[Cite as Nationstar Mtge., L.L.C. v. Cody , 2020-Ohio-5553.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

Nationstar Mortgage LLC, d/b/a Court of Appeals No. OT-18-0 41 Champion Mortgage of Ohio, et al. Trial Court No. 13CV446E Appellees

v. F. Kevin Cody, Individually and as Executor of the Estate of Clement J. Cody, et al. DECISION AND JUDGMENT Appellants Decided: December 4, 2020 * * * * * Michael J. Sikora III, Alexander E. Goetsch and Richard T. Crav en, for appellee Nationstar Mortgage LLC. Eric T. Deighton, for appellee Generation Mortgage Co. Joseph B. Jerome and John D. Grauer, for appellants.

* * * * * SINGER, J. {¶ 1} Appellants Kevin Cody, individually and as executor of the Esta te of Clement J. Cody, Colleen Michelle Clark, and Rick Clark (“appel lants”) appeal the July 26, 2018 decision of the Ottawa County Court of Common Ple as which granted2. appellees Nationstar Mortgage LLC (“Nationstar”) and Generation Mortgage Co. (“Generation”) summary judgment. {¶ 2} Appellants bring forth five assignments of error for our review : 1. The Trial Court erred as a matter of law when it granted ju dgment in favor of Plaintiff-Appellee Nationstar on its Motion for Sum mary Judgment despite the existence of genuine issues of material fa ct. 2. The Trial Court erred as a matter of law when it granted ju dgment in favor of New Part Defendant-Appellee Generation Mortgage on its Motion for Summary Judgment despite the existence of genuine is sues of

material fact. 3. The Trial Court’s (sic) erred as a matter of law in finding that the sum of $703,201.45 is due and owing under the mortgage loan agr eement and note despite the existence of genuine issues of material fa ct. 4. The Trial Court abused its discretion by finding that the s um of $703,201.45 is due and owing under the mortgage loan agreement and note because it did not hold a hearing on the issue of damages befor e it entered its Order of Foreclosure in favor of Plaintiff-Appellee Nations tar. 5. The Trial Court abused its discretion by finding that the e quity of redemption of all Defendants shall be foreclosed prior to the c onfirmation of sale in violation of Ohio Rev. C. 2329.33. (sic).3. {¶ 3} In January 2008, Clement Cody purchased two parcels on Put-In-B ay Island for $875,000. One of these parcels contained a home, one parce l contained a concrete dock, and a garage sat partially on each parcel. On August 23, 2010, Clement Cody entered into a home equity loan Agreement, note, and mortgage ( collectively “mortgage agreement”). The mortgage agreement was a reverse mortgage whe reby Clement Cody received $938,250 in return for encumbering his property which would be payable upon Clement Cody’s death. The property served as a vacation home f or Clement Cody and his family. {¶ 4} In the process of obtaining the mortgage agreement, appellee Ge neration completed an appraisal of the property. This appraisal conside red the value of the home, garage, and concrete dock when determining the value of the mor tgage. The appraisal only references the street address of the home, rather than the address of the vacant address, 0 Toledo Avenue. {¶ 5} On December 5, 2013, appellee Generation Mortgage Company (“Generation”) filed a complaint for foreclosure alleging Cleme nt Cody defaulted on the mortgage agreement. Clement Cody passed away on October 12, 20 12, and the loan was not paid off. {¶ 6} Clement Cody’s son, appellant Kevin Cody, periodically occupied the vacation home during the summer months. The home is located on an island in Lake Erie and is difficult to reach during the winter months. Generation became aware that there would be no one occupying the home from November 2014 through M arch 2015;4. Generation sent an agent to winterize the home and secure it. The home was winterized and secured in April of 2015. The mortgage agreement authorize d “reasonable action to protect and preserve the Property” as long as the borrower defa ulted, the property was vacated, or the property was abandoned. {¶ 7} On May 18, 2015, the underlying mortgage was assigned from Gene ration to Nationstar. Nationstar was substituted as plaintiff in the for eclosure matter and Nationstar continued to pursue the foreclosure. {¶ 8} On April 28, 2017, appellants filed a new amended answer and fi led a thirdparty complaint against Generation for trespass and conversion based on its actions to secure the property. The trial court denied Generation’s motio n to dismiss the complaint and Generation answered the new complaint. {¶ 9} On April 4, 2018, Generation filed a motion for summary judgmen t regarding the new complaint and its claims against Generation. Following an opposition that was filed by appellants, the trial court granted the motio n for summary judgment. The trial court found that Clement Cody passed away on October 12, 2012, his death caused a default in the mortgage agreement, and that upon that default, Generation was contractually entitled to enter the home and winterize it. {¶ 10} On March 15, 2018, Nationstar filed a motion for summary judgme nt on its foreclosure claim. The trial court granted Nationstar’s motion for summary judgment on July 26, 2018, and it found that Clement Cody passed away on Oc tober 12, 2012, that his5. death resulted in a default under the note and mortgage, and th at the note and mortgage were not ambiguous.

Assignment of Error One: The Trial Court Erred when it Granted Summary Judgment on the Claims of Nationstar {¶ 11} Appellants argue that the trial court erred when it granted sum mary judgment to Nationstar on its complaint in foreclosure because appellants presented

evidence which created issues of material fact about whether th e mortgage agreement was valid. Appellants argue that there were genuine issues of material fact surrounding whether the mortgage encumbered both parcels, rather than just the parcel with the home. Appellants argue that Clement Cody did not intend to encumber b oth parcels and informed his family as such. They also argue that the failure of the appraisal report to include addresses for both parcels also indicated that the part ies only intended to include the parcel with the home on it. Appellants argue the trial cou rt erred when it failed to take this into consideration when determining whether summary j udgment for Nationstar was appropriate. {¶ 12} Nationstar responds by arguing that there were no genuine issue s of material fact that the mortgage agreement was valid because the legal description attached to the mortgage agreement clearly includes both the pa rcel with the home and the vacant lot. Nationstar also argues that the trial court di d not err in failing to consider parol evidence because appellants failed to present clear and c onvincing evidence demonstrating a mutual mistake between the parties. Nationstar argues that the intent of6. the parties to include both parcels was evidenced also by the i nspection report generated when determining the value of the parcels, because it mentions a garage which is mostly located on the vacant parcel and a cement dock which is entirel y located on the vacant parcel. Nationstar further argues that the section cited by ap pellants does not prohibit mortgages on vacant parcels when it is included with an eligibl e property. Finally, Nationstar argues that appellants improperly attempted to refor m the mortgage through

an affirmative defense. {¶ 13} An appellate court reviews a trial court’s summary judgment dec ision

de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment will be granted when no genuine issues of mate rial fact exist when after, construing all the evidence in favor of the nonmoving pa rty, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Accord Lopez v. Home Depot , USA, Inc. , 6th Dist. Lucas No. L-02-1248, 2003- Ohio-2132, ¶ 7. When a properly supported motion for summary j udgment is made, an adverse party may not rest on mere allegations or denials in th e pleading, but must respond with specific facts showing there is a genuine issue of material fact. Civ.R. 56(E); Riley v. Montgomery , 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). {¶ 14} A de novo review requires an independent review of the trial co urt’s decision without any deference to the trial court’s determinati on. Grafton at 105. A trial court shall grant summary judgment only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to ju dgment as a matter of law;7. and (3) viewing the evidence most strongly in favor of the nonm oving party, reasonable

minds can come to but one conclusion and that conclusion is adv erse to the nonmoving party. Civ.R. 56(C); Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 65-66, 375 N.E.2d 46 (1978). Intention of Clement Cody and Use of Parol Evidence {¶ 15} Appellants argued and testified at deposition that their father never intended to encumber both parcels rather than just the parcel w ith the home on it. Both Kevin Cody and Colleen Michelle Clark, Clement Cody’s children, testified at their depositions that their father informed them that the reverse mo rtgage would only encumber the house and not the vacant parcel. They also conten d that the lender did not intend to encumber both properties because the mortgage documen ts and appraisal report only list the address of the home and not the address of the va cant lot. Appellants argue that because the legal description was attached to the mortgage agreement, rather than being included in the mortgage agreement, the legal description was not integrated into the mortgage agreement and cannot be used to encumber both parc els. {¶ 16} The construction of a written agreement is a matter of law for the court. Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 374 N.E.2d 146 (1976), paragraph one of the syllabus. The court presumes the intent o f the parties is reflected in the language of the contract and the court must examine the con tract as a whole. Kelly v. Med. Life Ins. Co. , 31 Ohio St.3d 130, 590 N.E.2d 411 (1987), paragraph one of th e syllabus. The words of a contract will be given their plain an d ordinary meaning unless8. “manifest absurdity results, or unless some other meaning is cl early evidenced from the

face or overall contents of the instrument.” Alexander at paragraph two of the syllabus. When the contract language is clear and unambiguous, a court ma y look no further than the writing itself to ascertain the intent of the parties. Id . If there is ambiguity in the language of a contract, the court first looks to extrinsic evid ence to determine the parties’

intent. Skivolocki v. E. Ohio Gas Co. , 38 Ohio St.2d 244, 246, 313 N.E.2d 374 (1974), paragraph one of the syllabus. {¶ 17} Despite appellants’ contentions, the intention of the mortgage agreement was clearly to include both the parcel with the home and vacant parcel. The mortgage agreement includes a legal description that measures both parce ls by metes and bounds. The legal description is integrated by reference into the rest of the mortgage agreement. The mortgage agreement is clear and unambiguous and the legal d escription clearly sets out the boundary of both parcels. Therefore, the mortgage agre ement clearly demonstrated the parties’ intentions to encumber both pieces of property and therefore the trial court could not consider the parol evidence presented by appellees. HUD Regulations {¶ 18} Appellants argue that the mortgage on the vacant parcel is inva lid because federal regulations do not permit a mortgage on a vacant parcel . 24 C.F.R. 206.45 has many requirements for eligible properties. One of these requir ements is that “[t]he property shall include a dwelling designed principally as a res idence for one family or

such additional families as the Commissioner shall determine.”9. {¶ 19} The mortgage in this matter does encumber a dwelling that is pr incipally used as a residence for one family. The mortgage also includes the vacant lot but there does not appear any limitation on whether that mortgage can inc lude multiple parcels which may be a residence. Appellants provide no support for th eir contention that such a limitation exists. Therefore, we find appellants’ first assign ment of error is found not

well-taken on this basis. Assignment of Error Two: The Trial Court Erred when it Granted Summary Judgment to Generation on Appellants’ Complaint for Trespass an d Conversion {¶ 20} Appellants argue that there were genuine issues of material fac t as to whether Generation authorized its agent to enter the home witho ut right or authority. Appellants argue that there were genuine issues of material fac t because the property was never vacant or abandoned by appellants. Generation’s agent br oke locks off of doors and the garage, drained the hot water tank, and took the water meter. Appellants also argue that Generation was on notice that appellants occupied th e property and were maintaining the property pursuant to their obligations to the e state. {¶ 21} Generation only responded to appellants’ second assignment of e rror as that was the only assignment that directly mentioned Generation . Generation argues that it was contractually permitted to enter the home and preserve t he property pursuant to the mortgage agreement. The clause on which Generation bases its c laims states “If the property is vacant or abandoned or the loan is in default, Lend er may take reasonable actions to protect and preserve such vacant or abandoned Proper ty without notice to the10. Borrower.” Generation argues that it does not matter whether t he property was abandoned or vacant because the death of Clement Cody was a def ault under the mortgage agreement. Generation also notes that appellants admi tted that the home served as a vacation home that sometimes was unoccupied. The mortgage indicates that

Generation was entitled to accelerate the debt and demand immed iate payment in full if the borrower dies and the property no longer remains the primar y residence of the primary borrower. {¶ 22} Appellants argues in their reply that the property was occupied and maintained so therefore the property could not have been abando ned or vacant. Further, appellants argue it could not have been in default of a mortgag e agreement that was not valid in the first place. {¶ 23} “‘Trespass is the unlawful entry upon the property of another.’ ” Kramer v. Angel’s Path, LLC , 174 Ohio App.3d 359, 2007-Ohio-7099, 882 N.E.2d 46, ¶ 24 (6th Dist.), quoting Chance v. BP Chems., Inc. , 77 Ohio St.3d 17, 24, 670 N.E.2d 985 (1996). “The elements of trespass include ‘(1) an unauthorized intentio nal act and (2) entry upon land in the possession of another.’” Id. , quoting Brown v. Cnty. Comms. of Scioto Cnty. , 87 Ohio App.3d 704, 716, 633 N.E.2d 1153 (4th Dist.1993). {¶ 24} “The essential elements of a conversion claim are (1) ownership or right to possession of the property at the time of conversion, (2) a wro ngful act or disposition of that property right by the defendant, and (3) damages.” Hutchings v. Hutchings ,11. 2019-Ohio-5362, 150 N.E.3d 548, ¶ 23 (6th Dist.), citing Peirce v. Szymanski , 6th Dist. Lucas No. L-11-1298, 2013-Ohio-205, ¶ 19. {¶ 25} As we previously found that the mortgage agreement was valid an d enforceable, we must find that appellants were in default under the same agreement when Clement Cody passed away. The note states that a default occur s when the borrower passes away and permits the lender to require immediate payment of all outstanding principal and interest. A default may also be found if all of the borrower’s title in the property is otherwise transferred. Therefore, appellants were in default of the mortgage agreement due to the death of Clement Cody. As such, under the mortgage agreement, Generation and its representatives had permission from appellan ts to secure the property. Generation had permission from appellants to enter the property and take the reasonable actions it completed. Appellants’ second assignment of error i s not well-taken as Generation was permitted to enter the property under the mortga ge agreement. Assignment of Error Three: The Trial Court Erred when it Deter mined that 703,201.45 is Due and Owing from the Mortgage Agreement {¶ 26} Next, appellants argue that the trial court erred when it deter mined the amount that was due and owing under the mortgage agreement. Th e trial court found that $439,534.23 was still due in principal, $227,458.96 due in inte rest, $7,133.62 was due for property taxes, $3,316 was due for insurance, and $475 was due for preservation. Appellants argue that they put all of these amounts at issue an d demonstrated genuine issues of material fact. Appellants argue that they placed the mortgage agreement under12. dispute, that there was no evidence that preservation was requi red or that Generation had the authority to do so, and appellants paid the property taxes and insurance. {¶ 27} Nationstar responds by arguing that appellants failed to presen t valid evidence under Civ.R. 56(C) that would contradict its affidavit and accounting of damages. Appellants’ opposition to Nationstar’s motion for sum mary judgment does not contest the amount Nationstar claims to be owed, but rather foc uses on the intent of Clement Cody when encumbering the property, whether they are pe rmitted to seek reformation of the mortgage, and arguing that the mortgage agre ement is unenforceable. In support of its arguments, appellants attached the deposition s of Clement Cody’s son and daughter, a HUD statement, the note, and the appraisal repo rt. {¶ 28} We cannot find that reasonable minds would differ on the amount s due and owing on the loan. The only evidence presented to the trial co urt was the evidence presented by Nationstar. Nationstar presented evidence of thei r accounting as well as an affidavit testifying to the truth of the accounting. By doing so, Nationstar complied with Civ.R. 56 and demonstrated that there were no genuine issues of material fact surrounding the amounts. Appellants failed in their response t o demonstrate that there was a genuine issue of material fact in order to demonstrate th at the amount was incorrect. Therefore, appellants’ third assignment of error is found not well-taken.13. Assignment of Error Four: The Trial Court Erred when it Determ ined Damages without Holding a Hearing {¶ 29} Appellants argue that the trial court abused its discretion whe n it determined damages without a hearing and such a decision was un reasonable and unconscionable. Appellants argue that Nationstar never proffer ed any evidence that it paid the additional costs it sought to be reimbursed for. Nati onstar argues that it was

within the trial court’s discretion to decide whether an eviden tiary hearing on damages is

necessary. {¶ 30} It is within a trial court’s discretion to decide that a damage s hearing is

necessary. Lehrer v. McClure , 5th Dist. Stark No. 2013CA00039, 2013-Ohio-4690, ¶ 24, citing Buckeye Supply Co. v. Northeast Drilling Co. , 24 Ohio App.3d 134, 136, 493 N.E.2d 964 (1985). {¶ 31} Here, we cannot find that the trial court abused its discretion when it determined damages without a hearing. Appellants were aware an d had more than six years of litigation to respond to claimed damages by Nationstar . Further, appellants failed to present any evidence contrary to Nationstar’s account ing that would permit the trial court to come to any other number. Therefore, appellants ’ fourth assignment of error

is not well-taken.14. Assignment of Error Five: The Trial Court Abused its Discretio n by Finding that the Equity of Redemption of All Appellants shall b e Foreclosed Prior to the Confirmation of Sale {¶ 32} Appellants argue that the trial court’s order prematurely ended appellants’ right to redemption against R.C. 2329.33. Nationstar states th at appellants confused their equitable right of redemption with the statutory right of redem ption and that the trial court did not abuse its discretion when it provided appellants their statutory right to redemption. {¶ 33} R.C. 2329.33 provides that at any time before a sale is confirm ed the debtor may redeem their property by submitting to the clerk the amount of the judgment and applicable interest. In Ohio, a mortgagor’s right to redeem is ‘absolute and may be validly exercised at any time prior to the confirmation of sale.’ This right is dual in nature, arising both from equity and statute. The mortgagor’s ‘equity of redemption’ is typically cut off once a mortgagee seeks and is granted a decree of foreclosure. Generally, a common pleas court grants the mortgagor a three-day grace period to exercise the ‘equity of r edemption,’ which consists of paying the debt, interest and court costs, to prevent the sale of the property. (Citations omitted.) Hausman v. Dayton , 73 Ohio St.2d 671, 676, 653 N.E.2d 1190 (1995). {¶ 34} Here, the trial court provided appellants a three-day period in which to redeem the property within the meaning of R.C. 2329.33. Theref ore, the trial court did15. not abuse its discretion or incorrectly end appellants’ right t o redemption of the property. Therefore, appellants’ fifth assignment of error is not well-ta ken.

Conclusion {¶ 35} We therefore affirm the July 26, 2018 judgment of the Ottawa Co unty Court of Common Pleas. Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _________________

______________ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.