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Ohio Appeals Court Reverses/Remands Mortgage Foreclosure Case For Trespass and Damage to Personal Property.

Ohio Appeals Court Reverses/Remands Mortgage Foreclosure Case For Trespass and Damage to Personal Property.


[Cite as CitiMortgage, Inc. v. Robson, 2011-Ohio-4617.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

CITIMORTGAGE, INC.
Plaintiff-Appellee

-vs-

DONALD SCOTT ROBSON, ET AL
Defendant-Appellant

Excerpts:

{¶4} The case began as a mortgage foreclosure case, and appellant
counterclaimed for trespass and damage to his personal property. The court found the
mortgaged house was unoccupied so appellee hired a contractor to enter and secure
the house and change the locks. Appellant alleged the contractor damaged an alarm
system in the house. The property has since been sold in a foreclosure sale.

[…]

{¶11} Nonetheless, the trial court addressed the issue of trespass. We find the
trial court should not have proceeded to determine the mortgage permitted appellee to
enter appellant’s property. This was beyond the scope of the motion for summary
judgment.

{¶12} The court also erred in finding appellant could not prevail because he had
not established damages. A property owner must prove two essential elements to state
a cause of action sounding in trespass: (1) an unauthorized intentional act, (2) resulting
in an intrusion that interferes with the owner’s right of exclusive possession of the
property. Merino v. The Salem Hunting Club, Columbiana App. No. 07CO16, 2008-
Ohio-6366, paragraph 41, citations deleted. If a property owner proves the elements of
trespass, he has a right to nominal damages without proof of actual damages. Id. at
paragraph 42, citations deleted.

[ipaper docId=65464191 access_key=key-1v92qoey28pjjdovpj82 height=600 width=600 /]

 

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