[Cite as CitiMortgage, Inc. v. Kermeen,

.]

IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO

CITIMORTGAGE, INC. :

Plaintiff-Appellant : C.A. CASE NO. 2011 CA 2

v. : T.C. NO. 10CV569

CHRISTOPHER G. KERMEEN, et al. : (Civil appeal from Common Pleas Court) Defendants-Appellees :

:

..........

OPINION

Rendered on the 13th day of April , 2012.

..........

MICHAEL J. SIKORA III, Atty. Reg. No. 0069512 and RICHARD T. CRAVEN, Atty. Reg. No. 0082273, 685 S. Front Street, Columbus, Ohio 43206 Attorneys for Plaintiff-Appellant

SCOTT D. RUDNICK, Atty. Reg. No. 0000853 and NATHAN D. HOSEK, Atty. Reg. No. 0083994, 121 West Third Street, Greenville, Ohio 45331 Attorneys for Defendants-Appellees

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of

CitiMortgage, Inc., filed March 2, 2011. CitiMortgage appeals from the trial court’s

decision denying its motion for default judgment, motion for an order deeming the 2

averments in the complaint admitted, and/or motion for summary judgment, and awarding

half of the gross sale proceeds of the property at issue, located at 2412 Cox Rd., Greenville,

to Kimberly Kermeen.

{¶ 2} On July 29, 2010, CitiMortgage filed a “Complaint in Foreclosure and

Reformation of Mortgage” against Christopher G. Kermeen and Kimberly L. Kermeen.

CitiMortgage alleged that it is the holder of note and a loan modification agreement which

are secured by a mortgage, and that by reason of default under the terms of the note,

Christopher owes $79,686.13, together with interest at the rate of 6.25% per year, from April

1, 2009, plus court costs, advances and other charges. CitiMortgage alleged that it was

assigned the mortgage. The Complaint provides that the “parties intended that the mortgage

from Christopher G. Kermeen and Kimberly L. Kermeen would secure a valid first lien upon

the fee simple interest of the premises and plaintiff’s predecessor in interest would not have

granted or permitted a disbursement or fund[s]” to the parties “if it had known that it would

acquire a mortgage against only one-half of the real estate.” The complaint further

provides, “due to an inadvertent mistake on the part of the preparer of the mortgage, the

titleholder’s name Kimberly L. Kermeen was left out of the granting clause.” Citimortgage

asserts that the “mistake was the result of scrivener’s error and mutual mistake of fact

between the parties to said document,” and that it “is entitled to have [the mortgage]

reformed to properly state Christopher G. Kermeen and Kimberly L. Kermeen[,] husband

and wife[,] in the Granting Clause.” Citimortgage asserted that it is entitled to a court order

for the sale of the property at sheriff’s sale.

{¶ 3} Attached to the Complaint as Exhibit A is the Note, dated September 12, 3

2002, signed by Christopher Kermeen, pursuant to which he promised to pay $70,000.00

plus interest to First Residential Mortgage - Louisville. Attached to the Note is an “Allonge

to Note,” which provides

Allonge to Note Dated September 12, 2002

In Favor of First Residential Mortgage - Louisville

And Executed by Christopher G. Kermeen

Pay to the Order of ABN AMRO Mortgage Group, Inc.

Without Recourse First Residential Mortgage - Louisville

The signature at the end of the allonge is illegible, but the person is identified as a “corporate

agent.”

{¶ 4} Attached to the Complaint as Exhibit B is the Loan Modification Agreement

(“Agreement”), between Christopher and CitiMortgage, which provides that the “New

Unpaid Principal Balance” on the Note is $85,134.36. The Agreement states, “This Loan

Modification Agreement (‘Agreement’), made 10/19/07, between CHRISTOPHER G

KERMEEN and . Single (Borrower) (sic) * * * and CitiMortgage, Inc. (Lender) * * *

amends and supplements (1) the Mortgage, Deed of Trust, or Deed to Secure Debt (the

‘Security Instrument’) dated 09/12/02 * * * and (2) the Note bearing the same date as, and

secured by the Security Instrument * * * .”

{¶ 5} Paragraph 5 of the Agreement provides

Nothing in this Agreement shall be understood or construed to be a

satisfaction or release in whole or in part of the Note and Security Instrument.

Except as otherwise specifically provided in this Agreement, the Note and 4

Security Instrument will remain unchanged, and the Borrower and Lender

will be bound by and comply with, all of the terms and provisions thereof, as

amended by this Agreement.

{¶ 6} Paragraph 6 of the Agreement provides

It is mutually agreed that said security instrument shall continue a first

lien upon the premise and that neither the obligation evidencing the aforesaid

indebtedness nor the security instrument the same (sic) shall in any way be

prejudiced by this agreement, but said obligation and security instrument and

all the covenants and agreements thereof and the rights of the parties

thereunder shall remain in full force and effect except as herein expressly

modified.

{¶ 7} The Agreement is signed by Christopher, above a preprinted line that reads,

“Borrower - Christopher G. Kermeen,” and “9-28-07" appears next to his signature. There

are three blank signature lines with “Borrower” preprinted beneath them under Christopher’s

signature. The Agreement is initialed by Stacey Andrew, Assistant Vice President of

CitiMortgage, above a preprinted line that reads, “Lender - Stacey Andrew Assistant Vice

President,” and “10/29/07" appears next to her signature. Christopher is named in the notary

public’s acknowledgment clause.

{¶ 8} Attached to the Complaint as Exhibit C is a copy of the Mortgage. In the

first section, entitled “DEFINITIONS,” “Borrower” is defined as “Christopher G. Kermeen,

a married man,” and the Mortgage further provides, “Borrower is the mortgagor under this

Security Instrument.” First Residential Mortgage - Louisville is identified as the “Lender.” 5

“Note” is defined as “the promissory note signed by Borrower and dated September 12,

2002.” The granting clause appears immediately after the definitions, in a section entitled

“TRANSFER OF RIGHTS IN THE PROPERTY,” and it provides

This Security Instrument secures to Lender: (i) the repayment of the

Loan, and all renewals, extensions, and modifications of the Note; and (ii) the

performance of the Borrower’s covenants and agreements under this Security

Instrument and the Note. For this purpose, Borrower does hereby mortgage,

grant and convey to Lender the following described property * * *

TOGETHER WITH all the improvements now or hereafter erected on

the property, and all easements, appurtenances, and fixtures now or hereafter

a part of the property. All replacements and additions shall also be covered

by this Security Instrument. All of the foregoing is referred to in this

Security Instrument as the “Property.”

BORROWER COVENANTS that Borrower is lawfully seized of the

estate hereby conveyed and has the right to mortgage, grant and convey the

Property and that the Property is unencumbered, except for encumbrances of

record. Borrower warrants and will defend generally the title to the Property

against all claims and demands, subject to any encumbrances of record.

{¶ 9} Paragraph 13 of the Mortgage provides

Joint and Several Liability; Co-signers; Successors and Assigns

Bound. Borrower covenants and agrees that Borrower’s obligations and

liability shall be joint and several. However, any Borrower who co-signs this 6

Security Instrument but does not execute the Note (a “co-signer”): (a) is

co-signing this Security Instrument only to mortgage, grant and convey the

co-signer’s interest in the Property under the terms of this Security

Instrument; (b) is not personally obligated to pay the sums secured by this

Security Instrument; and (c) agrees that Lender and any other Borrower can

agree to extend, modify, forbear or make any accommodations with regard to

the terms of this Security Instrument of the Note without the co-signer’s

consent.

{¶ 10} Pages 1 -7 bear the initials of Christopher and Kimberly. On the final

page, page 8, the mortgage provides, “BY SIGNING BELOW, Borrower accepts and agrees

to the terms and covenants contained in this Security Instrument and in any Rider executed

by Borrower and recorded with it.” Christopher’s signature appears on a typed signature

line above a typed version of his name. Kimberly’s signature appears on a handwritten

second signature line above a hand-printed version of her name. The Mortgage was

notarized by Tracy L. Powell. The acknowledgment provides, “The foregoing instrument

was acknowledged before me this 9-12-02 (date) by Christopher G Kermeen (name of

person acknowledged).” The parties’ initials do not appear on this page. Exhibit A to the

Mortgage is a description of the property, which appears to contain Christopher’s initials.

The Mortgage was recorded in Darke County on September 25, 2002, in Book 305, Page

2675.

{¶ 11} Attached to the Complaint as Exhibit D is an Assignment of Mortgage,

which provides in part that First Residential Mortgage - Louisville grants, sells, assigns 7

transfers and conveys to ABN AMRO Mortgage Group, Inc., “a certain Mortgage dated

September 12, 2002, made and executed by Christopher G. Kermeen, a married man * * * .”

The assignment was recorded in Darke County on September 25, 2002, in Book 305, Page

2684.

{¶ 12} The record establishes that the Kermeens were properly served with a copy

of the Complaint by certified mail on July 31, 2010 and August 4, 2010.

{¶ 13} A Preliminary Judicial Report, dated April 15, 2010, indicates that the

record title to the property at issue is vested in Christopher G. Kermeen and Kimberly L.

Kermeen. Schedule B to the Preliminary Judicial Report lists “exceptions” to the report,

noting that Kimberly is not mentioned in the granting clause or acknowledged in the notary

clause in the mortgage from Christopher, “a married man,” to First Residential Mortgage -

Louisville, although “she does sign the Mortgage, and she is a titleholder.”

{¶ 14} On September 3, 2010, CitiMortgage filed a motion for default judgment,

asserting that Christopher and Kimberly are in default of motion or answer. On September

10, 2010, the court set the matter for trial, noting in its Scheduling Entry that it prefers “to

adjudicate cases on their merits, not being satisfied with the supporting affidavit filed herein,

seeking to determine compliance with applicable laws regarding validity of the note and

mortgage * * *.”

{¶ 15} On December 30, 2010, CitiMortgage filed its joint motion for default

judgment/ motion for an order deeming the averments of the Complaint for foreclosure and

reformation of the mortgage admitted/ motion for summary judgment. CitiMortgage

asserted that it is entitled to default judgment against the Kermeens based upon their failure 8

to respond to the Complaint. CitMortgage further asserted that it is entitled to summary

judgment on the Note and Agreement, foreclosure of the Mortgage and reformation of the

Mortgage, based upon multiple affidavits. Finally, CitiMortgage asserted that the Kermeens

admit that it is entitled to judgment in its favor.

{¶ 16} Attached to CitiMortgage’s motion is the affidavit of Jim Madonia, which

provides that he is “employed by Surepoint Lending abn (sic) First Residential Mortgage

Network, Inc. (‘First Residential’).” Madonia avers that he has been employed by First

Residential as a Manager, and that he is authorized to testify on its behalf. Madonia avers

that on September 12, 2002, Christopher and Kimberly held title to the property at issue.

Madonia avers that he served as the Manager for First Residential in connection with the

loan at issue, and that First Residential “intended to encumber the entire fee simple interest

of Christopher Kermeen and Kimberly Kermeen in the property and intended to hold the

first and best lien on the Property.” Madonia asserts that First Residential required

Christopher and Kimberly to execute a mortgage in favor of it, as lender, and he

authenticated a copy of the Mortgage attached to his affidavit. According to Madonia,

based upon his interaction with Christopher and Kimberly “and the documents contained

within the loan file,” he understood that Christopher and Kimberly “knew that the Mortgage

intended to encumber their entire fee simple interest in the property.” Finally, Madonia

avers that Kimberly’s name was omitted from the granting clause and acknowledgment

clause due to scrivener’s error, and the fact that she signed the Mortgage without limitation

and initialed pages 1 - 7 “evidences that her name was inadvertently omitted.”

{¶ 17} Also attached to CitiMortgage’s motion is the affidavit of Cindy Schneider, 9

who averred that she is employed by CitiMortgage, successor by merger to ABN AMRO

Mortgage Group, Inc. Schneider averred that she worked as a Business Operations Analyst.

According to Schneider, CitiMortgage has custody of and maintains records related to the

loan documents concerning the property at issue, including the Note, Loan Modification

Agreement and Mortgage, which were made and kept in the ordinary course of business.

Schneider asserts that at the September 12, 2002, closing on the loan, Christopher executed a

Note in favor of First Residential, and CitiMortgage is the current holder of the Note, and

that First Residential required the Kermeens to execute a Mortgage in its favor to secure the

Note. Schneider authenticated a copy of the Mortgage, attached to her affidavit. Schneider

averred that First Residential intended to encumber the entire fee simple interest of the

property at issue. Further, according to Schneider, on September 23, 2002, First Residential

assigned the Mortgage to ABN AMRO Mortgage, Inc., and the assignment was recorded in

Book 305, Page 2684 on September 25, 2002. Schneider authenticated a copy of the

assignment, attached to her affidavit.

{¶ 18} Schneider asserted that ABN AMRO Mortgage, Inc. and CitiMortgage

merged on August 21, 2007, and she authenticated a Certificate of Merger attached to her

affidavit. She further averred that Christopher and CitiMortgage entered into a Loan

Modification Agreement, and she authenticated a copy thereof attached to her affidavit.

Schneider averred that on August 10, 2009, Christopher and Kimberly provided

CitiMortgage with financial information in a Financial Statement relative to the Mortgage

and loan, a copy of which is attached to the affidavit and authenticated by Schneider. Finally,

Schneider averred that the Note and Mortgage are in default, and $79,686.13 plus interest is 10

due.

{¶ 19} The affidavit of Tracy L. Blankenship is also attached to CitiMortgage’s

motion. Blankenship averred that she has been a notary public in Ohio from 2001 - 2006,

that she is familiar with “the requirements of notarizing and acknowledging a mortgage,”

having served on numerous transactions in which mortgages were given to lenders.

Blankenship served as the notary “in the transaction involving the Mortgage executed by

Christopher G. Kermeen and Kimberly L. Kermeen” in favor of First Residential Mortgage -

Louisville. She averred that she notarized the Mortgage and “administered the oath” to the

Kermeens, and that her signature appears in the notary clause. According to Blankenship,

Kimberly’s “name was inadvertently omitted from the acknowledgment clause of the

Mortgage as a result of a scrivener’s error and mutual mistake,” and the Mortgage indicates

that Christopher is “the only individual designated as mortgagor.” Blankenship averred, it

“is my belief that the parties intended that the Mortgage would encumber both”

Christopher’s and Kimberly’s “entire, undivided fee simple interest in the Property.”

Finally, according to Blankenship, Kimberly “was aware that she held an undivided one-half

(½) interest in the Property and it was the intent of Kimberly L. Kermeen to sign the

Mortgage to encumber her entire undivided fee simple interest in the Property.”

{¶ 20} On January 3, 2011, and again on January 10, 2011, Final Judicial Reports

as well as Affidavits of Status of Account and Military Affidavits were filed.

{¶ 21} On January 25, 2011, CitiMortgage filed a supplemental affidavit of Cindy

Schneider, attached to which are multiple exhibits, including a copy of the payment history

of the loan. Also attached is a Loan Modification Agreement, effective March 1, 2004, 11

“between Christopher G. Kermeen (‘Borrower’) and ABN AMRO Mortgage Group

(‘Lender’).” The Loan Modification Agreement is signed and acknowledged by

Christopher, and signed by Vickie Lester, Vice President of ABN AMRO Mortgage Group.

A Modification Due on Transfer Rider is attached to the Loan Modification Agreement, and

it is signed by Christopher, who is identified as “(‘the Borrower’).” A “1-4 Family

Modification Agreement Rider Assignment of Rents” is also attached and signed by

Christopher, who is again identified as “(‘the Borrower’).”

{¶ 22} Christopher and Kimberly did not respond to the motions.

{¶ 23} On January 31, 2011, the trial court issued a Decision and Judgment Entry,

which provides that the matter came before the court for trial, and that both Kermeens failed

to appear. The Entry states, “[a]s has been the Court’s practice, the Court decided to hear

testimony to determine the quality of the lending practices of various Plaintiffs in foreclosure

cases, including this Plaintiff, in order to ensure that proper record keeping and proof is a

part of the practice of this Plaintiff - and other lenders on this Court’s docket.” The court

noted that it granted CitiMortgage a continuance of the initial trial date for discovery

purposes, and it reviewed the “various reasons” it denied CitiMortgage’s motion for default

judgment, namely its preference to adjudicate cases on their merits and “lack of satisfaction

with the affidavit in support of the motion.” According to the trial court, CitiMortgage “is

not entitled to a default judgment merely because the Defendants fail to appear or to

answer,” and it noted that “the presentation of evidence can be requested by the Court, based

on Civ.R. 55.” The court further noted “the mistaken impression that foreclosure Plaintiffs

- or other creditors asserting collection rights - are entitled to invoke the authority and 12

imprimatur of the civil justice system without first establishing the validity of their claims is

an unfortunate misunderstanding. Maybe courts have historically been willing to defer to

claimants and to not assert the court’s responsibility to require claimants to meet their

burden of proof. Maybe an ill gotten attitude of entitlement exists among the creditors and

their counsel. Burgeoning caseloads and time constraints on courts make this regrettably

understandable. However, when called upon to produce evidence at trial, Plaintiffs and

their counsel who misunderstand the burden of proof do so at their own peril.”

{¶ 24} The court then noted that it considered the pleadings, affidavits and

attachments, and that those documents “become the evidence of the terms, conditions and

fulfillment of * * * the loan.” The court next noted that Christopher alone signed the

promissory note in the amount of $70,000.00, to borrow that sum from First Residential

Mortgage - Louisville, and Christopher’s “failure to pay according to the terms of the note

results in a finding * * * that Plaintiff is entitled to a judgment” against Christopher in the

amount of $79,686.13 plus interest at the rate of 6.25% from April 1, 2009, plus past and

future advances under the note. Since Kimberly did not sign the Note, the court did not

grant a monetary judgment against her.

{¶ 25} Regarding the Mortgage, the court noted that it was apparently “modified at

the closing with the addition of a signature line and handwritten notation that Kimberly * * *

was also signing the mortgage.” The court further noted that the notary acknowledgment

was not modified to reflect the additional signature.

{¶ 26} Regarding the Preliminary Judicial Report, the court noted that it indicates

that the Kermeens “took title to the real estate in April, 1991 with each owning an undivided 13

one-half interest. This information was available to the loan originator and original lender

at the time of closing.”

{¶ 27} To determine CitiMortgage’s request to reform the mortgage, the court

applied general contract principles and determined that the plain language of the Note and

Mortgage “consistently indicate an intention for Christopher G. Kermeen alone to be

obligated for the indebtedness. When the note was modified in September, 2008 (sic),

again Kimberly L. Kermeen was not involved in the transaction. The loan modification

agreement was prepared by the lender even though it was aware of the joint ownership of the

realty.” Since there was “no internal inconsistency within the transaction,” the court

concluded that the contract documents are not ambiguous.

{¶ 28} In the absence of ambiguity, the court declined to admit the affidavits

CitiMortgage submitted in support of summary judgment, as well as the unanswered

requests for admission that CitiMortgage sought to have the court deem admitted.

According to the court, the documents “clearly speak for themselves; affidavits and requests

for admissions violate the parole evidence rule.” “Anecdotally,” the court further found

CitiMortgage’s affidavits “to be unpersuasive and self-serving; the affidavits purport to state

intentions at the time of the loan over eight (8) years later. Finally, if inadvertence was

involved, it was consistent inadvertence over numerous documents and over six years, which

time included an agreed loan modification.” In a footnote, the court indicated that

“consistent inadvertence” may “actually be an oxymoron.”

{¶ 29} Further, the court indicated that an “equally plausible explanation for

individual indebtedness,” in addition to the documents themselves, is that Kimberly “was 14

not willing to incur further debt nor pledge her half of the collateral as security for her

husband’s loan.” The court found no error on Kimberly’s part “nor any misrepresentation

about the joint status of the parties’ ownership of the realty.” It further noted that no

explanation had been provided for the eight year delay, from 2002 - 2010, “in seeking to

correct the error.”

{¶ 30} Finally, the court determined that since Kimberly was not a grantor of the

mortgage, “her signature indicates a pledge of her dower interest in the real estate. In this

case, when she signed the mortgage to release her dower interest, she agreed to release any

interest she held in her husband’s interest in the realty. The effect is that First Residential

Mortgage - Louisville only took a one-half interest in the realty as collateral for the loan.”

According to the court, “to rule otherwise would elevate business practices and unspoken

intentions over the integrity and certainty of the written documents.” The court determined

that the request for reformation of the Mortgage “is not justified under the facts as

presented.”

{¶ 31} The court granted judgment in favor of CitiMortgage against Christopher in

the amount of $79,686.13, plus interest at the rate of 6.25% from April 1, 2009, plus past

and future advances under the Note, and it determined that CitiMortgage was entitled to a

decree in foreclosure and order of sale. Finally, it determined that one-half of the gross

proceeds from the sale accrued to Kimberly for distribution following confirmation of the

sale.

{¶ 32} CitiMortgage asserts five assignments of error. CitiMortgage’s first

assigned error is as follows: 15

“THE TRIAL COURT ERRED IN FAILING TO GRANT CITIMORTGAGE

DEFAULT JUDGMENT WHEN APPELLEES WERE PROPERLY SERVED WITH THE

COMPLAINT AND FAILED TO RESPOND TO THE ALLEGATIONS IN THE

COMPLAINT.”

{¶ 33} Our standard of review for this assignment of error is abuse of discretion.

Comunale v. Harrison, 2d Dist. No. 20804,

. As the Supreme Court of

Ohio as previously determined

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were

it deciding the issue de novo, would not have found that reasoning process to

be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result. AAAA Enterprises, Inc. v. River Place

Community Redevelopment,

,

(1990).

{¶ 34} Default judgments are employed where findings by the court regarding

matters at issue may be determined by the pleadings alone. “Civ. R. 55(A) provides that

default judgment may be awarded when a defendant fails to make an appearance by filing an

answer or otherwise defending an action. (Citation omitted). However, it is ‘a basic tenet 16

of Ohio jurisprudence that cases should be decided on their merits.’ (Citation omitted).”

Lykins v. Miami Valley Hospital,

,

,

(2d Dist.). Civ.R. 55(A) provides

If, in order to enable the court to enter judgment or to carry it into

effect, it is necessary to take an account or to determine the amount of

damages or to establish the truth of any averment by evidence or to make an

investigation of any other matter, the court may conduct such hearings or

order such references as it deems necessary and proper and shall when

applicable accord a right of trial by jury to the parties.

{¶ 35} “Clearly, Civ.R. 55(A) makes it discretionary with the trial court to decide if

a hearing is necessary. It has always been within the discretion of the trial court to

determine whether further evidence is required to support a claim against a defaulting

defendant. See Dallas v. Ferneau (1874),

(further citation omitted).”

Buckeye Supply Co. v. Northeast Drilling Co.,

,

(9th Dist. 1985). “If the court hears evidence, ‘it follows that the court should make its

decision conform to the law as applicable to the facts proven, and if no cause of action is

shown no default judgment in plaintiff’s favor should be rendered.’ Streeton v. Roehm

(1948),

,

.” Regency Centre Dev. Co., Ltd. v. Constr.

Dimensions, Inc., 8th Dist. No. 81171,

, ¶ 15.

{¶ 36} In accord with Ohio jurisprudence, the trial court made clear its preference

to decide matters on their merits, and it set this matter for trial to establish, by evidence, the

truth of the averments in CitiMortgage’s Complaint. Since it was within the trial court’s 17

discretion to set the matter for trial, we cannot conclude, as CitiMortgage asserts, that it was

entitled to a default judgment against the Kermeens solely on the basis that the defendants

failed to appear and defend. Since an abuse of discretion is not shown, CitiMortgage’s first

assigned error is overruled.

{¶ 37} We will next address CitiMortgage’s second and fourth assigned errors,

which are as follows:

“THE TRIAL COURT ERRED IN FAILING TO DEEM THE AVERMENTS IN

THE COMPLAINT ADMITTED BECAUSE APPELLEES ADMITTED THAT

CITIMORTGAGE IS ENTITLED TO JUDGMENT.”

And,

“THE TRIAL COURT ERRED IN FINDING THAT CITIMORTGAGE WAS NOT

ENTITLED TO REFORMATION.

“1. THE TRIAL COURT ERRED IN FINDING THAT

CITIMORTGAGE’S REQUEST FOR REFORMATION WAS NOT JUSTIFIED

BECAUSE THE MORTGAGE WAS UNAMBIGUOUS.

“2. CITIMORTGAGE DEMONSTRATED THROUGH UNDISPUTED

PROPER RULE 56(c) EVIDENCE THAT IT IS ENTITLED TO REFORMATION OF THE

MORTGAGE.”

{¶ 38} CitiMortgage asserts that Kimberly’s name was inadvertently omitted from

the granting clause and the acknowledgment clause of the Mortgage due to scrivener’s error

and mutual mistake, and that it is entitled to reform the Mortgage.

{¶ 39} We initially note that this Court reviews mortgages under general principles 18

of contract law, and we presume that the parties’ intent “‘resides in the language they have

chosen to employ in the agreement.’” SFJV 2005, L.L.C. v. Ream,

,

,

(2d Dist.), citing in part Fountain Skin Care v.

Hernandez,

,

,

(2d Dist.). “‘If a

contract is clear and unambiguous, then its interpretation is a matter of law and there is no

issue of fact to be determined.’ Inland Refuse Transfer Co. v. Browning-Ferris Indus. of

Ohio, Inc. (1984),

, 15 OBR 448,

.”

In such a

case, “a court may not go beyond the plain language of the agreement to determine the

parties’ rights and obligations, and it may not consider parole evidence of the parties’

intentions. (Citations omitted).”

The court, instead, “must give effect to the express

terms of the contract.”

{¶ 40} However, “‘if a term cannot be determined from the four corners of a

contract, factual determination of intent or reasonableness may be necessary to supply the

missing term.’ (Citation omitted).” Id., at ¶ 23. In the event an ambiguity exists in a

contract,

“then it is proper for a court to consider ‘extrinsic evidence,’ i.e.,

evidence outside the four corners of the contract, in determining the parties’

intent. Blosser v. Carter (1990),

,

.

Such extrinsic evidence may include (1) the circumstances surrounding the

parties at the time the contract was made, (2) the objectives the parties

intended to accomplish by entering into the contract, and (3) any acts by the

parties that demonstrate the construction they gave to their agreement. Id.” 19

(Citations omitted).

{¶ 41} We review a trial court’s interpretation of a contract de novo. Ignazio v.

Clear Channel Broadcasting, Inc.

,

,

. Ream, ¶ 24.

{¶ 42} Regarding the omission of Kimberly’s name in the granting clause, we note

that in Ream this court affirmed a judgment which determined that the mortgage therein was

unambiguous and fully secured both the wife’s and husband’s interest in the property at

issue, where both of them signed the mortgage, but only the wife executed the note, and only

the wife was named in the granting clause and identified as the borrower and mortgagor.

{¶ 43} Paragraph 12 of the mortgage in Ream contained similar language to that of

paragraph 13 of the Mortgage herein as follows:

The covenants and agreements of this Security Instrument shall bind

and benefit the successors and assigns of Lender and Borrower, subject to the

provisions of paragraph 9(b). Borrower’s covenants and agreements shall be

joint and several. Any Borrower who co-signs this Security Instrument but

does not execute the Note: (a) is co-signing this Security Instrument only to

mortgage, grant and convey that Borrower’s interest in the Property under the

terms of this Security Instrument; (b) is not personally obligated to pay the

sums secured by this Security Instrument; and (c) agrees that Lender and any

other Borrower may agree to extend, modify, forbear or make any

accommodations with regard to the terms of this Security Instrument or the

Note without that Borrower’s consent. Ream, ¶ 27. 20

{¶ 44} This Court found nothing ambiguous about the Ream mortgage,

determining,

* * * The first page states that Donna Ream, the borrower, owes the

lender a debt of approximately $64,000, which was evidenced by a note due

and payable on May 1, 2034. These statements are followed by terms that

provide that the “borrower” mortgages the property * * * as security for

repayment of that debt. Paul initialed each page of the mortgage and signed

the signature page on a line labeled “borrower.”

Although Paul Ream is not listed as a borrower/mortgagor on the first

page of the mortgage, paragraph 12 of the mortgage makes clear that a

“borrower” who signs the mortgage instrument but does not execute the note

mortgages his interest in the property without assuming liability for

repayment of the debt; Paul signed as a “borrower.” There is no mention in

the mortgage about the release of dower rights, nor is there any provision that

suggests that Paul Ream signed the mortgage for a purpose other than to

mortgage his interest in this property. Id., ¶ 30-31.

{¶ 45} Pursuant to Ream, we conclude that despite the omission of Kimberly’s

name from the granting clause in the Mortgage, pursuant to the co-signer provision,

Kimberly signed the Mortgage for the purpose of mortgaging her interest in the property.

Furthermore, her intent to do so is deemed admitted pursuant to Civ.R. 8(D), which

provides, “[a]verments in a pleading to which a responsive pleading is required, * * * are

admitted when not denied in the responsive pleading.” 21

{¶ 46} Regarding the acknowledgment clause in the Mortgage, R.C. 5301.01

provides

A deed, mortgage, land contract * * * or lease of any interest in real

property * * * shall be signed by the grantor, mortgagor, vendor, or lessor in

the case of a deed, mortgage, land contract, or lease * * * . The signing shall

be acknowledged by the grantor, mortgagor, vendor, or lessor * * * before a *

* * notary public * * *, who shall certify the acknowledgment and subscribe

the official’s name to the certificate or the acknowledgment.

{¶ 47} R.C. 147.53 provides

The person taking an acknowledgment shall certify that:

(A) the person acknowledging appeared before him and he executed

the instrument;

(B) The person acknowledging was known to the person taking the

acknowledgment, or that the person taking the acknowledgment had

satisfactory evidence that the person acknowledging was the person described

in and who executed the instrument.

{¶ 48} While Kimberly’s name is absent from the acknowledgment clause, and the

Mortgage was accordingly improperly acknowledged, “the Ohio Supreme Court has long

held that ‘[a] defectively executed conveyance of an interest in land is valid as between the

parties thereto, in the absence of fraud.’ Citizen’s National Bank v. Denison (1956), 1165

Ohio St.89, 95,

.” Texas Commerce Bank National Association v. Joseph,

8th Dist. Cuyahoga No. 81097,

, ¶ 20; see also Seabrooke v. Garcia,

App.3d 167, 169,

(9th Dist. 1982), citing Denison and noting the “reasoning

behind such a rule is to bind the parties to that which they intended. The purpose of the

acknowledgment statute (R.C. 5301.01) is to provide evidence of execution and authority for

recordation. It is not to provide a way of escape for a party who later wishes to renege on

his agreement.”)

{¶ 49} Since both Christopher’s and Kimberly’s intent to convey the entire fee

simple interest in the property is clear by the express terms of the Mortgage, as well as

admitted facts, we conclude that the Mortgage fully secured Kimberly’s interest in the

property.

{¶ 50} CitiMortgage’s remaining assignments of error are as follows:

“THE TRIAL COURT ERRED IN RAISING UNPLEAD DEFENSES FOR

APPELLEES WHEN APPELLEES FAILED TO DO SO.”

And,

“THE TRIAL COURT ERRED IN ORDERING THAT APPELLEE KIMBERLY

KERMEEN IS ENTITLED TO ONE HALF OF THE GROSS SALES PROCEEDS.”

{¶ 51} Given our conclusion that the trial court acted within its discretion,

consistent with Ohio jurisprudence, to set the matter for trial and review the documents at

issue, and having conducted de novo review of the trial court’s interpretation of the

Mortgage at issue, and further having concluded that the Mortgage encompasses the entire

fee simple interest of the property, these assignments of error are necessarily sustained as

well.

{¶ 52} Reversed and remanded for the trial court to enter judgment in foreclosure 23

against Kimberly as well to the extent of her full interest.

..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Michael J. Sikora III Richard T. Craven Scott D. Rudnick Nathan D. Hosek Hon. Jonathan P. Hein