First Sentry Bank v. Rose

Citation: 2014 Ohio 594Docket: 13CA2

Court: Ohio Court of Appeals; February 5, 2014; Ohio; State Appellate Court

Original Court Document: View Document

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The Court of Appeals of Ohio, Fourth Appellate District, is reviewing a summary judgment from the Gallia County Common Pleas Court favoring First Sentry Bank against defendants Richard Rose and Shelly Ranegar-Rose. The appellants contest several points:

1. The trial court allegedly erred by denying their motion to dismiss, arguing that First Sentry Bank lacks the necessary licensing to conduct business in Ohio, which, under Ohio Revised Code §1703.29(A), prohibits the bank from maintaining a civil action in the state.

2. The trial court is claimed to have incorrectly granted First Sentry Bank's motion for summary judgment while denying the appellants' cross-motion, based on the assertion that the mortgage was released upon execution of a promissory note dated April 19, 2008, which Shelly Ranegar-Rose, as the sole property owner, did not consent to.

3. The appellants argue that the mortgage was defective because the power of attorney utilized by First Sentry Bank to secure the mortgage was not recorded, violating R.C. 1337.04.

4. Additionally, they assert that the power of attorney had been revoked prior to the mortgage's execution, further rendering it defective.

5. Lastly, the appellants contend that there are genuine issues of material fact that the trial court failed to recognize.

The case originated from a default on a $405,000 promissory note executed by Richard Rose on January 18, 2009, secured by a mortgage executed on behalf of Shelly Ranegar-Rose. Following the default, First Sentry Bank sought over $418,184 in judgment and foreclosure, prompting the appellants to file pro se answers denying liability. Subsequent motions for summary judgment were exchanged, leading to the current appellate review.

On December 6, 2012, the trial court issued a 'Memorandum Entry' denying appellants' motions to dismiss and for summary judgment, while granting appellee’s motion for summary judgment. Subsequently, on December 28, 2012, the court awarded appellee over $423,000 against Appellant Richard Rose, plus interest, and ordered foreclosure of the mortgage. The appeal followed.

The appellate court reviewed the summary judgment de novo, meaning it did not defer to the trial court's decision. For summary judgment to be appropriate under Civ. R. 56(C), the moving party must demonstrate that no genuine issues of material fact exist, that they are entitled to judgment as a matter of law, and that reasonable minds could only conclude in favor of the non-moving party. 

In this case, the appellants contended that the trial court erred in granting summary judgment. They focused on the note executed on January 18, 2009, supported by affidavits from bank vice presidents confirming Richard Rose's default. However, appellee's amended complaint referenced a second note from April 18, 2009, which purportedly extended the maturity of the first note. The court found no evidentiary materials submitted after this amended complaint to prove the second note was in default, concluding that appellee did not meet its burden under Civ.R. 56(C) for summary judgment.

A copy of the second note referenced by the appellee is not found in the pleadings; the document labeled as such is actually a duplicate of a previous January 18, 2009 note. Consequently, the appellee fails to meet its burden under Civ.R. 56(C) without a properly framed affidavit that includes the correct note. The ruling allows for further exploration of whether the appellee conducted business in Ohio or qualifies for an exemption from registration under R.C. 1703.03 related to interstate commerce. 

The court sustains the appellant's fifth assignment of error, reverses the trial court's judgment, and renders the remaining assignments moot. The denial of summary judgment and dismissal motions by the trial court are deemed interlocutory, allowing for the possibility of future motions from both parties once the record is developed. The court orders the case remanded for further proceedings consistent with this opinion, allowing appellants to recover costs. The court's decision is supported by reasonable grounds for the appeal, and a special mandate is issued to the Gallia County Common Pleas Court to enforce the judgment. The document serves as a final judgment entry, with the appeal period commencing from the filing date.