[Cite as Farm Credit Servs. of Mid Am. v. Pertuset , 2013-Ohio-567.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

FARM CREDIT SERVICES OF MID-, : AMERICA, PCA, : Plaintiff-Appellee, Case Nos. 11CA3443 : vs. DECISION AND JUDGMENT ENTRY : CARL E. PERTUSET, et al., : Defendants-Appellants.

_________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANTS: Bruce M. Broyles, The Law Office of Bruce M. Broyles, 5815 Market Street, Suite 2, Boardman, Ohio 44512 COUNSEL FOR APPELLEE, John E. Bowers, 233, North Street, AMERICAN SAVINGS BANK Circleville, Ohio 43113, Jeffrey B. FSB: Sams, 10400 Blacklick Eastern Road, Ste. 140, Pickerington, Ohio, 43147, and Joshua D. Howard, 701 Sixth Street, Portsmouth, Ohio 45662

CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 2-5-13 ABELE, J. {¶ 1} This is an appeal from a Scioto Count y Common Pleas Court summary judgment in favor of American Savings Bank, fsb (Ame rican), defendant/cross- claimant below and appellee herein, on its claim agains t Carl E. Pertuset and Vera M. Pertuset, defendants below and appellants herein. Appe llants’ brief does not se t forth assignments of error as App.R. 16(A)(3) requires, but, as appellee did in its brief, we will consider th e proposed “assignments of error” filed with the appellants' initial appellate materials:

FIRST ASSIGNMENT OF ERROR:SCIOTO, 11CA3443 2

“PLAINTIFF/APPELLEE FAILED TO PRODUCE EVIDENCE THAT CONCLUSIVELY ESTABLISHED THAT THEY ARE THE PROPER PARTY IN INTEREST AND FAILED TO ESTABLISH PRIVITY WITH DEFENDANTS/APPELLEES [sic ]. AS SUCH, THE TRIAL COURT’S JUDGMENT WAS VOID AB INITIO.”

SECOND ASSIGNMENT OF ERROR:

“PLAINTIFF/APPELLEE FAILED TO CONCLUSIVELY ESTABLISH THE AMOUNT OF THEIR DAMAGES.” {¶ 2} On June 5, 2009, Farm Credit Services of Mid-America, PCA commenced the instant action and alleged that appellants were in default of severa l promissory notes and sought foreclosure of mortgage and security interests given to secure those notes. American, also named as a defendant because it might also claim an interest in the mortgaged premises, filed an answer and cross-claim and asserted that appe llants were in default of a promissory note previously executed in its favor. Furthermore, American claims that appellants gave them a mortgage on their property to secure payment of th at note and the mortgage is the first and best lien on the premises. {¶ 3} Despite asking for leave to obtain “competent counsel” before responding, appellants filed a pro se answer that spans twenty-one pages and is, at best, difficult to

understand. The trial court took the answer as a de nial of all allegations. The case was stayed for a period of time when appellants filed for bankruptcy, but that case was dismissed the following year. {¶ 4} American requested a summary judgment and argued that no genuine issues of material fact exist and that it was entitled to judgment in its favor as a matter of law. The motion included a supporting affidavit from J ack A. Stephenson, the Vice-President ofSCIOTO, 11CA3443 3 American, who attested to the authenticity of the note and mortgage (attached as evidentiary exhibits to the motion) that appellants execu ted and delivered to American on December 7, 2005. The affiant further attested that appella nts owed “the sum of $160.001.52 as of June 15, 2009, together with interest thereon at the ra te of $28.97 per day from June 15, 2009, until paid.” {¶ 5} Appellants filed seve ral memoranda in opposition to that motion. Their first

memorandum did not discuss the merits of Amer ican’s motion, but rather the bankruptcy court proceedings. Their second memoranda appears to allege, inter alia, that American did not possess the promissory note and is not the real party in interest. {¶ 6} The trial court concluded that no genuine issue of materi al fact exists and that American is entitled to judgment as a matter of law and later filed a judgment of foreclosure. 1 This appeal followed. 2

I {¶ 7} Our analysis begins with the premise that appellate courts review summary judgments de novo. Sutton Funding, L.L.C. v. Herres , 188 Ohio App.3d 686, 2010-Ohio-3645, 936 N.E.2d 574, at ¶59; Broadnax v. Greene Credit Service , 118 Ohio App.3d 881, 887, 694 N.E.2d 167 ( 2 nd Dist. 1997). In other words, an appella te court will afford no deference to a trial court decision, Sampson v. Cuyahoga Metro. Hous. Auth. , 188 Ohio App.3d 250, 935

1 Although the trial court labeled its decision as a “Judgment Entry,” it was not the final appealable order as it ordered additional proceedings – i.e., an entry to be drafted consistent therewith.

2 Although further proceedings are cont emplated in this case, including sale of the foreclosed premises and distribution of proceeds, the foreclosure judgment is the final, appealable order in such proceedings. Third National Bank of Circleville v. Speakman , 18 Ohio St.3d 119, 120, 480 N.E.2d 411(1985); Oberlin Savings Bank Co. V. Fairchild , 175 Ohio St. 311, 312, 194 N.E.2d 580 (1963); Queen City Savings & Loan Co. v. Foley , 170 Ohio St. 383, 165 N.E.2d 633 (1960), at paragraph one of the syllabus.SCIOTO, 11CA3443 4 N.E.2d 98, 2010-Ohio-3415, at ¶19; Kalan v. Fox , 187 Ohio App.3d 687, 933 N.E.2d 337, 2010-Ohio-2951, at ¶13, and, instea d, will conduct its own independe nt review to determine whether summary judgme nt is appropriate. Woods v. Dutta , 119 Ohio App.3d 228, 233-234, 695 N.E.2d 18 (4 th Dist. 1997); McGee v. Goodyear Atomic Corp. , 103 Ohio App.3d 236, 241, 659 N.E.2d 317 (4 th Dist. 1995). {¶ 8} Summary judgment under Civ. R. 56(C) is appropriate when a movant demonstrates that (1) no genuine issues of material fact exist, (2) it is entitled to judgment as a matter of law and (3) after the evidence is constr ued most strongly in favor of the non-movant,

reasonable minds can come to one conclusion and that conclusion is adverse to the non-moving party. See Kaminski v. Metal & Wire Prods. Co. , 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, at ¶103; Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party bears the in itial burden to show that no genuine issue of material facts exist and that it is entitled to judgment as a matter of law. Vahila v. Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997); Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If that burden is satisfied, the onus shifts to the non-moving party to provide rebuttal evidentiary materials. See Trout v. Parker , 72 Ohio App.3d 720, 723, 595 N.E.2d 1015 (4 th Dist. 1991); Campco Distributors, Inc. v. Fries , 42 Ohio App.3d 200, 201, 537 N.E.2d 661 (2 nd Dist. 1987). With these principles in mind, we turn our attention to the instant case. {¶ 9} The aforementioned Stephenson affidavit es tablished that (1) the copies of the note and mortgage attached to American’s cross-claim are “true and accurate copies of the originals,” (2) the note had “not been paid in accordance with [its] terms” and (3) American has the right to have the mortgage foreclosed and chose to exercise that right. This is sufficient forSCIOTO, 11CA3443 5 American to carry its in itial burden under Civ.R. 56(C). {¶ 10} The burden then shifted to appellants to provide rebuttal evidentiary materials.

Our review of their various memo randa contra, at least to the best of our ability to understand their contentions, do not contain an ything sufficient to satisfy thei r burden of rebuttal. Thus, we believe that the trial court correctly awar ded summary judgment in American’s favor.

II {¶ 11} In their first proposed assignment of erro r, appellants argue that American did not establish (1) privity of contract with them, and (2 ) that American is the pr oper party in interest. This argument fails, however, as the original note and mortgage show that they were executed in American's favor. In light of Stephenson's affi davit that the note and mortgage are true and correct copies of the originals, American established both privity and that they are the correct party in interest. Appellants provided no Civ.R. 56(C) evidentia ry materials to show that

American had since transferred the instruments to another ins titution or entity or person. {¶ 12} For these reasons, we find no merit in a ppellant's first proposed assignment of error and it is hereby overruled.

III {¶ 13} Appellants assert in their second proposed assignment of error that American failed to conclusively es tablish the amount of their damages. We disagree with appellant. The Stephenson affidavit atte sted that appellants owed Ameri can “the sum of $160,001.52 as of June 15, 2009, together with interest thereon at the rate of $28.97 per day from June 15, 2009, until paid.” Appellants offered no evid entiary materials to counter that attestation. Accordingly, we find no merit in their second assignment of rule and it is hereby overruled.SCIOTO, 11CA3443 6 {¶ 14} Having considered and rej ected appellants’ proposed assignments of error and arguments we hereby affirm the trial court's judgment.

JUDGMENT AFFIRMED.[Cite as Farm Credit Servs. of Mid Am. v. Pertuset , 2013-Ohio-567.] JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee rec over of appellants costs

herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. McFarland, P.J. & Kline, J.: Conc ur in Judgment & Opinion For the Court

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.