[Cite as JP Morgan Chase Bank, Natl. Assn. v. Heckler,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

JP MORGAN CHASE BANK, NATIONAL ASSOCIATION,

PLAINTIFF-APPELLEE, CASE NO. 14-12-26 v.

BELINDA HECKLER,

DEFENDANT-APPELLANT, -and- OPINION

UNION COUNTY TREASURER, ET AL.,

DEFENDANTS-APPELLEES.

Appeal from Union County Common Pleas Court Trial Court No. 2012-CV-0253

Judgment Affirmed

Date of Decision: June 10, 2013

APPEARANCES:

John Sherrod for Appellant

Thomas Wyatt Palmer and Laura A. Hauser for Appellee, JP Morgan Chase Bank, N.A. Case No. 14-12-26

SHAW, J.

{¶1} Defendant-appellant, Belinda Heckler (“Belinda”), appeals the

October 18, 2012 judgment of the Union County Court of Common Pleas granting

a motion for summary judgment filed by plaintiff-appellee, JP Morgan Chase

Bank (“the Bank”), and issuing a foreclosure decree.

{¶2} The facts in this case are undisputed by the parties. On December 15,

2005, Bradley Heckler, Belinda’s husband, executed a promissory note with the

Bank in the amount of $134,000, plus interest, for the purchase of a home.

Belinda was not a party to the promissory note; however, she did sign the

mortgage giving a security interest in the property to secure the loan.

{¶3} The record indicates that beginning in February 2009 Bradley failed to

make the monthly payments on the loan.

{¶4} On November 18, 2009, the Bank sent Bradley a letter informing him

that the loan was now in default due to his failure to pay the required monthly

installments and announcing the Bank’s intent to accelerate the loan under the

terms of the Mortgage. The parties agree that this letter complied with all the

acceleration notice requirements stated in the Mortgage.

{¶5} The record indicates that on October 7, 2010, Bradley passed away.

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{¶6} In 2011, the Bank initiated a foreclosure action. For reasons not

apparent in the record, the Bank voluntarily dismissed this first foreclosure

proceeding.

{¶7} In a letter dated June 15, 2012, the Bank again notified Belinda of the

default and accelerated the loan.

{¶8} On June 20, 2012, the Bank filed a complaint in foreclosure listing

Belinda as a defendant. The complaint stated that by reason of the default, the

Bank had accelerated the debt and the sum of $128,825.09, together with an

interest rate of 6.25% per year from February 1, 2009, plus other permissible

costs, was due and owing. The record indicates that at the time this second

foreclosure action was initiated, Belinda still resided in the home.

{¶9} In an affidavit, Belinda averred that she received the June 15, 2012

letter from the Bank’s attorney on June 21, 2012, one day after the filing of the

complaint in this action.

{¶10} Belinda subsequently filed an answer asserting various defenses and

in particular asserting that the Bank “failed to meet certain conditions precedent

under the promissory note and/or mortgage that are the subject of this lawsuit.

Specifically, but not limited to, Plaintiff failed to meet any applicable notice

requirements relating to advising [Belinda] of [the Bank’s] intent to accelerate

and/or foreclose and/or to advising [Belinda] of its [sic] right to reinstate/redeem

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prior to acceleration and/or foreclosure, including those regulations promulgated

by the HUD Secretary.” (Answer at 3-4).

{¶11} On July 20, 2012, Belinda filed a motion for summary judgment

alleging that the Bank’s failure to provide her with a second notice of its intent to

accelerate the loan, which complied with the terms of the Mortgage, precluded it

from initiating the instant foreclosure proceeding. The Bank subsequently filed a

response to Belinda’s motion for summary judgment, claiming that it complied

with the requisite notice requirements on November 18, 2009, when it sent notice

of its intent to accelerate the loan to Belinda’s husband, Bradley.

{¶12} On August 29, 2012, the Bank filed a motion for summary judgment

asserting that there was no genuine issue of material fact that it complied with the

necessary notice requirements under the terms of the Mortgage and that it was

entitled to judgment as a matter of law.

{¶13} On October 18, 2012, the trial court overruled Belinda’s motion for

summary judgment, finding that the Bank complied with the acceleration notice

requirements in the Mortgage.

{¶14} On October 28, 2012, the trial court granted the Bank’s motion for

summary judgment and issued a decree in foreclosure.

{¶15} Belinda now appeals, asserting the following assignment of error.

THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION FOR SUMMARY JUDGMENT GIVEN THAT

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APPELLEE DID NOT PROVIDE PROPER NOTICE OF ITS INTENT TO FORECLOSE UPON APPELLANT PRIOR TO FILING THE FORECLOSURE ACTION.

{¶16} At the outset, we note that the parties do not dispute that the loan is

in default. Rather, in her sole assignment of error, Belinda argues that the Bank’s

letter dated June 15, 2012 did not comply with the acceleration notice

requirements set forth in the Mortgage. Belinda concedes that the November 18,

2009 letter sent from the Bank to her late husband complied with the proper notice

requirements. However, on appeal Belinda contends that the Mortgage required

the Bank to send her a second Notice again informing her of its intent to accelerate

the debt prior to filing the instant foreclosure action.

{¶17} For its part, the Bank maintains that its November 18, 2009 letter

was sufficient to comply with the acceleration notice requirement for the instant

foreclosure action and that it was not required to send a second Notice before

initiating this foreclosure action. The Bank further argues that Belinda has not

provided any evidence that “deceleration” or reinstatement of the loan has

occurred since the November 18, 2009 Notice was given.

{¶18} Initially, we note that an appellate court reviews a grant of summary

judgment de novo, without any deference to the trial court. Conley–Slowinski v.

Superior Spinning & Stamping Co.,

(1998). A grant of

summary judgment will be affirmed only when the requirements of Civ.R. 56(C)

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are met. This requires the moving party to establish: (1) that there are no genuine

issues of material fact, (2) that the moving party is entitled to judgment as a matter

of law, and (3) that reasonable minds can come to but one conclusion and that

conclusion is adverse to the non-moving party, said party being entitled to have

the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton v.

Harwick Chem. Corp.,

, 1995–Ohio–286, paragraph three of the

syllabus.

{¶19} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler,

,

syllabus (1988). The moving party also bears the burden of demonstrating the

absence of a genuine issue of material fact as to an essential element of the case.

Dresher v. Burt,

, 1996–Ohio–107. Once the moving party

demonstrates that he is entitled to summary judgment, the burden shifts to the non-

moving party to produce evidence on any issue which that party bears the burden

of production at trial. See Civ.R. 56(E).

{¶20} “ ‘Mortgages, being voluntary security agreements incident or

collateral to a primary obligation, are susceptible to the same rules of

interpretation and the same framework of analysis which apply to contracts

generally.’ ” Ogan v. Ogan,

(12th Dist. 1997), quoting

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First Federal S. & L. Assn. of Toledo v. Perry’s Landing, Inc.,

(6th Dist. 1983). “Contract interpretation is a matter of law, and

questions of law are subject to de novo review on appeal.” St. Marys v. Auglaize

Cty. Bd. of Commrs.,

, 2007–Ohio–5026, ¶ 38, citing

Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm,

(1995). Courts must give common words their ordinary meaning unless manifest

absurdity would result or some other meaning is clearly evidenced from the face

or overall contents of the written instrument. In re All Kelley & Ferraro Asbestos

Cases,

, 2004–Ohio–7104, ¶ 29. “If a contract is clear and

unambiguous, the court need not go beyond the plain language of the agreement to

determine the parties’ rights and obligations; instead, the court must give effect to

the agreement’s express terms.” Uebelacker v. Cincom Sys., Inc.,

, (1st Dist. 1988).

{¶21} The provision of the Mortgage at issue states the following:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument[.] The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-

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existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, costs of title evidence.

(Mortgage at 13).

{¶22} As previously discussed, the primary issue on appeal is whether

paragraph 22 of the Mortgage required the Bank to send Belinda a second Notice

prior to filing the instant foreclosure action. In overruling Belinda’s motion for

summary judgment, the trial court specifically concluded the following:

The Court finds that the requirements set forth in Paragraph 22 of the Mortgage were not intended to require a Lender to repeatedly perform the provision set forth within at the initiation of subsequent lawsuits, but were in fact intended to put the Borrower on notice at the onset of the initial acceleration of the debt. Had either party presented evidence that the Borrower had reinstated the loan at any point prior to the commencement of this lawsuit, the Court would most certainly have reached an alternate conclusion. The Court further finds that the fact that [Belinda] has known of [the Bank’s] ongoing intent to accelerate the debt for nearly three years constituted sufficient Notice and provided the Borrower more than adequate opportunity to make contact with her lender to discuss retention options. The Court finds that the provisions set forth in Paragraph 22 are not required in re-filed actions, and thus not a condition precedent unless the loan has been reinstated or modified following the proper initial Notice.

(JE, Oct. 18, 2012 at 3).

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{¶23} In reviewing the language at issue, we concur with the analysis of the

trial court that paragraph 22 does not require the Bank to issue a new Notice every

time it initiates a judicial proceeding on the Mortgage, but instead requires that the

Bank give the Borrower proper notice prior to the initial acceleration of the debt.

Here, it is undisputed by the parties that the Bank’s November 18, 2009 letter

complied with the acceleration notice requirements in the Mortgage. Thus, for

nearly three years Belinda had notice of the Bank’s ongoing intent to accelerate

the debt. There is no evidence presented by either party that in that time Belinda

made any attempt to contact the Bank to cure the default or to modify the terms of

the loan, despite being given the appropriate information by the Bank and ample

opportunity to do so. Accordingly, because the parties were in the same position

at the initiation of the instant foreclosure action in June of 2012 as they were in

November of 2009 when the initial Notice was issued, we find that in this instance

the Bank met its notice obligations under the Mortgage. Based on the foregoing,

we conclude that the trial court did not err in granting the Bank’s motion for

summary judgment.

{¶24} For all these reasons, the assignment of error is overruled and the

judgment of the Union County Court of Common Pleas is affirmed.

Judgment Affirmed PRESTON, P.J. and ROGERS, J., concur. /jlr

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