[Cite as U.S. Bank Trust NA Natl. Assn. v. Sarver , 2024

- Ohio

- 1303.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

US BANK TRUST NA NATIONAL

ASSOC. :

: JUDGES:

:

: Hon. Patricia A. Delaney, P.J.

Plaintiff

- Appellee : Hon. W. Scott Gwin, J.

: Hon. John W. Wise, J.

- vs

- :

: Case No. 2023 CA 00112

:

GARY D. SARVER, ET AL. :

:

:

Defendants

- Appellants : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of

Common Pleas, Case No. 2022 CV

01187

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: April 4, 2024

For Plaintiff

- Appellee: For Defendant

- Appellant:

BRIAN E. CHAPMAN KIMBERLY ANN CHAPMAN, PRO SE

3962 Red Bank Road 7209 Grovedell St. SE

Cincinnati, OH 45227 Waynesburg, OH 44688

- 4961Stark County, Case No. 2023 CA 00112 2

Delaney, P.J.

{¶1} Defendant

- Appellant Kimberly A. Sarver aka Kimberly A. Chapman appeals

the August 4, 2023 judgment entry and decree of foreclosure issued by the Stark County

Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

Note and Mortgage

{¶2} On July 25, 2007, Defendant Gary D. Sarver executed a Promissory Note

in favor of Homeland Capital Mortgage. Gary Sarver secured the Promissory Note with a

mortgage on real estate located in Waynesburg, Stark County, Ohio. On January 24,

2018, Gary D. Sarver and Defendant

- Appellant Kimberly A. Sarver aka Kimberly A.

Chapman (hereinafter “Chapman”) executed a Loan Modification Agreement, securing

the loan modification with a mortgage on the Waynesburg real estate. Through multiple

assignments, the mortgage holder in 2021 was Plaintiff

- Appellee U.S. Bank Trust

National Association, owner trustee for RCF 2 Acquisition Trust.

{¶3} The parties were divorced on June 30, 2015 in Stark County Court of

Common Pleas, Family Division, Case No. 2015DR00396. On March 18, 2016, Chapman

changed her name from Kimberly A. Sarver to Kimberly A. Chapman in Stark County

Probate Court Case No. 225717.

{¶4} On April 22, 2021, U.S. Bank sent a Notice of Default and Intent to

Accelerate addressed to Gary D. Sarver at the Waynesburg real estate mailing address.

Complaint in Foreclosure

{¶5} On July 28, 2022, U.S. Bank filed a complaint in foreclosure with the Stark

County Court of Common Pleas. In the complaint, U.S. Bank named Gary D. Sarver;Stark County, Case No. 2023 CA 00112 3

Unknown Spouse, if any, of Gary D. Sarver; Kimberly A. Sarver; and Unknown Spouse,

if any, of Kimberly A. Sarver as defendants. The trial court granted an order appointing a

process server to serve the pleadings.

{¶6} On August 16, 2022, Chapman filed a copy of the summons and complaint

in foreclosure addressed to “Kimberly A. Sarver” and “Unknown Spouse if any of Kimberly

A. Sarver” at the Waynesburg real estate with the trial court. On both copies of the

summons and the complaint in foreclosure, Chapman wrote, “This is a matter of public

service. I am hereby returning attached documents served 08/11/2022 upon a minor. I do

not accept this offer to contract and I do not consent to this proceedings.” Chapman

signed the written statement and had the statement notarized.

{¶7} On September 9, 2022, the appointed process service filed a return of

service for both Kimberly A. Sarver and the Unknown Spouse, if any, of Kimberly A.

Sarver. The return of service stated that on August 11, 2022 at 12:19 p.m. and on August

11, 2022 at 12:21 p.m., residential service of the summons and complaint for Kimberly A.

Sarver and Unknown Spouse, if any, of Kimberly A. Sarver were made by serving K.S.,

a person of suitable age and discretion residing therein.

{¶8} Chapman filed a pro se “Verified Affidavit and Motion for Leave to File

Motion for 12(B)1

- 6 with Exhibits” with the trial court on September 28, 2022. In the motion

to dismiss, Chapman appeared to argue that she was not a party to the original mortgage.

She further argued that she was not a proper party to the action because she changed

her name from Kimberly A. Sarver to Kimberly A. Chapman. U.S. Bank filed a response

to the motion to dismiss, to which Chapman filed a motion to strike the response. The trial

court denied the motion to dismiss and the motion to strike U.S. Bank’s response.Stark County, Case No. 2023 CA 00112 4

{¶9} U.S. Bank filed a motion for leave to amend the complaint in foreclosure to

amend the name of Kimberly A. Sarver to “Kimberly A. Sarver aka Kimberly A. Chapman.”

The trial court granted the motion for leave and the amended complaint was filed on

December 9, 2022. On February 8, 2023, Chapman filed a copy of the summons and

amended complaint with her notarized written statement. She stated that she was

returning the documents served on February 6, 2023, which she alleged were served on

two minor children. She stated she did not accept the offer to contract and did not consent

to the proceedings. The process server filed the return of service on February 10, 2023.

The return of service stated that on February 6, 2023, he made personal service on

Kimberly A. Sarver aka Kimberly Ann Chapman and residential service on the Unknown

Spouse by serving Kimberly Ann Sarver aka Kimberly Ann Chapman.

{¶10} On March 13, 2023, Chapman filed a “Verified Affidavit and Motion for

Leave to File Motion for 12(B)1

- 6 with Exhibits.” U.S. Bank filed a response. The trial court

denied the motion on April 28, 2023. Chapman filed a motion for reconsideration, which

the trial court denied.

{¶11} On July 3, 2023, U.S. Bank filed a motion for summary judgment arguing it

was entitled to judgment as a matter of law on its complaint in foreclosure against

Kimberly A. Sarver aka Kimberly A. Chapman and the Unknown Spouse, if any, of

Kimberly A. Sarver aka Kimberly A. Chapman. It also filed a motion for default judgment

against Gary D. Sarver. Chapman filed an emergency motion for extension of time to file

a summary judgment motion and default judgment motion. The trial court denied

Chapman’s emergency motion as moot because her deadline for a response was not

until July 31, 2023. On July 31, 2023, Chapman filed a pro se motion for summaryStark County, Case No. 2023 CA 00112 5

judgment. She appeared to argue in the motion that she had not been properly served

with the complaint. She also claimed there was a broken chain of title.

{¶12} The trial court granted U.S. Bank’s motion for summary judgment and

decree of foreclosure on August 4, 2023.

{¶13} On August 8, 2023, the Ohio Supreme Court issued its judgment entry

denying Chapman’s affidavit of disqualification of the trial court judge.

{¶14} Chapman filed a motion for reconsideration of the August 4, 2023 judgment

entry. On September 5, 2023, she filed her notice of appeal of the August 4, 2023

judgment entry.

ASSIGNMENTS OF ERROR

{¶15} Chapman raises four Assignments of Error:

I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANTS BY ENTERING JUDGMENT IN FAVOR OF THE

APPELLEE AND DENYING THE VERIFIED AFFIDAVIT AND MOTION

FOR SUMMARY JUDGMENT WITH EXHIBITS AS THE APPELLEE

LACKED CAPACITY TO SUE WITHOUT PROPER SERVICE OF SUIT,

SERVICE WAS NEVER PERFECTED IN THIS ALLEGED SUIT ON THE

APPELLANT OR ANY ADULT OR PERSONS OVER THE AGE OF 15

YEARS OLD AT APPELLANTS CHAMPMAN’S ADDRESS THUS IN THE

STATE OF OHIO RENDERING THE JUDGMENT VOID AB INITIO OR

OTHERWISE UNENFORCEABLE AS A MATTER OF LAW AND/OR

EQUITY AS A FAILURE OF SERVICE. R.C. 4.1 SEE EXHIBITS A1

- 9.Stark County, Case No. 2023 CA 00112 6

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANTS BY ENTERING JUDGMENT IN FAVOR OF THE

APPELLEE AND DENYING THE VERIFIED AFFIDAVIT AND MOTION

FOR LEAVE TO FILE MOTION FOR 12(B)1

- 6 WITH EXHIBITS AND

VERIFIED AFFIDAVIT AND MOTION FOR SUMMARY JUDGMENT WITH

EXHIBITS, AS THE DECREE OF FORECLOSURE WAS VOID,

VOIDABLE, AND/OR IMPROPER PURSUANT TO FEDERAL AND OHIO

LAW. THE FINAL JUDICIAL REPORT DATED 07/13/2022 PERFORMED

BY CHICAGO TITLE REVEALED A CLEAR BLATANT BREAK IN THE

CHAIN OF TITLE AND THUS FAILING TO STATE A CLAIM UPON WHICH

RELIEF COULD BE GRANTED AND VIOLATING AN INDISPENSABLE

PARTY NEED TO ADJUDICATE THIS FORECLOSURE. OHIO REVISED

CODE SECTION 2305.19 AND CIV.R. 41(A). CARRINGTON MORTGAGE

SERVICES NOR SELINE FINANCE, LP O.R.C. 5301.25 RECORDING IN

COUNTY WHERE REAL ESTATE SITUATED

- SURVEY SEE EXHIBITS

B1

- 22 [SIC]. U.S. BANK NATIONAL ASS’N V. IBANEX, 941 N.E.2D 40

(MASS.2011).

III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANTS BY ENTERING JUDGMENT IN FAVOR OF THE

APPELLEE WHEN APPELLEE ENTERED JUDICIAL NOTICE OF TAX

FILING OF 1099

- C AND FORM 982 ON 1040 FILING WITH EXHIBITS.

1099

- C REFERENCE BOX HAD IDENTIFIABLE EVENT CODE B

- OTHER

JUDICIAL DEBT RELIEF. CODE B IS USED TO IDENTIFYStark County, Case No. 2023 CA 00112 7

CANCELLATION OF THE DEBT AS A RESULT OF A RECEIVERSHIP,

FORECLOSURE, OR SIMILAR FEDERAL OR STATE COURT

PROCEEDING OTHER THAN BANKRUPTCY. SEE EXHIBITS C1

- 6.

IV. THE TRIAL TRIAL [SIC] COURT ERRED TO THE PREJUDICE OF THE

APPELLANTS BY ENTERING JUDGMENT IN FAVOR OF THE

APPELLEE WHEN APPELLANT SUBMITTED A MOTION FOR

RECONSIDERATION WHICH INCLUDED A REGISTERED SECURITY

TO APPELLEE AS DISCHARGE FOR PAYMENTS PER THE TRUST

INDENTURE ACT OF 1939, PER THE SECURITIES ACT RULE 13D

- 3 AS

BENEFICIAL OWNER. SEE EXHIBITS D1

- 14.

ANALYSIS

{¶16} We understand that Chapman filed her appeal pro se, but “like members of

the bar, pro se litigants are required to comply with rules of practice and procedure.”

Richard v. Ohio Parole Bd

., 5th Dist. Richland No. 23CA19, 2023

- Ohio

- 3237, ¶ 19 quoting

Oyler v. Oyler

, 5th Dist. Stark No. 2014CA00015, 2014

- Ohio

- 3468, 2014 WL 3907024, ¶

19, quoting Hardy v. Belmont Correctional Inst

., 10th Dist. No. 06AP

- 116, 2006

- Ohio

3316, ¶ 9. See also, State v. Hall

, 11th Dist. Trumbull No. 2007

- T

- 0022, 2008

- Ohio

- 2128,

¶ 11. We also understand that “an appellate court will ordinarily indulge a pro se litigant

where there is some semblance of compliance with the appellate rules.” State v. Richard

,

8th Dist. Cuyahoga No. 86154, 2005

- Ohio

- 6494, ¶ 4 (internal quotation omitted).

“Fairness and justice are best served when a court disposes of a case on the merits.”

DeHart v. Aetna Life Ins. Co

., 69 Ohio St.2d 189, 193, 431 N.E.2d 644 (1982). We caution,

however, that “[i]f an argument exists that can support [an] assignment of error, it is notStark County, Case No. 2023 CA 00112 8

this court's duty to root it out.” State v. Colston

, 5th Dist. Muskingum No. CT2019

- 0076,

2020

- Ohio

- 3879, 2020 WL 4345269, ¶ 58, quoting Thomas v. Harmon

, 4th Dist.

Lawrence No. 08CA17, 2009

- Ohio

- 3299, at ¶14, internal citation omitted. “It is not the

function of this court to construct a foundation for [an appellant's] claims; failure to comply

with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal.”

Catanzarite v. Boswell

, 9th Dist. Summit No. 24184, 2009

- Ohio

- 1211, ¶ 16, quoting

Kremer v. Cox

, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist.1996).

{¶17} In the interest of justice but within the bounds of the Rules of Appellate

Procedure, we will address Chapman’s Assignments of Error.

I. and IV.

{¶18} In her first Assignment of Error, Chapman argues the trial court erred in

granting summary judgment in favor of U.S. Bank. Chapman appears to argue in her

fourth Assignment of Error that the trial court erred when it granted summary judgment in

favor of U.S. Bank. We disagree that the trial court erred.

{¶19} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc

., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, this

Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co

., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

{¶20} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain 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 suchStark County, Case No. 2023 CA 00112 9

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

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

.,

50 Ohio St.2d 317, 364 N.E.2d 267 (1977).

{¶21} It is well established that the party seeking summary judgment bears the

burden of demonstrating no issues of material fact exist for trial. Celotex Corp. v. Catrett

,

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

, 75 Ohio St.3d 280 at 293, 662 N.E.2d

264 (1996): “* * * 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 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

,

37 Ohio St.2d 150, 309 N.E.2d 924 (1974).Stark County, Case No. 2023 CA 00112 10

{¶22} Chapman appears to raise two arguments in her first Assignment of Error

as to why the trial court erred in granting summary judgment in favor of U.S. Bank. She

contends that U.S. Bank did not perfect service of the summons and amended complaint

upon her and that it lacked capacity to sue because it was a foreign corporation. In her

fourth Assignment of Error, Chapman refers to the filing of securities, but then states

summary judgment was not appropriate.

{¶23} The record in this case shows that on February 8, 2023, Chapman filed

copies of the summons and amended complaint, acknowledging her receipt of both on

February 6, 2023. On the filed copies, Chapman made a written statement that the

summons and amended complaint were served upon two minors and she objected to the

same. The process server filed returns of service with the trial court on February 10, 2023.

The return of service stated that on February 6, 2023, he made personal service of the

summons and amended complaint on Kimberly A. Sarver aka Kimberly Ann Chapman

and residential service on the Unknown Spouse by serving Kimberly Ann Sarver aka

Kimberly Ann Chapman.

{¶24} The Sixth District Court of Appeals recently examined service of process in

Universal Acceptance Corp. v. Orwig

, 6th Dist. Lucas No. L

- 23

- 1109, 2024

- Ohio

- 1069:

“Service of process is required to notify any interested parties of the

pendency of an action and to afford them an opportunity to respond.’ ” Griffin

v. Braswell

, 187 Ohio App.3d 281, 2010

- Ohio

- 1597, 931 N.E.2d 1131, ¶ 15

(6th Dist.); see also Capital One Bank (USA), N.A. v. Coleman

, 6th Dist.

Lucas No. L

- 18

- 1173, 2019

- Ohio

- 3700, ¶ 11. “It is the plaintiff's duty to

accomplish proper service on a defendant.” Id

., quoting Griffin at ¶ 15. “IfStark County, Case No. 2023 CA 00112 11

the plaintiff follows the Civil Rules governing service of process, courts

presume that service is proper unless the defendant rebuts this presumption

with sufficient evidence of nonservice.” Treasurer of Lucas Cnty. v. Mt.

Airy Investments Ltd

., 6th Dist. Lucas No. L

- 18

- 1254, 2019

- Ohio

- 3932,

¶ 15, citing Cavalry Invest., L.L.C. v. Clevenger

, 6th Dist. Lucas No. L

- 05

-

1103, 2005

- Ohio

- 7003, ¶ 10. * * *

“Service of process must be made in a manner reasonably calculated to

apprise interested parties of the action and to afford them an opportunity to

respond.” Mt. Airy Investments Ltd

. at ¶ 13. * * * A trial court may, within its

discretion, reject a party's self

- serving testimony that service was not

received. Countrywide Home Loans Servicing, L.P. v. Davis

, 6th Dist. Huron

No. H

- 15

- 009, 2016

- Ohio

- 7421, ¶ 20. * * *

Universal Acceptance Corp

., 2024

- Ohio

- 1069, ¶ 16

- 19.

{¶25} The record in this case established there was no genuine issue of material

fact that Chapman was served the summons and amended complaint in compliance with

Civ.R. 4.1.

{¶26} Chapman next argues the trial court erred in finding U.S. Bank had capacity

to sue because it was an unregistered foreign corporation. She cites this Court to Citibank

N.A. v. Rowe

, 9th Dist. Lorain No. 12CA010217, 2013

- Ohio

- 523 where the Ninth District

Court of Appeals found there was a genuine issue of material fact whether a subsidiary

bank had complied with registration requirements before commencing suit to collect the

debt on a credit card account. Chapman made this similar argument before the trial court

in her multiple motions to dismiss and July 31, 2023 motion for summary judgment,Stark County, Case No. 2023 CA 00112 12

supported by her affidavit and various documents. Our de novo review of Chapman’s

arguments and supporting documentation find they do not create a genuine issue of

material fact as to U.S. Bank’s compliance with registration requirements as discussed in

Citibank N.A. v. Rowe, supra

.

{¶27} Chapman’s first Assignment of Error is overruled.

{¶28} In Chapman’s fourth Assignment of Error, she contends within her brief that

the trial court “denied the filing of registered securities with the indenture trustee

Wilmington Trust NA.” (Appellant’s Brief, p. 21). We note that the argument in her brief

does not appear to relate to her assignment of error. She does not provide this Court with

any analysis or support for the arguments. In order to consider Chapman’s fourth

Assignment of Error, we would be responsible for rooting out and supporting her claims.

Chapman’s fourth Assignment of Error is overruled.

II.

{¶29} In her second Assignment of Error, Chapman argues the trial court erred

when it denied her motion for summary judgment. She appears to contend that U.S. Bank

was not the real party in interest with standing to bring the foreclosure action. Chapman

relies in part upon the Ohio Supreme Court's decision in Fed. Home Loan Mortg. Corp.

v. Schwartzwald

, 134 Ohio St.3d 13, 2012

– Ohio

– 5017, 979 N.E.2d 1214, to support her

argument. See also Wells Fargo Bank v. Grutsch

, 5th Dist. Delaware No. 14 CAE 100067,

2015

- Ohio

- 4721.

{¶30} In Schwartzwald

, the plaintiff mortgagee filed a complaint in foreclosure, but

at the time it filed the foreclosure action, the plaintiff mortgagee did not have an interest

in the note or the mortgage. The issue before the Court was whether the plaintiffStark County, Case No. 2023 CA 00112 13

mortgagee could cure the lack of standing after the foreclosure complaint was filed. The

Court held:

* * * standing is required to invoke the jurisdiction of the common pleas

court, and therefore it is determined as of the filing of the complaint. Thus,

receiving an assignment of a promissory note and mortgage from the real

party in interest subsequent to the filing of an action but prior to the entry of

judgment does not cure a lack of standing to file a foreclosure action.

Id

. at ¶ 3, 979 N.E.2d 1214.

{¶31} In Wells Fargo Bank, N.A. v. Horn

, 142 Ohio St.3d 416, 2015

– Ohio

– 1484,

31 N.E.3d 637, the Ohio Supreme Court clarified its holding in Schwartzwald to state that

the decision did not require the plaintiff to prove standing at the time the foreclosure action

was filed. Id

. at ¶ 1, 979 N.E.2d 1214. “Rather, although the plaintiff in a foreclosure action

must have standing at the time suit is commenced, proof of standing may be submitted

subsequent to the filing of the complaint.” Id

.

{¶32} U.S. Bank filed the amended complaint on December 9, 2022. In the

amended complaint, U.S. Bank alleged its was the holder of the note and mortgage. A

copy of the note, loan modification agreement, and the chain of assignments were

attached to the amended complaint. In support of its motion for summary judgment, U.S.

Bank attached the affidavit of Debbie Benzley, a document execution specialist with

Selene Finance LP, the loan servicer. Benzley authenticated the copies of the note,

mortgage, and chain of assignments.

{¶33} Upon this record, the evidence demonstrates that U.S. Bank is the real party

in interest with standing to bring the foreclosure action against Chapman.Stark County, Case No. 2023 CA 00112 14

{¶34} Chapman’s second Assignment of Error is overruled.

III.

{¶35} Chapman contends in her third Assignment of Error that the trial court erred

when it denied her motion to vacate because the decree in foreclosure was void.

{¶36} Upon review of the record in this case, this Court cannot determine what

“motion to vacate” Chapman is referring to. Chapman does not identify the specific

“motion to vacate” in her appellate brief. After the trial court granted U.S. Bank’s motion

for summary judgment and decree in foreclosure, Chapman filed a motion for

reconsideration on August 21, 2023. The trial court did not rule on the motion before

Chapman filed her notice of appeal.

{¶37} The Supreme Court of Ohio has held that a request for reconsideration of a

final judgment at the trial court level is a nullity, as is any judgment or final order resulting

from such a motion. State ex rel. Pendell v. Adams Cty. Bd. of Elections

, 40 Ohio St.3d

58, 60, 531 N.E.2d 713, 715 (1988), citing Pitts v. Dept. of Transp

., 67 Ohio St.2d 378,

381, 423 N.E.2d 1105 (1981).

{¶38} Chapman’s third Assignment of Error is overruled.Stark County, Case No. 2023 CA 00112 15

CONCLUSION

{¶39} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Gwin, J. and

Wise, J., concur.