although

Rankin believes that Fifth Third should have performed its own calculations to

determine the Current Index, the figure derived from those calculations would not have

been made available by the Federal Reserve. Rather, that figure would have been Fifth

Third’s own assessment of the weekly average yield.

{¶24} Furthermore, Rankin’s proposed interpretation of the contract language

renders the words “most recent” meaningless, unnecessary, or superfluous. See

Capital City Community Urban Redevelopment Corp. v. City of Columbus, Franklin App.

No. 08AP-769,

, at ¶30 (“When interpreting a contract, we will presume Pickaway App. No. 10CA45 9

that words are used for a specific purpose and will avoid interpretations that render

portions meaningless or unnecessary.”), citing State v. Bethel,

,

, at ¶50; see, generally, Columbia Gas of Ohio, Inc. v. Larson Consol.,

Inc. (Dec. 15, 1999), Lorain App. No. 98CA007190 (refusing to interpret a contract in a

manner that would render terms superfluous). Again, the Adjustable Rate Rider states

that “[t]he most recent Index figure available as of the date 45 days before each Change

Date is called the ‘Current Index.’” (Emphasis added.) If, as Rankin suggests, Fifth

Third should have calculated the average weekly yield on November 17, 2007, the

reference to “the most recent Index figure” would be unnecessary. This is so because,

according to Rankin’s interpretation of the Adjustable Rate Rider, Fifth Third could have

calculated the Current Index on any day without reference to the weekly H.15 reports.

Indeed, Rankin’s interpretation of the Adjustable Rate Rider makes far more sense if we

excluded the words “most recent.”

{¶25} “When the terms in a contract are unambiguous, courts will not in effect

create a new contract by finding an intent not expressed in the clear language employed

by the parties.” Shifrin v. Forest City Ent., Inc.,

,

,

citing Alexander v. Buckeye Pipe Line Co. (1978),

. And here, it

is clear and unambiguous that the Current Index was to be derived from the Federal

Reserve’s weekly H.15 reports. In these reports, the Federal Reserve makes available

the “weekly average yield on United States Treasury securities adjusted to a constant

maturity of one year.” The Federal Reserve does not make available the “weekly

average yield on United States Treasury securities adjusted to a constant maturity of

one year” in its daily reports. Finally, by using the term “most recent,” it is clear that the Pickaway App. No. 10CA45 10

Current Index information would not be available on a daily basis. Thus, if we were to

follow Rankin’s interpretation of the Adjustable Rate Rider, we would have to ignore

certain words, add additional terms, and, in essence, create a new contract. We refuse

to do so.

{¶26} Because the contract is clear and unambiguous, we find that Fifth Third did

not miscalculate the adjustable interest rate for 2008. To adjust the interest rate, Fifth

Third correctly used the Current Index information as found in the November 13, 2007

H.15 report. Accordingly, as it relates to the determination of the Current Index, there

are no genuine issues of material fact.

C. 360 Day Interest Standard

{¶27} Under his first assignment of error, Rankin also claims that “[t]he daily interest

rate was calculated incorrectly, by using a 360 day standard and not the annual one

defined by the Note.” Brief of Appellant at 12. Here, aside from Rankin’s own affidavit,

there is no evidence that Fifth Third used an incorrect standard to calculate the daily

interest under the mortgage agreement. And “self-serving affidavits, unsupported and

without corroborating evidentiary materials, are not sufficient to create a genuine issue

of material fact on summary judgment[.]” Camp St. Mary’s Assn. of W. Ohio

Conference of the United Methodist Church, Inc. v. Otterbein Homes,

,

, citing Am. Heritage Life Ins. Co. v. Orr (C.A.5, 2002),

, 710. Thus, as it relates to the calculation of the daily interest rate, Rankin has

not established any genuine issues of material fact.

D. Incorrect Principal Balance Pickaway App. No. 10CA45 11

{¶28} Finally, Rankin argues that “the application of additional payments and over

payments were misapplied, thus creating an incorrect principal balance.” Brief of

Appellant at 12. Essentially, Rankin’s third argument relies on his first two arguments.

That is, Rankin claims (1) that he overpaid his mortgage based on Fifth Third’s

miscalculations and (2) that his overpayments were not applied to the principal balance.

Here, we have already found that there are no genuine issues of material fact related to

the calculation of Rankin’s interest rate. Thus, Rankin cannot establish a genuine issue

of material fact as to whether he overpaid the mortgage principal. Again, Rankin’s self-

serving affidavit will not create a genuine issue of material fact.

E. Conclusion

{¶29} After construing the record and all inferences therefrom in Rankin’s favor, we

find the following: (1) there are no genuine issues of material fact; (2) Fifth Third is

entitled to judgment as a matter of law; and (3) reasonable minds can come to just one

conclusion, and that conclusion is adverse to Rankin. Accordingly, we overrule his first

assignment of error.

III.

{¶30} In his second assignment of error, Rankin contends that the trial court erred

when it denied his request for a continuance. We disagree.

{¶31} “Pursuant to Civ.R. 56(F), a party may seek additional time in which to

develop the facts needed to adequately oppose a motion for summary judgment. * * *

Absent an abuse of discretion, an appellate court will not reverse a trial court’s ruling on

a Civ.R. 56(F) motion.” Ford Motor Credit Co. v. Ryan,

, 2010-

Ohio-4601, at ¶100, citing State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children and Pickaway App. No. 10CA45 12

Family Servs.,

,

, at ¶9 (other internal citations

omitted). An abuse of discretion connotes more than a mere error of judgment; it

implies that the court’s attitude is arbitrary, unreasonable, or unconscionable.

Blakemore v. Blakemore (1983),

.

{¶32} Civ.R. 56(F) provides: “Should it appear from the affidavits of a party

opposing the motion for summary judgment that the party cannot for sufficient reasons

stated present by affidavit facts essential to justify the party’s opposition, the court may

refuse the application for judgment or may order a continuance to permit affidavits to be

obtained or discovery to be had or may make such other order as is just.”

{¶33} Rankin requested a continuance because he wanted to obtain further

discovery regarding Fifth Third’s alleged interest miscalculations. But here, the trial

court could have reasonably concluded that further discovery would have been fruitless.

Therefore, we cannot find that the trial court abused its discretion by denying Rankin’s

request for a continuance. See, generally, Doriott v. MVHE, Inc., Montgomery App. No.

20040,

(“A party who seeks a continuance for further discovery

is not required to specify what facts he hopes to discover, especially where the facts are

in the control of the party moving for summary judgment. * * * However, the court must

be convinced that there is a likelihood of discovering some such facts.”) (internal

citations omitted). In his motion for a continuance, Rankin claimed that “proof ha[d]

already been developed concerning the truth of [Fifth Third’s] miscalculations and

breaches[.]” Therefore, Rankin argued that he needed additional discovery “to

determine the complete extent of [Fifth Third’s] overcharges.” Motion for Continuance

of Motion for Summary Judgment at 4. In other words, Rankin claimed that he needed Pickaway App. No. 10CA45 13

further discovery merely to prove damages. But both the trial court and this court have

found that there are no genuine issues of material fact related to the alleged interest

miscalculations. And because Rankin cannot show that Fifth Third miscalculated his

mortgage interest, the question of damages is immaterial. As a result, Rankin failed to

demonstrate a likelihood of uncovering any pertinent facts, and “the trial court was not

under any obligation to permit [Rankin] to conduct a fishing expedition[.]” Manofsky v.

Goodyear Tire & Rubber Co. (1990),

.

{¶34} Accordingly, we overrule Rankin’s second assignment of error.

IV.

{¶35} In his third assignment of error, Rankin contends that the trial court erred

when it denied his motion for leave to file an amended answer and counterclaim.

(Although the trial court did not explicitly rule on Rankin’s motion, “motions that a trial

court fails to explicitly rule upon are deemed denied once a court enters final judgment.”

Savage v. Cody-Ziegler, Inc., Athens App. No. 06CA5,

.)

{¶36} “The decision to grant or deny a motion for leave to amend a pleading is

within the sound discretion of the trial court. * * * Thus, we will not reverse a court’s

decision denying a motion for leave to amend, absent an abuse of discretion.” Mollette

v. Portsmouth City Council,

,

(internal

citations omitted).

{¶37} Rankin’s motion for leave implicates both Civ.R. 15(A) and Civ.R. 13(F).

Under Civ.R. 15(A), “A party may amend his pleading once as a matter of course at any

time before a responsive pleading is served or, if the pleading is one to which no

responsive pleading is permitted and the action has not been placed upon the trial Pickaway App. No. 10CA45 14

calendar, he may so amend it at any time within twenty-eight days after it is served.

Otherwise a party may amend his pleading only by leave of court or by written consent

of the adverse party. Leave of court shall be freely given when justice so requires.” And

under Civ.R. 13(F), “When a pleader fails to set up a counterclaim through oversight,

inadvertence, or excusable neglect, or when justice requires, he may by leave of court

set up the counterclaim by amendment.”

{¶38} “Once an answer to a complaint has been served, a party may amend its

pleading only by leave of court or by written consent of the adverse party. * * * The rule

favors a liberal policy when the trial court is faced with a motion to amend a pleading

beyond the time limit that automatically allows such amendments.”

(internal citations omitted). Here, Rankin’s motion to amend came after the time limit for

an amendment as a matter of course. As a result, to assert his counterclaim, Rankin

needed the leave of the court or the written consent of Fifth Third.

{¶39} As it relates to Rankin’s motion to amend, we cannot find that the trial court

acted arbitrarily, unreasonably, or unconscionably. Of course, we recognize (1) that

courts should liberally construe Civ.R. 15(A) and Civ.R. 13(F) and (2) that a “motion for

leave to amend should be granted absent a finding of bad faith, undue delay or undue

prejudice to the opposing party.” Hoover v. Sumlin (1984),

(citation

omitted). See, also, Reinhart v. Fostoria Plumbing, Heating & Elec. Supply, Inc.,

Seneca App. No. 13-10-08,

(stating that courts liberally

interpret Civ.R. 15(A) and Civ.R. 13(F)); Stark v. Baker (Jan. 26, 1984), Cuyahoga App.

No. 46962 (“[T]he liberal amendment standard of 15(A) has been applied in the federal

jurisdiction to the 13(F) situation: leave of the court to set up a counterclaim shall also Pickaway App. No. 10CA45 15

be ‘freely given[.]’”) (citation omitted). Nevertheless, we also recognize the

requirements of Civ.R. 7(B)(1), which states that a “motion, whether written or oral, shall

state with particularity the grounds therefor, and shall set forth the relief or order

sought.” And because of the vagueness of Rankin’s motion, we cannot find that the trial

court abused its discretion in denying Rankin’s motion to amend his answer and assert

a counterclaim. Here, Rankin failed to state precisely what counterclaim he hoped to

assert. Instead, Rankin merely stated that he wanted to file some unspecified “counter-

claim.” Therefore, Rankin failed to (1) state with particularity the grounds for his motion

or (2) set forth the relief sought. Even on appeal, Rankin cannot say what his desired

outcome would be – that is, what counterclaim he might possibly assert had the trial

court granted his motion. Therefore, we cannot find that the trial court abused its

discretion.

{¶40} Accordingly, we overrule Rankin’s third assignment of error. Having

overruled all of his assignments of error, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Pickaway App. No. 10CA45 16

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway County 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. Exceptions.

Abele, J.: Concurs in Judgment and Opinion. McFarland, J.: Not Participating.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.