[Cite as CitiMortgage, Inc. v. Firestone,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

CITIMORTGAGE, INC. C.A. No. 25959

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE STEVE FIRESTONE, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellants CASE No. CV-2008-02-1470

DECISION AND JOURNAL ENTRY

Dated: May 9, 2012

BELFANCE, Judge.

{¶1} Magda Firestone appeals from the trial court’s granting summary judgment to

CitiMortgage (“the Bank”). For the reasons set forth below, we reverse.

I.

{¶2} Mrs. Firestone and her husband Steve Firestone owned the property at issue in

this case as joint tenants with the right of survivorship. In 2001, Mr. Firestone signed a “Balloon

Note” (“the Note”) for an amount of $285,350.00. Mr. Firestone also signed a mortgage (“the

Mortgage”), which was dated the same day as the note. A signature that appears to be Mrs.

Firestone’s appears on the Mortgage as well, but Mrs. Firestone denies ever signing it. In

addition to the two signatures, the initials of Mr. and Mrs. Firestone appear on each page of the

Mortgage.

{¶3} Mr. Firestone passed away in 2004. On February 20, 2008, the Bank initiated a

foreclosure action against Mrs. Firestone, seeking a finding of default on the Note, a declaratory 2

judgment that the Mortgage was a first lien on the property, and a foreclosure order “requiring

that the proceeds of the sale * * * be applied to pay all amounts due * * * under the Note * * *.”

The Bank did not attach the Note to the complaint but did attach the Mortgage. On April 14,

2008, the Bank filed a copy of the Note as well as another copy of the Mortgage attached to the

affidavit of Stanley Anya, an assistant vice president for the Bank.

{¶4} Mrs. Firestone filed a motion to dismiss and counterclaimed against the Bank. In

February 2009, the Bank moved for summary judgment on Mrs. Firestone’s counterclaims. Mrs.

Firestone did not timely respond to the Bank’s motion for summary judgment; however, she did

file an affidavit on April 13, 2009, in which she averred that she had never signed the Mortgage.

On April 1, 2009, the trial court awarded the Bank summary judgment on Mrs. Firestone’s

counterclaims and scheduled a second pretrial conference for April 30, 2009.

{¶5} On April 28, 2009, Mrs. Firestone filed leave for a continuance in which she

informed the trial court that she would be out of town on April 30 and could not attend the

pretrial conference. When Mrs. Firestone failed to appear at the pretrial conference, the trial

court entered an adverse judgment against her and ordered the Bank to file a decree of

foreclosure and a final judicial report with it within 30 days. However, the Bank did not comply

with the order.

{¶6} In February 2011, the Bank moved for summary judgment on its foreclosure

action. Mrs. Firestone did not respond. The trial court determined that there was no genuine

issue of material fact, granted the Bank’s motion, and issued a decree of foreclosure. Mrs.

Firestone has appealed, raising three assignments of error for our review. 3

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT INCORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF/APPELLEE, CITIMORTGAGE, INC.[,] BECAUSE GENUINE ISSUES OF MATERIAL FACT REMAIN UNRESOLVED IN THIS MATTER.

{¶7} In Mrs. Firestone’s first assignment of error, she argues that the trial court erred

when it awarded summary judgment to the Bank.

{¶8} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co.,

(1996). We apply the same standard as the trial court,

viewing the facts in the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party. Viock v. Stowe–Woodward Co.,

(6th Dist. 1983).

{¶9} Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc.,

(1977). Evidence, in a summary judgment

proceeding, includes timely filed “pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any * * *.”

Civ.R. 56(C).

{¶10} To succeed on a summary judgment motion, the movant “bears the initial burden

of demonstrating that there are no genuine issues of material fact concerning an essential element

of the opponent’s case.” (Emphasis sic.) Dresher v. Burt,

(1996). If the

movant satisfies this burden, the non-moving party “‘must set forth specific facts showing that 4

there is a genuine issue for trial.’”

, quoting Civ.R. 56(E). However, even if the non-

moving party does not respond, summary judgment may be granted only if the movant has

satisfied the prerequisites to summary judgment. See, e.g., Sacksteder v. Gisslen, 2nd Dist. No.

24455,

(“Summary judgment may not be granted unless the entire record

demonstrates that there is no genuine issue of material fact and that the moving party is, on that

record, entitled to judgment as a matter of law.”); see also

.

{¶11} “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.” (Internal quotations and citations omitted.) Chase Home Fin., L.L.C. v. Heft, 3rd

Dist. Nos. 8-10-14, 8-11-16,

. A foreclosure order must also determine the

amounts due to all claimants. See CitiMortgage v. Arnold, 9th Dist. No. 25186, 2011-Ohio-

1350, ¶ 9, citing Third Natl. Bank of Circleville v. Speakman,

(1985).

{¶12} There is no dispute that Mr. Firestone signed the Note and the Mortgage or that, at

the time the Note and the Mortgage were executed, Mr. and Mrs. Firestone owned the property

in question as joint tenants with a right of survivorship. Thus, neither could encumber the entire

property without the consent of the other. See R.C. 5302.20(C)(4) (“Upon a determination by

the court that a [creditor] has a valid lien against the interest of a survivorship tenant, the title to

the real property ceases to be a survivorship tenancy and becomes a tenancy in common[,] * * *

[and] [t]he court then may order the sale of the fractional interest of the lien debtor or debtors as

on execution, and the proceeds of the sale shall be applied to pay the lien creditors in the order of

their priority.”); see also White v. Parks, 9th Dist. No. 24391,

(“It is worth

noting that, while the court can order the sale of the debtor’s fractional interest, the lien creditor

is not entitled to more than the debtor’s fractional interest in the property and cannot collect on 5

its judgment from the non-debtor.”) (Emphasis sic.). In other words, to the extent Mr. Firestone

encumbered the property by signing the Note and the Mortgage, he only encumbered his

ownership interest, not Mrs. Firestone’s.

{¶13} While there is no dispute that Mr. Firestone signed the Note and the Mortgage,

Mrs. Firestone averred in her affidavit filed April 13, 2009, over two years prior to the trial court

granting summary judgment to the Bank, that she never signed the Mortgage. The Bank argues

that this affidavit is irrelevant because, on April 30, 2009, the trial court entered judgment

against Mrs. Firestone as a sanction for her failing to appear at the pretrial conference.

Therefore, according to the Bank, the issue of whether it was entitled to foreclose on the property

and receive the entire proceeds of the sale had already been decided.

{¶14} The Bank’s argument would require this Court to ignore the procedural history of

this case and the terms of the April 30, 2009 journal entry. In the April 30, 2009 order, the trial

court entered judgment against Mrs. Firestone as a sanction for her nonappearance at the pretrial

conference. The court’s order did not contain any Civ.R. 54(B) language. In that entry, the trial

court ordered the Bank to file a decree of foreclosure and a final judicial report within 30 days.

However, the Bank never did so, and, thus, the adverse judgment never became final. Instead,

the Bank filed a motion for summary judgment nearly two years later but did not mention the

April 30, 2009 order. The trial court, in lieu of enforcing the April 30, 2009 order, considered

the Bank’s motion for summary judgment anew. In its order awarding summary judgment, the

trial court stated that it was considering “the Complaint, the Motion for Summary Judgment,

Affidavit and Certified Exhibits of the [Bank], the answer of [Mrs.] Firestone, and the evidence.”

It entered summary judgment for the Bank, implicitly reconsidering and modifying the April 30,

2009 order. 6

{¶15} Because the motion before the trial court was for summary judgment, it should

have considered Mrs. Firestone’s affidavit, which, when viewed in the light most favorable to

her, creates a dispute of material fact as to the Bank’s right to recover. Thus, the Bank was not

entitled to summary judgment. Mrs. Firestone’s first assignment of error is sustained.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING MONETARY JUDGMENT IN FAVOR OF THE PLAINTIFF, CITIMORTGAGE, INC.

{¶16} Due to our resolution of Mrs. Firestone’s first assignment of error, this assignment

of error is moot. See App.R. 12(A)(1)(C)

ASSIGNMENT OF ERROR III

THE TRIAL COURT IMPROPERLY GRANTED JUDGMENT IN FAVOR OF THE PLAINTIFF[], CITIMORTGAGE, INC[.], WHEN THE DEFENDANT, MAGDA PENA FIRESTONE[,] FAILED TO APPEAR AT THE PRETRIAL SCHEDULED FOR APRIL 30, 2009.

{¶17} In Mrs. Firestone’s third assignment of error, she argues that the trial court abused

its discretion when it entered adverse judgment against her. However, as discussed above, the

trial court reconsidered the adverse judgment sanction when it considered the Bank’s motion for

summary judgment and entered judgment on that basis. Accordingly, this assignment of error is

moot. See App.R. 12(A)(1)(c).

III.

{¶18} Magda Firestone’s first assignment of error is sustained, and her remaining

assignments of error are moot. The judgment of the Summit County Court of Common Pleas is

reversed, and the matter is remanded for further proceedings consistent with this opinion.

Judgment reversed, and cause remanded. 7

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

EVE V. BELFANCE FOR THE COURT

MOORE, P. J. CARR, J. CONCUR.

APPEARANCES:

MARCUS M. LOMBARDI, Attorney at Law, for Appellant.

ERIC T. DEIGHTON, Attorney at Law, for Appellee.