[Cite as Key Bank Natl. Assoc. v. Bolin,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

KEY BANK NATL. ASSOC. : JUDGES: : : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2010 CA 00285 TAMARA S. BOLIN : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2009CV00750

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: August 22, 2011

APPEARANCES:

For Defendant-Appellant: For Plaintiff-Appellee:

JOHN D. MORRIS EDWARD M. KOCHALSKI P.O. Box 2566 P.O. Box 165028 1610 S. Union Ave. Columbus, OH 43216-5028 Alliance, OH 44601

Delaney, J. {¶1} Defendant-Appellant Tamara S. Bolin appeals the September 8, 2010

judgment entry of the Stark County Court of Common Pleas in this foreclosure action.

STATEMENT OF THE FACTS AND CASE

{¶2} On December 22 1987, Appellant and her then husband, Mark Bolin,

acquired title to a leasehold property, with a structure and improvements thereon,

located in North Canton, Ohio by virtue of a lease from Defendant, Willowdale Country

Club, Inc.

{¶3} Appellant and her husband executed and delivered a Promissory Note

(“Note 1”) with Defendant-Appellee, Key Bank National Association, in the principal

amount of $301,050.00. To secure Note 1, Appellant and her husband executed a

mortgage deed on the leasehold property (“Mortgage 1”). On December 11, 2003,

Appellant and her husband executed a second promissory note and mortgage with

Appellee in the amount of $25,000.00. (“Note 2/Mortgage 2”).

{¶4} The obligations in Note 1 and Note 2 are secured by the interest in realty

described in Mortgage 1 and Mortgage 2. Appellant’s interest is described in the

mortgages as fee simple interests described as “[a]ll that parcel of land.” This

description is incorrect because Appellant only holds a leasehold interest in the

property. Willowdale Country Club, Inc. holds a fee simple interest on the property.

{¶5} Appellant failed to make regular monthly payments on Mortgages 1 and 2,

thereby defaulting on the mortgages and notes under the terms of the agreements.

Appellee initiated foreclosure proceedings on Mortgage 1 against Appellant on February

23, 2009. {¶6} Appellant filed a petition for Chapter 7 bankruptcy protection on March 5,

2009.1 The foreclosure proceedings were stayed and were not reinstated until June

2009, when Appellee obtained a relief from stay from the Bankruptcy Court. On June

12, 2009, Appellee filed a motion for default judgment against Appellant for her failure to

answer the complaint in foreclosure. Appellee provided a proposed judgment entry to

the motion that listed Appellant’s interest in the property as a fee simple interest.

{¶7} Defendant Willowdale Country Club, Inc. filed an objection to Appellee’s

proposed judgment entry. The terms of the proposed judgment entry called for the sale

of the real property and such interest would be released from the title to the property

upon the confirmation of the sale. Willowdale Country Club, Inc. objected to the

language because it held a fee simple interest in the property. Willowdale Country

Club, Inc.’s objection prompted Appellee to amend its complaint and move for

reformation of the mortgages.

{¶8} Appellant filed her Answer on August 24, 2009. The parties engaged in

mediation but could not successfully resolve the case.

{¶9} On February 17, 2010, Appellee filed its Motion for Leave to File an

Amended Complaint. Appellee moved to amend its complaint to identify Appellee’s

interest in the leasehold property and to add the additional counts for Note 2 and

Mortgage 2, replevin, and reformation. The trial court granted the motion on February

18, 2010.

1 Appellant’s debts were discharged by the Bankruptcy Court and Appellant is not personally liable on the mortgage. {¶10} On May 4, 2010, Appellant filed a Third-Party Complaint against Secolink

Settlement Services LLC. Appellant had purchased a mortgage title insurance policy

from Secolink Settlement Services LLC.

{¶11} Appellee filed its motion for summary judgment on June 14, 2010.

Appellee argued there was no genuine issue of material fact on its complaint for

foreclosure and the remaining claims for replevin and reformation, arguing the

mortgages could be reformed due to mutual mistake between the parties as to

Appellant’s leasehold interest in the property.

{¶12} The trial court granted Appellee’s motion for summary judgment on

September 8, 2010. It is from this decision Appellant now appeals.

ASSIGNMENTS OF ERROR

{¶13} Appellant raises three Assignments of Error:

{¶14} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

GRANTING APPELLEE BANK LEAVE TO FILE AN AMENDED COMPLAINT

WITHOUT GIVING APPELLANT ANY OPPORTUNITY TO RESPOND OR OBJECT.

{¶15} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

GRANTING REFORMATION OF THE MORTGAGE LANGUAGE.

{¶16} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

GRANTING FORECLOSURE WHEN THE BANK ACTED IN BAD

FAITH/MISREPRESENTED TO APPELLANT THAT SHE WAS BEING APPROVED

FOR A LOAN MODIFICATION PROGRAM.” I.

{¶17} Appellant argues in her first Assignment of Error that the trial court abused

its discretion in granting Appellee’s motion for leave to file an amended complaint. We

disagree.

{¶18} Civ.R. 15(A) provides:

{¶19} “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 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. A party

shall plead in response to an amended pleading within the time remaining for response

to the original pleading or within fourteen days after service of the amended pleading,

whichever period may be the longer, unless the court otherwise orders.”

{¶20} Civ.R. 15(A) provides that a party may seek leave of court to amend its

pleading and that leave “shall be freely given when justice so requires.” While Civ.R.

15(A) encourages liberal amendment, “motions to amend pleadings pursuant to

Civ.R.15(A) should be refused if there is a showing of bad faith, undue delay, or undue

prejudice to the opposing party.” Turner v. Central Local School Dist. (1999),

,

. The decision of whether to grant or deny a motion to

amend is within the trial court's discretion, an appellate court reviews such a ruling

under an abuse of discretion standard. Wilmington Steel Products, Inc. v. Cleveland

Elec. Illuminating Co. (1991),

,

. {¶21} We can find no abuse of discretion in allowing Appellee to amend its

complaint to include the additional claims of Note 2/Mortgage 2, replevin, and

reformation. The record does not demonstrate bad faith or undue delay on the part of

Appellee. Appellant suffered no undue prejudice because she was able to respond to

Appellee’s claims through her answer and her response to Appellee’s motion for

summary judgment.

{¶22} Appellant’s first Assignment of Error is overruled.

II.

{¶23} Appellant contends in her second Assignment of Error that the trial court

erred in granting summary judgment in favor of Appellee.

{¶24} We review a summary judgment de novo and without deference to the trial

court's determination. When an appellate court reviews a trial court's disposition of a

summary judgment motion, it applies the same standard of review as the trial court and

conducts an independent review, without deference to the trial court's determination.

We must affirm the trial court's judgment if any grounds the movant raised in the trial

court support it. Westbrook v. Swiatek, 5th Dist. No. 09CAE09–0083,

.

{¶25} Pursuant to Civ.R. 56(C), 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 as to any material fact and that the moving party is

entitled to summary judgment as a matter of law.” {¶26} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt,

, 1996-Ohio-

107,

. The nonmoving party then has a reciprocal burden of specificity

and cannot rest on the allegations or denials in the pleadings, but must set forth

“specific facts” by the means listed in Civ.R. 56(C) showing that a “triable issue of fact”

exists. Mitseff v. Wheeler (1988),

,

.

{¶27} Appellant states the trial court erred in finding that reformation of the notes

and mortgages was appropriate due to mutual mistake of the parties. The trial court

found in its judgment entry granting summary judgment in favor of Appellee that due to

scrivener’s error, excusable neglect, and a mutual mistake of fact between the parties,

the mortgages contained an incorrect legal description which identified the security as a

fee simple interest rather than a leasehold interest. The entry stated, “[a] party cannot

mortgage more than they own. To suggest that the defendants Bolin intended to

mortgage a fee simple interest is to impute to them something beyond an

understandable mistake. Plaintiff has not suggested otherwise nor is there any other

evidence before the court indicating anything except a simple mistake.”

{¶28} In Dornbirer v. Conrad, (Nov. 20, 2000), 5th Dist. No. 99-CA-26, this Court

stated:

{¶29} “Reformation of an instrument based on mutual mistake is permitted only

where there is clear proof that the parties to the instrument made the same mistake and

that both parties understood the instrument as the party seeking reformation alleges it ought to have been. See Snedegar v. Midwestern Indemn. Co. (1988),

,

. The party alleging mutual mistake has the burden of proving its

existence by clear and convincing evidence. Castle v. Daniels (1984),

,

.”

{¶30} Appellant states that Appellee failed to show clear proof of mutual mistake

as to Appellant’s interest because Appellant knew that she held only a leasehold

interest; therefore, only Appellee made the mistake. As the trial court indicated,

however, Appellant could not give Appellee a security interest that she did not possess.

It is undisputed that Willowdale Country Club, Inc. owns the underlying fee and

Appellant owns the remaining interests.

{¶31} We differentiate this case from one where we determined there was a

genuine issue of material fact as to whether a mortgage assignee was entitled to the

reformation of a deed due to a scrivener’s error and mutual mistake of fact. In JP

Morgan Chase Bank, N.A. v. Qualls,

,

,

, the appellant owned an undivided one-third interest in property and his parents each

owned the remaining one-third interests. The appellant executed a note and mortgage

on his property that was assigned to the appellee, JP Morgan Chase Bank. The

appellant defaulted on the mortgage and the appellee initiated foreclosure proceedings.

The appellee sought to have the deed reformed to transfer the entire interest, not just

appellant’s undivided one-third interest, in the subject property to the appellant. The

appellee moved for summary judgment and the trial court granted the appellee’s motion,

finding that there was no genuine issue of material fact that the parties intended to

transfer their entire interest in the property to the appellant, even though the deed transferring the property to the appellant from his parents stated that the parents

granted the appellant an undivided one-third interest in the real property. On appeal,

we reversed the decision of the trial court because we found no clear proof in the record

of a scrivener’s error or mutual mistake to warrant a finding of judgment as a matter of

law for the appellee.

{¶32} In the present case, the record does not present the same factual support

for Appellant’s arguments that there was no scrivener’s error or mutual mistake of fact.

There is no factual dispute that Willowdale Country Club, Inc. is the owner of the

underlying fee simple and Appellant owns a leasehold interest. Appellant

acknowledged that she knew she held only a leasehold interest in the property.

Appellee in this case, as opposed to the appellee in the case above, is not contradicting

the terms of the parties’ interests but rather remedying an error in its mortgage

documents to reflect the actual terms of the parties’ interests. We find that reasonable

minds could not conclude otherwise.

{¶33} Appellant’s second Assignment of Error is overruled.

III.

{¶34} Appellant argues in her third Assignment of Error that the trial court erred

and abused its discretion in granting Appellee’s motion for summary judgment when

Appellee acted in bad faith and misrepresented to Appellant that she could participate in

a loan modification program.

{¶35} Appellant argued as a defense in her answer and responded to Appellee’s

motion for summary judgment that Appellee was estopped from seeking equitable relief because of the doctrine of unclean hands. Appellant states that Appellee would not

allow Appellant to participate in a loan modification program to bring her default current.

{¶36} The doctrine of clean hands is based on the maxim of equity that

provides “he who comes into equity must come with clean hands.” Seminatore v.

Climaco, Climaco, Lefkowitz & Garofoli Co., L.P.A., 8th Dist. No. 81568, 2003–Ohio–

3945, ¶ 26, citing Marinaro v. Major Indoor Soccer League (1991),

,

. The application of the doctrine is at the discretion of the trial court.

Nowinski v. Nowinski, 5th Dist. No. 10 CA 115,

, ¶24 citing Slyh v. Slyh

(1955),

,

.

{¶37} The mortgage document in this case contains a clause that permits the

lender to accept payments from the borrower but that does not waive any of the

borrower’s obligations under the mortgage or prevent the lender from insisting on the

strict performance of the mortgage obligations. Under the terms of the mortgages,

Appellee was not required to allow Appellant to participate in loan modification. We find

Appellant has failed to provide Civ.R. 56 evidence to demonstrate a genuine issue of

material fact to allow reasonable minds to conclude otherwise.

{¶38} Appellant’s third Assignment of Error is overruled.

{¶39} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.

Farmer, P.J. and

Wise, J. concur. HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

: KEY BANK NATL. ASSOC. : : : Plaintiff-Appellee : : JUDGMENT ENTRY -vs- : : TAMARA S. BOLIN : : Case No. 2010 CA 00285 : Defendant-Appellant

For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.

HON. PATRICIA A. DELANEY HON. SHEILA G. FARMER

HON. JOHN W. WISE