[Cite as Fed. Home Loan Mtge. v. Zuga, 2013-Ohio-2838.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

FEDERAL HOME LOAN MORTGAGE 

CORPORATION, 

: O P I N I O N 

:

 Plaintiff-Appellee, CASE NO. 2012-T-0038 

:

 - vs - 

:

ELIZABETH ZUGA 

f.k.a. ELIZABETH BROWN, et al., : 

 Defendant-Appellant, :

TRUMBULL COUNTY TREASURER, :

 Defendant-Appellee. :

Civil Appeal from the Trumbull County Court of Common Pleas. 

Case No. 2010 CV 02310. 

Judgment: Affirmed. 

David M. Gaunter, Felty & Lembright Co., L.P.A., 1500 West Third Street, Suite 400, 

Cleveland, OH 44113 (For Plaintiff-Appellee). 

Bruce M. Broyles, 5815 Market Street, Suite 2, Youngstown, OH 44512 (For 

Defendant-Appellant). 

Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor, 160 

High Street, N.W., Warren, OH 44481-1092 (For Defendant-Appellee). 

TIMOTHY P. CANNON, P.J. 

{¶1} Appellant, Elizabeth Zuga, f.k.a. Elizabeth Brown, appeals the judgment of 

the Trumbull County Court of Common Pleas granting the motion for summary 
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judgment filed by appellee, Federal Home Loan Mortgage Corporation. For the 

following reasons, we affirm the judgment of the trial court. 

{¶2} Appellee initiated a foreclosure action against appellant on August 31, 

2010. After appellant failed to answer the complaint, appellee filed a motion for default 

judgment, which was granted by the trial court. A decree of foreclosure was entered in 

favor of appellee on March 15, 2011. 

{¶3} Thereafter, appellant filed a motion for relief from judgment, as well as a 

motion to stay execution of judgment and cancel the sheriff’s sale. The trial court 

granted appellant’s motion for relief from judgment. In its judgment entry, the trial court 

reasoned that “there may be a meritorious defense, that the Affidavit underlying the 

Default Judgment in this case may be based on information outside the personal 

knowledge of the Affiant.” Appellant was granted leave to file an answer to appellee’s 

complaint in foreclosure. 

{¶4} After appellant filed her answer, appellee moved for summary judgment. 

Attached to this motion was the affidavit of Kristen Kerrigan, an employee of Home 

Savings & Loan Company of Youngstown (“Home Savings”). In this affidavit, Kerrigan 

averred that: (1) she is employed as Assistant Vice President of Home Savings, which 

is the servicing agent for the Federal Home Loan Mortgage Corporation for the loan 

account of appellant; (2) in the regular performance of her job duties, she is familiar with 

business records maintained by Home Savings; (3) she has personally and 

independently reviewed the relevant records in connection with making the affidavit and 

has personal knowledge of the records; (4) plaintiff exercised the acceleration option 

contained in the Promissory Note and Mortgage Deed; and (5) review of the records 
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reveals the copies attached are true and accurate copies of the original instruments. 

Attached to Kerrigan’s affidavit was a copy of the note and mortgage. 

{¶5} Appellee also attached the affidavit of Brian Blanton, a Collector for Home 

Savings. Blanton averred that Home Savings exercised the acceleration option in the 

Promissory Note and Mortgage Deed and that he personally sent the required notice by 

both regular and certified mail to appellant. This letter, dated February 28, 2009, was 

attached to Blanton’s affidavit. 

{¶6} After appellee filed its motion for summary judgment, appellant moved for 

leave to respond in order to conduct the deposition of Kerrigan. Based upon her 

affidavit and deposition testimony, appellant argued that appellee failed to present 

evidence that it was the “holder” of the note and, furthermore, that appellee did not 

comply with the requirements of the promissory note when enforcing the Notice of 

Acceleration. 

{¶7} The trial court awarded summary judgment to appellee. A sheriff’s sale 

was scheduled for October 18, 2012. Appellant filed a motion to stay the sheriff’s sale. 

The trial court entered judgment staying execution of the order of sale pending appeal 

on September 26, 2012. 

{¶8} This appeal followed. Appellant’s assignment of error for our review 

states: 

{¶9} “The trial court erred in granting summary judgment to Appellee when 

there were genuine issues of material fact still in dispute.” 

{¶10} Pursuant to Civil Rule 56(C), summary judgment is proper if: 
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{¶11} (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 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). 

{¶12} To prevail on a motion for summary judgment, the moving party has the 

initial burden to affirmatively demonstrate that there is no genuine issue of material fact 

to be resolved in the case, relying on evidence in the record pursuant to Civ.R. 56(C). 

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Pursuant to Civ.R. 56(C), the evidence 

to be considered is limited to the “pleadings, depositions, answers to interrogatories, 

written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if 

any, timely filed in the action * * *.” If this initial burden is met, the nonmoving party then 

bears the reciprocal burden to set forth specific facts which prove there remains a 

genuine issue to be litigated, pursuant to Civ.R. 56(E). Id. 

{¶13} An appellate court reviews an award of summary judgment de novo. 

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Thus, the court of appeals 

applies “the same standard as the trial court, viewing the facts in the case in a light most 

favorable to the non-moving party and resolving any doubt in favor of the non-moving 

party.” Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983). 

{¶14} In a foreclosure action, the party moving for summary judgment must 

present evidentiary-quality material demonstrating: (1) The movant is the holder of the 
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note and mortgage, or is a party entitled to enforce the instrument; (2) if the mover is not 

the original mortgagee, the chain of assignments and transfers; (3) the mortgage is in 

default; (4) all conditions precedent have been met; and (5) the amount of principal and 

interest due. Wachovia Bank v. Jackson, 5th Dist. No. 2010-CA-00291, 2011-Ohio3203, ¶40-45. 

{¶15} To support its motion for summary judgment, appellee attached the 

affidavit of Kerrigan. Pursuant to Civ.R. 56(E), affidavits “shall be made on personal 

knowledge, shall set forth such facts as would be admissible in evidence, and shall 

show affirmatively that the affiant is competent to testify to the matters stated in the 

affidavit.” Copies of all papers referred to in the affidavit are acceptable if the affidavit 

indicated that the copies submitted are true and accurate reproductions of the originals. 

{¶16} Below and on appeal, appellant argues that appellee is not the holder of 

the note. Appellee was required to prove that it is the current holder of the note and 

mortgage in order to establish itself as the real party in interest. Deutsche Bank Natl. 

Trust Co. v. Greene, 6th Dist. No. E-10-006, 2011-Ohio-1976, ¶13. If appellee failed to 

demonstrate itself as the real party in interest, a genuine issue of material fact remains 

and summary judgment is precluded. 

{¶17} The holder of an instrument is a “person entitled to enforce” the instrument 

under R.C. 1303.31. R.C. 1301.201(B)(21)(a) defines a holder of a negotiable 

instrument as “[t]he person in possession of a negotiable instrument that is payable 

either to bearer or to an indentified person that is the person in possession.” 

{¶18} Here, appellee established that it was the holder of the note and mortgage 

prior to the complaint being filed. See, e.g., Fed. Home Loan Mtge. Corp. v. 
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Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017 (holding that standing is required to 

present a justiciable controversy and is a jurisdictional requirement). Attached to its 

complaint were copies of the note and mortgage, as well as a copy of the recorded 

Assignment of Mortgage from Home Savings to appellee, executed July 27, 2009, and 

recorded three days thereafter. Furthermore, in both her affidavit and deposition, 

Kerrigan indicated that appellee was the holder of both the mortgage and note. 

Kerrigan also produced the original note at the deposition for appellant’s inspection. 

See U.S. Bank, N.A. v. Adams, 6th Dist. No. E-11-070, 2012-Ohio-6253, ¶18 (“U.S 

Bank’s possession of the note was demonstrated by the attachment of a copy of the 

note to the complaint and the affidavit, coupled with [an employee’s] statements 

concerning U.S. Bank’s possession of the note and mortgage in her affidavit”). After her 

review of the original “wet ink” note, Kerrigan reaffirmed each and every line of her 

original affidavit attached to appellee’s motion for summary judgment. Therefore, the 

burden shifted to appellant to demonstrate the existence of a genuine issue of material 

fact in order to avoid summary judgment. 

{¶19} Appellant, however, failed to satisfy her reciprocal Dresher burden. To 

demonstrate that a genuine issue of material fact remained to be litigated, appellant 

cited to both the deposition and affidavit of Kerrigan. Appellant maintained that Kerrigan 

never “saw the promissory note in the possession of appellee.” The law, however, does 

not require that Kerrigan actually “see” the note in appellee’s possession. Further, 

appellant argued that when Kerrigan requested the promissory note, it was received 

from a third party—namely, the Bank of New York Mellon. The deposition of Kerrigan 

established that the Bank of New York Mellon was merely the custodian, with no 
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interest in the note. This is evidenced by the fact that appellee held possession of both 

the note and mortgage at the time the complaint was filed. Appellant has failed to 

provide any evidence to demonstrate that a genuine issue of material fact exists 

regarding appellee’s status as holder of the note. 

{¶20} Next, appellant alleges that appellee is not entitled to summary judgment 

because it failed to provide appellant with Notice of Default pursuant to the terms at 

paragraph 6(C) of the note, which states: 

{¶21} If I am in default, the Note Holder may send me a written notice 

telling me that if I do not pay the overdue amount by a certain date, 

the Note Holder may require me to pay immediately the full amount 

of Principal which has not been paid and all the interest that I owe 

on that amount. That date must be at least 30 days after the date 

on which the notice is mailed to me or delivered by other means. 

{¶22} Appellant acknowledges that she received notice via letter sent by Home 

Savings, dated February 28, 2009. Appellee attached a copy of the letter along with the 

affidavit of Brian Blanton, a collector for Home Savings, averring that Home Savings 

exercised the acceleration option in the Promissory Note and Mortgage Deed and that 

he personally sent the required notice by both regular and certified mail to appellant. 

Appellant maintains, however, that summary judgment was inappropriate because 

Home Savings is merely the servicing agent of the loan, not the holder, and the letter 

did not advise her that she is to pay the overdue amount by a certain date. First, we 

note that the Assignment of Mortgage from Home Savings to appellee was not executed 

until July 27, 2009. Therefore, it was proper for Home Savings, as the holder of the 
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note and mortgage, to send the Notice of Default letter, dated February 28, 2009. 

Second, the letter sent to appellant, which was attached to Blanton’s affidavit, is in full 

compliance with paragraph 6(C) stated above. See, e.g., GMAC Mtge., L.L.C. v. 

Jacobs, 9th Dist. No. 24984, 2011-Ohio-1780, ¶16-18 (upholding summary judgment 

award to bank when bank’s affidavit provided that “written notice of default was given in 

accordance with the terms of the note and mortgage”). There are no genuine issues of 

material fact with regard to whether appellee properly provided appellant with the Notice 

of Default pursuant to the terms of the note. 

{¶23} Therefore, even when viewing the evidence in a light most favorable to 

appellant, we cannot say the trial court erred in granting appellee’s motion for summary 

judgment. Appellant’s assignment of error is without merit. 

{¶24} The judgment of the Trumbull County Court of Common Pleas is hereby 

affirmed. 

DIANE V. GRENDELL, J., 

THOMAS R. WRIGHT, J., 

concur.