[Cite as CitiMortgage, Inc. v. Kermeen , 2012-Ohio-1655.]

IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO CITIMORTGAGE, INC. : Plaintiff-Appellant : C.A. CASE NO. 2011 CA 2

v. : T.C. NO. 10CV569 CHRISTOPHER G. KERMEEN, et al. : (Civil appeal from Common Pleas Court) Defendants-Appellees :

:

. . . . . . . . . . O P I N I O N Rendered on the 13th day of April , 2012.

. . . . . . . . . . MICHAEL J. SIKORA III, Atty. Reg. No. 0069512 and RICHARD T. CRAVEN, Atty. Reg. No. 0082273, 685 S. Front Street, Columbus, Ohio 43206 Attorneys for Plaintiff-Appellant SCOTT D. RUDNICK, Atty. Reg. No. 0000853 and NATHAN D. HOSEK, Atty. Reg. No. 0083994, 121 West Third Street, Greenville, Ohio 45331 Attorneys for Defendants-Appellees

. . . . . . . . . . DONOVAN, J. {¶ 1} This matter is before the Court on the Notice of Appeal of CitiMortgage, Inc., filed March 2, 2011. C itiMortgage appeals from the trial court’s decision denying its motion for default j udgment, motion for an order deeming the2 averments in the complaint admitted, and/or motion for summary judgment, and awarding half of the gross sale proceeds of the propert y at issue, located at 2412 Cox Rd., Greenville, to Kimberly Kermeen. {¶ 2} On July 29, 2010, CitiMortgage filed a “Complaint in Foreclosure and Reformation of Mortgage” against Christophe r G. Kermeen and Kimberly L. Kermeen. CitiMortgage alleged that it is the holder of note and a loan modification agreement which are secured by a mortgage, and that by r eason of default under the terms of the note, Christopher owes $79,686.13, together with interest at the rate of 6.25% per year, from April 1, 2009, plus court costs, advances and other charges. CitiMortgage alleged that it was assigned the mortgage. The Complaint provides that the “parties intended that the mortgage from Christopher G. Kermeen and Kimberly L. Kermeen would secure a valid first lien upon the fee simple interest of the premises and pl aintiff’s predecessor in interest would not have granted or permitted a di sbursement or fund[s]” to the pa rties “if it had known that it would acquire a mortgage against only one-half of the real estate.” The complaint further provides, “due to an inadvert ent mistake on the part of the preparer of the mortgage, the titleholder’s name Kimberly L. Kermeen was left out of the granting clause.” Citimortgage asserts that the “mistake was the result of scrivener’s error and mutual mistake of fact between the parties to said document,” and that it “is entitled to have [the mortgage] reformed to properly state Ch ristopher G. Kermeen and Kimberly L. Kermeen[,] husband and wife[,] in the Granting Clause.” Citimortgage asserted that it is entitled to a court order for the sale of the property at sheriff’s sale. {¶ 3} Attached to the Complaint as Exhi bit A is the Note, dated September 12,3 2002, signed by Christopher Kermeen, pursuan t to which he promised to pay $70,000.00 plus interest to First Residential Mortgage - Louisville. Attached to the Note is an “Allonge to Note,” which provides Allonge to Note Dated September 12, 2002 In Favor of First Residential Mortgage - Louisville And Executed by Christopher G. Kermeen Pay to the Order of ABN AMRO Mortgage Group, Inc. Without Recourse First Reside ntial Mortgage - Louisville The signature at the end of the allonge is illegible, but the person is identified as a “corporate agent.” {¶ 4} Attached to the Complaint as Exhibit B is the Loan Modification Agreement (“Agreement”), between Christopher and CitiM ortgage, which provides that the “New Unpaid Principal Balance” on the Note is $85,134.36. The Agreement states, “This Loan Modification Agreement (‘A greement’), made 10/19/07, between CHRISTOPHER G KERMEEN and . Single (Borrower) (sic) * * * and CitiMortgage, Inc. (Lender) * * * amends and supplements (1) the Mortgage, Deed of Trust, or Deed to Secure Debt (the ‘Security Instrument’) dated 09/12/02 * * * and (2 ) the Note bearing the same date as, and secured by the Security Instrument * * * .” {¶ 5} Paragraph 5 of the Agreement provides Nothing in this Agreement shall be understood or construed to be a satisfaction or release in whole or in pa rt of the Note and Security Instrument. Except as otherwise specifically provided in this Agreement, the Note and4 Security Instrument will remain unchanged, and the Borrower and Lender will be bound by and comply with, all of the terms and provisions thereof, as amended by this Agreement. {¶ 6} Paragraph 6 of the Agreement provides It is mutually agreed that said security instrument shall continue a first lien upon the premise and that neither th e obligation evidencing the aforesaid indebtedness nor the security instrument the same (sic) shall in any way be prejudiced by this agreement, but said obligation and security instrument and all the covenants and agreements thereof and the rights of the parties thereunder shall remain in full force a nd effect except as herein expressly modified. {¶ 7} The Agreement is signed by Christopher, above a preprinted line that reads, “Borrower - Christopher G. Kermeen,” and “9-28- 07" appears next to his signature. There are three blank signature lines with “Borrowe r” preprinted beneath them under Christopher’s signature. The Agreement is initialed by Stacey Andrew, Assistant Vice President of CitiMortgage, above a preprinted line that r eads, “Lender - Stacey Andrew Assistant Vice President,” and “10/29/07" appears next to her signature. Christopher is named in the notary public’s acknowledgment clause. {¶ 8} Attached to the Complaint as Exhibit C is a copy of the Mortgage. In the first section, entitled “DEFINITIONS,” “Borrowe r” is defined as “C hristopher G. Kermeen, a married man,” and the Mortgage further provi des, “Borrower is the mortgagor under this Security Instrument.” First Residential Mortgage - Louisville is identified as the “Lender.”5 “Note” is defined as “the pr omissory note signed by Borrower and dated September 12, 2002.” The granting clause appears immediately after the definitions, in a section entitled “TRANSFER OF RIGHTS IN THE PROPERTY,” and it provides This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, exte nsions, and modifications of the Note; and (ii) the performance of the Borrower’s covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the follo wing described property * * * TOGETHER WITH all the improveme nts now or hereafter erected on the property, and all easements, appurtena nces, and fixtures now or hereafter a part of the property. All replacements and additions sha ll also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the “Property.” BORROWER COVENANTS that Borrower is lawfully seized of the estate hereby conveyed a nd has the right to mortgage, grant and convey the Property and that the Property is unenc umbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. {¶ 9} Paragraph 13 of the Mortgage provides Joint and Several Liability; Co-s igners; Successors and Assigns Bound. Borrower covenants and agrees that Borrower’s obligations and liability shall be joint and several. However, any Borrower who co-signs this6 Security Instrument but does not execute the Note (a “co-signer”): (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer’s interest in the Propert y under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or ma ke any accommodations with regard to the terms of this Security Instrument of the Note without the co-signer’s

consent. {¶ 10} Pages 1 -7 bear the initials of Ch ristopher and Kimberly. On the final page, page 8, the mortgage provides, “BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants cont ained in this Security Instrument and in any Rider executed by Borrower and recorded with it.” Christophe r’s signature appears on a typed signature line above a typed version of his name. Kimberly’s sign ature appears on a handwritten second signature line above a hand-printed ve rsion of her name. The Mortgage was notarized by Tracy L. Powell. The acknowledg ment provides, “The foregoing instrument was acknowledged before me this 9-12-02 (date) by Chri stopher G Kermeen (name of person acknowledged).” The partie s’ initials do not appear on this page. Exhibit A to the Mortgage is a description of the property, wh ich appears to contain Christopher’s initials. The Mortgage was recorded in Darke County on September 25, 2002, in Book 305, Page 2675. {¶ 11} Attached to the Complaint as Exhibit D is an Assignment of Mortgage, which provides in part that First Residential Mortgage - Louisville grants, sells, assigns7 transfers and conveys to ABN AMRO Mortga ge Group, Inc., “a certain Mortgage dated September 12, 2002, made and executed by Christ opher G. Kermeen, a married man * * * .” The assignment was recorded in Dark e County on September 25, 2002, in Book 305, Page 2684. {¶ 12} The record establishes that the Kermeens were properly served with a copy of the Complaint by certified ma il on July 31, 2010 and August 4, 2010. {¶ 13} A Preliminary Judicial Report, da ted April 15, 2010, indicates that the record title to the property at issue is vested in Christopher G. Kermeen and Kimberly L. Kermeen. Schedule B to the Preliminary Judicial Report lists “exceptions” to the report, noting that Kimberly is not mentioned in the granting clause or acknowledged in the notary clause in the mortgage from Christopher, “a ma rried man,” to First Residential Mortgage - Louisville, although “she does sign the Mortgage, and she is a titleholder.” {¶ 14} On September 3, 2010, CitiMortgage f iled a motion for default judgment, asserting that Christopher and K imberly are in default of moti on or answer. On September 10, 2010, the court set the matter fo r trial, noting in its Schedu ling Entry that it prefers “to adjudicate cases on their merits, not being satisfied with the s upporting affidavit filed herein, seeking to determine compliance with applicable laws regarding validity of the note and mortgage * * *.” {¶ 15} On December 30, 2010, CitiMortgage file d its joint motion for default judgment/ motion for an order deeming the averments of the Complaint for foreclosure and reformation of the mortgage admitted/ motion for summary judgment. CitiMortgage asserted that it is entitled to default judgment against the Kermeens based upon their failure8 to respond to the Complaint. CitMortgage furt her asserted that it is entitled to summary judgment on the Note and Agreement, foreclos ure of the Mortgage and reformation of the Mortgage, based upon multiple affidavits. Fina lly, CitiMortgage asserted that the Kermeens admit that it is entitled to judgment in its favor. {¶ 16} Attached to CitiMortgage’s motion is the affidavit of Jim Madonia, which provides that he is “employed by Surepoint Lending abn (sic) First Residential Mortgage Network, Inc. (‘First Residential’).” Madonia avers that he has been employed by First Residential as a Manager, and th at he is authorized to tes tify on its behalf. Madonia avers that on September 12, 2002, Christopher and Kimberly held title to the property at issue. Madonia avers that he served as the Manager for First Residential in connection with the loan at issue, and that First Residential “intended to encumber the entire fee simple interest of Christopher Kermeen and Kimberly Kermeen in the property and intended to hold the first and best lien on the Property.” Madoni a asserts that First Residential required Christopher and Kimberly to execute a mortga ge in favor of it, as lender, and he authenticated a copy of the Mo rtgage attached to his affidavit. According to Madonia, based upon his interaction with Christopher and Kimberly “a nd the documents contained within the loan file,” he understood that Chri stopher and Kimberly “knew that the Mortgage intended to encumber their entire fee simple interest in the property.” Finally, Madonia avers that Kimberly’s name was omitted fro m the granting clause and acknowledgment clause due to scrivener’s error, and the fact that she signed the Mortgage without limitation and initialed pages 1 - 7 “evidences that her name was inadvertently omitted.” {¶ 17} Also attached to CitiMortgage’s motion is the affidavit of Cindy Schneider,9 who averred that she is employed by CitiM ortgage, successor by merger to ABN AMRO Mortgage Group, Inc. Schneider averred that sh e worked as a Business Operations Analyst. According to Schneider, CitiMortgage has custody of and maintains records related to the loan documents concerning the property at i ssue, including the Note, Loan Modification Agreement and Mortgage, which we re made and kept in the ordi nary course of business. Schneider asserts that at th e September 12, 2002, closing on th e loan, Christopher executed a Note in favor of First Residential, and CitiMortgage is the current holder of the Note, and that First Residential required the Kermeens to execute a Mortgage in its favor to secure the Note. Schneider authenticated a copy of the Mortgage, attached to her affidavit. Schneider averred that First Residential intended to encumber the entire fee simple interest of the property at issue. Further, according to Schneider, on September 23, 2002, First Residential assigned the Mortgage to ABN AMRO Mortgage, Inc., and the assignment was recorded in Book 305, Page 2684 on September 25, 2002. Schne ider authenticated a copy of the assignment, attached to her affidavit. {¶ 18} Schneider asserted that ABN AMRO Mortgage, Inc. and CitiMortgage merged on August 21, 2007, and she authenticated a Certificate of Merger attached to her affidavit. She further averred that Chri stopher and CitiMortgage entered into a Loan Modification Agreement, and she authenticated a copy thereof attached to her affidavit. Schneider averred that on August 10, 2009, Christopher and Kimberly provided CitiMortgage with financial information in a Financial Statement relative to the Mortgage and loan, a copy of which is attached to the affidavit and authenticated by Schneider. Finally, Schneider averred that the Note and Mortgage are in default, and $79,686.13 plus interest is10 due. {¶ 19} The affidavit of Tracy L. Blankenship is also attached to CitiMortgage’s motion. Blankenship averred that she has been a notary public in Ohio from 2001 - 2006, that she is familiar with “the requirements of notarizing a nd acknowledging a mortgage,” having served on numerous transactions in which mortgages were given to lenders. Blankenship served as the notary “in the tran saction involving the Mortgage executed by Christopher G. Kermeen and Kimberly L. Kermeen ” in favor of First Residential Mortgage - Louisville. She averred that she notarized the Mortgage and “administered the oath” to the Kermeens, and that her signature appears in the notary clause. According to Blankenship, Kimberly’s “name was inadvertently omitte d from the acknowledgment clause of the Mortgage as a result of a scrivener’s error a nd mutual mistake,” and the Mortgage indicates that Christopher is “the only individual design ated as mortgagor.” Blankenship averred, it “is my belief that the parties intended that the Mortgage would encumber both” Christopher’s and Kimberly’s “entire, undivided fee simple interest in the Property.” Finally, according to Blankenship, Kimberly “was aware that she held an undivided one-half (1⁄2) interest in the Property and it was the intent of Kimberly L. Kermeen to sign the Mortgage to encumber her entire undivided f ee simple interest in the Property.” {¶ 20} On January 3, 2011, and again on January 10, 2011, Final Judicial Reports as well as Affidavits of Status of Acc ount and Military Affida vits were filed. {¶ 21} On January 25, 2011, CitiMortgage filed a supplemental affidavit of Cindy Schneider, attached to which are multiple exhibits, including a copy of the payment history of the loan. Also attached is a Loan Modification Agreement, effective March 1, 2004,11 “between Christopher G. Kermeen (‘Borrower’) and ABN AMRO Mortgage Group (‘Lender’).” The Loan Modification Agr eement is signed and acknowledged by Christopher, and signed by Vickie Lester, Vice President of ABN AMRO Mortgage Group. A Modification Due on Transfer Rider is attached to the Loan Modification Agreement, and it is signed by Christopher, who is identif ied as “(‘the Borrower’).” A “1-4 Family Modification Agreement Rider Assignment of Rents” is also attached and signed by Christopher, who is again iden tified as “(‘the Borrower’).” {¶ 22} Christopher and Kimberly did not respond to the motions. {¶ 23} On January 31, 2011, the trial court issu ed a Decision and Judgment Entry, which provides that the matter came before the court for trial, and that both Kermeens failed to appear. The Entry states, “[a]s has been the Court’s practice, the Court decided to hear testimony to determine the quality of the lending practices of various Plaintiffs in foreclosure cases, including this Plaintiff, in order to en sure that proper record keeping and proof is a part of the practice of this Plaintiff - and ot her lenders on this Cour t’s docket.” The court noted that it granted CitiMortgage a continuance of the initial trial date for discovery purposes, and it reviewed the “various reasons” it denied CitiMortgage’s motion for default judgment, namely its preference to adjudicate cases on their merits and “lack of satisfaction with the affidavit in support of the motion.” According to the trial court, CitiMortgage “is not entitled to a default judgme nt merely because the Defenda nts fail to appear or to answer,” and it noted that “the presentation of evidence can be requested by the Court, based on Civ.R. 55.” The court further noted “the mis taken impression that fo reclosure Plaintiffs - or other creditors asserting collection righ ts - are entitled to invoke the authority and12 imprimatur of the civil justice system without firs t establishing the validity of their claims is an unfortunate misunderstanding. Maybe courts have historica lly been willing to defer to claimants and to not assert th e court’s responsibility to requi re claimants to meet their burden of proof. Maybe an ill gotten attitude of entitlement exists among the creditors and their counsel. Burgeoning caseloads and time constraints on courts ma ke this regrettably understandable. However, when called upon to produce evidence at trial, Plaintiffs and their counsel who misunderstand the burden of proof do so at their own peril.” {¶ 24} The court then noted that it considered the pleadings, affidavits and attachments, and that those documents “become the evidence of the terms, conditions and fulfillment of * * * the loan.” The court next noted that Christopher alone signed the promissory note in the amount of $70,000.00, to borrow that sum from First Residential Mortgage - Louisville, and Christopher’s “failure to pay according to the terms of the note results in a finding * * * that Plaintiff is entitled to a judgment” against Christopher in the amount of $79,686.13 plus interest at the rate of 6.25% from April 1, 2009, plus past and future advances under the note. Since Kimber ly did not sign the Note, the court did not grant a monetary judgment against her. {¶ 25} Regarding the Mortgage, the court noted that it was apparently “modified at the closing with the addition of a signature line and handwritten notation that Kimberly * * * was also signing the mortgage.” The court further noted that the notary acknowledgment was not modified to reflect the additional signature. {¶ 26} Regarding the Preliminary Judicial Report, the court noted that it indicates that the Kermeens “took title to the real estate in April, 1991 with each owning an undivided13 one-half interest. This information was available to the loan originator and original lender at the time of closing.” {¶ 27} To determine CitiMortgage’s request to reform the mortgage, the court applied general contract principl es and determined that the pl ain language of the Note and Mortgage “consistently indicate an intenti on for Christopher G. Kermeen alone to be obligated for the indebtedness. When the note was modified in September, 2008 (sic), again Kimberly L. Kermeen was not involved in the transaction. The loan modification agreement was prepared by the lender even thoug h it was aware of the joint ownership of the realty.” Since there was “no internal inc onsistency within the tr ansaction,” the court concluded that the contract doc uments are not ambiguous. {¶ 28} In the absence of ambiguity, the court declined to admit the affidavits CitiMortgage submitted in support of summary judgment, as well as the unanswered requests for admission that CitiMortgage sought to have the court deem admitted. According to the court, the documents “clearly speak for themselves; affidavits and requests for admissions violate the paro le evidence rule.” “Anecdot ally,” the court further found CitiMortgage’s affidavits “to be unpersuasive and self-serving; the affidavits purport to state intentions at the time of the loan over eight (8) years later. Finally, if inadvertence was involved, it was consistent ina dvertence over numerous documents and over six years, which time included an agreed loan modification.” In a footnote, the court indicated that “consistent inadvertence” may “act ually be an oxymoron.” {¶ 29} Further, the court indicated that an “equally plausible explanation for individual indebtedness,” in addition to the doc uments themselves, is that Kimberly “was14 not willing to incur further debt nor pledge her half of the collateral as security for her husband’s loan.” The court f ound no error on Kimberly’s part “nor any misrepresentation about the joint status of the pa rties’ ownership of the realty .” It further noted that no explanation had been provided for the eigh t year delay, from 2002 - 2010, “in seeking to correct the error.” {¶ 30} Finally, the court determined that since Kimberly was not a grantor of the mortgage, “her signature indicates a pledge of her dower interest in the real estate. In this case, when she signed the mortgage to release her dower interest, she agreed to release any interest she held in her husband’s interest in the realty. The effect is that First Residential Mortgage - Louisville only took a one-half interest in the realty as collateral for the loan.” According to the court, “to rule otherwis e would elevate business practices and unspoken intentions over the integrity and certainty of the written documents.” The court determined that the request for reformation of the Mo rtgage “is not justified under the facts as presented.” {¶ 31} The court granted judgment in favor of CitiMortgage against Christopher in the amount of $79,686.13, plus interest at the rate of 6.25% from April 1, 2009, plus past and future advances under the Note, and it determined that CitiMortgage was entitled to a decree in foreclosure and order of sale. Fina lly, it determined that one-half of the gross proceeds from the sale accrued to Kimberly for distribution following confirmation of the sale. {¶ 32} CitiMortgage asserts five assignments of error. CitiMortgage’s first assigned error is as follows:15 “THE TRIAL COURT ERRED IN FAILING TO GRANT CITIMORTGAGE DEFAULT JUDGMENT WHEN APPELLEES WERE PROPERLY SERVED WITH THE COMPLAINT AND FAILED TO RESPOND TO THE ALLEGATIONS IN THE COMPLAINT.” {¶ 33} Our standard of review for this assign ment of error is abuse of discretion. Comunale v. Harrison , 2d Dist. No. 20804, 2005-Ohio-4730, ¶ 6. As the Supreme Court of Ohio as previously determined “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo , would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result. AAAA Enterprises, Inc. v. River Place Community Redevelopment , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). {¶ 34} Default judgments are employed wh ere findings by the court regarding matters at issue may be determined by the pl eadings alone. “Civ. R. 55(A) provides that default judgment may be awarded when a defendant fails to make an appearance by filing an answer or otherwise defending an action. (Cita tion omitted). However, it is ‘a basic tenet16 of Ohio jurisprudence that cases should be d ecided on their merits.’ (Citation omitted).” Lykins v. Miami Valley Hospital , 157 Ohio App.3d 291, 2004-Ohio-2732, 811 N.E.2d 124, ¶ 92 (2d Dist.). Civ.R. 55(A) provides If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of an y averment by evidence or to make an investigation of any othe r matter, the court may c onduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties. {¶ 35} “Clearly, Civ.R. 55(A) makes it discretionary with the trial court to decide if a hearing is necessary. It has always been within the discretion of the trial court to determine whether further evid ence is required to support a claim against a defaulting defendant. See Dallas v. Ferneau (1874), 25 Ohio St. 635 (furt her citation omitted).” Buckeye Supply Co. v. No rtheast Drilling Co., 24 Ohio App.3d 134, 136, 493 N.E.2d 964 (9th Dist. 1985). “If the court hears evidence, ‘it follows that the court should make its decision conform to the law as applicable to the facts proven, and if no cause of action is shown no default judgment in plain tiff’s favor should be rendered.’ Streeton v. Roehm (1948), 83 Ohio App. 148, 81 N.E.2d 133.” Regency Centre Dev. Co., Ltd. v. Constr. Dimensions, Inc., 8th Dist. No. 81171, 2003-Ohio-5067, ¶ 15. {¶ 36} In accord with Ohio jurisprudence, the trial court made clear its preference to decide matters on their merits, and it set this matter for trial to establish, by evidence, the truth of the averments in CitiMortgage’s Complaint. Since it was within the trial court’s17 discretion to set the matter for tr ial, we cannot conclude, as C itiMortgage asserts, that it was entitled to a default judgment against the Kermeens solely on the basis that the defendants failed to appear and defend. Since an abuse of discretion is not shown, CitiMortgage’s first assigned error is overruled. {¶ 37} We will next address C itiMortgage’s second and f ourth assigned errors, which are as follows: “THE TRIAL COURT ERRED IN FAILING TO DEEM THE AVERMENTS IN THE COMPLAINT ADMITTED BECAUSE APPELLEES ADMITTED THAT CITIMORTGAGE IS ENTITLED TO JUDGMENT.” And, “THE TRIAL COURT ERRED IN FINDING THAT CITIMORTGAGE WAS NOT ENTITLED TO REFORMATION. “1. THE TRIAL COURT ERRED IN FINDING THAT CITIMORTGAGE’S REQUEST FOR REFORMATION WAS NOT JUSTIFIED BECAUSE THE MORTGAGE WAS UNAMBIGUOUS. “2. CITIMORTGAGE DEMONSTRATED THROUGH UNDISPUTED PROPER RULE 56(c) EVIDENCE THAT IT IS ENTITLED TO REFORMATION OF THE MORTGAGE.” {¶ 38} CitiMortgage asserts that Kimberly’s name was inadvertently omitted from the granting clause and the acknowledgment clause of the Mortgage due to scrivener’s error and mutual mistake, and that it is entitled to reform the Mortgage. {¶ 39} We initially note that this Court revi ews mortgages under general principles18 of contract law, and we presume that the parties’ intent “‘resides in the language they have chosen to employ in the agreement.’” SFJV 2005, L.L.C. v. Ream, 187 Ohio App.3d 715, 2010-Ohio-1615, 933 N.E.2d 819, ¶ 22 (2d Dist.), citing in part Fountain Skin Care v. Hernandez , 175 Ohio App.3d 93, 2008-Ohio-489, 885 N.E.2d 286, ¶ 22 (2d Dist.). “‘If a contract is clear and unambiguous, then its inte rpretation is a matter of law and there is no issue of fact to be determined.’ Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc. (1984), 15 Ohio St.3d 321, 322, 15 OBR 448, 474 N.E.2d 271.” Id. In such a case, “a court may not go beyond the plain la nguage of the agreement to determine the parties’ rights and obligations , and it may not consider paro le evidence of the parties’ intentions. (Citations omitted).” Id. The court, instead, “must give effect to the express terms of the contract.” Id. {¶ 40} However, “‘if a term cannot be de termined from the four corners of a contract, factual deter mination of intent or reasonablene ss may be necessary to supply the missing term.’ (Citation omitted) .” Id., at ¶ 23. In the event an ambiguity exists in a contract, “then it is proper for a court to c onsider ‘extrinsic evidence,’ i.e., evidence outside the four corners of the contract, in determining the parties’ intent. Blosser v. Carter (1990), 67 Ohio App.3d 215, 219, 586 N.E.2d 253. Such extrinsic evidence may include (1) the circumstan ces surrounding the parties at the time the contract was made, (2) the objectives the parties intended to accomplish by entering into the contract, and (3) any acts by the parties that demonstrate the construction they gave to their agreement. Id.”19 (Citations omitted). Id. {¶ 41} We review a tria l court’s interpretation of a contract de novo. Ignazio v. Clear Channel Broadcasting, Inc. 113 Ohio St.3d 276, 2007-Ohio-1947, 865 N.E.2d 18, ¶ 19. Ream , ¶ 24. {¶ 42} Regarding the omission of Kimberly’s name in the granting clause, we note that in Ream this court affirmed a judgment which determined that the mortgage therein was unambiguous and fully secured both the wife’s and husband’s interest in the property at issue, where both of them signed the mortgage , but only the wife executed the note, and only the wife was named in the granting clause and identified as the borrower and mortgagor. {¶ 43} Paragraph 12 of the mortgage in Ream contained similar language to that of paragraph 13 of the Mortgage herein as follows: The covenants and agreements of th is Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 9(b). Borrower’s covenants and agr eements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-signing this Security Instrument only to mortgage, grant and convey that Borrowe r’s interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower may agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without that Borrower’s consent. Ream , ¶ 27.20 {¶ 44} This Court found nothing ambiguous about the Ream mortgage, determining, * * * The first page states that Donna Ream, the borrower, owes the lender a debt of approx imately $64,000, which was evidenced by a note due and payable on May 1, 2034. These statem ents are followed by terms that provide that the “borrower” mortgage s the property * * * as security for repayment of that debt. Paul initialed each page of the mortgage and signed the signature page on a line labeled “borrower.” Although Paul Ream is not listed as a borrower/mortgagor on the first page of the mortgage, paragraph 12 of the mortgage makes clear that a “borrower” who signs the mortgage in strument but does not execute the note mortgages his interest in the pr operty without assuming liability for repayment of the debt; Paul signed as a “borrower.” There is no mention in the mortgage about the release of dower rights, nor is there any provision that suggests that Paul Ream signed the mortgage for a purpose other than to mortgage his interest in this property. Id., ¶ 30-31. {¶ 45} Pursuant to Ream , we conclude that despite the omission of Kimberly’s name from the granting clause in the Mortgage, pursuant to the co-signer provision, Kimberly signed the Mortgage for the purpose of mortgaging her interest in the property. Furthermore, her intent to do so is deemed admitted pursuant to Civ.R. 8(D), which provides, “[a]verments in a pleading to whic h a responsive pleading is required, * * * are admitted when not denied in the responsive pleading.”21 {¶ 46} Regarding the acknowledgment clause in the Mortgage, R.C. 5301.01 provides A deed, mortgage, land contract * * * or lease of any interest in real property * * * shall be signed by the gr antor, mortgagor, vendor, or lessor in the case of a deed, mortgage, land contract , or lease * * * . The signing shall be acknowledged by the grantor, mortga gor, vendor, or lessor * * * before a * * * notary public * * *, who shall certif y the acknowledgment and subscribe the official’s name to the cer tificate or the acknowledgment. {¶ 47} R.C. 147.53 provides The person taking an acknowle dgment shall certify that: (A) the person acknowledging appear ed before him and he executed the instrument; (B) The person acknowledging was known to the person taking the acknowledgment, or that the pers on taking the acknowledgment had satisfactory evidence that the person acknowledging was th e person described in and who executed the instrument. {¶ 48} While Kimberly’s name is absent fro m the acknowledgment clause, and the Mortgage was accordingly improperly acknowledg ed, “the Ohio Supreme Court has long held that ‘[a] defectively executed conveyance of an interest in land is valid as between the parties thereto, in the absence of fraud.’ Citizen’s National Bank v. Denison (1956), 1165 Ohio St.89, 95, 133 N.E.2d 329.” Texas Commerce Bank National Association v. Joseph , 8th Dist. Cuyahoga No. 81097, 2003-Ohio-995, ¶ 20; see also Seabrooke v. Garcia , 7 Ohio22 App.3d 167, 169, 454 N.E.2d 961 (9th Dist. 1982), citing Denison and noting the “reasoning behind such a rule is to bind the parties to that which they intended. The purpose of the acknowledgment statute (R.C. 5301.01) is to provi de evidence of execution and authority for recordation. It is not to provide a way of es cape for a party who later wishes to renege on his agreement.”) {¶ 49} Since both Christopher’s and Kimberly ’s intent to convey the entire fee simple interest in the property is clear by the express terms of the Mortgage, as well as admitted facts, we conclude that the Mortgage fully secured Kimberly’s interest in the property. {¶ 50} CitiMortgage’s remaining assignments of error are as follows: “THE TRIAL COURT ERRED IN RAISING UNPLEAD DEFENSES FOR APPELLEES WHEN APPELLEES FAILED TO DO SO.” And, “THE TRIAL COURT ERRED IN ORDERING THAT APPELLEE KIMBERLY KERMEEN IS ENTITLED TO ONE HALF OF THE GROSS SALES PROCEEDS.” {¶ 51} Given our conclusion that the trial court acted within its discretion, consistent with Ohio jurisprudence, to set the matter for trial and review the documents at issue, and having conducted de novo review of the trial c ourt’s interpretation of the Mortgage at issue, and further having concl uded that the Mortgage encompasses the entire fee simple interest of the property, these assi gnments of error are necessarily sustained as well. {¶ 52} Reversed and remanded for the trial court to enter judgment in foreclosure23 against Kimberly as well to the extent of her full interest.

. . . . . . . . . . FAIN, J. and HALL, J., concur. Copies mailed to: Michael J. Sikora III Richard T. Craven Scott D. Rudnick Nathan D. Hosek Hon. Jonathan P. Hein