COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73114 HOUSEHOLD REALTY CORPORATION, etc. : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION LEROY L. MURAD, et al. : : Defendant-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 6, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-309129 JUDGMENT: APPEAL DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: TED A. HUMBERT Weltman, Weinberg & Reis Co., L.P.A. 323 West Lakeside, #200 Cleveland, Ohio 44113-1099 For Defendant-Appellants: LAWRENCE RAFALSKI P.O. Box 93701 Cleveland, Ohio 44101-5701 For Ohio Department of Taxation: GREGORY S. SEVERANCE Assistant Attorney General 30 East Broad street State Office Tower Columbus, Ohio 43266 For James D. Thomas: JAMES D. THOMAS 323 Lakeside Avenue West #200 Cleveland, Ohio 44113 (Continued) For Church of Christ: A. CLIFFORD THORNTON Peckinpaugh & Thornton 3 Commerce Park Sq. #605 Beachwood, Ohio 44122-5451 -2- For United States of America: MARLON A. PRINES Assistant U.S. Attorney General 1800 Bank One Center 600 Superior Avenue, East Cleveland, Ohio 44114-2600 -3- JUDGE TERRENCE O'DONNELL: Leroy L. Murad appeals from a common pleas court judgment which foreclosed two mortgages held by Household Realty Corporation on his residence located at 4547 Monticello Boulevard in South Euclid, Ohio and ordered the property sold at a sheriff's sale. He alleges court error in granting summary judgment in favor of Household on its foreclosure claims and on his counterclaim. Because the record demonstrates that Murad satisfied the two loans during the pendency of this appeal and prior to the sale of his residence, the issues on appeal are now moot and we are compelled to dismiss this appeal. In the early months of 1995, Murad had outstanding balances on two home equity loans at Household, secured by mortgages on his property. He borrowed an additional $4,000 to pay a federal tax assessment. The record reveals that because he failed to make the regular monthly payments on the loans, Household accelerated the balances, notified him of the default, and indicated its intention to institute proceedings to foreclose the mortgages. In an attempt to prevent the foreclosures, Murad offered to pay Household a lump sum of $6,000 on the arrearages and, on December 7, 1995, after Household demanded $10,000, Murad voided the loan checks totaling $4,000 which he originally borrowed to pay the federal taxes and returned them to Household together with a third check for $6,000. Although this $10,000 payment brought one of the two loans current, the other remained in default as of -4- September 1995, but Household promised to give Murad a reasonable time to cure that default. Subsequent to that agreement, however, Murad failed to make any payments to Household on either loan and, as a result, on May 23, 1996, despite its promise of time to Murad, Household filed a complaint seeking foreclosure of both mortgages and recovery of its accelerated loan balances. Murad counterclaimed, seeking damages for breach of its agreement to give him a reasonable time to cure the default, alleging mental anguish and seeking compensatory and punitive damages. Thereafter, the court granted summary judgment to Household in connection with its foreclosure claims and also on Murad's counterclaim, and, in a subsequent journal entry, adopted the magistrate's decision ordering the mortgages foreclosed, the sale of the property, and payment to Household of $87,188.56 plus 13.5% interest for one loan, and $15,087.06 plus 16.121% interest for the second loan. Murad then filed this appeal, but during its pendency has now satisfied the two loans thereby avoiding the sale of his residence. He now raises three assignments of error for our consideration which state: I. THE TRIAL COURT COMMITTED ERROR BY GRANTING SUMMARY JUDGMENT UPON THE COMPLAINT DESPITE THE DEFENDANT'S TIMELY ASSERTION OF THE DOCTRINE OF EQUITABLE ESTOPPEL AS PRECLUDING SUMMARY JUDGMENT. THE CONSIDERATION FOR AN EQUITABLE ESTOPPEL WAS FURNISHED BY THE DEFENDANT'S HAVING DIVERTED FUNDS KNOWN BY BOTH PARTIES TO BE INTENDED FOR PAYMENT TO THE I.R.S., BUT INSTEAD, RECEIVED BY PLAINTIFF, AND ACCEPTED BY PLAINTIFF. II. THE TRIAL COURT COMMITTED ERROR BY GRANTING SUMMARY JUDGMENT UPON THE COMPLAINT BEFORE THE MATTERS CONTAINED THEREIN WERE RIPE FOR JUDGMENT BY SUMMARY MEANS. THE MATTERS WERE NOT RIPE DUE TO THE EXISTENCE OF ONE OR MORE MATERIAL QUESTIONS OF FACT REQUIRED TO FIRST BE DETERMINED BY A JURY BEFORE SUMMARY JUDGMENT COULD BE ENTERED UPON THE COMPLAINT. III. THE TRIAL COURT COMMITTED ERROR BY GRANTING SUMMARY JUDGMENT AGAINST THE DEFENDANT (APPELLANT) UPON THE COUNTERCLAIM, BEFORE THE MATTERS CONTAINED THEREIN WERE RIPE FOR JUDGMENT BY SUMMARY MEANS. THE MATTERS WERE NOT RIPE DUE TO THE EXISTENCE OF ONE OR MORE MATERIAL QUESTIONS OF FACT REQUIRED TO BE DETERMINED BY A JURY BEFORE SUMMARY JUDGMENT COULD BE ENTERED UPON THE COUNTERCLAIM. Murad contends the trial court erred in granting Household's summary judgment motion, arguing that upon his payment of $10,000, Household agreed to give him a reasonable time to cure his default and that, because of this agreement, Household is estopped from foreclosure, and also that genuine issues of material fact remained to be litigated regarding whether Household gave him a reasonable time to resolve the matter. Household urges the trial court did not err in granting its summary judgment motion, because its promise of a reasonable time to cure the default did not preclude the foreclosure claims, and because for five months following Murad's $10,000 payment, he failed to make any further payments on either loan. Household further asserts that these issues are moot because Murad has now paid the loans in full thereby avoiding the sheriff's sale of his property. The issues then presented for our review concern whether this appeal is moot, and whether the trial court properly granted summary judgment in favor of Household. Regarding the issue of mootness, in State v. Bistricky (1990), 66 Ohio App.3d 395, this court stated at 397: * * * The duty of this court is to decide actual controversies between parties and to enter judgments capable of enforcement. We are not required to give mere advisory opinions or to rule on questions of law which cannot affect the matters in issue in the case before us. * * *. See Tschantz v. Ferguson (1991), 57 Ohio St.3d 131; State ex rel. Eliza Jennings, Inc. v. Noble (1990), 49 Ohio St.3d 71; State v. Blake (1977), 53 Ohio App.2d 101. Here, the briefs filed in our court reflect that during the pendency of this appeal, Murad has satisfied both loans thereby avoiding the sale of his residence; therefore, no actual controversy exists regarding Household's foreclosure or any breach of contract as alleged in Murad's counterclaim. Accordingly, because no actual controversy exists between the parties, the issues presented on this appeal are now moot and we decline to render an advisory opinion or declare rules of law which cannot affect matters at issue in the case. Therefore, we dismiss this appeal. Appeal dismissed. -7- It is ordered that appellee recover of appellant its costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, A.J., ANN DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .