The Sixth Appellate District of Ohio recently affirmed a summary judgment of foreclosure rendered in favor of a lender despite the borrower’s claim that she was not in default because she had submitted mortgage payments that were wrongly rejected by the lender. Castle CFD Grp., LLC v. Kenney[i], 2023-Ohio-2980, ¶ 6 (August 25, 2023) (Slip[ii] Opinion). Kinney involved a contract executed in 2012 for the purchase of real property located in Toledo, Ohio.[iii] In exchange for title to the property, Kinney agreed to make monthly payments until the remaining balance of the purchase price of $19,000.00 was paid off.
Kinney stopped making payments and after unsuccessfully demanding Kinney bring the loan current, the lender filed a foreclosure complaint. Kinney answered the complaint, denied the lender’s allegations of default, and raised the following affirmative defenses: (i) failure to state a cause of action, (ii) failure to make a definite statement upon which relief may be granted, and (iii) lack of jurisdiction…” Notably, Kinney failed to assert payment as a defense.
The lender moved for summary judgment and submitted an affidavit and authenticated evidence which established Kinney’s default, the amounts due, the land contract, the note, the deed, the notice of default, and the payment history. Kinney responded to the motion asserting that “all payments have either been made, attempted to be made, or have been sent back to Defendant by Plaintiff or their agents.” However, she failed to support her defenses with an affidavit and failed to authenticate emails between herself and the lender which allegedly supported her allegations regarding payment.
The lower court found there to be no genuine issues of material fact and granted summary judgment in favor of the lender, Castle CFD Group, LLC.[iv] Kinney appealed asserting there was a genuine dispute regarding the charges assessed by Castle. The appellate court rejected this argument on two grounds: Firstly, the Court found Kinney’s failure to support her claims by affidavit or authenticated evidence fatal to her argument. The Court noted that Kinney’s unauthenticated evidence had “no evidentiary value” and could not “be considered by the court in deciding whether a genuine issue remain[ed] for trial.”
Secondly, the Court found Kinney waived any defense based on payment by failing to plead it as an affirmative defense as required by Civil Rule 8(C). The Court noted: “Civ. R. 8(C) specifically lists payment as an affirmative defense which must be pled.”[v] The Court explained that raising the issue in a response was not the same as pleading it.
The Court affirmed the foreclosure judgment in favor of Castle and ordered Kinney to pay Castle’s appellate costs.
[i] This spelling of defendant’s last name appears to be a typographical error since the Court consistently spelled Kinney with an “i” not an “e” throughout its written opinion.
[ii] “A slip opinion is a written statement prepared by a court that states the basis for a decision, and it’s published in a temporary form. The opinion is often given immediately after the court reaches a decision, such as the issuance of a bench opinion, and is subject to revision by the court.” https://www.mylawquestions.com/what-is-a-slip-opinion.htm
[iii] Kinney, at *1. All future references to or quotations from this case are to this citation until indicated otherwise.
[iv] Kinney, at *2. All future references to or quotations from this case are to this citation until indicated otherwise.
[v] Kinney, at 3 (quoted sourced omitted).