COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59053 AUDREY MAYER, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION HUNTINGTON NATIONAL BANK, : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 3, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 164,567 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Stanley E. Stein STANLEY E. STEIN & ASSOCIATES CO., L.P.A. 75 Public Square, Suite 714 Cleveland, Ohio 44113-2078 For defendant-appellee: Robert G. Miller STRACHAN, GREEN & MILLER 200 Baker Building 1940 East 6th Street Cleveland, Ohio 44114 -2- NAHRA, P.J.: Audrey Mayer, plaintiff-appellant, appeals the trial court's grant of summary judgment in favor of Huntington National Bank, defendant-appellee. For the following reasons, we affirm the decision of the trial court. On October 31, 1985, Audrey Mayer and her son, John S. Mayer, entered a personal loan agreement with Huntington National Bank. The Mayers agreed to pay Huntington the sum of $12,373.13 in forty-eight monthly payment installments. The first payment was due December 15, 1985, and the last payment was owed by November 15, 1989. The purpose of the loan was to finance the purchase of an automobile that John S. Mayer would use. On March 25, 1986, Huntington National Bank stamped the original note as being paid and returned the note and the cancelled lien on the automobile to the Mayers. At such time, the Mayers had properly made four monthly payments. According to Beverly Michaels, a credit adjuster at Huntington National Bank, the stamped notation on the note and the cancellation of the lien were made in error and that the note had not been paid fully. The Mayers continued to make payments thereafter until a total of thirty-one monthly payments had been made and until their coupon book from Huntington contained no more coupons. In her deposition Audrey Mayer testified that she received a phone call in December, 1988 from Huntington's attorney, Stanley Green, who indicated that the loan was delinquent. Audrey explained to him that she believed that she and her son's obligation had been -3- satisfied. She further testified that Green told her that he would look into the matter. She stated that she presumed all discrepancies had been resolved when Green did not call her back. On January 30, 1989, the balance on the loan was $4,296.02. On such date, Huntington exercised its right of setoff as set forth in the loan agreement. Huntington cashed in Audrey Mayer's certificate of deposit at Huntington Bank in the amount of $4,121.31 and debited her checking account in the amount of $174.71. Also on January 30, 1989, Huntington sent a letter to Audrey Mayer advising her that Huntington was exercising its right of setoff. On February 8, 1989, Audrey Mayer filed a complaint against Huntington alleging that Huntington had unlawfully and without notice seized funds from Mayer's certificate of deposit. Huntington filed a motion for summary judgment which the trial court granted. Mayer's timely appeal follows. Appellant's sole assignment of error states: WHETHER OR NOT THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT HUNTINGTON NATIONAL BANK AND AGAINST PLAINTIFF AUDREY MAYER. Mayer maintains that the trial court erred by entering summary judgment in favor of Huntington National Bank. She argues that Huntington was not legally entitled to the setoff because she and her son had been discharged from the obligation to pay on the note at the time of the setoff. Mayer further asserts that Huntington failed to establish that it had a security interest in the automobile under R.C. 4505.04(B). -4- Viewing the evidence in a light most favorable to Mayer, we find that there was no genuine issue of a material fact and that Huntington was entitled to judgment as a matter of law. Civ. R. 56(C). The loan obligation in the form of a note between Mayer and Huntington, appended to Huntington's motion for summary judgment, clearly established that Huntington was entitled to a setoff. In a paragraph labelled "set-off" (sic), the note states: You agree that we have a right of set-off (sic). This means that we may apply any money which you have on deposit with us to the payment of the amount you owe us which is due. Further, in a paragraph entitled "Entire Amount Due" the note also states: You agree that without giving you advance notice, we can require you to pay, and you agree to pay, the amount you owe us at once...: 1. If you fail to pay any payment when due.... Such clear and unambiguous terms of the note indicate that Huntington had the legal right to exercise control over Mayer's accounts by way of the setoff. See Ngaoka v . Society National Bank (July 19, 1990), Cuyahoga App. No. 57288, unreported. A review of the documentary evidence reveals that the note in question was marked as paid in error by Huntington Bank and that the lien was cancelled by mistake. The deposition testimony of Audrey Mayer and John Mayer indicate that they knew that Huntington had cancelled the note by mistake; the Mayers continued to make monthly payments on the notes for two and one- -5- half years after Huntington had returned the cancelled note to them. Under the circumstances, we believe that the Mayers' course of conduct, by making such payments, established that the parties had a meeting of the minds that the note was still in effect; as a result, we also believe that Audrey Mayer was properly estopped from claiming that she had been discharged from her debt. See First Federal Savings & Loan Assoc. v. Perry's Landing, Inc. 11 Ohio App. 3d 135, 436 N.E.2d 636, paragraph four of the syllabus; see also Battle v. Patsy Auto Sales, Inc., et al. (1951), 89 Ohio App. 231, 99 N.E.2d 812. Therefore, we find that Huntington National Bank was entitled to the setoff under the terms of the note as a matter of law and that no genuine issue of material fact existed. Mayer also maintains that Huntington failed to establish that it had a valid security interest in the automobile pursuant to R.C. 4505.04(B). Such statute, which concerns the necessary evidentiary material to prove the ownership of an automobile, states: (B) Subject to division (C) of this section, no court shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced: (1) By a certificate of title, a manufacturer's or importer's certificate, or a certified receipt of title cancellation to an exported motor vehicle issued in accordance with sections 4505.01 to 4505.19 of the Revised Code; (2) By admission in the pleadings or stipulation of the parties; -6- (3) In an action by a secured party to enforce a security interest perfected under sections 1309.01 to 1309.50 of the Revised Code in accordance with division (A) of section 4505.13 of the Revised Code, by an instrument showing a valid security interest. Our review of the record indicates that Huntington National Bank complied with R.C. 4505.04(B)(3) by appending a copy of the note to its summary judgment motion. The note evidences a security interest in the automobile in question. In addition, we note that the Mayers were notified by Beverly Michaels, a claims adjuster at Huntington, on October 7, 1988 and October 10, 1988, that the loan had not been paid off. At such time, Michaels also inquired as to when the payments would be made by the Mayers. As a result of the foregoing, we believe that Huntington carried its burden of establishing a valid security interest in the automobile under R.C. 4505.04(B). Moreover, since the setoff was taken pursuant to the terms of the note, the question of a security interest in the automobile is immaterial. Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., and JAMES D. SWEENEY, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .