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200745981 O8 JANIS PH 3: 1h
a SARA, BRUSH
CLER RK OF COUR
MONTGOMERY G0. Ono
COURT OF COMMON PLEAS
MONTGOMERY COUNTY, OHIO
The First National Bank of Chicago, as | Case No. 07-8953
Trustee for GE Capital Mortgage Services Inc. ;
Trust 1999-HE2 | Judge Frances E. McGee
Plaintiff,
| MOTION FOR SUMMARY JUDGMENT
-Vvs- i
Cynthia A. Thompson, Individually and as
Administratrix of the Estate of Martha E.
Magill, Deceased, et al.
Defendants. |
Now comes the plaintiff, The First National Bank of Chicago, as Trustee for GE
Capital Mortgage Services Inc. Trust 1999-HE2, and moves the Court for summary
judgment in its favor for the relief prayed for in its Complaint herein, on the grounds that
KEM
LSR2there is no genuine issue as to any material fact,\and id tiff is entitled to Judgment and
Decree in Foreclosure as a matter of law.
omas! Trial Counsel
dme Court #0037667
SAMPSON & ROTHFUSS
Attorneys for Plaintiff
P.O. Box 5480.
Cincinnati, OH 45201-5480
(513) 241-3100/(513) 241-4094-Fax
attyemail@lsrlaw.com
MEMORANDUM
Statement of the Case.
This Motion is made pursuant to Rule 56 of the Ohio Rules of Civil Procedure. This
case is a foreclosure action which was filed on behalf of the plaintiff and first mortgage
holder, The First National Bank of Chicago, as Trustee for GE Capital Mortgage Services
Inc. Trust 1999-HE2.
Statement of Fact.
Plaintiff, The First National Bank of Chicago, as Trustee for GE Capital Mortgage
Services Inc. Trust 1999-HEz2, has filed an Affidavit in Support of Motion for Summary
Judgment contemporaneously herein. The Affidavit establishes the following facts:
1 The Note and Mortgage attached to plaintiffs Complaint are true and exact
copies of the original Note and Mortgage executed by the defendants.
2. The defendants are in default of payment of said Note and establishes the
balance due and owing thereon; and
3. There is an acceleration provision on plaintiff's Note and plaintiff has
exercised that provision and called the entire unpaid principal balance with interest
immediately due and payable.
Statement of Law and Argument.As provided by its Note, plaintiff has an absolute legal right to accelerate and call
due the entire balance on the Note. The filing of the Complaint herein is sufficient
declaration of the exercise of this option. Nixon v. Buckeye Building and Loan Company,
18 Ohio L. Abs. 261 (1934).
It is well established in Ohio that once the default in payment has been made under
the terms of a Note, and once the Note has been accelerated, the holder of the Note is
entitled to judgment. King v. Stafford, 19 Ohio St. 588 (1869); Union Central Life
Insurance Company v. Curtis, 35 Ohio St. 357 (1880); Bradfield v. Hale, 67 Ohio St. 316
(1902); Evilsizor v. Speckbaugh, 55 Ohio L. Abs. 353 (1949).
The Affidavit in Support of this Motion establishes the condition broken (the
delinquent payments) and the acceleration of the indebtedness. The Affidavit also
establishes the fact that the default has not been cured by the defendants. Plaintiff has,
therefore, demonstrated in the Court with Rule 56 of the Ohio Rules of Civil Procedure, a
prima facia case for judgment on its Note and foreclosure of its Mortgage.
The defendant, Cynthia A. Thompson, Individually and as Administratrix of the
Estate of Martha E. Magill, Deceased, has filed an Answer in response to the plaintiff's
Complaint, which Answer raises no defenses and states that at the time of the decedent’s
death the Estate was insolvent. Plaintiff wishes to point out to the Court that insolvency of
the estate is not a bar to foreclosure and plaintiff has the right to accelerate the terms of
the Note and Mortgage.Finally, plaintiff submits that the remedy sought by this Motion is favored by Ohio
courts. In North v. Pennsylvania Road Company, 9 Ohio St. 2d 169 (1967), the Ohio
Supreme Court stated that philosophy governing the use of motions for summary
judgment:
The summary judgment statute was enacted with a
the backlog of cases which clog our courts awaiting
no genuine issue of fact exists. The availabil}
desirability of its aim are so apparent that its|
proper cases.
to eliminating from
trials, those in which
is procedure and the
guld be encouraged in
There being no genuine issue as to any materia plaintiff prays for a summary
Cincinnati, , ‘45201-5480
(513) 241-3100/(513) 241-4094-Fax
attyemail@]srlaw.comCERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and exact copy of the foregoing Motion
for Summary Judgment and Affidavit in support thereof have been duly served upon the
following parti counsel of record by ordinary U.S. mail, postage prepaid this day
2008:
Dennis M. Hana;
32 N. Main Street, Suite gu
Dayton, OH 45402
Colette S. Carr
Asst. Prosecuting Attorney
301 West Third Street
5th Floor
Dayton, OH 45402
John Doe, name unknown, spouse of Cynthia A. Thompson
2349 Willowby Lane
Dayton, OH 45459
Richard K, Barnhart
2523 Saint Charles Avenue
Dayton, OH 45410
Jane Doe, name unknown, spouse of Richard K. Barnhart
2523 Saint Charles Avenue
Dayton, OH 45410
Sandra M. Petrey
2521 Saint Charles Avenue
Dayton, OH 45410
James Doe, name unknown, spouse of Sandra M. Petrey
2521 Saint Charles Avenue
Dayton, OH 45410
Ayricka Magill
7659 Rambler Drive
Dayton, OH 45459
Joe Doe, name unknown, spouse of Ayricka Magill
7659 Rambler Drive
Dayton, OH 45459
State of Ohio, Estate Tax Division
c/o Ohio Attorney General
Revenue Recovery Section
4485 Northland Ridge Blvd.
Columbus, CH 43229
aig Af Thomas
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sesso gsc [ecoathownw 200745981 O8 JANIS PH 3: 1h a SARA, BRUSH CLER RK OF COUR MONTGOMERY G0. Ono COURT OF COMMON PLEAS MONTGOMERY COUNTY, OHIO The First National Bank of Chicago, as | Case No. 07-8953 Trustee for GE Capital Mortgage Services Inc. ; Trust 1999-HE2 | Judge Frances E. McGee Plaintiff, | MOTION FOR SUMMARY JUDGMENT -Vvs- i Cynthia A. Thompson, Individually and as Administratrix of the Estate of Martha E. Magill, Deceased, et al. Defendants. | Now comes the plaintiff, The First National Bank of Chicago, as Trustee for GE Capital Mortgage Services Inc. Trust 1999-HE2, and moves the Court for summary judgment in its favor for the relief prayed for in its Complaint herein, on the grounds that KEM LSR2there is no genuine issue as to any material fact,\and id tiff is entitled to Judgment and Decree in Foreclosure as a matter of law. omas! Trial Counsel dme Court #0037667 SAMPSON & ROTHFUSS Attorneys for Plaintiff P.O. Box 5480. Cincinnati, OH 45201-5480 (513) 241-3100/(513) 241-4094-Fax attyemail@lsrlaw.com MEMORANDUM Statement of the Case. This Motion is made pursuant to Rule 56 of the Ohio Rules of Civil Procedure. This case is a foreclosure action which was filed on behalf of the plaintiff and first mortgage holder, The First National Bank of Chicago, as Trustee for GE Capital Mortgage Services Inc. Trust 1999-HE2. Statement of Fact. Plaintiff, The First National Bank of Chicago, as Trustee for GE Capital Mortgage Services Inc. Trust 1999-HEz2, has filed an Affidavit in Support of Motion for Summary Judgment contemporaneously herein. The Affidavit establishes the following facts: 1 The Note and Mortgage attached to plaintiffs Complaint are true and exact copies of the original Note and Mortgage executed by the defendants. 2. The defendants are in default of payment of said Note and establishes the balance due and owing thereon; and 3. There is an acceleration provision on plaintiff's Note and plaintiff has exercised that provision and called the entire unpaid principal balance with interest immediately due and payable. Statement of Law and Argument.As provided by its Note, plaintiff has an absolute legal right to accelerate and call due the entire balance on the Note. The filing of the Complaint herein is sufficient declaration of the exercise of this option. Nixon v. Buckeye Building and Loan Company, 18 Ohio L. Abs. 261 (1934). It is well established in Ohio that once the default in payment has been made under the terms of a Note, and once the Note has been accelerated, the holder of the Note is entitled to judgment. King v. Stafford, 19 Ohio St. 588 (1869); Union Central Life Insurance Company v. Curtis, 35 Ohio St. 357 (1880); Bradfield v. Hale, 67 Ohio St. 316 (1902); Evilsizor v. Speckbaugh, 55 Ohio L. Abs. 353 (1949). The Affidavit in Support of this Motion establishes the condition broken (the delinquent payments) and the acceleration of the indebtedness. The Affidavit also establishes the fact that the default has not been cured by the defendants. Plaintiff has, therefore, demonstrated in the Court with Rule 56 of the Ohio Rules of Civil Procedure, a prima facia case for judgment on its Note and foreclosure of its Mortgage. The defendant, Cynthia A. Thompson, Individually and as Administratrix of the Estate of Martha E. Magill, Deceased, has filed an Answer in response to the plaintiff's Complaint, which Answer raises no defenses and states that at the time of the decedent’s death the Estate was insolvent. Plaintiff wishes to point out to the Court that insolvency of the estate is not a bar to foreclosure and plaintiff has the right to accelerate the terms of the Note and Mortgage.Finally, plaintiff submits that the remedy sought by this Motion is favored by Ohio courts. In North v. Pennsylvania Road Company, 9 Ohio St. 2d 169 (1967), the Ohio Supreme Court stated that philosophy governing the use of motions for summary judgment: The summary judgment statute was enacted with a the backlog of cases which clog our courts awaiting no genuine issue of fact exists. The availabil} desirability of its aim are so apparent that its| proper cases. to eliminating from trials, those in which is procedure and the guld be encouraged in There being no genuine issue as to any materia plaintiff prays for a summary Cincinnati, , ‘45201-5480 (513) 241-3100/(513) 241-4094-Fax attyemail@]srlaw.comCERTIFICATE OF SERVICE The undersigned hereby certifies that a true and exact copy of the foregoing Motion for Summary Judgment and Affidavit in support thereof have been duly served upon the following parti counsel of record by ordinary U.S. mail, postage prepaid this day 2008: Dennis M. Hana; 32 N. Main Street, Suite gu Dayton, OH 45402 Colette S. Carr Asst. Prosecuting Attorney 301 West Third Street 5th Floor Dayton, OH 45402 John Doe, name unknown, spouse of Cynthia A. Thompson 2349 Willowby Lane Dayton, OH 45459 Richard K, Barnhart 2523 Saint Charles Avenue Dayton, OH 45410 Jane Doe, name unknown, spouse of Richard K. Barnhart 2523 Saint Charles Avenue Dayton, OH 45410 Sandra M. Petrey 2521 Saint Charles Avenue Dayton, OH 45410 James Doe, name unknown, spouse of Sandra M. Petrey 2521 Saint Charles Avenue Dayton, OH 45410 Ayricka Magill 7659 Rambler Drive Dayton, OH 45459 Joe Doe, name unknown, spouse of Ayricka Magill 7659 Rambler Drive Dayton, OH 45459 State of Ohio, Estate Tax Division c/o Ohio Attorney General Revenue Recovery Section 4485 Northland Ridge Blvd. Columbus, CH 43229 aig Af Thomas