[Cite as Deutsche Bank Natl. Trust Co. v. Unknown Spouse of Wolfe, 2024-Ohio-2940.]

COURT OF APPEALS

FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

DEUTSCHE BANK NATIONAL TRUST : JUDGES:

COMPANY, AS TRUSTEE FOR : Hon. John W. Wise, P.J.

AMERIQUEST MORTGAGE : Hon. Craig R. Baldwin, J.

SECURITIES INC., ASSET-BACKED : Hon. Andrew J. King, J.

PASS-THROUGH CERTIFICATES, :

SERIES 2005-R7 :

:

Plaintiff-Appellee :

:

-vs- :

:

UNKNOWN SPOUSE, IF ANY OF : Case No. 2024 CA 00001

ROBERT A. WOLFE, ET AL. :

:

Defendants :

:

and :

:

ANITA GRAF AND NEIL MORGAN :

:

 Intervenors-Appellants : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 2021CV00170

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 1, 2024

APPEARANCES:

For Plaintiff-Appellee For Intervenors-Appellants

BRIAN E. CHAPMAN BRUCE M. BROYLES

3962 Red Bank Road 752 Luke Chute Road

Cincinnati, OH 45227 Waterford, OH 45786
Fairfield County, Case No. 2024 CA 00001 2

King, J.

{¶ 1} Intervenors-Appellants, Anita Graf and Neil Morgan, appeal the November 

28, 2023 judgment entry of the Court of Common Pleas of Fairfield County, Ohio, granting 

summary judgment to Plaintiff-Appellee, Deutsche Bank National Trust Company, as 

Trustee for Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through 

Certificates, Series 2005-R7. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On June 17, 2005, Robert A. Wolfe executed a promissory note secured by 

a mortgage encumbering property located at 795 Blue Valley Road in Lancaster, Ohio. 

Appellee is the holder of the note.

{¶ 3} On January 20, 2021, appellee mailed a letter of intent to accelerate the 

mortgage to Wolfe due to the note being in default. The letter was sent to a separate 

address given by Wolfe.

{¶ 4} On April 29, 2021, appellee filed a complaint in foreclosure against Wolfe 

and the unknown spouse, if any, of Wolfe. After the filing, appellee was informed that 

Wolfe had passed away on December 8, 2019. On July 21, 2021, appellee added Wolfe's 

unknown heirs as defendants.

{¶ 5} On September 7, 2021, appellants filed a motion to intervene to assert their 

interest in the property by virtue of an unrecorded land contract they had with Wolfe. 

Appellants supplemented their motion on October 12, 2021. By judgment entry file 

October 21, 2021, the trial court granted the motion.

{¶ 6} On June 22, 2023, appellee filed a motion to dismiss Wolfe since he had 

passed away prior to the filing of the complaint and a motion for default judgment against 
Fairfield County, Case No. 2024 CA 00001 3

the unknown heirs of Wolfe for failure to answer. On the same date, appellee also filed 

a motion for summary judgment against appellants, claiming no genuine issues of 

material facts as it held the note and the note was in default. By an order filed June 30, 

2023, the trial court dismissed Wolfe as a defendant. 

{¶ 7} On August 22, 2023, appellants filed a response to the summary judgment 

motion, claiming appellee did not send Wolfe notice of default to the property address as 

required under the terms of the note unless notified by Wolfe of an address change.

{¶ 8} On October 4, 2023, appellee filed a supplemental affidavit of Juliana 

Thurab, Contract Management Coordinator for appellee's servicer, attesting that on 

November 21, 2018, Wolfe informed the loan servicer that he did not live at the Blue 

Valley address and provided an address on East Main Street in Lancaster, Ohio. A record 

of the address change was attached. Wolfe also stated he no longer takes care of the 

payment and appellants are the "owners" and he wanted to remove his name. The 

service provider offered suggestions on what to do (refinance or assumption). The record 

indicates nothing was done.

{¶ 9} By in rem judgment entry filed November 28, 2023, the trial court granted 

appellee's motion for default judgment against the unknown heirs, granted the motion for 

summary judgment against appellants after finding no genuine issues of material fact to 

exist, and issued a decree in foreclosure on the property.

{¶ 10} Appellants filed an appeal with the following assignment of error:

I
Fairfield County, Case No. 2024 CA 00001 4

{¶ 11} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

WHEN THERE EXISTS A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE 

REGARDING WHETHER APPELLEE FULFILLED THE CONDITIONS PRECEDENT."

I

{¶ 12} In their sole assignment of error, appellants claim the trial court erred in 

granting summary judgment to appellee. We disagree.

{¶ 13} Summary judgment motions are to be resolved in light of the dictates of 

Civ.R. 56. Regarding summary judgment, the Supreme Court stated the following in State 

ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447 (1996):

Civ.R. 56(C) provides that before summary judgment may be 

granted, it must be determined that (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 nonmoving party, that conclusion is adverse to the party 

against whom the motion for summary judgment is made. State ex. rel. 

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, 

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 

466, 472, 364 N.E.2d 267, 274.
Fairfield County, Case No. 2024 CA 00001 5

{¶ 14} In Leech v. Schumaker, 2015-Ohio-4444, ¶ 13 (5th Dist.), this court 

explained the following:

It is well established the party seeking summary judgment bears the 

burden of demonstrating that no issues of material fact exist for trial. 

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 

L.Ed.2d 265 (1986). The standard for granting summary judgment is 

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * 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 that demonstrate 

the absence 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 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 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 has satisfied its initial burden, the 

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to 

set forth specific facts showing there is a genuine issue for trial and, if the 

nonmovant does not so respond, summary judgment, if appropriate, shall 
Fairfield County, Case No. 2024 CA 00001 6

be entered against the nonmoving party." The record on summary 

judgment must be viewed in the light most favorable to the opposing party. 

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.

{¶ 15} As an appellate court reviewing summary judgment motions, we stand in 

place of the trial court and review the issues de novo, under the same standards and 

evidence as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

{¶ 16} Appellants argue genuine issues of material fact exist as to whether 

appellee fulfilled the conditions precedent. Appellants argue appellee failed to provide 

notice of default per the terms of the note. In support, appellants quote the following 

language of paragraph 8 of the promissory note: "any notice that must be given to me

[Wolfe] under this Note will be given by delivering it or by mailing it by first class mail to 

me at the Property Address above or at a different address if l give the Note Holder a 

notice of my different address." Appellants argue notice was not sent to the property 

address.

{¶ 17} The supplemental affidavit of Juliana Thurab with an attached record of the 

loan servicing notes shows Wolfe informed the note holder over the telephone that his 

address was 1570 East Main Street instead of the Blue Valley Road address. The notice 

of default was sent to the East Main Street address. There is no requirement in the note 

that the address change needs to be in writing.

{¶ 18} Also in support, appellants cite to paragraph 15 of the mortgage agreement 

that states:
Fairfield County, Case No. 2024 CA 00001 7

All notices given by Borrower or Lender in connection with this 

Security Instrument must be in writing. . . . The notice address shall be the 

Property Address unless Borrower has designated a substitute notice 

address by notice to Lender. Borrower shall promptly notify Lender of 

Borrower's change of address. If Lender specifies a procedure for reporting 

Borrower's change of address, then Borrower shall only report a change of 

address through that specified procedure.

{¶ 19} The requirement that all notices given by Borrower or Lender must be in 

writing is found under the mortgage agreement, not the default notice paragraph in the 

note, and the mortgage provision contemplates that the Lender can specify a different 

procedure to report a change of address other than in writing. Although a different 

procedure is not specifically delineated in the mortgage document, appellee accepted 

Wolfe's change of address over the telephone and documented it in the loan servicing 

notes.

{¶ 20} To properly support a motion for summary judgment in a foreclosure action, 

a plaintiff must present evidentiary quality materials establishing: (1) the plaintiff is the 

holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the 

plaintiff is not the original mortgagee, the chain of assignments and transfers; (3) the 

mortgagor is in default; (4) all conditions precedent have been satisfied; and (5) the 

amount of principal and interest due. Wachovia Bank of Delaware, N.A. v. Jackson, 2011-

Ohio-3203, ¶ 40-45 (5th Dist.).
Fairfield County, Case No. 2024 CA 00001 8

{¶ 21} The record demonstrates appellee has presented evidentiary quality 

materials establishing these factors. See Affidavit of Status Account filed June 16, 2023,

and Supplemental Affidavit filed October 4, 2023. Appellee is the holder of the note and 

mortgage of which Wolfe is the named borrower under the note and named mortgagor 

under the mortgage agreement. Wolfe was in default of the note and appellee sent the 

required notices to the address provided by Wolfe. The purported land contract was never 

recorded, nor was a refinance or assumption ever executed by Wolfe to appellants.

{¶ 22} Upon review, we do not find any genuine issues of material fact to exist and 

therefore find the trial court did not err in granting summary judgment to appellee.

{¶ 23} The sole assignment of error is denied.

{¶ 24} The judgment of the Court of Common Pleas of Fairfield County, Ohio is 

hereby affirmed.

By King, J.

Wise, P.J. and

Baldwin, J. concur.