1 COURT OF COMMON PLEAS CLERMONT COUNTY, OHIO PNC

COURT OF COMMON PLEAS

CLERMONT COUNTY, OHIO

PNC BANK, N.A., substitute-plaintiff :

for BANK OF AMERICA, N.A.

: CASE NO. 2011 CVE 00987

Plaintiff

vs. Judge McBride

DAVID C. KNAPKE, et al.

: DECISION/ENTRY

Defendant

Manley Deas Kochalski L.L.C., Lynn A. Busch-Heyman, Michael E. Carleton, Kelly A.

Spangler, and Andrew C. Clark, attorneys for the plaintiff Bank of America, N.A., P.O.

Box 165028, Columbus, Ohio 43216-5028.

Crowe and Welch, Stephen C. Crowe, attorney for the defendants David C. Knapke and

Patricia M. Knapke, 1019 Main Street, Milford, Ohio 45150.

Richard G. McCue Co., L.P.A., Richard G. McCue, attorney for the

defendant/counterclaimant/cross-claimant National Bank & Trust Company, Eastgate

Professional Centre, 948 Old St. Rt. 74, Suite 6, Cincinnati, Ohio 45245.

James G. Nichols, assistant prosecuting attorney for the defendant Clermont County

Treasurer, 123 N. Third Street, Batavia, Ohio 45103.

This cause is before the court for consideration of a motion for summary

judgment filed by the plaintiff PNC Bank, N.A. (hereinafter “PNC Bank”).

The court scheduled and held a hearing on the motion for summary judgment on

July 9, 2011. At the conclusion of the hearing, the court took the issues raised by the

motion under advisement.

Upon consideration of the motion, the record of the proceeding, the oral and

written arguments of counsel, and the applicable law, the court now renders this written

decision.

FACTS OF THE CASE

The complaint in foreclosure in this case was originally filed by Bank of America,

N.A., with PNC Bank being substituted as the party-plaintiff on March 29, 2012.

pertinent part to the present motion, the complaint alleges that “[t]he Note and Mortgage

are in default. Plaintiff has satisfied all conditions precedent and has declared the entire

balance due and payable.”

In their answer, the defendants David Knapke and Patricia

Knapke make a general denial as to that allegation.

The plaintiff now moves for summary judgment. In the affidavit filed in support of

the motion, Charles DeBono, Jr., Vice President of Loan Documentation of PNC Bank’s

servicing agent, states that “payments have not been made as required under the terms

of the Note and Mortgage; the default on the loan has not been cured; and Plaintiff or its

agent has accelerated the account, pursuant to the terms of the loan, making the entire

balance due.”

The defendants did not present any evidence in opposition to the motion for

summary judgment but they do argue that the plaintiff has not established that it

complied with two conditions precedent in order to prevail on its motion for summary

Order Substituting Plaintiff filed March 29, 2012.

Complaint for Foreclosure at ¶ 5.

Answer of Defendants David C. Knapke and Patricia M. Knapke at ¶ 5.

Affidavit of Status of Account at ¶ 8.

judgment. As evidenced by the mortgage attached to the plaintiff’s motion, paragraph 2

of the mortgage sets forth a priority by which payments are to be applied to the loan.

Paragraph 22 of the mortgage requires the lender to give the borrower notice prior to

acceleration following any breach by the borrower and sets forth the specific information

required to be included in that notice.

WHAT IS THE STANDARD FOR REVIEW ON A MOTION

FOR SUMMARY JUDGMENT?

The court must grant summary judgment, as requested by a moving party, if “(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) the evidence demonstrates that reasonable

minds can come to but one conclusion, and that conclusion is adverse to the party

opposing the motion.”

The court must view all of the evidence, and the reasonable inferences to be

drawn therefrom, in a light most favorable to the non-moving party.

Furthermore, the

court must not lose sight of the fact that all evidence must be construed in favor of the

nonmoving party, including all inferences which can be drawn from the underlying facts

contained in affidavits, depositions, etc.

Civ. R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267; Davis v. Loopco

Indus., Inc. (1993), 66 Ohio St.3d 64, 65-66, 609 N.E.2d 144.

Engel v. Corrigan (1983), 12 Ohio App.3d 34, 35, 465 N.E.2d 932; Viock v. Stowe-Woodward Co. (1983), 13 Ohio

App.3d 7, 12-13, 467 N.E.2d 1378; Welco Indus. Inc. v. Applied Cas. (1993), 67 Ohio St.3d 344, 356, 617 N.E.2d

1129; Willis v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188, 497 N.E.2d 1118; Williams v. First United

Church of Christ (1974), 37 Ohio St.2d 150, 152, 309 N.E.2d 924.

Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d 482, 485, 696 N.E.2d 1044, citing Turner v. Turner

(1993), 67 Ohio St.3d 337, 341, 617 N.E.2d 1123.

Determination of the materiality of facts is discussed in Anderson v. Liberty-

Lobby Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211:

“As to materiality, the substantive law will identify which facts

are material. Only disputes over facts that might affect the

outcome of the suit under the governing law will properly

preclude the entry of

summary judgment.”

Whether a genuine issue exists meanwhile is answered by the following inquiry:

Does the evidence present “a sufficient disagreement to require submission to a jury” or

is it “so one-sided that the party must prevail as a matter of law[?]”

“The inquiry

performed is the threshold inquiry of determining whether there is the need for a trial–

whether, in other words, there are any genuine factual issues that can properly be

resolved only by a finder of fact because they may reasonably be resolved in favor of

either party.”

The burden is on the moving party to show that no genuine issue exists as to any

material fact, and that the moving party is entitled to judgment as a matter of law.

This

burden requires the moving party to “specifically delineate the basis upon which

summary judgment is sought in order to allow the opposing party a meaningful

opportunity to respond.”

A party seeking summary judgment, on the ground that the nonmoving party

cannot prove its case, bears the initial burden of informing the trial court of the basis for

the motion, and identifying those portions of the record which demonstrate the absence

Anderson v. Liberty-Lobby Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211.

Id. at 251-52, 106, S.Ct. at 2512, 91 L.Ed.2d at 214.

Id. at 250, 106 S.Ct. at 2511, 91 L.Ed.2d at 213.

AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3fd 157, 161,

553 N.E.2d 597; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46.

Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798, syllabus.

of a genuine issue of material fact on the essential element(s) of the nonmoving party’s

claims.

The moving party cannot discharge its initial burden under Civ.R. 56 simply by

making a conclusory assertion that the nonmoving party has no evidence to prove its

case.

Rather, the moving party must be able to specifically point to some evidence of

the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving

party has no evidence to support the nonmoving party’s claims.

If the moving party fails to satisfy its initial burden, the motion for summary

judgment must be denied.

However, if the moving party satisfies this burden, then the

nonmoving party has a “reciprocal burden” to set forth specific facts, beyond the

allegations and denials in his pleadings, demonstrating that a “triable issue of fact”

remains in the case.

The duty of a party resisting a motion for summary judgment is

more than that of resisting the allegations in the motion.

Instead, this burden requires

the nonmoving party to “produce evidence on any issue for which that (the nonmoving)

party bears the burden of production at trial.”

The nonmovant must present documentary evidence of specific facts showing

that there is a genuine issue for trial and may not rely on the pleadings or unsupported

allegations.

Opposing affidavits, as well as supporting affidavits, must be based on

personal knowledge, must set forth facts as would be admissible into evidence, and

Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264; Vahila v. Hall (1997), 77 Ohio St.3d 421, 429,

674 N.E.2d 1164.

Id.

Baughn v. Reynoldsburg (1992), 78 Ohio App.3d 561, 563, 605 N.E.2d 478.

Wing v. Anchor Media Ltd. Of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the

syllabus; Welco Indus., Inc. v. Applied Companies (1993), 67 Ohio St.3d 344, 346, 617 N.E.2d 1129; Gockel v. Ebel

(1994), 98 Ohio App.3d 281, 292, 648 N.E.2d 539.

Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656, 659, 612 N.E.2d 1295.

must show affirmatively that the affiant is competent to testify on the matters stated

therein.

“Personal knowledge” is defined as “knowledge of the truth in regard to a

particular fact or allegation, which is original and does not depend on information or

hearsay.”

Accordingly, affidavits which merely set forth legal conclusions or opinions

without stating supporting facts are insufficient to meet the requirements of Civ.R.56(E),

which sets forth the types of evidence which may be considered in support of or in

opposition to a summary judgment motion.

Under Civ.R.56(C), the only evidence which may be considered when ruling on a

motion for summary judgment are “pleadings, depositions, answers to interrogatories,

written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if

any, timely filed in the action.” These evidentiary restrictions exist with respect to

materials which are submitted both in support of and in opposition to a motion for

summary judgment.

Where the copy of a document falls outside the rule, the correct method for

introducing such items is to incorporate them by reference into a properly framed

affidavit.

Thus, Civil Rule 56(E) also states that “[s]worn or certified copies of all

papers or parts thereof referred to in an affidavit shall be attached thereto or served

therewith.”

Civ.R.56(E); Carlton v. Davisson (1995), 104 Ohio App.3d 636, 646, 662 N.E.2d 1112; Smith v. A-Best Products

Co. (Feb. 20, 1996), 4

Dist. No 94 CA 2309, unreported.

Carlton v. Davisson, 104 Ohio App.3d at 646, 662 N.E.2d at 1119; Brannon v. Rinzler (1991), 77 Ohio App.3d

749, 756, 603 N.E.2d 1049.

Stamper v. Middletown Hosp. Assn. (1989), 65 Ohio App.3d 65, 69, 582 N.E.2d 1040.

Martin v. Central Ohio Transit Auth. (1990), 70 Ohio App.3d 83, 89, 590 N.E.2d 411; Biskupich v. Westbay

Manor Nursing Home (1986), 33 Ohio App.3d 220, 222, 515 N.E.2d 632.

Because summary judgment is a procedural device designed to terminate

litigation where there is nothing to try, it must be awarded with caution, and doubts must

be resolved in favor of the nonmoving party.

Summary judgment is not appropriate

where the facts are subject to reasonable dispute when viewed in a light favorable to

the nonmoving party.

However, the summary judgment procedure is appropriate where a nonmoving

party fails to respond with evidence supporting his claim(s). While a summary judgment

must be awarded with caution, and while a court in reviewing a summary judgment

motion may not substitute its own judgment for the trier of fact in weighing the value of

evidence, a claim to survive a summary judgment motion must be more than merely

colorable.

In deciding a summary judgment motion, the court may, even if summary

judgment is not appropriate upon the whole case, or for all the relief demanded, and a

trial is necessary, grant a partial summary judgment, such that a trial will remain

necessary as to the remaining controverted facts.

LEGAL ANALYSIS

Davis v. Loopco Indus., Inc., 66 Ohio St.3d at 66, 609 N.E.2d at 145.

Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 105-06, 483 N.E.2d 150.

Wing v. Anchor Media Ltd. Of Texas, 59 Ohio St.3d at 111, 570 N.E.2d at 1099.

Civ.R.56(D); Holeski v. Lawrence (1993), 85 Ohio App.3d 824, 834, 621 N.E.2d 802.

“ ‘Where prior notice of default and/or acceleration is required by a provision in a

note or mortgage instrument, the provision of notice is a condition precedent,’ and it is

subject to the requirements of Civ.R. 9(C).’ ”

Pursuant to Civ.R. 9, “[i]n pleading the performance or occurrence of conditions

precedent, it is sufficient to aver generally that all conditions precedent have been

performed or have occurred. A denial of performance or occurrence shall be made

specifically and with particularity.”

This rule has been discussed as follows:

“Where a cause of action is contingent upon the satisfaction

of some condition precedent, Civ.R. 9(C) requires the

plaintiff to plead that the condition has been satisfied, and

permits the plaintiff to aver generally that any conditions

precedent to recovery have been satisfied, rather than

requiring plaintiff to detail specifically how each condition

precedent has been satisfied. In contrast to the liberal

pleading standard for a party alleging the satisfaction of

conditions precedent, a party denying performance or

occurrence of a condition precedent must do so specifically

and with particularity. Civ.R. 9(C). A general denial of

performance of conditions precedent is not sufficient to place

performance of a condition precedent in issue. * * * The

effect of the failure to deny conditions precedent in the

manner provided by Civ.R. 9(C) is that they are deemed

admitted.”

In the complaint, the original plaintiff Bank of America pleaded that the plaintiff

satisfied all conditions precedent. The defendants did not deny this allegation with

particularity and, instead, made only a general denial. Thus, it would appear that

National City Mortgage Co. v. Richards, 182 Ohio App.3d 534, 913 N.E.2d 1007, 2009-Ohio-2556, ¶ 21 (Ohio

App. 10

Dist., 2009), quoting First Financial Bank v. Doellman (Jan. 22, 2007), 12th Dist. No. CA2006–02–029,

2007-Ohio-222, ¶ 20.

U.S. Bank, N.A. v. Coffey (Feb. 24, 2012), 6

Dist., 2012-Ohio-721, ¶ 37, quoting Lewis v. Wal–Mart, Inc. (Aug.

12, 1993), 10th Dist. No. 93AP–121, 1993 WL 310411, *3.

because the defendants failed to deny the performance of any condition precedent with

particularity, the effect would be that they are deemed admitted.

However, several recent cases have found otherwise. In U.S. Bank, N.A. v.

Coffey (Feb. 24, 2012), 6

Dist., 2012-Ohio-721, the court emphasized the requirement

that the moving party on summary judgment has the burden of pointing out to the trial

court that there is an absence of a genuine issue of material fact.

The Coffey court

found that “[b]ecause U.S. Bank made no mention of possible admissions in the

pleadings in its motion for summary judgment, the question of whether the purported

general denial constituted an admission by Coffey is not before us.”

In support of its

motion for summary judgment, the plaintiff pointed only to the affidavit of status of

account, in which the affiant did not address the issue of whether the plaintiff satisfied

all conditions precedent in accordance with the mortgage agreement.

Therefore, the

Coffey court found that the plaintiff failed to meet its initial burden of pointing to portions

of the record that show the absence of a genuine issue of material fact.

Similarly, in Wells Fargo Bank, N.A. v. Beirne (Dec. 27, 2011), 9

Dist. No.

09CA0103-M, 2011-Ohio-6678, the court noted that, in its motion for summary

judgment, the bank made no reference to a possible admission in the parties' pleadings

pursuant to Civ.R. 9(C).

Therefore, the court found that “the question of whether the

purported general denial constituted an admission by the [defendants] is not before

us.”

Furthermore, because the bank’s affidavit in support of summary judgment did not

Id. at ¶ 39.

Id. at ¶ 40, quoting, Dresher, supra, 75 Ohio St.3d at 289-290.

Id.

Beirne at ¶ 12.

Id. at ¶ 15.

address the issue of whether conditions precedent were met, the court found that the

bank had not met its initial burden under the summary judgment standard of showing an

absence of a genuine issue of material fact.

It should be noted that in both Coffey and

Beirne, the defendants did not present any affidavits in opposition to summary

judgment; instead, they simply argued that the plaintiff failed to meet its burden.

Based on this recent case law, the fact that the defendants in the present case

failed to deny with particularity the allegation in the complaint that conditions precedent

were satisfied is not dispositive of the current motion because the plaintiff failed to state

in its motion that it was relying on any admission resulting from a failure of the

defendants to comply with Civ.R. 9(C) in their answer. Therefore, the court must

consider whether the materials submitted in support of summary judgment contain a

sufficient basis upon which to grant summary judgment to the plaintiff.

In Cent. Mtge. Co. v. Elia (June 29, 2011), 9

Dist. No. 25505, 2011-Ohio-3188,

the only reference to acceleration contained in the plaintiff’s affidavit was a statement

that “all of the prerequisites required under the note and mortgage necessary to

accelerate the balance due on the note have been performed.”

The court found that

this statement did not set forth any facts, but instead merely set forth a legal conclusion.

As such, the court found that this statement in the affidavit did not meet the requirement

of Civ.R. 56(E) that affidavits in support of summary judgment “shall set forth such facts

as would be admissible in evidence.”

In LaSalle Bank, N.A. v. Kelly (June 14, 2010), 9

Dist. No. 09CA0067-M, 2010-

Ohio-2688, the court found that the affidavit in support of summary judgment did not

Id.

Elia at ¶ 15.

Id.

mention whether the bank sent the defendants notice prior to filing default.

As such,

the court held that the bank failed to show the absence of a genuine issue of material

fact with regard to its compliance with the notice requirement.

In Wachovia of Delaware, N.A. v. Jackson (June 27, 2011), 5

Dist. No.2010–

CA–00291, 2011-Ohio-3202, the Fifth District Court of Appeals discussed at length what

a plaintiff must attach in support of a motion for summary judgment in a foreclosure

action and held that a plaintiff must present evidentiary-quality material showing, among

other things, that all conditions precedent have been met.

The plaintiff’s in the case of R.B.S. Citizens v. Adams (April 30, 2012), 3

Dist.

No. 13-11-35, 2012-Ohio-1889, did not file any evidence in opposition to summary

judgment but did argue that the bank failed to establish that it complied with the

requirements of the mortgage’s acceleration clause.

In response, the bank filed a

supplementary affidavit with a copy of the notice of default.

The appellate court upheld

the granting of summary judgment, noting that the defendants’ only basis for claiming

that the bank was not entitled to summary judgment was their allegation that it failed to

provide evidence that it complied with the notice requirement, and “[t]his unsupported

contention was disproved by the Bank's unchallenged evidence that notice had been

sent.”

In the case at bar, the court must determine whether the phrase “[p]laintiff or its

agent has accelerated the account, pursuant to the terms of the loan, making the entire

Kelly at ¶ 14.

Id.

LaSalle Bank, N.A. v. Fulk (June 29, 2011), 5

Dist. No. 2010-CA-00294, 2011-Ohio-3319, ¶ 12-16, quoting,

Jackson, supra.

Adams at ¶ 11.

Id. at ¶ 12.

Id. at ¶ 15.

balance due[,]” is sufficient for the plaintiff to meet its initial burden under Dresher. The

court finds, under the case law discussed above, that the phrase “pursuant to the terms

of the loan” is not sufficient to demonstrate that conditions precedent were satisfied,

particularly the notice requirement.

As a result, a genuine issue of material fact remains and summary judgment

cannot be granted at this time. The court notes for the record that if the plaintiff wishes

to file a second motion for summary judgment, it will consider granting leave for it do to

so, particularly considering that no trial date is currently set in this case.

CONCLUSION

The plaintiff’s motion for summary judgment is not well-taken and is hereby

denied.

CONCLUSION

The defendant’s motion for leave to file motion for new trial and motion for post-

conviction relief is not well-taken and is hereby denied.

IT IS SO ORDERED.

DATED:_____________________ ________________________________

Judge Jerry R. McBride

CERTIFICATE OF SERVICE

The undersigned certifies that copies of the within Decision/Entry were sent via

Facsimile/E-Mail/Regular U.S. Mail this 24th day of August 2012 to all counsel of record

and unrepresented parties.

________________________________

Administrative Assistant to Judge McBride