COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73253 ROBERT G. MEDLEN, ET AL., : : Plaintiffs-Appellants : JOURNAL ENTRY : and vs. : OPINION : ALTERNATIVE LENDING MORTGAGE : CORP. AND JEFFREY STECKERT, : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 27, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 318840 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Robert J. Fedor ZASHIN & RICH CO., L.P.A. 1490 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For defendants-appellees: Drew A. Carson Steven J. Miller GOODMAN, WEISS & MILLER 100 Erieview Plaza, 27th Floor 1301 East 9th Street Cleveland, Ohio 44114-1824 -2- NAHRA, P.J.: Appellants, Robert G. Medlen and Jeanette Medlen, appeal the grant of summary judgment in favor of Alternative Lending Mortgage Corporation (hereinafter Alternative Lending ) and Jeffrey Steckert, appellees, on both appellants' claims against appellees as well as appellees' counterclaims. In the summer of 1996, appellants contacted Alternative Lending to obtain a loan to refinance the mortgage on their home and to pay other debt. At the time they contacted Alternative Lending, appellants had a primary mortgage, on which they were behind in payments, and an equity line of credit secured by their property. They had received a notice of an intent to levy on their property from the IRS and had unsecured loans on which they were not current. On August 6, 1996, appellants met with Jeffrey Steckert, a loan originator from Alternative Lending. Steckert discussed the process of obtaining a loan, went over the possible terms and conditions of a loan, and solicited information regarding their application. On August 16, 1996, appellants again met with Steckert to execute the mortgage papers. At this meeting, they signed the necessary papers to receive the loan. Steckert gave them notice that they could rescind the loan within three days and provided a form on which to do so. Appellants were also provided with a form entitled Certificate (That Customer Does Not Rescind Transaction) which Alternative Lending required to be returned to finalize the loan. -3- Appellants stated in their depositions that on August 16 they were pressured to sign the loan documentation by Steckert who told them that the IRS would seize their home and that the primary mortgagee would foreclose on their home if they did not go through with the loan at that time. At the August 16 meeting, Steckert also discussed with appellants the disbursement of the proceeds of the loan. At issue to appellants was whether or not their equity line of credit would be paid in full. The Federal Truth in Lending Disclosure form provided by Alternative Lending did not indicate that the equity line of credit was to be paid. On August 21, appellants executed forms indicating they accepted the loan. Steckert stated in his deposition that he was informed on August 20, 1996 that appellants' equity line of credit would have to be paid in full in order for appellants' loan to be approved. Robert Medlen testified at his deposition that he was told by Steckert on August 21 that the equity line of credit would have to be paid in full. Medlen stated that he told Steckert he did not want the loan. Robert Medlen further testified that he spoke with Steckert on August 26 and that Steckert reiterated the loan would not be completed without paying off the line of credit; Medlen again stated that he told Steckert he did not want the loan. On August 27, 1996, Alternative Lending disbursed the proceeds of the loan, paying in full Medlens' equity line of credit, their primary mortgage, and their debt to the IRS, as well as paying some of appellants' unsecured debt. Alternative Lending also disbursed -4- an interest check to appellants which they negotiated. In October, 1996, appellants made the first payment on the mortgage. Appellants brought a complaint asserting claims for breach of contract, fraudulent misrepresentation, and for cancellation of an invalid mortgage. Appellees asserted counterclaims for breach of contract and for unjust enrichment. In its opinion and order granting summary judgment in favor of appellees on appellants' complaint and on appellees' counterclaims, the trial court found that no genuine issues of material fact existed for trial. Appellants appeal both the grant of summary judgment in favor of appellees on their complaint and in favor of appellees on their counterclaims. Appellants' first assignment of error reads: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS BY FINDING THAT NO GENUINE ISSUES OF MATERIAL FACT EXIST THAT WOULD OTHERWISE PRECLUDE THE GRANTING OF SUMMARY JUDGMENT AGAINST PLAINTIFFS ROBERT G. AND JEANETTE M. MEDLEN WITH RESPECT TO THE ALLEGATIONS CONTAINED IN THEIR COMPLAINT. Appellants' second assignment of error reads: II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT ALTERNATIVE LENDING MORTGAGE CORPORATION BY FINDING THAT NO GENUINE ISSUES OF MATERIAL FACT EXIST THAT WOULD OTHERWISE PRECLUDE THE GRANTING OF SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ALTERNATIVE LENDING MORTGAGE CORPORATION WITH RESPECT TO ITS COUNTERCLAIMS FOR BREACH OF CONTRACT AND UNJUST ENRICHMENT. As to their first assignment of error, appellants argue that there is a genuine issue of material fact as to whether they entered into a contract with Alternative Lending; that they were fraudulently induced into signing the mortgage papers; that at no time was there a meeting of the minds regarding the material terms -5- of the mortgage contract; and that at no time from the application to the disbursement of the loan was there a complete and binding contract. Appellants also argue that they rescinded the contract within the applicable time limit mandated by the Federal Truth in Lending Act. As to their second assignment of error, appellants restate their arguments that the record indicates they may maintain their claims for breach of contract, fraudulent misrepresentation, and violation of the Federal Truth in Lending Act. Appellees argue that the documentary evidence conclusively establishes that there was a binding contract to enter a mortgage, citing the promissory note and mortgage deed signed by appellants, the certificate they executed indicating acceptance of the loan, and appellants' actions indicating acceptance of the contract. An appellate court's power to review a trial court's decision on a motion for summary judgment is conducted de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. A court may grant a motion for summary judgment pursuant to Civ.R.56 when it 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 conclusion, 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, 369 N.E.2d 267, 274. Appellants argue that they were fraudulently induced into entering the mortgage transaction because they were told by -6- Steckert that the IRS had a present intention of seizing their home and that, in essence, Steckert preyed upon their fears of losing their home to either the IRS or to the holder of their primary mortgage. They additionally allege that qualifying documents in the application were forged by Alternative Lending. We note first that appellants allegations of forged documents do not bolster their claim of fraud. The documents alleged to be forged are not relevant to determine the existence of a mortgage. In order to make a claim for fraudulent inducement, appellants must show that: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. (Cohen v. Lamko, Inc. [1984], 10 Ohio St.3d 167, 462 N.E.2d 407, followed.) Burr v. Board of County Comm'rs. of Stark County (1986), 23 Ohio St.3d 69, 491 N.E.2d 1101 (syllabus, paragraph 2). However, this court has stated: The general rule is that fraud cannot be predicated upon a representation concerning a future event. Mere predictions about the future, expectations, or opinions are not fraudulent misrepresentations unless those opinions are fraudulently made. -7- Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 742, 607 N.E.2d 2240, 1145 (citations omitted). In this case, Steckert's representations regarding the possible actions of the IRS or the holder of their primary mortgage are clearly statements as to future events. Moreover, Steckert's predictions regarding the possible seizure or foreclosure of appellants' home were based on information known to appellants which was true: the IRS informed appellants of an intent to levy on their property and appellants were in arrears on their primary mortgage. See, e.g., Herman v. Teplitz (1925), 113 Ohio St. 164. (Party cannot claim fraud for misrepresentation based on statements known to be true by that party.) Accordingly, appellants' claims based on fraudulent misrepresentation were properly subject to summary judgment in favor of appellees. Appellants additionally argue that summary judgment was inappropriate because a genuine issue of material fact exists as to whether or not Robert Medlen executed and mailed a notice of recission. However, appellants acted to accept the loan on August 21, 1996, after the alleged cancellation. Accordingly, appellants cannot claim they properly rescinded the mortgage. Appellants final argument is that there was no meeting of the minds as to the material terms of the contract. On August 16, 1996, the material terms of the mortgage, e.g., the amount of the loan, the interest rate, and the payment schedule, were presented to appellants and they agreed to those terms. Further, appellants -8- signified their acceptance of the terms of the mortgage by returning the certificate of non-recission to Alternative Lending, accepting the proceeds from the loan, and by making payment in accordance with the terms of the mortgage. For these reasons, appellees were properly granted summary judgment and appellants' assignments of error are overruled. Judgment affirmed. -9- It is ordered that appellees recover of appellants their 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. JOSEPH J. NAHRA PRESIDING JUDGE O'DONNELL, J., and TIMOTHY E. McMONAGLE, J., CONCUR. 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 .