IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO DEUTCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR SOUNDVIEW HOME LOAN TRUST 2005-OPTI, ASSET-BACKED CERTIFICATES, SERIES 2005-OPTI, Plaintiff, : Case No. 11 CV 692 v. : Judge Berens TANYA SMITH, ET AL., : JUDGMENT ENTRY AND DECREE IN FORECLOSURE Defendants. : : This matter is before the Court upon Plaintiff s motion for summary judgment, filed May 11, 2012, and Defendant Tanya Smith s opposition thereto, filed May 29, For the following reasons, Plaintiff s motion is SUSTAINED. LAW & ANALYSIS Civ.R. 56(A) and (B) permit both plaintiffs and defendants to move for summary judgment on all or part of any claim. Summary judgment is appropriate when, looking at the evidence as a whole, (1) no genuine issue of 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, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the syllabus (1995). The party moving for summary judgment must identify the basis of the motion to allow the non-movant a meaningful opportunity to respond. Mitseff v. Wheeler, 38 Ohio St.3d 112, 116, 526 N.E.2d 798 (1988). Additionally, the movant must state specifically which areas of the opponent's claim raise no genuine issue of material fact and such assertion may be supported by affidavits or otherwise as allowed by Civ.R. 56(C). Id. at 115, citing Harless v. Willis Day 1

2 Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978); Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The movant cannot rest on conclusory assertions that the nonmovant lacks evidence. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) [.] Dresher at 293. If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the non-moving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial [.] Id. at 294. If the non-movant produces evidence that allows for conflicting inferences, the court may not weigh the evidence. White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, 919 N.E.2d 227, at 9, citing Hamilton v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 06AP-916, 2007-Ohio-1173, at 10. Instead, the trial court must resolve any doubts and construe the evidence in favor of the non-movant. Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485, 696 N.E.2d 1044 (1998). Viewing the evidence in a light most favorable to Defendant as the nonmoving party, the Court finds that Plaintiff s supportive affidavit and incorporated materials demonstrate the absence of a genuine issue of material fact. The elements of foreclosure are (1) a debt evidenced by a note, (2) secured by a valid mortgage, and (3) breach of the conditions of the note and mortgage. First Know Natl. Bank v. Peterson, 5th Dist No. 08CA28, 2009-Ohio-5096, at 19. Plaintiff provided evidence by affidavit and documents attached thereto as to each of those elements. Copies of the note and mortgage, along with the affidavit testifying to default, are sufficient to support judgment in favor of the plaintiff. Countrywide Home Loan, Inc. v. Poppy, 11th Dist. No L-134, 2004-Ohio-5936, at 29. Defendant opposes Plaintiff s motion on several grounds. First, Defendant opposes 2

3 Plaintiff s motion on the grounds that mediation has not taken place and is mandated in foreclosure actions. In this action, there has been no request for mediation and contrary to Defendant s assertion mediation is not required under the law of Ohio or by the Supreme Court of Ohio. Second, Defendant moves the Court to order a more definite statement as to whom Plaintiff is proceeding against in its motion for summary judgment. Viewing Plaintiff s motion for summary judgment as a whole, the Court finds it is sufficiently clear against whom Plaintiff is seeking summary judgment and against whom Plaintiff is seeking default judgment and that a more definite statement is unnecessary. Third, Defendant points the Court to cases arising in Florida courts and the United States Court of Appeals for the Seventh Circuit in which the plaintiff in a foreclosure action lacked standing to move forward. The Court finds that Plaintiff has met its burden upon summary judgment in this regard and that Defendant has produced no conflicting evidence, but only the suspicions of the Defendant raised in her affidavit, which the Court finds do not rise to the level of facts based on Defendant s personal knowledge. Finally, Defendant asserts that the amount for which Plaintiff is seeking judgment is in dispute, but fails to identify a different amount or a specific amount she has paid. Again, the Court finds that Defendant s vague assertion as to having paid amounts to Plaintiff after February 11, 2011 do not rise to the level of facts based on Defendant s personal knowledge and do not demonstrate the existence of a genuine issue of material fact. Therefore, the Court finds there is no genuine issue of material fact and that Plaintiff is entitled to judgment as a matter of law. The Court further finds that all necessary parties have been served with summons according to law and are properly before the Court; that the Defendants, John Doe, Unknown Spouse, if any, of Tanya Smith, Jane Doe, Unknown Spouse, if any, of Fred M. Downey, and John Doe, Unknown Spouse, if any, of Kim K. Downey, aka 3

4 Kimberly Downy, are in default of answer or other pleading and thereby confess the allegations of the Complaint to be true, and said Defendants are forever barred from asserting any right, title, or interest in ad to the hereinafter described premises. The Court finds that there is due to the Treasurer of Fairfield County, Ohio, taxes, accrued taxes, assessments, and penalties on the premises hereinafter described, as shown on the County Treasurer s tax duplicate, the exact amount being unascertainable at the present time, but which amount will be ascertainable pursuant to R.C which are valid and subsisting liens thereon for that amount so owing. The Court finds that on the evidence adduced there is due to the Plaintiff on the promissory note set forth in the First Count of the Complaint the sum of $96,754.78, plus interest thereon at the rate of 6.99% per annum from February 1, 2011 and as adjusted pursuant to the terms of the Note. In addition, there may be due to Plaintiff sums advanced by it under the terms of the Note and Mortgage to pay real estate taxes, insurance premiums, and property protection, which sums are to be determined by further order of the Court. The Court further finds that Plaintiff shall have no right to pursue a deficiency judgment against any defendant that has been discharged from the debt by a United States Bankruptcy Court. The Court further finds that, to secure the payment of the promissory note aforesaid, Tanya Smith, unmarried, executed and delivered a certain mortgage deed as in the Second Count of the Complaint described, thereby conveying to Plaintiff or Plaintiff s predecessor the following described premises: See Exhibit A 4

5 Said premises being also known as Northwest Woodsfield Circle, Pickerington, OH Permanent Parcel Number That said mortgage was duly filed with the Recorder of Fairfield County on February 2, 2005, and was thereafter recorded in Book 1375, Page 1096, of the Mortgage Records of Fairfield County, and thereby became and is a valid first mortgage lien upon said premises, subject only to the lien of the Treasurer for taxes; that said mortgage deed was subsequently assigned to Plaintiff, that said conditions in the mortgage deed have been broken and the same has become absolute and the Plaintiff is entitled to have the equity or redemption and dower of all the defendants in and to said premises foreclosed. Further, any parties that have file an answer asserting a valid and subsisting lien are hereby transferred to proceeds. In the United States of America has asserted an interest in the subject premises, then it shall have the right to redeem as set forth in 28 USC It is ORDERED, ADJUDGED, and DECREED that unless the sums hereinabove found due, together with the costs of this action, be fully paid within three days from the date of the entry of this decree, the equity of redemption and dower of all the defendants in and to said premises shall be foreclosed, and said premises sold; that, only upon the issuance of a Praecipe for Order of Sale by Plaintiff s attorney, shall an order of sale thereafter issue to the Sheriff of Fairfield County directing him to appraise, advertise in a paper of general circulation within the County, and sell said premises as upon execution and according to law, free and clear of the interest of all parties to this action. It is further ORDERED that the Sheriff of Fairfield County shall provide counsel for Plaintiff with notice of the sale date and appraisal in accordance with R.C by mailing a 5

6 copy of the first advertisement of sale to counsel for Plaintiff within seven days of the date of the first publication. Further, the Court finds there is no just cause for delay. IT IS SO ORDERED. Judge Richard E. Berens Copies to: Lindsay Neihaus, 4805 Montgomery Rd., Ste. 320, Norwood, OH Tanya Smith, 2551 Fourth St., Ft. Myers, FL John Doe, Unknown Spouse of Tanya Smith, 2551 Fourth St., Ft. Myers, FL John Doe, Unknown Spouse of Kim Downey, 1104 Mount Pleasant Ave., Columbus, OH Jane Doe, Unknown Spouse of Fred Downey, NW Woodsfield Circle, Pickerington, OH Fairfield County Prosecuting Attorney, Attn James Edwards, Courthouse mailbox Filed July 11,