[Cite as U.S. Bank v. Marks, 2017-Ohio-5625.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

U.S. BANK NATIONAL ASSOCIATION, 

as Trustee for Merrill Lynch First Franklin 

Mortgage Loan Trust, Mortgage Loan 

Asset-Backed Certificates, Series 2007-4 

 Appellee 

 v. 

ROGER D. MARKS, et al. 

 Appellants 

C.A. No. 28305 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV 2014-11-5258 

DECISION AND JOURNAL ENTRY 

Dated: June 30, 2017 

 

HENSAL, Presiding Judge. 

{¶1} Roger and Kathi Marks appeal a judgment of the Summit County Court of 

Common Pleas that granted summary judgment to U.S. Bank National Association, as Trustee 

for Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed 

Certificates, Series 2007-4 on its complaint for foreclosure. For the following reasons, this Court 

reverses. 

I. 

{¶2} The Markses filed for bankruptcy in 2005 after two businesses that Mr. Marks 

owned failed. At the time, the Markses had multiple mortgages on a property in Akron. While 

the bankruptcy case was pending, Mr. Marks received a loan from First Franklin Financial Corp., 

which allowed him to pay off the existing loans on the property. He also executed a new 

mortgage on it. Although Mrs. Marks was listed as a borrower on the first page of the new 
2 

 

mortgage, she signed it as a non-borrower, above a notation that indicated she was “[s]igning for 

the purpose of waving any and all Homestead Rights and/or any and all dower or curtesy 

rights[.]” First Franklin assigned the mortgage to U.S. Bank, in its role of trustee, in 2009. Mr. 

Marks and First Franklin entered into a modification of the note in 2010. 

{¶3} In November 2014, U.S. Bank filed a foreclosure action against the Markses, 

alleging that Mr. Marks had defaulted on the note. Following discovery, U.S. Bank moved for 

summary judgment. In its motion, U.S. Bank argued that, despite the limiting language below 

Mrs. Marks’s signature on the mortgage, the foreclosure should apply to the Markses’ whole 

interest in the parcel under theories of unjust enrichment, constructive trust, resulting trust, and 

equitable subrogation. It also asked for the mortgage to be reformed, which it had requested in 

its complaint. The trial court granted summary judgment to U.S. Bank over the Markses’ 

opposition, concluding that the mortgage attached to both of the Markses’ fee interest in the 

property “for the reasons stated in [U.S. Bank’s] Motion for Summary Judgment.” The Markses 

have appealed, assigning as error that the trial court incorrectly granted the motion for summary 

judgment. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT OF 

FORECLOSURE IN FAVOR OF THE MOVING BANK AND AGAINST A 

CO-OWNER’S UNDIVIDED ONE-HALF INTEREST WHERE THE COOWNER NEVER SIGNED THE NOTE, SIGNED THE MORTGAGE AS TO 

DOWER INTEREST ONLY, AND DID NOT PARTICIPATE IN A REFINANCING AND IN A LATER LOAN MODIFICATION. IN THESE 

CIRCUMSTANCES THERE WERE GENUINE ISSUES OF MATERIAL FACT 

AND THE MOVANT BANK FAILED TO SHOW ENTITLEMENT TO 

SUMMARY JUDGMENT AS A MATTER OF LAW. 

{¶4} The Markses argue that the trial court incorrectly granted summary judgment to 

U.S. Bank. Although they do not contest that the note was in default or that U.S. Bank can 
3 

 

foreclose on Mr. Marks’s interest in the Akron property, they argue that the trial court incorrectly 

concluded that Mrs. Marks’s entire undivided interest in the property was subject to the 

mortgage. They contend that she did not sign the mortgage as a borrower and only to waive her 

homestead and dower rights in the property. According to the Markses, Mrs. Marks was not 

mistaken about what she was signing. If there was a mistake in how the document was prepared, 

it was First Franklin’s alone, which had drafted the document. 

{¶5} Under Civil Rule 56(C), summary judgment is appropriate if: 

(1) [n]o 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 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, 327 (1977). To succeed on a motion for 

summary judgment, the party moving for summary judgment must first be able to point to 

evidentiary materials that demonstrate there is no genuine issue as to any material fact, and that it 

is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the 

movant satisfies this burden, the nonmoving party “must set forth specific facts showing that 

there is a genuine issue for trial.” Id. at 293, quoting Civ.R. 56(E). This Court reviews an award 

of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). 

{¶6} In its motion for summary judgment, U.S. Bank argued that the language below 

Mrs. Marks’s signature was “mistakenly written * * * on the mortgage.” It presented no direct 

evidence, however, to support its assertion, such as testimony from a First Franklin 

representative with personal knowledge of the transaction. Instead, U.S. Bank argued that the 

“totality of the circumstances” established that the language beneath the signature was “due to a 

scrivener’s error and mutual mistake of the parties.” Specifically, it pointed to the fact that the 
4 

 

Markses executed the First Franklin mortgage while they were in bankruptcy, and that the new 

mortgage prevented the foreclosure of the Akron property. U.S. Bank argued that it was 

“impossible” to believe that the bankruptcy trustee would allow Mrs. Marks to obtain a free and 

clear half interest in a property worth $455,000 when the bankruptcy case discharged over a 

million dollars in unsecured debt. 

{¶7} According to the documents U.S. Bank attached to its motion for summary 

judgment, the refinancing allowed the Markses to pay the first mortgage on their Akron property 

in full, the second mortgage in full, and the secured parts of their third and fourth mortgages. 

The documents also indicate that the Markses’ bankruptcy lawyer sent a copy of their Motion 

and Notice to Refinance Real Estate Mortgage to the bankruptcy trustee and all of the Markses’ 

creditors. There is no evidence in the record that the trustee or any of the creditors raised any 

concerns about the refinancing of the Akron property. 

{¶8} The fact that U.S. Bank would have drafted the First Franklin mortgage 

differently does not mean that the mortgage does not reflect the intent of First Franklin and the 

Markses at the time of its signing. Viewing the evidence in a light most favorable to the 

Markses, we conclude that U.S. Bank failed to demonstrate that there are no genuine issues of 

material fact that remain to be litigated and that it is entitled to judgment as a matter of law. 

{¶9} Regarding U.S. Bank’s claims of unjust enrichment, constructive, trust, resulting 

trust, and equitable subrogation, we note that they rely on the assumption that the language 

beneath Mrs. Marks’s signature on the mortgage is a mistake. In addition, we note that the 

Markses did not directly enter into a contractual relationship with the trust U.S. Bank 

administers. The assignment of mortgage that transferred First Franklin’s rights under the 

mortgage to the trust indicates that First Franklin “for value received has granted, bargained, 
5 

 

sold, assigned, transferred and set over [the mortgage] unto” the trust. There is no evidence in 

the record that indicates that the Markses misrepresented the terms of the mortgage to U.S. Bank 

or the trust, or that U.S. Bank or the trust had any involvement in the refinancing. 

{¶10} Upon review of the record, we conclude that the trial court failed to view the 

evidence in a light most favorable to the Markses and incorrectly granted summary judgment to 

U.S. Bank. The Markses’ assignment of error is sustained. 

III. 

{¶11} The Markses’ assignment of error is sustained. The judgment of the Summit 

County Court of Common Pleas is reversed, and this matter is remanded for further proceedings. 

Judgment reversed, 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 
6 

 

 Costs taxed to Appellee. 

 

 JENNIFER HENSAL 

 FOR THE COURT 

TEODOSIO, J. 

CALLAHAN, J. 

CONCUR. 

APPEARANCES: 

MARK H. LUDWIG, Attorney at Law, for Appellants. 

BRADLEY P. TOMAN, Attorney at Law, for Appellee.