Background
Kiavi Funding, Inc. loaned $220,900 to Native Training Solutions, Inc. (NTS), evidenced by a promissory note and secured by a mortgage on property located at 100-102 Boltin Street in Dayton, Ohio. Pierce Calloway, the owner and managing partner of NTS, personally signed the promissory note and executed a personal guarantee to secure the obligation.
NTS defaulted on the loan beginning February 1, 2025. Kiavi accelerated the balance and called the loan due. As of March 1, 2025, the amount outstanding was $95,500 plus interest at 19.49% per annum from February 1, 2025. In June 2025, Kiavi filed suit for money, foreclosure, and other equitable relief in Montgomery County Common Pleas Court.
Calloway, proceeding pro se, filed an answer that did not admit or deny the allegations but instead alleged that all four loans with Kiavi were “tainted by misinformation, misrepresentation, and possibly outright fraud.” He did not provide specific facts supporting fraud claims. He also submitted unauthenticated documents without explanation in response to Kiavi’s summary judgment motion, rather than filing a proper affidavit or memorandum as required by the Ohio Civil Rules.
The Court’s Holding
The Ohio Court of Appeals affirmed the trial court’s summary judgment and foreclosure decree. The court found that Kiavi satisfied its burden for summary judgment through the affidavit of Barbara Sweazen, a Kiavi employee, who authenticated the promissory note, mortgage deed, personal guarantee, and payment records. Sweazen’s affidavit established that (1) Kiavi held all three documents; (2) NTS and Calloway were in default; (3) all conditions precedent to foreclosure had been met; and (4) the principal amount due was $95,500 with interest at 19.49% per annum from February 1, 2025.
Once Kiavi met its summary judgment burden, the burden shifted to Calloway to respond with affidavits or other evidence as required by Civil Rule 56, setting forth specific facts showing a genuine issue of material fact for trial. Calloway failed to do so. He submitted only unauthenticated documents with no explanation and never filed an affidavit denying execution of the personal guarantee or challenging the amount in default. Under Ohio law, when a moving party meets the summary judgment standard and the nonmoving party fails to respond with evidence of a genuine issue of material fact, the court does not err in granting summary judgment.
The court also rejected Calloway’s fraud defense, finding it waived because he failed to plead the circumstances constituting fraud with the particularity required by Civil Rule 9(B). Additionally, the documents Calloway attached to his appellate brief—most of which were not submitted to the trial court and relating to properties other than the subject property—were not considered, as materials not presented to the trial court cannot be considered on appeal.
Key Takeaways
- An affidavit from a loan servicer employee establishing possession of loan documents, defendant’s default, and the amount due is sufficient to support summary judgment in foreclosure cases absent evidence controverting those facts.
- Summary judgment is properly granted when the nonmoving party fails to respond with affidavits or other evidence as required by Civil Rule 56, even if substantive disputes about fraud or misrepresentation are alleged.
- A fraud defense must be pleaded with particularity under Civil Rule 9(B); failure to state the specific facts and circumstances constituting fraud waives the defense.
- Pro se litigants are held to the same procedural standards as represented parties and cannot avoid the rules by submitting unauthenticated documents without explanation.
Why It Matters
This decision reinforces Ohio’s summary judgment standard in foreclosure actions and the critical importance of proper procedural compliance when responding to motions for summary judgment. Borrowers and guarantors cannot defeat foreclosure by making conclusory allegations of fraud, misrepresentation, or deceptive practices without particularized facts supported by affidavit or other competent evidence. The ruling demonstrates that trial courts will not allow informal, unauthenticated submissions to overcome a moving party’s properly documented case.
The decision also signals that courts will strictly enforce pleading requirements even for pro se litigants. While the Second District exercised discretion to address Calloway’s arguments despite his failure to comply with appellate rules, his failure to properly respond to the summary judgment motion at the trial court level proved fatal. Lenders seeking foreclosure can rely on authenticated documents and employee affidavits as a practical means of establishing their entitlement to judgment as a matter of law, provided borrowers fail to submit responsive affidavits with specific factual disputes.