[Cite as BAC Home Loans v. Jasnoch, 2011-Ohio-1179.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

BAC HOME LOANS SERVICING, L.P., ) CASE NO. 10 MA 4 

fka COUNTRYWIDE HOME LOANS ) 

SERVICING, LP ) 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

WHITNEY W. JASNOCH, et al. ) 

) 

DEFENDANTS-APPELLANTS ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 09 CV 3276 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. George J. Annos 

Carlisle, McNellie, Rini, Kramer & Ulrich 

24755 Chagrin Boulevard, #200 

Cleveland, Ohio 44122 

Atty. Margaret Koval 

Assistant Law Director 

26 S. Phelps Street 

Youngstown, Ohio 44503 

For Defendants-Appellants: Atty. Richard J. Thomas 

Atty. Jeremy R. Teaberry 

Henderson, Covington, Messenger, 

 Newman & Thomas Co., L.P.A. 

6 Federal Plaza Central, Suite 1300 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Cheryl L. Waite 
-2-

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: March 9, 2011 

WAITE, P.J. 

{1} Appellants, Whitney W. Jasnoch and Elizabeth A. Jasnoch, appeal the 

judgment of foreclosure entered by the Mahoning County Court of Common Pleas on 

December 10, 2009. Because Appellants failed to offer any evidence in support of 

their fraud claim, the judgment of the trial court is affirmed. 

{2} On June 27, 2003, Appellants borrowed $31,200.00 from Stoffer 

Mortgage, Inc. in order to purchase a residence then located at 54 E. Ravenwood 

Avenue, Youngstown, Ohio. Appellants executed a note secured by a mortgage on 

the real property. The mortgage was conveyed to Mortgage Electronic Registration 

Systems, Inc. (“MERS”), as nominee for Stoffer Mortgage, Inc. 

{3} Stoffer Mortgage, Inc. endorsed the note to RBMG, Inc. on June 27, 

2003. The note bears an undated blank endorsement from RBMG, Inc. Appellants 

defaulted on the loan, with the last payment applied on April 1, 2007. MERS, as 

nominee for Stoffer Mortgage Inc., assigned the note and mortgage to Countrywide 

Home Loans, Inc. (“Countrywide”), by separate instrument dated January 3, 2008. 

The assignment was recorded in Mahoning County on January 25, 2008. 

Countrywide assigned the note and mortgage by separate instrument to Appellee, 

BAC Home Loans Servicing, LP, fka Countrywide, on August 20, 2009. The 

assignment was recorded in Mahoning County on September 1, 2009. 
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{4} Appellee filed the complaint in this action on August 25, 2009. 

Appellants filed their answer with leave of court on October 29, 2009. On that same 

day, Appellee filed a motion for summary judgment. Attached to the motion for 

summary judgment is the affidavit of David Perez, an assistant vice president of 

Appellee. According to the affidavit, Appellee is in possession of the note. (Perez 

Aff., ¶4.) 

{5} Appellants responded to the motion for summary judgment on 

November 12, 2009. In their response, they argued that Appellee was not the holder 

of the note, and that the appraisal obtained during the loan application process was 

fraudulent because at the time the response was filed, the auditor’s website valued 

the Ravenwood property at only $7,200.00. Although the response states that the 

information from the auditor’s website is attached, the copy in the record has no such 

attachment. The parties agreed at oral argument that the 2009 valuation was 

attached to the response brief. Based on the auditor’s valuation, Appellants claim 

that “[t]he true value of the property at issue, assuming the appraisal is $31,200.00, is 

433% lower than its appraised value.” (Response to Motion for Summary Judgment, 

p. 2.) The 2009 valuation was the only evidence offered in support of the response 

brief. At no time did Appellants request an extension of time to conduct discovery in 

this case. 

{6} The trial court entered the judgment of foreclosure on December 10, 

2009. This timely appeal followed. On the same day that the notice of appeal was 

filed, Appellants filed a motion to stay execution of the judgment in this case. 
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Pursuant to an agreed judgment entry filed on February 12, 2010, the trial court 

authorized Appellee to proceed with execution against the real property, but 

prohibited Appellee from pursuing the personal judgment against Appellants until the 

completion of this appeal. 

{7} An appellate court conducts a de novo review of a trial court’s decision 

to grant summary judgment, using the same standards as the trial court as set forth 

in Civ.R. 56(C). Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 

N.E.2d 241. Before summary judgment can be granted, the trial court must 

determine 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 the 

evidence most favorably in favor of the party against whom the motion for summary 

judgment is made, the conclusion is adverse to that party. Temple v. Wean United, 

Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267. When a court considers a 

motion for summary judgment, the facts must be taken in the light most favorable to 

the nonmoving party. Id. 

{8} “[T]he moving party bears the initial responsibility of informing the trial 

court of the basis for the motion, and identifying those portions of the record which 

demonstrate the absence of a genuine issue of fact on a material element of the 

nonmoving party's claim.” (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St.3d 

280, 296, 662 N.E.2d 264. If the moving party carries its burden, the nonmoving 

party has the reciprocal burden of setting forth specific facts showing that there is a 
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genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, in the face of a 

properly supported motion for summary judgment, the nonmoving party must produce 

some evidence that suggests that a reasonable factfinder could rule in that party’s 

favor. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 386, 701 

N.E.2d 1023. 

{9} “The elements of fraud are: 

{10} “(a) a representation or, where there is a duty to disclose, concealment 

of a fact, 

{11} “(b) which is material to the transaction at hand, 

{12} “(c) made falsely, with knowledge of its falsity, or with such utter 

disregard and recklessness as to whether it is true or false that knowledge may be 

inferred, 

{13} “(d) with the intent of misleading another into relying upon it, 

{14} “(e) justifiable reliance upon the representation or concealment, and “ 

{15} “(f) a resulting injury proximately caused by the reliance.” Burr v. Stark 

Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 491 N.E.2d 1101, paragraph two of 

the syllabus. 

{16} Fraud must be shown by clear and convincing evidence. Mathe v. 

Fowler (1983), 13 Ohio App.3d 273, 275, 469 N.E.2d 89. 

ASSIGNMENT OF ERROR

{17} “The lower court erred by granting Appellee BAC Home Loans 

Servicing, LP’s Motion for Summary Judgment.” 
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{18} Appellants contend that Appellee violated R.C. 1322.07. Ohio’s 

Mortgage Broker Registration Act, codified in R.C. Chapter 1322, prohibits a 

mortgage broker from engaging in conduct that constitutes “improper, fraudulent, or 

dishonest dealings,” and “[k]nowingly mak[ing] * * * fraudulent, false, or misleading 

statements on any mortgage loan document or on any document related to a 

mortgage loan * * * .” R.C. 1322.07(C) and (E). Appellants raise this statutory 

violation for the first time on appeal. They raised bare allegations of fraud without 

any reference to R.C. 1322.07 in their response to the motion for summary judgment. 

{19} A review of the record in this matter reveals no evidence of fraud, here. 

At oral argument, Appellants relied exclusively on the appraisal, which was not made 

a part of the record, and the 2009 auditor’s valuation to demonstrate fraud. However, 

the 2009 valuation, without more, is not sufficient to create a genuine issue of 

material fact in light of the fact that the mortgage was entered some six years earlier. 

Again, the record is silent as to any evidence that the property was not worth the 

mortgage amount at the time the mortgage was entered. 

{20} In the alternative, Appellants argue that they did not have the 

opportunity to conduct discovery because the summary judgment motion was filed 

the same day they filed their answer. Appellants contend that, even if they filed a 

discovery request for a copy of the appraisal from Appellee, “there is no guarantee 

that Appellee’s responses would have been received before the trial court granted 

Appellee’s motion.” (Reply Brf., p. 1.) 
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{21} After a properly supported motion for summary judgment was filed, 

Appellants had a reciprocal burden to produce evidence that a genuine issue of 

material fact exists to preclude summary judgment. Appellants admit they never 

even attempted to file a motion for an extension of time to respond to the motion for 

summary judgment nor did they file a motion to conduct discovery. Because no such 

motions were filed, the trial court was not put on notice that Appellants needed 

additional time to file a properly supported response. 

{22} Even assuming that Appellants had offered the 2003 appraisal into 

evidence, and shown that the appraisal was fraudulent, a violation of the Mortgage 

Broker Registration Act is not a defense to a foreclosure claim. The Act imposes civil 

liability on brokers who violate its provisions. However, nothing in the civil 

enforcement or penalties sections indicate that a violation of the act constitutes a 

defense in a foreclosure action. Further, any action for damages under the Act would 

lie against Stoffer Mortgage, Inc., not Appellee. 

{23} Based on this record, there is no evidence of fraud, and to the extent 

that Appellants assert a violation of the Mortgage Broker Registration Act, the 

statutory violation is not a defense to this foreclosure action. Accordingly, Appellants’ 

sole assignment of error is overruled and the judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

Vukovich, J., concurs.