[Cite as PHH Mtge. Corp. v. Galvin, 2012-Ohio-5997.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

PHH MORTGAGE CORPORATION, fka 

CENDANT MORTGAGE 

CORPORATION dba COLDWELL 

BANKER MORTGAGE CORPORATION 

 Appellee 

 v. 

JOHN W. GALVIN, et al. 

 Appellants 

C.A. No. 26421 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV 2010 08 5649 

DECISION AND JOURNAL ENTRY

Dated: December 19, 2012 

 

BELFANCE, Judge. 

{¶1} Defendant-Appellant John Galvin appeals, pro se, from the judgments of the 

Summit County Court of Common Pleas which found in favor of Plaintiff-Appellee PHH 

Mortgage Corporation fka Cendant Mortgage Corporation dba Coldwell Banker Mortgage 

Corporation (“PHH”). For the reasons set forth below, we affirm. 

I. 

{¶2} Much of the history of this case was summarized in the prior appeal: 

In August 2010, PHH filed a complaint in foreclosure against [Mr.] Galvin and 

Stephanie Galvin, who were married at that time. John Galvin timely answered 

the complaint on behalf of himself and Stephanie Galvin. In his answer he 

asserted that the Galvins were not in default at the time the complaint was filed 

and that PHH had accepted and cashed the parties’ checks. However, according 

to Mr. Galvin, PHH then tendered a check to the Galvins refunding the payments. 

PHH moved for default judgment against Stephanie Galvin. It also moved for 

summary judgment against John Galvin. John Galvin responded to PHH’s motion 
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for summary judgment. PHH replied and argued that John Galvin had failed to 

attach documents or other evidence supporting his defenses. 

In February 2011, a pretrial conference took place. Stephanie Galvin appeared 

and filed a document indicating that she had never received any papers from PHH 

* * *. PHH withdrew its motion for default judgment against Stephanie. In 

addition, the court issued an order requiring Mr. Galvin to produce additional 

financial information to PHH and setting a telephone status conference for March 

22, 2011. 

On March 28, 2011, prior to the journalization of any order granting leave, PHH 

filed its supplemental motion for summary judgment. On March 31, 2011, the 

trial court issued an order in which it granted leave to PHH to file a motion for 

summary judgment on or before April 8, 2011. The order further stated that 

“[r]esponses to the Motion for Summary Judgment are due on or before April 22, 

2011.” 

Nine days later, on April 6, 2011, the trial court granted summary judgment in 

favor of PHH and against the Galvins. On April 22, 2011, John Galvin filed his 

response to PHH’s motion for summary judgment which contained documents in 

support of his response. 

PHH Mtge. Corp. v. Galvin, 9th Dist. No. 25917, 2011-Ohio-6787, ¶ 2-5. 

{¶3} In that appeal, this Court concluded that the trial court erred in “granting PHH’s 

motion for summary judgment before [Mr. Galvin] had an opportunity to submit his response in 

conformity with the trial court’s March 31, 2011 order.” Id. at ¶ 6. Accordingly, we reversed 

the trial court’s decision and remanded for proceedings consistent with our opinion. Id. at ¶ 11. 

{¶4} Upon remand, Mr. Galvin resubmitted the same response in opposition to PHH’s 

motion for summary judgment. The trial court granted summary judgment to PHH and 

thereafter issued a decree of foreclosure. Mr. Galvin has appealed, pro se, raising a single 

assignment of error for our review. Ms. Galvin has not appealed. 

II. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT COMMITTED ERROR BY GRANTING SUMMARY 

JUDGMENT TO PLAINTIFF PHH MORTGAGE DESPITE THE EXISTENCE 

OF GENUINE ISSUES OF MATERIAL FACTS WHICH WERE STILL TO BE 
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DETERMINED AND WHICH WERE ESSENTIAL TO THE OUTCOME OF 

THE CASE. IN GRANTING THE MOTION FOR SUMMARY JUDGMENT, 

THE COURT INCORRECTLY CLAIMED THAT IT WAS IMMATERIAL 

WHETHER OR NOT GALVIN HAD CORRECTED THE DEFAULT PRIOR 

TO THE COMPLAINT FOR FORECLOSURE, AND THE COURT 

INCORRECTLY CLAIMED THAT DEFENDANTS HAD A DUTY TO 

PROVE THAT THEIR PAYMENTS WERE CURRENT “AT ALL TIMES.” IN 

THE FACTUAL BACKGROUND SECTION OF THE JUDGMENT ENTRY, 

THE COURT STATED: “WHILE MORTGAGE PAYMENTS BEGINNING IN 

JULY OF[] 2010 MAY HAVE BEEN RETURNED, THIS DOES NOT 

ESTABLISH THAT, AT ALL TIMES, THE DEFENDANTS’ MORTGAGE 

WAS CURRENT. AGAIN IN THE ANALYSIS SECTION OF THE ENTRY, 

THE COURT STATED, “WHILE THE DEFENDANT HAS ESTABLISHED 

THAT MORTGAGE PAYMENTS BEGINNING IN JULY 2010 WERE 

RETURNED, HE HAS FAILED TO ESTABLISH THAT HIS LOAN WAS 

CURRENT AT ALL TIMES AND/OR THAT PLAINTIFF DID NOT 

PERFORM ALL REQUIRED CONDITIONS PRECEDENT PRIOR TO THE 

COMMENCEMENT OF THIS FORECLOSURE ACTION.” (Emphasis 

omitted.) 

{¶5} Mr. Galvin essentially asserts in his assignment of error that the trial court erred 

in granting summary judgment in favor of PHH because the documents he submitted in response 

to PHH’s motion created a genuine issue of material fact with respect to whether any alleged 

default had been cured and with respect to whether PHH itself created the default by returning 

some of the Galvins’ payments. We do not agree. 

{¶6} This Court reviews an award of summary judgment de novo. Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court, 

viewing the facts in the case in the light most favorable to the non-moving party and resolving 

any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. No. 25427, 2011–

Ohio–1519, ¶ 8. 

{¶7} Pursuant to Civ.R. 56(C), summary judgment is appropriate when: 

(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 
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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 summary 

judgment motion, the movant bears the initial burden of demonstrating that there are no genuine 

issues of material fact concerning an essential element of the opponent’s case. 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). 

{¶8} “We note that [a] foreclosure requires a two[-]step process.” (Internal quotations 

and citations omitted.) Natl. City Mtge. v. Skipper, 9th Dist. No. 24772, 2009-Ohio-5940, ¶ 25. 

“The prerequisites for a party seeking to foreclose a mortgage are execution and delivery of the 

note and mortgage; valid recording of the mortgage; default; and establishing an amount due.” 

(Internal quotations and citations omitted.) CitiMortgage, Inc. v. Firestone, 9th Dist. No. 25959, 

2012–Ohio–2044, ¶ 11. “Once a court has determined that a default on an obligation secured by 

a mortgage has occurred, it must then consider the equities of the situation in order to decide if 

foreclosure is appropriate.” (Internal quotations and citations omitted.) Skipper at ¶ 25. In the 

instant matter, Mr. Galvin has not asserted that the remedy of foreclosure was inequitable. 

Instead, he asserts that there was a genuine issue of material fact with respect to whether he was 

in default. 

{¶9} PHH submitted an affidavit and accompanying documents, including a copy of 

the note, loan modification agreement, mortgage, and assignment, in support of its motion for 

summary judgment. The affiant averred that PHH is the holder of the note, loan modification 

agreement, mortgage and assignment, that there has been a default in payment, that the account 

is due for the March 1, 2010 payment and all subsequent payments, that PHH elected to 
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accelerate the loan, that all conditions precedent to foreclosure have been performed, and that 

there is $157,391.65 due along with interest from February 1, 2010, at a rate of 3.875%. 

{¶10} In response, Mr. Galvin asserted that: 

[d]efendants contend that they had made all necessary payments to be current on 

their mortgage obligation at that time. However, plaintiff at some time after the 

filing of the complaint initiating this action mailed to the defendants checks which 

refunded five (5) months of payments, thus creating a default by virtue of 

plaintiff’s actions, not due to delinquency by defendants. 

{¶11} Mr. Galvin did not attach an affidavit to his response, although he did attach 

several documents. Despite the fact that the documents were not authenticated via an affidavit, it 

is clear the trial court considered them. Because there was no objection, our law is clear that the 

trial court was permitted to consider them but did not have to do so. See Cheriki v. Black River 

Industries, Inc., 9th Dist. No. 07CA009230, 2008-Ohio-2602, ¶ 6. One of the documents is a 

letter from PHH to the Galvins, which is dated July 22, 2010. It states that “[t]he total amount 

required to bring your loan current is $6,080.93.” It also indicates that the loan was due for the 

March 1, 2010 payment and that a July payment of $1,157.83 was being returned because it was 

insufficient to bring the loan current. The second letter is dated August 26, 2010, and indicates 

that an August payment of $1,157.83 was being returned because it was insufficient to bring the 

loan current. Finally, the third letter is dated September 7, 2010, and indicates that a separate 

August payment of $3,473.49 was being returned because it was insufficient to bring the loan 

current. Additional documents submitted by Mr. Galvin seem to verify that the Galvins paid the 

above funds and also had them refunded. 

{¶12} Even viewing the documents in a light most favorable to Mr. Galvin, we cannot 

conclude that there is a genuine dispute of material fact as to whether PHH manufactured the 

default by improperly returning mortgage payments or that he cured the default alleged by PHH. 
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From Mr. Galvin’s documents, it can be surmised that the Galvins submitted a total of $5,789.15 

to PHH during the months of July and August, although $6,080.93 was required as of July 22, 

2010, to cure the alleged default. Based upon the evidence that Mr. Galvin submitted, as of July 

22, 2010, the total of the subsequent payments submitted was insufficient to bring the loan 

current even as of July 22, 2010. Accordingly, Mr. Galvin has not demonstrated that there was a 

genuine issue of material fact as to whether PHH manufactured a default prior to filing the 

complaint by improperly returning the mortgage payments or that the Galvins cured the default 

prior to the filing of the complaint. Moreover, the trial court could not consider Mr. Galvin’s 

arguments to the contrary in his brief in opposition to summary judgment as they were not 

supported by any affidavit or other evidence verifying the same. See Civ.R. 56(C),(E); Dresher, 

75 Ohio St.3d at 293, quoting Civ.R. 56(E). In light of the evidence submitted by PHH and the 

lack of rebuttal evidence which could suffice to create a dispute of material fact, we conclude the 

trial court did not err in granting summary judgment in favor of PHH. Mr. Galvin’s assignment 

of error is overruled. 

III. 

{¶13} In light of the foregoing, we affirm the judgment of the Summit County Court of 

Common Pleas. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 
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 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. 

 Costs taxed to Appellant. 

 

 EVE V. BELFANCE 

 FOR THE COURT 

MOORE, P.J. 

CONCURS.

CARR, J. 

DISSENTING.

{¶14} I respectfully dissent. As the majority explains, a foreclosure suit involves a twostep procedure. Although the trial court determined that Galvin was in default, it never weighed 

the equities before granting foreclosure. I would remand the matter to the trial court to make that 

determination. 

APPEARANCES:

JOHN W. GALVIN, pro se, Appellant. 

STACY L. HART, Attorney at Law, for Appellee.