OH APPELLATE COURT DESPITE ALLEGED DISPUTE | KEY POINTS

Updated: Mar 20

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, 2023-Ohio-2980, ¶ 6 (August 25, 2023).
Although Kinney filed written opposition to the lender’s summary judgment asserting a payment dispute, she failed to plead payment as an affirmative defense and she failed to support any of her allegations with sworn and/or authenticated evidence. The trial court found Kinney’s evidence insufficient to generate a genuine dispute and entered judgment in favor of the lender, Castle CFD Group. Kinney appealed.
The Sixth District agreed with the trial court and 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.” The Court also held that Kinney waived any defense based on payment by failing to plead it as an affirmative defense as required by Civil Rule 8(C). The appellate court affirmed the judgment in favor of Castle and ordered Kinney to pay Castle’s appellate costs.