COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68636 THOMAS J. NOFEL : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION BANK OF NORTH AMERICA, ET AL. : : PER CURIAM Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 24, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-262267 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendants-appellees: THOMAS P. ALDRICH, III, ESQ. CONSTANCE S. HAWKE, ESQ. 1060 Greyton Road CARLISLE, McNELLIE & RINI CO., Cleveland Hts., Ohio 44112 28601 Chagrin Blvd., Suite 600 Cleveland, Ohio 44122-4531 - 2 - PER CURIAM: Plaintiff-Appellant, Thomas J. Nofel appeals a summary judgment granted in favor of defendant-appellee, Bank of North America (BNA) in his action sounding in fraud. In a single assignment of error, appellant claims that the trial court erred in granting summary judgment because genuine issues of material fact remain with respect to whether appellant was in default and whether appellee defrauded him into making mortgage payments to avoid foreclosure. Upon review, we find appellant's assignment of error to be devoid of merit. The summary judgment of the trial court is affirmed. In August, 1993 appellee instituted a foreclosure action against the appellant for failure to make timely mortgage payments from September, 1992 thru December, 1992. Appellant subsequently paid $7,923.72 to reinstate the loan and appellee voluntarily dismissed its action. On December 3, 1993, the appellant filed the instant action alleging that appellee's records of nonpayment were incorrect and that appellee's letters indicating non-payment were attempts to defraud him into making payments so as to avoid foreclosure. On December 5, 1994 appellee filed a motion for summary judgment which the trial court granted on February 3, 1995. The instant appeal followed. I WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE APPELLEE WHEN GENUINE ISSUES OF MATERIAL FACT EXIST AND REASONABLE MINDS COULD NOT REACH A VERDICT FOR APPELLEE WITHOUT SETTLING THOSE ISSUES. - 3 - Summary judgment is proper, pursuant to Civ.R. 56(B) if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclu- sion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. Once summary proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R. 56(D); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id.477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. at 211-214. See, Manofsky v. Goodyear Tire & Rubber Co. (Summit, 1990), 69 Ohio App.3d 663, 666. Civ.R. 56(E) provides in relevant part that: ... [W]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegation or denials of his pleading but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. - 4 - Upon review, we find appellant's Motion to Deny Summary Judgment to be entirely lacking with respect to the evidentiary materials necessary to refute appellee's Motion for Summary Judgment which was supported by the affidavit of Ms. Rosemary McComas, Assistant Vice-President of Unitower Mortgage Corporation, servicing agent for the appellee. Ms. McComas indicated in her affidavit that she had "personal knowledge" of the matters therein; that in August, 1993 appellee was in default of his loan; that appellee filed a foreclosure action pursuant to the acceleration clause of its mortgage; that appellant paid $7,923.72 in outstanding payments and related expenses to reinstate the mortgage and that in response to such payment, appellee voluntarily dismissed their foreclosure action. In response to appellee's motion, appellant filed a disjointed and largely immaterial "Motion to Deny" which contained numerous uncertified, unauthenticated and immaterial documents. In contrast to appellee's motion, appellant's motion was unsupported by any affidavits or other documents which would indicate any error in appellee's computer generated business records or any fraud on the part of the appellee. While appellant advanced 16 paragraphs of allegedly "material" and "disputed" facts, only paragraph one was material in that it alleged that appellant was not in default of the mortgage. However, as indicated supra, such allegation was unsupported by any authenticated documentation. Specifically, appellant failed to - 5 - submit any cancelled checks documenting payments from September, 1992 thru December 1992. Moreover, it is uncontroverted that appellant elected to reinstate his mortgage by paying arrearages and expenses. Hence, appellant submitted no evidence to refute appellee's affidavit which established appellant's default. We find paragraphs 2, 3, 4, 5, and 7 to be immaterial to the issue of default or fraud as they merely allege that appellee improperly notified and named appellant's ex-wife in the foreclosure action and improperly forwarded notices of default to a non-property address. Paragraphs 6 admits the remittance of $7, 932.72 and paragraph 8 alleges "tardiness" in cashing an October, 1993 check. Paragraphs 9 thru 13 allege that mortgage payments were made and inter alia cite cancelled checks submitted in March and April of 1993. However, appellee indicated in its reply brief, that these checks were applied to cover prior, past due payments. In paragraphs 13 thru 16, appellant alleges that he has been unable to obtain financing and has been harmed by adverse Transunion Credit Reports. However, as appellee stated in its reply brief such harm cannot be attributed BNA as BNA did not perpetuate the report. It is well settled that documents submitted in opposition to a motion for summary judgment which are not sworn, certified or authenticated by way of affidavit have no evidentiary value and shall not be considered by the court in determining whether a genuine issue of material fact remains for trial. See, Citizens - 6 - Insurance Co. of New Jersey v. Burkes (1978), 56 Ohio App.2d 88 Moreover, allegations of fraud must be plead with particularity. See, Civ.R. 9(B) Since appellant failed to respond to appellee's motion with the requisite evidentiary materials, appellant failed to generate any triable issues of fact with respect to his action. Accordingly, the trial court did not err in granting summary judgment in favor of the appellee. Such judgment is affirmed. - 7 - It is ordered that appellees 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. _________________________________ DAVID T. MATIA, PRESIDING JUDGE _________________________________ ANN DYKE, JUDGE _________________________________ DIANE KARPINSKI, 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 .