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Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Fifth Third Bank, an Ohio Corporation, Case No.: 12CV009367
as Successor in Interest to the Fifth Third
Bank of Columbus, as Successor in Judge Stephen L. McIntosh
Interest to State Savings Bank
PLAINTIFF’S SUPPLEMENTAL
Plaintiff, MEMORANDUM IN SUPPORT OF
PLAINTIFF’S MOTION FOR
vs. SUMMARY JUDGMENT
The Estate of Thomas Leo Getz, et al
Defendants.
Comes now the Plaintiff, by and through counsel, submitting a Memorandum in Support
of Plaintiff's Motion for Summary Judgment, appended hereto.
MEMORANDUM
I. FACTUAL BACKGROUND
On June 29, 1998, Thomas L. Getz, now deceased, executed a Note made payable to State
Savings Bank, which effectively was payable to Fifth Third Bank, the successor in interest to State
Savings Bank, and an entity owned in its entirety by Fifth Third Bank of Columbus, in the amount
of $124,796.00. In order to secure that debt, Thomas L. Getz, now deceased, executed a Mortgage
to secure the Note, which mortgage encumbered the subject property, and was for the benefit of
Fifth Third Bank, successor to State Savings Bank, and executed on the same date as the Note,
being June 29, 1998, thereby conveying a lien on the Real Property located at 5912 Epernay Way,
Columbus, OH 43119 (herein “Real Property”) to the Plaintiff, Fifth Third Bank, an Ohio
Corporation, as Successor in Interest to State Savings Bank (“Plaintiff”). Plaintiff is now theFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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holder of said Note and Mortgage, which are attached to Plaintiff's Second Motion for Summary
Judgment as Exhibits A and B, respectively. There has been no sale of this loan to any of these
entities as argued by Defendant. ( see Plaintiff's Affidavit in Support filed of even date with this
Memorandum in Support, hereinafter “A ffidavit”).
By means of this Mortgage, the Plaintiff was granted the first and best lien upon the Real
Property, subordinate only to any liens of the Franklin County Auditor or Franklin County
Treasurer as their interests are protected under §5721.10 of the Ohio Revised Code. Thomas L
Getz, now deceased, and the Defendant, The Estate of Thomas L. Getz, have defaulted upon their
financial obligations owed to the Plaintiff as of January 1, 2012, as they have failed to make the
required payments as indicated by the Note.
STATEMENT OF LAW.
L STANDARD FOR OPPOSING A MOTION FOR SUMMARY JUDGMENT
To date, Defendants have failed to provide sufficient evidence to successfully oppose
Plaintiff's Second Motion for Summary Judgment. On Motions for Summary Judgment, Rule 56 of
the Ohio Rules of Civil Procedure provides:
“[w]hen a motion for summary judgment is made and supported as provided in this
tule, an adverse party may not rest upon the mere allegations or denials of the party's
pleadings, but the party's response, by affidavit or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial. Jf the party
does not so respond, summary judgment, if appropriate, shall be entered against the
party.” [Emphasis added].
In accordance with this standard, Defendants have yet to oppose Plaintiffs Second Motion forFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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Summary Judgment, either directly or indirectly, with evidence sufficient to deny Plaintiff's
Motion. Defendants have not filed any formal response or objection to the Motion. Furthermore,
while Defendants have implicitly opposed Plaintiff's Motion with their own Motion for Summary
Judgment, they have not supplemented their Motion with the requisite affidavits in support, or any
other evidence. Defendants’ Motion for Summary Judgment has relied exclusively upon “the mere
allegations or denials of the party's pleadings,” as explicitly prohibited by Civ. R. 56 above.
Furthermore, Plaintiff contends that Defendants, under the present circumstances, will be
unable to submit such sufficient evidence in opposition of Plaintiff's Motion, or in support of their
own. Civ. R. 56 further provides that “[s]upporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated in the affidavit.” In the
present case, the only natural person named as a Defendant, Danielle D. Getz-Woyan, as
administrator of the estate, was not a party to the loan. As a result, the only person with personal
knowledge of the circumstance of the loan was the decedent, Thomas L. Getz. Because Mr. Getz is
not available to provide such a sworn statement to support the facts alleged in Defendants’ Motion
for Summary Judgment, Defendants will not possibly be able to comply with the standard set forth
in Rule 56.
In light of these considerations, Defendant’s Motion for Summary Judgment must be
Denied, and Plaintiff's Motion for Summary Judgment should be granted in accordance with Civ.
R. 56.
Il. R.C. 1301.201 IS NOT APPLICABLE IN THE PRESENT CASE
Contrary to Defendants’ assertions in their Reply to Plaintiff's Memorandum in OppositionFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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to Defendants’ Motion for Summary Judgment, the cited provisions of R.C. 1301.201 are not
controlling in this case. The cited law is controlling in instances of transactions involving
commercial paper. As explained below, as well as in Plaintiff's latest Affidavit in Support of its
Second Motion for Summary Judgment, the Note and Mortgage at issue were never bought, sold,
assigned, or otherwise transferred. Fifth Third is the entity which closed the loan to Decedent on
June 29, 1998, and has been in exclusive ownership and possession of the Note and Mortgage ever
since. (see Plaintiff's Affidavit). Because there was no commercial transaction involved, and
because Defendants have failed to provide evidence to the contrary, the provisions of R.C. 1301.201
cited by Defendants are not applicable to the present case.
Tl. STANDING OF PLAINTIFF AS HOLDER OF THE NOTE AND MORTGAGE
Plaintiff properly appears before this Court as the Real Party in Interest, and as the originator
of the Note and Mortgage. As demonstrated by the accompanying affidavit from Plaintiff, and
Exhibit 1 of that affidavit, State Savings Bank was acquired by the Fifth Third Bank of Columbus, a
registered trade name of Fifth Third Bank, by corporate merger on June 19, 1998. In this
acquisition, Fifth Third Bank of Columbus thereby acquired all physical and financial assets and
interest of State Savings Bank. Included in this acquisition were the standard forms and papers used
by State Savings Bank for the execution of loans and mortgages in the course of its ordinary
business. On June 29, 1998, the Mortgage and Note forms of State Savings, owned at the time by
Fifth Third Bank, were used to close the purchase money loan for Defendant, Thomas L. Getz,
referenced in the Statement of Facts above. ( see Plaintiff Affidavit). While the loan and mortgage
were inked on State Savings Bank paper, the loan was in actuality closed by Fifth Third Bank. The
Plaintiff did not purchase this loan and did not need to purchase this loan, as Plaintiff had alreadyFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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purchased State Savings and all of its assets, including its blank forms. No commercial paper
consummated loan in this case was purchased by Plaintiff nor did it need to as the Plaintiff already
owned State Savings prior to the loan closing with this Defendant. The dictates of R.C. 1301.201,
as argued by Defendants (Def. Reply Mem. at 2) do not apply.
Alternatively, even if this Court were to accept Defendant’s argument that the Note and
Mortgage were assigned to Plaintiff by State Savings Bank, Fifth Third would still be the real party
in interest in the present case. R.C. 1701.88 provides that, following its dissolution, a voluntarily
dissolved corporation may “[p]erform all other acts necessary or expedient to the winding up of the
affairs of the corporation.” Ohio Rev. Code Ann. § 1701.88 (D) (16) (West). Under this provision,
State Savings would have been permitted to close this loan in order to wind up its corporate affairs,
rendering Fifth Third as the only remaining party of interest as successor to State Savings.
Furthermore, Plaintiff has provided sufficient evidence in this case to establish its standing
as the real party in interest as the result of such assignment. (see Plaintiff's Affidavit). In
establishing the surviving entity of a corporate merger as the real party in interest, either the
Affidavit by Plaintiff attesting to the merger, or the certificate of merger from the Secretary of State,
will suffice. U.S. Bank, N.A. v. Detweiler, 2010-Ohio-6408, 191 Ohio App. 3d 464, 946 N.E.2d
777 (holding that affidavit by Plaintiff attesting to corporate merger with the corporation that
originated the home mortgage loan, was sufficient to establish standing, and to award judgment as a
matter of law in the absence of a certificate of corporate merger). In the present case, both of these
documents have been produced to this Court.
Whether found to be originator or assignee, Plaintiff, at the time of the filing of this case,
stood as the real party in interest to the present loan, and holds the first and best lien upon the Real
Property, subordinate only to any liens of the Franklin County Auditor or Franklin CountyFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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Treasurer as their interests are protected under §5721.10 of the Ohio Revised Code.
IV. ESTOPPEL
In addition to asserting that Plaintiff is the only possible real party in interest to the
present case, Plaintiffs also assert that the actions of Defendants cause them to be estopped from
otherwise denying that Plaintiff is the holder of the Note and Mortgage, and the proper payee of
the debt at issue. “It is generally held that a representation of past or existing fact made to a
party who relies upon it reasonably may not thereafter be denied by the party making the
representation if permitting the denial would result in injury or damage to the party who so
relies. The party making the representation is denied, by virtue of equitable estoppel. . . .”
Hortman v. Miamisburg, 110 Ohio St. 3d 194, 198 (2006) (citing Lord, Williston on Contracts
(4th Ed.1992) 28-31, Section 8:3). “The purpose of equitable estoppel is to prevent actual or
constructive fraud and to promote the ends of justice. . . .”’ Ohio State Bd. of Pharmacy v. Frantz.
51 Ohio St. 3d 143, 145, (1990) (citing Heckler v. Community Health Services, 467 U.S. 51, 59
(1984); Lex Mayers Chevrolet Co. v. Buckeye Finance Co. (1958), 107 Ohio App. 235, 237,
affirmed (1959)).
In the accompanying Affidavit, Plaintiff attests to the fact that the Decedent, Thomas L.
Getz, made all monthly payments on the mortgage loan at issue directly to Plaintiff. Furthermore,
as explained in the Affidavit in Support of Plaintiffs Second Motion for Summary Judgment, filed
by Plaintiff on January 30, 2013, Defendants were served with discovery documents on November
28, 2012. Among these documents was a Request for Admissions. In spite of an extension of time
granted by Plaintiff to Defendants, Defendants failed to respond to discovery by the extendedFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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deadline of January 5, 2013. In accordance with the Ohio Civil Rules of Procedure, all requested
admissions were deemed admitted upon Defendants’ failure to respond. Civ. R. 36. As a result,
Defendants have admitted that they received a letter from Plaintiff, providing notification of default.
This same notification also gave the Defendants the opportunity to contact Plaintiff for the purpose
of disputing any payment history, or discussing loss mitigation opportunities.
In light of the above facts, Defendants’ current allegations that Plaintiff is not the holder of
the Note or Mortgage, or is not the valid payee of the debt, should be ignored, as Defendants took
affirmative action over the course of several years which indicated that Plaintiff was the proper
payee of the debt. Defendants further failed to raise any of the allegations contained within their
Motion for Summary Judgment during the period of time following the Notice of Default. In
reliance on these actions, Plaintiff proceeded to fulfill all obligations of holder of the Note and
Mortgage, and commenced this foreclosure action upon Defendants’ failure to raise any object to
the Notice of Default.
V. UNJUST ENRICHMENT
Plaintiffs further contend that a judgment in Defendants’ favor would contradict public
policy, as the Defendants would be unjustly enriched. To demonstrate unjust enrichment, the
Plaintiff must show, “(1) a benefit conferred by a plaintiff upon a defendant, (2) knowledge by
the defendant of the benefit, and (3) retention of the benefit by the defendant under
circumstances where it would be unjust to do so without payment.” Jones v. Jones, 903 N.E.2d
329, 337-38 (2008) (quoting L & H Leasing Co. v. Dutton (1992), 612 N.E.2d 787, quoting
Hambleton v. R.G. Barry Corp. (1984), 465 N.E.2d 1298, quoting Hummel v. Hummel (1938),
133 Ohio St. 520, 525, 11 0.0. 221, 14 N.E.2d 923). “Recovery under unjust enrichment isFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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designed to compensate the plaintiff for the benefit he has conferred upon another, not to
compensate him for a loss suffered.” Id. (citing Hughes v. Oberholtzer (1954), 123 N.E.2d 393).
A judgment in favor of Defendants would irrefutably unjustly enrich Defendants, with no
recourse for Plaintiff to recover its investment. Defendants have admitted several items in
discovery that demonstrate both that a benefit was conferred by Plaintiff, and that Defendants
were aware of that benefit. Specifically, Defendants have admitted that the decedent, Thomas L.
Getz executed a Note and Mortgage with Plaintiff for the purpose of purchasing property located
at 5919 Epernay Way, Columbus, OH 43119, in the amount of $124,796.00 (Request for
Admissions, No. 1-3). Defendants have also admitted that decedent Thomas L. Getz signed the
deed to this same property (Admissions, No. 11), demonstrating that he was successful in
acquiring the home with the money leant by Plaintiff. Defendants also admit that there is a
principal balance of $95,136.60 still due to Plaintiff as a result of this loan (Admissions No. 27).
Furthermore, Defendants’ HUD-1 statement reveals that the funds were accepted, and distributed
to the seller of the property (Exhibit A, attached hereto).
Defendants have also continued to retain the property acquired using the funds from the
loan, in spite of failing to make payments since February of 2012, and in spite of owing a
principal balance of $95,136.60 to Plaintiff. Additionally, if Plaintiffs mortgage is not
honored, it would Jeave the loan unsecured, and Defendants unaccountable for the remaining
unpaid balance of the loan, which Defendant undeniably accepted and used to purchase the
property at 5919 Epernay Way, Columbus, OH 43119. As such, a judgment for Defendants
would unjustly permit them to keep a property for which they have not paid.
IV. CONCLUSIONFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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In light of the above circumstances, Plaintiffs once again request that this Court GRANT
Plaintiff's Second Motion for Summary Judgment, and further, that this Court DENY
Defendants’ Motion for Summary Judgment.
Respectfully Submitted,
RICHARDS & ASSOCIATES CO., L.P.A.
BY: /s/ Thomas D. Richards
Thomas D. Richards (0012039)
Attorney for Plaintiff
9200 Montgomery Rd.
Montgomery Station Bldg. 7B
Cincinnati, Ohio 45242
513-871-8755 — Office
513-297-7511 — Facsimile
53@tdrlaw.net — Email
BE ADVISED THAT THIS OFFICE IS ATTEMPTING TO COLLECT THE ABOVE
DESCRIBED DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT
PURPOSE.
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing Memorandum has been served by ordinary
U.S. mail on this 12" day of March, 2013.
The Estate of Thomas Leo Getz
Bryan R. Moore, Esq.
555 City Park Avenue
Columbus, OH 43215
Unknown Spouse of The Estate of Thomas Leo Getz
Bryan R. Moore, Esq.
555 City Park Avenue
Columbus, OH 43215
Danielle D. Getz-Woyan, Administrator
Bryan R. Moore, Esq.
555 City Park Avenue
Columbus, OH 43215Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
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Unknown Spouse of Danielle D. Getz-Woyan, Administrator
Bryan R. Moore, Esq.
555 City Park Avenue
Columbus, OH 43215
Unknown Tenants
5912 Epernay Way
Columbus, OH 43119
Bank One, NA
Home Loan Services
132 E. Washington Street
Indianapolis, IN 46204
Danielle D. Getz-Woyan, Individually
Bryan R. Moore, Esq.
555 City Park Avenue
Columbus, OH 43215
Franklin County Treasurer
373 S. High Street, 17th Floor
Columbus, OH 43215-6306
BY: /s/ Thomas D. Richards
Thomas D. Richards0B022 - pagank County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367
JUN-26-1998 14:27 _ PUgLANCE TITLE AGENCY
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CLOSBR: MICHELLE L. VORTERFIBLD
DATE OF PRINTING: 06/26/98
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ID. NAME OF Bt
ROWER: THOMAS L. GETZ
ADDRESS: 800° PEPERS COURT
COLUMBUS onto. 43228 :
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‘ADDRESS: 5501 FRANTZ ROAD
DUBLIY RTO 43027
E OF LENDER: ‘STATE SAVINGS BANK
ADDRESS: 3800 WEST DUBLIN GRANVILLE ROAD
DUBLIN OHIO 43017
IG. PROPERTY LOCATION: 5912 SPERNAY WAY
GALLOWAY oHIO 43119
Iq. SETTLEMENT AGE! RULIANCE TITLE AGENCY, LTD. 1. BETTLEM
ADDRESS: 5919 KARRIC SQUARE DRIVE ‘June 29, 1998
‘OHIO 43016 :
PLACE OF SETTLEME! 5919 KARRIC SQUARE DRIVE . DISBUI ENT DATE:
ADORE! DUBLIN. OHI $3016 __-_| dune 29, 1998
J SUMMARY OF BORROWER'S TRANSACTION F SE
‘GROSS AMOUNT DI JM BORROWER: Gi DUE TO SELLER:
[101. Contract salee prica 128, 200,.90[401. Contract sales price [328.200 . 90)
faz. Porsonel Propory 402.
103. Setiement charges toborrewer fine 1400) 3,477.66 =
O4apPLY FUND. TO PRTMCTPAL 495 .33|404. PAL. 425,331
05. 405.
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20. GROSS AMT DUE FROM BORROWER 132.172, 96|420. GROSS AMT Ove TO SELLER 128.695
7200. AMOUNTS PAID GY ORIN GEHALFOF BORROWER "500. REDUCTIONS INAMOUNT DUE TO GELLER
(257, Depast cr aamasi money [s01, Excuse deposit (exe instruations)
fan2. Principal amount of naw loans) 124, 196, 00|S2 Settomantcnerpes tocaliar__ fine 1400) 5,471.39
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504. Payott of frst mortgage loan
(308. APPLICATION FEE CREDIT, 25.00)
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208. [eO8. ESCROW FOR COMPLETION TO ALLIANCE TITLE 2.200
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801. CTO Eae Foe 1,000 % STATE SAVINGS BANK 2,220.50!
(602, Loan Olscount 2.625 _% STATE SAVINGS BANK 13.275.
803. Appraisal Feo to THE APPRATSAL GROUP 225 Pe
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‘805,__Londer’s inzpection Fee to
‘806, Morigage insuranea Application Fee fo
‘807, Assumption Fee to
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810, FLOGD CERT 70 STATE SAVINGS BAI 16,00
811. UP PROUT MP TO STATE SAVINGS BANK 2,746.23 |
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G01. Interest from 96/29/98 10 07/01/98 @8 17.5221 /amy for 2 days - 35,04
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1111. ARM ENDORSEMENT TO ALLIANCE TITLE AGENCY, LTD. 75.00
3112.
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7200. GOVERNMENT RECORDING AND TRANSFER CHARGES:
201, Recording fees: Oced $14.00 ;Mengape _§._ $4.09: Reloase 6 $8.00
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Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OBO22 - D19 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Fifth Third Bank, an Ohio Corporation, Case No.: 12CV009367 as Successor in Interest to the Fifth Third Bank of Columbus, as Successor in Judge Stephen L. McIntosh Interest to State Savings Bank PLAINTIFF’S SUPPLEMENTAL Plaintiff, MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR vs. SUMMARY JUDGMENT The Estate of Thomas Leo Getz, et al Defendants. Comes now the Plaintiff, by and through counsel, submitting a Memorandum in Support of Plaintiff's Motion for Summary Judgment, appended hereto. MEMORANDUM I. FACTUAL BACKGROUND On June 29, 1998, Thomas L. Getz, now deceased, executed a Note made payable to State Savings Bank, which effectively was payable to Fifth Third Bank, the successor in interest to State Savings Bank, and an entity owned in its entirety by Fifth Third Bank of Columbus, in the amount of $124,796.00. In order to secure that debt, Thomas L. Getz, now deceased, executed a Mortgage to secure the Note, which mortgage encumbered the subject property, and was for the benefit of Fifth Third Bank, successor to State Savings Bank, and executed on the same date as the Note, being June 29, 1998, thereby conveying a lien on the Real Property located at 5912 Epernay Way, Columbus, OH 43119 (herein “Real Property”) to the Plaintiff, Fifth Third Bank, an Ohio Corporation, as Successor in Interest to State Savings Bank (“Plaintiff”). Plaintiff is now theFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OB022 - D20 holder of said Note and Mortgage, which are attached to Plaintiff's Second Motion for Summary Judgment as Exhibits A and B, respectively. There has been no sale of this loan to any of these entities as argued by Defendant. ( see Plaintiff's Affidavit in Support filed of even date with this Memorandum in Support, hereinafter “A ffidavit”). By means of this Mortgage, the Plaintiff was granted the first and best lien upon the Real Property, subordinate only to any liens of the Franklin County Auditor or Franklin County Treasurer as their interests are protected under §5721.10 of the Ohio Revised Code. Thomas L Getz, now deceased, and the Defendant, The Estate of Thomas L. Getz, have defaulted upon their financial obligations owed to the Plaintiff as of January 1, 2012, as they have failed to make the required payments as indicated by the Note. STATEMENT OF LAW. L STANDARD FOR OPPOSING A MOTION FOR SUMMARY JUDGMENT To date, Defendants have failed to provide sufficient evidence to successfully oppose Plaintiff's Second Motion for Summary Judgment. On Motions for Summary Judgment, Rule 56 of the Ohio Rules of Civil Procedure provides: “[w]hen a motion for summary judgment is made and supported as provided in this tule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Jf the party does not so respond, summary judgment, if appropriate, shall be entered against the party.” [Emphasis added]. In accordance with this standard, Defendants have yet to oppose Plaintiffs Second Motion forFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OBO22 - D21 Summary Judgment, either directly or indirectly, with evidence sufficient to deny Plaintiff's Motion. Defendants have not filed any formal response or objection to the Motion. Furthermore, while Defendants have implicitly opposed Plaintiff's Motion with their own Motion for Summary Judgment, they have not supplemented their Motion with the requisite affidavits in support, or any other evidence. Defendants’ Motion for Summary Judgment has relied exclusively upon “the mere allegations or denials of the party's pleadings,” as explicitly prohibited by Civ. R. 56 above. Furthermore, Plaintiff contends that Defendants, under the present circumstances, will be unable to submit such sufficient evidence in opposition of Plaintiff's Motion, or in support of their own. Civ. R. 56 further provides that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.” In the present case, the only natural person named as a Defendant, Danielle D. Getz-Woyan, as administrator of the estate, was not a party to the loan. As a result, the only person with personal knowledge of the circumstance of the loan was the decedent, Thomas L. Getz. Because Mr. Getz is not available to provide such a sworn statement to support the facts alleged in Defendants’ Motion for Summary Judgment, Defendants will not possibly be able to comply with the standard set forth in Rule 56. In light of these considerations, Defendant’s Motion for Summary Judgment must be Denied, and Plaintiff's Motion for Summary Judgment should be granted in accordance with Civ. R. 56. Il. R.C. 1301.201 IS NOT APPLICABLE IN THE PRESENT CASE Contrary to Defendants’ assertions in their Reply to Plaintiff's Memorandum in OppositionFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OBO022 - D22 to Defendants’ Motion for Summary Judgment, the cited provisions of R.C. 1301.201 are not controlling in this case. The cited law is controlling in instances of transactions involving commercial paper. As explained below, as well as in Plaintiff's latest Affidavit in Support of its Second Motion for Summary Judgment, the Note and Mortgage at issue were never bought, sold, assigned, or otherwise transferred. Fifth Third is the entity which closed the loan to Decedent on June 29, 1998, and has been in exclusive ownership and possession of the Note and Mortgage ever since. (see Plaintiff's Affidavit). Because there was no commercial transaction involved, and because Defendants have failed to provide evidence to the contrary, the provisions of R.C. 1301.201 cited by Defendants are not applicable to the present case. Tl. STANDING OF PLAINTIFF AS HOLDER OF THE NOTE AND MORTGAGE Plaintiff properly appears before this Court as the Real Party in Interest, and as the originator of the Note and Mortgage. As demonstrated by the accompanying affidavit from Plaintiff, and Exhibit 1 of that affidavit, State Savings Bank was acquired by the Fifth Third Bank of Columbus, a registered trade name of Fifth Third Bank, by corporate merger on June 19, 1998. In this acquisition, Fifth Third Bank of Columbus thereby acquired all physical and financial assets and interest of State Savings Bank. Included in this acquisition were the standard forms and papers used by State Savings Bank for the execution of loans and mortgages in the course of its ordinary business. On June 29, 1998, the Mortgage and Note forms of State Savings, owned at the time by Fifth Third Bank, were used to close the purchase money loan for Defendant, Thomas L. Getz, referenced in the Statement of Facts above. ( see Plaintiff Affidavit). While the loan and mortgage were inked on State Savings Bank paper, the loan was in actuality closed by Fifth Third Bank. The Plaintiff did not purchase this loan and did not need to purchase this loan, as Plaintiff had alreadyFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OB022 - D23 purchased State Savings and all of its assets, including its blank forms. No commercial paper consummated loan in this case was purchased by Plaintiff nor did it need to as the Plaintiff already owned State Savings prior to the loan closing with this Defendant. The dictates of R.C. 1301.201, as argued by Defendants (Def. Reply Mem. at 2) do not apply. Alternatively, even if this Court were to accept Defendant’s argument that the Note and Mortgage were assigned to Plaintiff by State Savings Bank, Fifth Third would still be the real party in interest in the present case. R.C. 1701.88 provides that, following its dissolution, a voluntarily dissolved corporation may “[p]erform all other acts necessary or expedient to the winding up of the affairs of the corporation.” Ohio Rev. Code Ann. § 1701.88 (D) (16) (West). Under this provision, State Savings would have been permitted to close this loan in order to wind up its corporate affairs, rendering Fifth Third as the only remaining party of interest as successor to State Savings. Furthermore, Plaintiff has provided sufficient evidence in this case to establish its standing as the real party in interest as the result of such assignment. (see Plaintiff's Affidavit). In establishing the surviving entity of a corporate merger as the real party in interest, either the Affidavit by Plaintiff attesting to the merger, or the certificate of merger from the Secretary of State, will suffice. U.S. Bank, N.A. v. Detweiler, 2010-Ohio-6408, 191 Ohio App. 3d 464, 946 N.E.2d 777 (holding that affidavit by Plaintiff attesting to corporate merger with the corporation that originated the home mortgage loan, was sufficient to establish standing, and to award judgment as a matter of law in the absence of a certificate of corporate merger). In the present case, both of these documents have been produced to this Court. Whether found to be originator or assignee, Plaintiff, at the time of the filing of this case, stood as the real party in interest to the present loan, and holds the first and best lien upon the Real Property, subordinate only to any liens of the Franklin County Auditor or Franklin CountyFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OBO022 - D24 Treasurer as their interests are protected under §5721.10 of the Ohio Revised Code. IV. ESTOPPEL In addition to asserting that Plaintiff is the only possible real party in interest to the present case, Plaintiffs also assert that the actions of Defendants cause them to be estopped from otherwise denying that Plaintiff is the holder of the Note and Mortgage, and the proper payee of the debt at issue. “It is generally held that a representation of past or existing fact made to a party who relies upon it reasonably may not thereafter be denied by the party making the representation if permitting the denial would result in injury or damage to the party who so relies. The party making the representation is denied, by virtue of equitable estoppel. . . .” Hortman v. Miamisburg, 110 Ohio St. 3d 194, 198 (2006) (citing Lord, Williston on Contracts (4th Ed.1992) 28-31, Section 8:3). “The purpose of equitable estoppel is to prevent actual or constructive fraud and to promote the ends of justice. . . .”’ Ohio State Bd. of Pharmacy v. Frantz. 51 Ohio St. 3d 143, 145, (1990) (citing Heckler v. Community Health Services, 467 U.S. 51, 59 (1984); Lex Mayers Chevrolet Co. v. Buckeye Finance Co. (1958), 107 Ohio App. 235, 237, affirmed (1959)). In the accompanying Affidavit, Plaintiff attests to the fact that the Decedent, Thomas L. Getz, made all monthly payments on the mortgage loan at issue directly to Plaintiff. Furthermore, as explained in the Affidavit in Support of Plaintiffs Second Motion for Summary Judgment, filed by Plaintiff on January 30, 2013, Defendants were served with discovery documents on November 28, 2012. Among these documents was a Request for Admissions. In spite of an extension of time granted by Plaintiff to Defendants, Defendants failed to respond to discovery by the extendedFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OBO022 - D25 deadline of January 5, 2013. In accordance with the Ohio Civil Rules of Procedure, all requested admissions were deemed admitted upon Defendants’ failure to respond. Civ. R. 36. As a result, Defendants have admitted that they received a letter from Plaintiff, providing notification of default. This same notification also gave the Defendants the opportunity to contact Plaintiff for the purpose of disputing any payment history, or discussing loss mitigation opportunities. In light of the above facts, Defendants’ current allegations that Plaintiff is not the holder of the Note or Mortgage, or is not the valid payee of the debt, should be ignored, as Defendants took affirmative action over the course of several years which indicated that Plaintiff was the proper payee of the debt. Defendants further failed to raise any of the allegations contained within their Motion for Summary Judgment during the period of time following the Notice of Default. In reliance on these actions, Plaintiff proceeded to fulfill all obligations of holder of the Note and Mortgage, and commenced this foreclosure action upon Defendants’ failure to raise any object to the Notice of Default. V. UNJUST ENRICHMENT Plaintiffs further contend that a judgment in Defendants’ favor would contradict public policy, as the Defendants would be unjustly enriched. To demonstrate unjust enrichment, the Plaintiff must show, “(1) a benefit conferred by a plaintiff upon a defendant, (2) knowledge by the defendant of the benefit, and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment.” Jones v. Jones, 903 N.E.2d 329, 337-38 (2008) (quoting L & H Leasing Co. v. Dutton (1992), 612 N.E.2d 787, quoting Hambleton v. R.G. Barry Corp. (1984), 465 N.E.2d 1298, quoting Hummel v. Hummel (1938), 133 Ohio St. 520, 525, 11 0.0. 221, 14 N.E.2d 923). “Recovery under unjust enrichment isFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OBO022 - D26 designed to compensate the plaintiff for the benefit he has conferred upon another, not to compensate him for a loss suffered.” Id. (citing Hughes v. Oberholtzer (1954), 123 N.E.2d 393). A judgment in favor of Defendants would irrefutably unjustly enrich Defendants, with no recourse for Plaintiff to recover its investment. Defendants have admitted several items in discovery that demonstrate both that a benefit was conferred by Plaintiff, and that Defendants were aware of that benefit. Specifically, Defendants have admitted that the decedent, Thomas L. Getz executed a Note and Mortgage with Plaintiff for the purpose of purchasing property located at 5919 Epernay Way, Columbus, OH 43119, in the amount of $124,796.00 (Request for Admissions, No. 1-3). Defendants have also admitted that decedent Thomas L. Getz signed the deed to this same property (Admissions, No. 11), demonstrating that he was successful in acquiring the home with the money leant by Plaintiff. Defendants also admit that there is a principal balance of $95,136.60 still due to Plaintiff as a result of this loan (Admissions No. 27). Furthermore, Defendants’ HUD-1 statement reveals that the funds were accepted, and distributed to the seller of the property (Exhibit A, attached hereto). Defendants have also continued to retain the property acquired using the funds from the loan, in spite of failing to make payments since February of 2012, and in spite of owing a principal balance of $95,136.60 to Plaintiff. Additionally, if Plaintiffs mortgage is not honored, it would Jeave the loan unsecured, and Defendants unaccountable for the remaining unpaid balance of the loan, which Defendant undeniably accepted and used to purchase the property at 5919 Epernay Way, Columbus, OH 43119. As such, a judgment for Defendants would unjustly permit them to keep a property for which they have not paid. IV. CONCLUSIONFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OBO022 - D27 In light of the above circumstances, Plaintiffs once again request that this Court GRANT Plaintiff's Second Motion for Summary Judgment, and further, that this Court DENY Defendants’ Motion for Summary Judgment. Respectfully Submitted, RICHARDS & ASSOCIATES CO., L.P.A. BY: /s/ Thomas D. Richards Thomas D. Richards (0012039) Attorney for Plaintiff 9200 Montgomery Rd. Montgomery Station Bldg. 7B Cincinnati, Ohio 45242 513-871-8755 — Office 513-297-7511 — Facsimile 53@tdrlaw.net — Email BE ADVISED THAT THIS OFFICE IS ATTEMPTING TO COLLECT THE ABOVE DESCRIBED DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing Memorandum has been served by ordinary U.S. mail on this 12" day of March, 2013. The Estate of Thomas Leo Getz Bryan R. Moore, Esq. 555 City Park Avenue Columbus, OH 43215 Unknown Spouse of The Estate of Thomas Leo Getz Bryan R. Moore, Esq. 555 City Park Avenue Columbus, OH 43215 Danielle D. Getz-Woyan, Administrator Bryan R. Moore, Esq. 555 City Park Avenue Columbus, OH 43215Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 OBO022 - D28 Unknown Spouse of Danielle D. Getz-Woyan, Administrator Bryan R. Moore, Esq. 555 City Park Avenue Columbus, OH 43215 Unknown Tenants 5912 Epernay Way Columbus, OH 43119 Bank One, NA Home Loan Services 132 E. Washington Street Indianapolis, IN 46204 Danielle D. Getz-Woyan, Individually Bryan R. Moore, Esq. 555 City Park Avenue Columbus, OH 43215 Franklin County Treasurer 373 S. High Street, 17th Floor Columbus, OH 43215-6306 BY: /s/ Thomas D. Richards Thomas D. Richards0B022 - pagank County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 JUN-26-1998 14:27 _ PUgLANCE TITLE AGENCY A. Alliance Title Agency, las) CLOSBR: MICHELLE L. VORTERFIBLD DATE OF PRINTING: 06/26/98 | 98490727 _ pst) 0984809737-003 MLPA’ 142 = ‘MIMB OF PRINTING: 13:52 Usain Winslet Bp i iaance us. parannasnt OF HOUBNG ASTER Dever on oy 3184902-729 Ic. NOTE: Te formte ment casts. ant are iow. Hamas "(9.0.0)" ware wdavtste te cic js thay are shown here for Informational ‘and oso not Included In the tots. __ ID. NAME OF Bt ROWER: THOMAS L. GETZ ADDRESS: 800° PEPERS COURT COLUMBUS onto. 43228 : E OF SELLER: DONMENION HOMES, INC. i ‘ADDRESS: 5501 FRANTZ ROAD DUBLIY RTO 43027 E OF LENDER: ‘STATE SAVINGS BANK ADDRESS: 3800 WEST DUBLIN GRANVILLE ROAD DUBLIN OHIO 43017 IG. PROPERTY LOCATION: 5912 SPERNAY WAY GALLOWAY oHIO 43119 Iq. SETTLEMENT AGE! RULIANCE TITLE AGENCY, LTD. 1. BETTLEM ADDRESS: 5919 KARRIC SQUARE DRIVE ‘June 29, 1998 ‘OHIO 43016 : PLACE OF SETTLEME! 5919 KARRIC SQUARE DRIVE . DISBUI ENT DATE: ADORE! DUBLIN. OHI $3016 __-_| dune 29, 1998 J SUMMARY OF BORROWER'S TRANSACTION F SE ‘GROSS AMOUNT DI JM BORROWER: Gi DUE TO SELLER: [101. Contract salee prica 128, 200,.90[401. Contract sales price [328.200 . 90) faz. Porsonel Propory 402. 103. Setiement charges toborrewer fine 1400) 3,477.66 = O4apPLY FUND. TO PRTMCTPAL 495 .33|404. PAL. 425,331 05. 405. jjustments for heme pala wi Seller in advance [Adjustments for emg pald by seller In advance 08, City Rewe taxes. [408 Chty sown taxes, 10 for, County texas = j407. County taxes % ipa. Assacements 2 [40a. Assonements ‘ [roa ra09. 10. fara. ist. : fant, 12. at 20. GROSS AMT DUE FROM BORROWER 132.172, 96|420. GROSS AMT Ove TO SELLER 128.695 7200. AMOUNTS PAID GY ORIN GEHALFOF BORROWER "500. REDUCTIONS INAMOUNT DUE TO GELLER (257, Depast cr aamasi money [s01, Excuse deposit (exe instruations) fan2. Principal amount of naw loans) 124, 196, 00|S2 Settomantcnerpes tocaliar__ fine 1400) 5,471.39 fara, Existing loan) taken subject to [so& Existing toun(G) taken subject 504. Payott of frst mortgage loan (308. APPLICATION FEE CREDIT, 25.00) [205 AFFOROAGLE HOUSING CREDIT (E08. Payot! of escond morigage joan 208. [eO8. ESCROW FOR COMPLETION TO ALLIANCE TITLE 2.200 207. [507 ee je faa [Ustmnents for fame unpaid by seer asians Tor Rams ipa by seller 210. City/town taxes _ 610, Cay/town taxes: [211. County axes = —__[s11. County taxes “= |212. Assessments to = ~_ [512 Assessments, bo fats. _ 513 fata. ~~ {514. [ese HELPING HAND CREDIT 5.102.001515. HELPING HAND CREDIT 5,102,001 i216. 516. i217. “jst. i218. ‘ *_|818. fen ete. [220, TOTAL PAID BY/FOR BORROWER 132,173, 00|820. TOTAL REDUCTIONS AMT DUE SELLER 2 300._ CASHAT SETTLEMENT FRO! IROWER eoo._CASHAT SETTLEMENT TO/FROM 301, Grose erm dua fram borrower (ine 20) 142.172. 49/001. Cossamtdue fo collar Ging 420) 128,695.23 (302, Lose amta pald by/for borrower {ine 220) { 332,173. S50 Tass tecluotione in arnt due eeltor gine 820) (32,773,391 ios. CASH(E) FROM) (fa TO) BORROWER ‘0.,.021608, CASH(R TO) ([] FROM) SELLER 125,922.94 KKK ‘HUD-1 (9/85) RESPA, HB 4305.2 Re99K . . Ghd 798 3950 ULES TOT UOT RTFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Mar 12 1:17 PM-12CV009367 O0B022 - D30 JUN-26-1998 14:27 Aus EANCE TITLE AGENCY . he 614 798 3958 P.84 eng Anse Ete), ._L SETTLEMENT CHARGES oF 1 a3 Et an 7a 700 FAL SALES BROKER'S COMMISSION based on price PAIDFROM. PAID FROM taal ‘Cammiseion fine 700) 29 follows: BORROWER'S one 3 71. LB s ‘2 RE/MAX PREMIER PLUS § 3,626.50 POC SETTLEMENT | SETTLEMENT 72, SB z 4G RE/MAX PERFORUANCE. PLUS 703. Commission ped at Sattiament: . {Money ratalned by broker applisd to commission $ ) 704. Other sales egant charges: ‘705. Additional commission: $ 300, ITEMS PAYABLE IN CONNECTION win LOAN 801. CTO Eae Foe 1,000 % STATE SAVINGS BANK 2,220.50! (602, Loan Olscount 2.625 _% STATE SAVINGS BANK 13.275. 803. Appraisal Feo to THE APPRATSAL GROUP 225 Pe 804. Credit Report to STATE SAVINGS BANK SQ" PoC ‘805,__Londer’s inzpection Fee to ‘806, Morigage insuranea Application Fee fo ‘807, Assumption Fee to a8. 7 09. Doe PREP FEE TO ACCURATE DOC : 75.00 810, FLOGD CERT 70 STATE SAVINGS BAI 16,00 811. UP PROUT MP TO STATE SAVINGS BANK 2,746.23 | ore. _ 00. ITEMS REQUIRED BY LENDER TO BE PAID IN ADVANCE G01. Interest from 96/29/98 10 07/01/98 @8 17.5221 /amy for 2 days - 35,04 ‘902. Mortgage insurance Premium for 1.00 montisto = '903,_Harard Insurance Premium for 1,90 __vearsto 4308.00 POC 904. SS. 7000, VES. ir ENDER Toor. fegurance 3.00 month @5 32,33 permonth 36.99 "[002, Marigage insurance 0.00_ month Bar month 7 1009, Gry property taxog, 9.09 month 68 Ber mon 1004, Gounty property taxst 3.00 _manth @S $0.00 permontn 150.00 1005, Annual aseanemante 0.90 month @s parmonth 1008, 9,07 mons GS per month “007. 8.99 month OS er month | 1008. Aogrenate Accpunting Adjustment 8.08 8.00 1100. ES TIOT._Settiment or Closing Fea To ALLIANCE TITLE ACENKY, 100. 215.00 3102. Abstract or iva sewer to TOS. Tits examination @ 1104, Tite Insurance binder 4o ALLIANCE TITLE AGENCY, 11D. $0.00 50.00! 105. Document preparation to 1408. Notary teas - to. 1107, Attomeys fee to 1108. Fite Insurance to ALLIAKCE TITLE AGENCY, LTD. 50.00 643.00] fiacludes'above hums numbers) 1109. Lender's coverage $124,736.00 $ 50.00 1140, Owneracoverage 8 128,200.00 $ 645.00 1111. ARM ENDORSEMENT TO ALLIANCE TITLE AGENCY, LTD. 75.00 3112. 1113, 7200. GOVERNMENT RECORDING AND TRANSFER CHARGES: 201, Recording fees: Oced $14.00 ;Mengape _§._ $4.09: Reloase 6 $8.00 1202, Clty eaumty tax/etampe: ‘Dood $128.20 i Mortgage 0.50 128.20 203. State tax/olamps: Dead ¢ 3 Mortaxge "6 1204, x 1208. 4300. ADDITIONAL SETTLEMENT CHARGES. 7301, Survey © | 190% Hive WARRANTY 70 HOMEAUYERS WARRANT. ASL.79 107, 1900, TOTAL SETTLEMENT CHARGES __ (enter on lings 103, Section Jand 802, Section 3,477.66 $.471.39! RIK [HUD-2 (5/86) RESPA, HB 4305.2 . TOTAL P.04 R=99% 614 798 3950 06-26-86 02:07PM POO4s Hat