IN THE COURT OF APPEALS
NINTH JUDICIAL DISTRICT
BANK OF NEW YORK MELLON TRUST
COMPANY NATIONAL
Appellee
v.
CORNELIU MIHALCA, et al.
EXCERPT:
BELFANCE, P. J. CONCURS IN PART, AND DISSENTS IN PART, SAYING:
{¶ 30} I concur with the majority’s conclusion that the trial court erred in granting summary judgment to the Bank. However, I respectfully dissent from the majority’s judgment that the trial court correctly denied Mr. and Mrs. Mihalca’s motion for summary judgment.
{¶ 31} In the vast majority of cases involving foreclosures, it is the bank that moves for summary judgment. As such it must demonstrate an absence of material fact as to all of the elements of its claim. Thus, it makes sense that if when the bank moves for summary judgment it cannot establish that it is the real party in interest, a genuine issue of material fact remains preventing the bank from succeeding on summary judgment. See U.S. Bank, N.A. v. Richards, 189 Ohio App.3d 276, 2010-Ohio-3981, ¶ 13 (9th Dist.). However, when the defendant in a foreclosure case moves for summary judgment, the defendant may challenge the existence of evidence which is necessary for the bank to prevail on its claim and upon which the bank has the burden of proof.
{¶ 32} In this case, the Mihalcas filed a motion for summary judgment in which they claimed that the Bank had no evidence that it was the holder of the note. The Bank had the ultimate burden to demonstrate it was the holder of the note, and in reply to the Mihalcas’ summary judgment motion, it had the reciprocal burden to present evidence establishing its entitlement to recover on the note. See Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).
[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. * * * However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.
(Emphasis sic.) Id.
{¶ 33} In the Mihalcas’ answer to the complaint, they denied that the Bank was the holder of the note. Moreover, in their motion for summary judgment, the Mihalcas did not simply make a conclusory assertion that the Bank could not prove its case; they specifically asserted that the Bank could not prove its case because it had not established that it was the holder of the note. They pointed to evidence that, for a number of months their counsel demanded the production and inspection of the original note and that notwithstanding, the note had not been produced. Attached to the Mihalcas’ response to the Bank’s summary judgment motion and its cross-motion for summary judgment was an affidavit by the Mihalcas’ counsel. Accompanying the affidavit, was a letter dated August 20, 2010, from the Bank’s counsel to the Mihalcas’ counsel responding to the Mihalcas’ demand for production of the note. Even viewing this letter in the light most favorable to the Bank, the letter only allows one to conclude that counsel for the Bank is going to ask the Bank for the note and that counsel believes that the Bank has possession of the original note. The letter does not affirmatively state that the Bank has possession of it. The affidavit of the Mihalcas’ counsel avers that the parties again discussed production of the original note on September 27, 2010. At that time, the Bank’s counsel stated that “they were still `looking for’ the original note.” By November 9, 2010, at the time of the Bank’s response to the Mihalcas’ motion for summary judgment, the Bank presented no evidence that it possessed or had ever possessed the original note. In addition, the Mihalcas noted that the Bank’s affidavit in support of its own summary judgment motion was improper evidence and as such, there was no proper summary judgment evidence from the Bank before the trial court on this issue.
{¶ 34} The Bank failed to meet its reciprocal burden of production, as it failed to produce evidence that demonstrated it was the holder or to produce some evidence that at least demonstrated the existence of a genuine issue of material fact as to its status. Notably, the Bank did not produce any evidentiary materials in response to the Mihalcas’ motion. Thus, it did not meet its Dresher burden, and there was no genuine dispute of material fact as to whether it was the holder of the note. Due to its failure to properly respond to the Mihalcas’ motion for summary judgment, Mr. and Mrs. Mihalca were entitled to have summary judgment in their favor. See generally HSBC Bank USA, N.A. v. Thompson, 2nd Dist. 23761, 2010-Ohio-4158. Under the circumstances, the Bank could have produced an affidavit asserting that it did possess the note or alternatively, it could have sought an extension of time to respond to the Mihalcas’ summary judgment motion so it could have then submitted proper summary judgment evidence in response to the Mihalcas’ motion.
{¶35} I can only conclude that the Bank has failed to meet its burden, as there was no
evidence before the trial court that the Bank at any point in time possessed the original note. The
Mihalcas were entitled to have summary judgment granted in their favor. Accordingly, I
respectfully dissent from the majority’s resolution of this issue.
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