No.

13AP-278
COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

Bank of Am., N.A. v. Robledo

2014 Ohio 1185
Decided Mar 25, 2014

No. 13AP-278 C.P.C. No. 11CV-012152 {¶ 2} On August 31, 2005, appellants executed a
promissory note in favor of America's Wholesale
03-25-2014
Lender ("AWL") in the amount of $225,600 to
Bank of America, N.A., Plaintiff-Appellee, v. finance the purchase of real property located at
Hector Robledo et al., Defendants-Appellants. 4245 Heather Louise Court, Grove City, Ohio.
2 Appellants also *2 executed a mortgage against
McGlinchey Stafford, Kimberly Y. Smith Rivera,
the property in favor of AWL. The mortgage and
and James S. Wertheim, for appellee. Doucet &
note were assigned to BAC Home Loans
Associates, Inc., and Troy J. Doucet, for
Servicing L.P. ("BAC") on December 31, 2009.
appellants.
{¶ 3} On September 29, 2011, appellee filed a
SADLER complaint for foreclosure alleging that both the
note and mortgage were in default. Appellants
(REGULAR CALENDAR) filed an answer and asserted four counterclaims,
specifically, fraud, violations of the federal Fair
Debt Collection Practices Act, 15 U.S.C. 1692, et
DECISION seq. ("FDCPA"), violation of Ohio's Consumer
McGlinchey Stafford, Kimberly Y. Smith Rivera, Sales Practices Act, and breach of contract. After
and James S. Wertheim, for appellee. mediation attempts failed, appellee filed a motion
for summary judgment seeking judgment in its
Doucet & Associates, Inc., and Troy J. Doucet, for
favor on its asserted claims and the counterclaims
appellants.
asserted by appellants. Appellants filed their own
APPEAL from the Franklin County motion for summary judgment seeking judgment
Court of Common Pleas on their counterclaims.

SADLER, P.J. {¶ 4} On March 4, 2013, the trial court filed a

judgment entry granting appellee's motion for
{¶ 1} Defendants-appellants, Hector Robledo and
summary judgment. The following day, the trial
Patricia Robledo, appeal from a judgment of the
court filed a decision granting appellee's motion
Franklin County Court of Common Pleas denying
for summary judgment and denying appellants'
their motion for summary judgment and granting
motion for summary judgment.
summary judgment in favor of plaintiff-appellee,
Bank of America, N.A. For the reasons that II. ASSIGNMENTS OF ERROR
follow, the judgment of the trial court is affirmed
{¶ 5} Appellants appealed the judgment of the trial
in part and reversed in part.
court and bring three assignments of error for our
I. BACKGROUND review:

1
 Bank of Am., N.A. v. Robledo 2014 Ohio 1185 (Ohio Ct. App. 2014)

I. The trial court erred when it entered but one conclusion, that conclusion being adverse
summary judgment in BANA's favor on to the nonmoving party. Harless v. Willis Day
the Robledos' counterclaim for breach of Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
contract.
{¶ 8} "[T]he moving party bears the initial
II. The trial court erred when it entered
responsibility of informing the trial court of the
summary judgment in BANA's favor on
basis for the motion, and identifying those
the Robledos' counterclaim for violation of
portions of the record before the trial court which
the FDCPA.
demonstrate the absence of a genuine issue of fact
III. The trial court erred when it entered
on a material element of the nonmoving party's
summary judgment in BANA's favor on its
claim." Dresher v. Burt, 75 Ohio St.3d 280, 292
claims.
(1996). " 'The requirement that a party seeking
III. DISCUSSION summary judgment disclose the basis for the
motion and support the motion with evidence is
A. Standard of Review
well founded in Ohio law.' " Vahila v. Hall, 77
{¶ 6} We review a summary judgment motion de Ohio St.3d 421, 429 (1997), quoting Mitseff v.
novo. Koos v. Cent. Ohio Cellular, Inc., 94 Ohio Wheeler, 38 Ohio St.3d 112, 115 (1988). Thus, the
App.3d 579, 588 (8th Dist.1994), citing Brown v. moving party may not fulfill its initial burden
Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, simply by making a conclusory assertion that the
711 (4th Dist.1993). When an appellate court nonmoving party has no evidence to prove its
reviews a trial court's disposition of a summary case. Dresher at 293. Rather, the moving party
judgment motion, it applies the same standard as must support its motion by pointing to some
3 *3 the trial court and conducts an independent evidence of the type set forth in Civ.R. 56(C),
review, without deference to the trial court's which affirmatively demonstrates that the
determination. Maust v. Bank One Columbus, nonmoving party has no evidence to support the
N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992); nonmoving party's claims. Id. If the moving party
Brown at 711. We must affirm the trial court's has satisfied its initial burden under Civ.R. 56(C),
judgment if any grounds the movant raised in the then "the nonmoving party * * * has a reciprocal
trial court support it. Coventry Twp. v. Ecker, 101 burden outlined in Civ.R. 56(E) to set forth
Ohio App.3d 38, 41-42 (9th Dist.1995). specific facts showing that there is a genuine issue
for trial and, if the nonmovant does not so
{¶ 7} Pursuant to Civ.R. 56(C), summary
respond, summary judgment, if appropriate, shall
judgment "shall be rendered forthwith if the
4 be entered against the nonmoving party." Id. *4
pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of B. Final Appealable Order
evidence, and written stipulations of fact, if any,
{¶ 9} In its appellate brief, appellee contends that,
timely filed in the action, show that there is no
because appellants filed a faulty notice of appeal,
genuine issue as to any material fact and that the
this appeal must be dismissed for lack of a final,
moving party is entitled to judgment as a matter of
appealable order. Appellants' notice of appeal
law." Accordingly, summary judgment is
states:
appropriate only under the following
circumstances: (1) no genuine issue of material
fact remains to be litigated, (2) the moving party is
entitled to judgment as a matter of law, and (3)
viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can come to

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 Bank of Am., N.A. v. Robledo 2014 Ohio 1185 (Ohio Ct. App. 2014)

Notice is hereby given that Defendants in the notice of appeal, a court of appeals is vested
Hector Robledo and Patricia Robledo with discretion to determine whether sanctions,
appeal to the Court of Appeals of Franklin including dismissal, are warranted, and its
County, Ohio, Tenth Appellate District decision will not be overturned absent an abuse of
from the "Decision Granting Plaintiff's 5 discretion." Id. at 322. *5
Motion for Summary Judgment Filed
{¶ 13} Appellee argues dismissal is required
September 12, 2012; Denying Defendants'
because the notice of appeal does not designate the
Motion for Summary Judgment Filed
March 4, 2013 judgment as required by App.R.
September 26, 2012; and Granting
3(D). To the contrary, appellants contend that,
Plaintiff's Motion for Leave Filed October
because their notice of appeal was timely filed
3, 2012," entered in this action on the 5th
after the trial court entered final judgment in the
day of March, 2013.
case, their appeal should not be dismissed. App.R.
{¶ 10} According to appellee, appellants' notice of 3(D) sets forth the required content of a notice of
appeal fails to reference the trial court's March 4, appeal and states, in pertinent part, that "[t]he
2013 judgment entry and, instead, references only notice of appeal shall specify the party or parties
the March 5, 2013 decision, which is not a final, taking the appeal; shall designate the judgment,
appealable order. Therefore, appellee asserts that order or part thereof appealed from; and shall
this court lacks jurisdiction to review this matter name the court to which the appeal is taken."
and that we must sua sponte dismiss this appeal.
{¶ 14} This court has rejected the contention that a
{¶ 11} The Ohio Rules of Appellate Procedure defect in a notice of appeal that has been timely
specify the means for perfecting an appeal from an filed from a final judgment defeats jurisdiction.
adverse judgment. "An appeal as of right shall be Cook v. Smith, 10th Dist. No. 12AP-489, 2012-
taken by filing a notice of appeal with the clerk of Ohio-4951; Interstate Gas Supply, Inc. v. Calex
the trial court within the time allowed by Rule 4." Corp., 10th Dist. No. 04AP-980, 2006-Ohio-638.
App.R. 3(A). The timeliness of an appeal is When presented with non-jurisdictional defects in
determined by reference to App.R. 4(A), which a notice of appeal, this court has discretion to
requires a party to file a notice of appeal "within determine whether sanctions, including dismissal,
thirty days of the later of entry of the judgment or are warranted. "When presented with a notice of
order appealed or, in a civil case, service of the appeal that fails to comply with [the requirement
notice of judgment and its entry if service is not that the notice designate the judgment or order
made on the party within the three day period in being appealed], an appellate court must
Rule 58(B) of the Ohio Rules of Civil Procedure." determine whether the notice served its intended
purpose despite its defect." Paasewe v. Wendy
{¶ 12} The timely filing of a notice of appeal is
Thomas 5 Ltd., 10th Dist. No. 09AP-510, 2009-
the only jurisdictional requirement for perfecting a
Ohio-6852, ¶ 10, citing Maritime Mfrs., Inc. v. Hi-
valid appeal. Transamerica Ins. Co. v. Nolan, 72
Skipper Marina, 70 Ohio St.2d 257, 259-60
Ohio St.3d 320 (1995), syllabus. "Failure of an
(1982). The purpose of a notice of appeal is to
appellant to take any step other than the timely
apprise the opposing party of the taking of an
filing of a notice of appeal does not affect the
appeal. Maritime Mfrs. at 259. In determining
validity of the appeal, but is ground only for such
whether dismissal is warranted, we may also
action as the court of appeals deems appropriate,
consider other factors, such as whether an
which may include dismissal of the appeal."
appellant's mistake was made in good faith,
App.R. 3(A). Thus, the Supreme Court of Ohio
whether prejudice arose as a result of the mistake,
has held that "[w]hen presented with other defects
whether dismissal would constitute a

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 Bank of Am., N.A. v. Robledo 2014 Ohio 1185 (Ohio Ct. App. 2014)

disproportionate sanction, whether the client contract, they performed their obligations under it,
would be punished for counsel's action, and and appellee is liable for BAC's breach of the TPP
whether dismissal frustrated the overriding and resulting damages to appellants.
objective of deciding cases on their merits. Cook
{¶ 18} The language of the TPP agreement,
at ¶ 22.
however, belies appellants' position. The
{¶ 15} Here, we have a single case and a single, document upon which appellants rely on as a
final, appealable order. The notice of appeal was contract states, in pertinent part:
timely filed within 30 days of the trial court's final
I understand that after I sign and return
order; therefore, we possess jurisdiction over this
two copies of this Plan to the Servicer, the
appeal and decline appellee's request to sua sponte
Servicer will send me a signed copy of this
dismiss this appeal. Further, we conclude that the
Plan if I qualify for the Offer or will send
notice of appeal included sufficient information to
me written notice that I do not qualify for
reasonably alert appellee of the existence of
the Offer. This Plan will not take effect
6 appellants' appeal. Moreover, appellee has *6 not
unless and until both I and the Servicer
alleged, nor do we find, that appellee has suffered
sign it and Servicer provides me with a
any prejudice or surprise or was materially
copy of this Plan with the Servicer's
mislead by the notice of appeal.
signature.
{¶ 16} Accordingly, we deny appellee's request to ***
sua sponte dismiss this matter for lack of (G) I understand that the Plan is not a
jurisdiction. modification of the Loan Documents and
that the Loan Documents will not be
C. First Assignment of Error
modified unless and until (i) I meet all of
{¶ 17} In their first assignment of error, appellants the conditions required for modification,
contend the trial court erred in granting judgment (ii) I receive a fully executed copy of a
in favor of appellee on appellants' counterclaim Modification Agreement, and (iii) the
for breach of contract. Appellants' breach of Modification Effective Date has passed. I
contract claim arises from BAC's failure to offer further understand and agree that the
them a permanent Home Affordable Modification 7 *7 Servicer will not be obligated or bound
Program ("HAMP"). According to appellants, in to make any modification of the Loan
April 2010, they and BAC entered into a Trial Documents if I fail to meet any one of the
Period Plan ("TPP") under HAMP. Appellants requirements under this Plan.
assert that, pursuant to their agreement, if they
{¶ 19} To establish a breach of contract claim
made three timely payments of $1,143.33 by June
under Ohio law, one must establish: (1) the
1, July 1, and August 1, 2010, their loan payments
existence of a valid contract, (2) performance by
would be redetermined and they would be mailed
the plaintiff, (3) non-performance by the
a permanent modification agreement. Though
defendant, and (4) damages resulting from the
asserting the requisite payments were made,
defendant's breach. Yoder v. Hurst, 10th Dist. No.
appellants allege BAC breached the TPP
07AP-121, 2007-Ohio-4861, ¶ 27. By its very
agreement by "fail[ing] to send [appellants] a
language, the TPP indicates it is not a binding
permanent loan modification agreement." (Feb. 6,
contract unless signed by both appellants and
2012 Amended Answer and Counterclaims, 16.)
BAC. There is no allegation, nor supporting
Appellants contend the TPP was an enforceable
evidence, that BAC found appellants qualified
under HAMP and provided appellant a TPP

4
 Bank of Am., N.A. v. Robledo 2014 Ohio 1185 (Ohio Ct. App. 2014)

agreement signed by BAC. Goss v. ABN AMRO 'primarily for personal, family, or household
Mtge. Group, 6th Cir. No. 12-2627 (Dec. 20, purposes,' 15 U.S.C. 1692a(5); (3) the defendant is
2013) (TPP not a binding contract because not a 'debt collector' as defined by 15 U.S.C.
signed by both the borrower and the lender). 1692a(6); and (4) the defendant violated any of the
prohibitions of 15 U.S.C. 1692e." United States
{¶ 20} Further, the language of the TPP indicates
Bank Natl. Assn. v. Gray, 10th Dist. No. 12AP-
it is not an offer of permanent loan modification,
953, 2013-Ohio-3340, ¶ 39, citing Whittaker v.
and courts have consistently concluded such
Deutsche Bank Natl. Trust Co., 605 F.Supp.2d
documents are not promises to modify a
914, 926 (N.D.Ohio 2009). Failure to prove any
borrower's loan. Ortega v. Wells Fargo Bank, N.A.,
one of these elements is fatal to a plaintiff's
N.D.Ohio No. 3:11CV01734 (Jan. 31, 2012) (a
FDCPA claim. Id.
defendant's failure to provide a permanent loan
modification solely on the basis of the existence of {¶ 24} As stated in Gray, for purposes of the
a TPP does not sufficiently state a breach of FDCPA, "debt collector" means " 'any person who
contract claim); Goss (an initial TPP document is uses any instrumentality of interstate commerce or
not necessarily a promise to modify a loan), citing the mails in any business the principal purpose of
Fed. Home Loan Mtge. Corp. v. Hassell, which is the collection of any debts, or who
E.D.Mich. No. 11-14564 (Mar. 6, 2013); Brady v. regularly collects or attempts to collect, directly or
Chase Home Fin., LLC, W.D.Mich. No. 11-838 indirectly, debts owed or due or asserted to be
(May 24, 2012); Helmus v. Chase Home Fin., owed or due another.' " Id. at ¶ 40, quoting 15
LLC, 890 F.Supp.2d 806, 815 (W.D.Mich.2012) U.S.C. 1692a(6). Thus, the FDCPA establishes
("By its plain terms, the TPP makes it clear that it two alternative predicates for "debt collector"
was not an offer, and would not become binding status: either engaging in debt collection as the
on Chase until the contract was signed and "principal purpose" of the entity's business or
returned to Plaintiffs, which it was not. As a result, "regularly" engaging in debt collection. Id., citing
there was no offer for Plaintiffs to accept."). Hester v. Graham, Bright & Smith, P.C. & R., 289
Fed.Appx. 35, 41 (5th Cir.2008); Oppong v. First
{¶ 21} Because the TPP is neither a promise nor a
Union Mtge. Corp., 215 Fed.Appx. 114, 118 (3d
binding contract, appellants' breach of contract
Cir.2007); Goldstein v. Hutton, Ingram, Yuzek,
claim must fail. Accordingly, we find the trial
Gainen, Carroll & Bertolotti, 374 F.3d 56, 61 (2d
court did not err in granting summary judgment in
Cir.2004); see also Wells Fargo Bank, N.A. v.
favor of appellee on appellants' claim for breach
Gerst, 5th Dist. No. 13 CAE 05 0042, 2014-Ohio-
of contract and overrule appellants' first
80, ¶ 29 (it is well-established creditors and
8 assignment of error. *8
mortgage service companies are not debt
D. Second Assignment of Error collectors and are not subject to liability under the
FDCPA), citing RBS Citizens, N.A. v. Zigdon, 8th
{¶ 22} In their second assignment of error,
Dist. No. 93945, 2010-Ohio-3511, citing Scott v.
appellants contend the trial court erred in granting
Wells Fargo Home Mtge. Inc., 326 F.Supp.2d 709
summary judgment in favor of appellee on
(E.D.Va.2003). See also Montgomery v.
appellants' counterclaim for violations of the
Huntington Bank, 346 F.3d 693, 699 (6th
FDCPA.
Cir.2003).
{¶ 23} To establish a claim under the FDCPA, "a
{¶ 25} Here, appellants presented no evidence that
plaintiff must establish that: (1) he or she is a
appellee satisfies the predicates for debt collector
'consumer' as defined by 15 U.S.C. 1692a(3); (2)
status under the FDCPA. Accordingly, we find the
the 'debt' arises out of transactions that are
9 trial court did not err *9 in granting summary

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 Bank of Am., N.A. v. Robledo 2014 Ohio 1185 (Ohio Ct. App. 2014)

judgment in favor of appellee on appellants' claim Acceleration; Remedies. Lender shall give
for violations of the FDCPA and overrule notice to Borrower prior to acceleration
appellants' second assignment of error. following Borrower's breach of any
covenant or agreement in this Security
E. Third Assignment of Error
Instrument (but not prior to acceleration
{¶ 26} In their third assignment of error, under Section 18 unless Applicable Law
appellants contend the trial court erred in granting provides otherwise). The notice shall
summary judgment in favor of appellee on the specify: (a) the default; (b) the action
claims asserted in its complaint. required to cure the default; (c) a date, not
less than 30 days from the date the notice
{¶ 27} Under this assigned error, appellants first
is given to Borrower, by which the default
argue the record contains no evidence that
must be cured; and (d) that failure to cure
appellee satisfied the conditions of the mortgage
the default on or before the date specified
and note prior to filing the foreclosure action.
in the notice may result in acceleration of
Appellants asserted this same argument in their
the sums secured by this Security
answer as well as their memorandum contra to
Instrument, foreclosure by judicial
appellee's motion for summary judgment.
proceeding and sale of the Property. The
Paragraph 22 of the mortgage provides:
notice shall further inform Borrower of the
right to reinstate after acceleration and the
right to assert in the foreclosure
proceeding the non-existence of a default
or any other defense of Borrower to
acceleration and foreclosure. If the default
is not cured on or before the date specified
in the notice, Lender at its option may
require immediate payment in full of all
sums secured by this Security Instrument
without further demand and may foreclose
this Security Instrument by judicial
proceeding. Lender shall be entitled to
collect all expenses incurred in pursuing
the remedies provided in this Section 22,
including, but not limited to, costs of title
evidence.

{¶ 28} Paragraph 9(C) of the note provides:

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 Bank of Am., N.A. v. Robledo 2014 Ohio 1185 (Ohio Ct. App. 2014)

If I am in default, the Note Holder may balance due, Graham's affidavit contains no
send me a written notice telling me that if I mention or indication of compliance with the
do not pay the overdue amount by a certain notice provisions contained in the mortgage and
date, the Note Holder may require me to note.
pay immediately the full amount of
{¶ 31} In arguing compliance with the mortgage
Principal that has not been paid and all the
and note provisions, appellee attached excerpts of
interest that I owe on that amount. That
Michael Watkins' deposition to its appellate brief.
date
Specifically, appellee attached deposition pages 66
10 *10 must be at least 30 days after the date
through 69, which, according to appellee, establish
on which the notice is mailed to me or
compliance with paragraph 22 of the mortgage
delivered by other means.
and paragraph 9(C) of the note. In its appellate
{¶ 29} In support of its motion for summary brief, appellee contends Watkins' complete
judgment, appellee submitted the affidavit of one deposition was filed in the trial court on
its officers, James Sherman Graham. In his September 26, 2012. Our review of the record,
affidavit, Graham averred that appellants defaulted however, reveals that this is not so.
on the note and that the indebtedness had been
{¶ 32} On September 26, 2012, appellants filed a
accelerated. Graham further averred that the
memorandum contra to appellee's motion for
balance due on the loan is the principal sum of
summary judgment and attached deposition pages
$220,286.97 plus interest at 3.750 percent per
11 89 and 91 *11 through 93. Also, on September 26,
annum from November 1, 2009 through August
2012, appellants filed their own motion for
31, 2010, plus interest at the rate of 3.375 percent
summary judgment and included excerpts of
per annum from September 1, 2010 through
Watkins' deposition in support. The excerpts
August 31, 2011, plus interest at the rate of 3.00
submitted by appellants included deposition pages
percent per annum from September 1, 2011.
62 through 65 and page 107. With their reply in
{¶ 30} Several appellate courts have found that, in support of their motion for summary judgment,
foreclosure actions, the affidavit of a loan appellants included deposition pages 19 and 20.
servicing agent employee with personal Watkins' complete deposition, however, was not
knowledge provides sufficient evidentiary support made a part of the record in this case as the
for summary judgment in favor of the mortgagee. deposition was not filed until April 2, 2013, which
Regions Bank v. Seimer, 10th Dist. No. 13AP-542, is the date appellants filed their notice of appeal.
2014-Ohio-95, ¶ 19; Deutsche Bank Natl. Trust Additionally, while the trial court's decision and
Co. v. Germano, 11th Dist. No. 2012-P-0024, judgment entry specifically reference Graham's
2012-Ohio-5833 (affidavit executed by employee affidavit, neither references Watkins' deposition
of loan servicing agent for bank established that testimony.
written notice of default was sent to borrower in
{¶ 33} Because Watkins' deposition was not filed
accordance with the terms of the note and
in the trial court, it is not part of the record on
mortgage); JP Morgan Chase Bank, N.A. v.
appeal and we may not consider it. It is well-
Ackerman, 5th Dist. No. 13CA17, 2013-Ohio-
settled that "[a]ppellate review is limited to the
5010 (summary judgment affirmed where affidavit
record as it existed at the time the trial court
from the vice president of loan documentation for
rendered its judgment." Franks v. Rankin, 10th
the bank's servicing agent contained all the
Dist. No. 11AP-962, 2012-Ohio-1920, ¶ 73, citing
averments necessary to support the bank's
Wiltz v. Clark Schaefer Hackett & Co., 10th Dist.
motion). While this affidavit established
No. 11AP-64, 2011-Ohio-5616, ¶ 13. Nor can "
appellants' default, debt acceleration, and the

7
 Bank of Am., N.A. v. Robledo 2014 Ohio 1185 (Ohio Ct. App. 2014)

'[a] reviewing court * * * add matter to the record {¶ 35} Because appellee's motion for summary
before it, which was not a part of the trial court's judgment was not properly supported, we must
proceedings, and then decide the appeal on the conclude the trial court erred in granting appellee's
basis of the new matter.' " Id., quoting State v. motion for summary judgment. Accordingly,
Ishmail, 54 Ohio St.2d 402 (1978), paragraph one appellants' third assignment of error is sustained.
of the syllabus; Baker v. Beshears, 10th Dist. No.
07AP-488, 2008-Ohio-1374, ¶ 12, citing Bush v. IV. CONCLUSION
Beggrow, 10th Dist. No. 03AP-1238, 2005-Ohio- {¶ 36} For the foregoing reasons, appellants' first
2426, fn. 7; Cottrill v. Knaul, 3d Dist. No. 9-07- and second assignments of error are overruled, and
12, 2007-Ohio-5196, ¶ 8, fn. 1. appellants' third assignment of error is sustained.
12 Consequently, the *12 judgment of the Franklin
{¶ 34} Accordingly, we must conclude appellee
County Court of Common Pleas is affirmed in part
failed to present evidence in accordance with
and reversed in part, and this matter is remanded
Civ.R. 56 establishing that it provided appellants
to that court for further proceedings.
with written notice of default and acceleration of
payment as required by the mortgage such that its Judgment affirmed in part and reversed in part;
motion for summary judgment was not properly cause remanded.
supported.
DORRIAN and O'GRADY, JJ.,
concur.