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PHH MTGE. CORP. v. Ramsey | OH Appeals Court “affidavits and exhibits submitted in connection with plaintiff’s SJ motion reveal genuine issues of material fact”

PHH MTGE. CORP. v. Ramsey | OH Appeals Court “affidavits and exhibits submitted in connection with plaintiff’s SJ motion reveal genuine issues of material fact”


2012 Ohio 672

PHH Mortgage Corporation fka Cendent Mortgage Corporation dba Coldwell Banker Mortgage, Plaintiff-Appellee,
v.
Andrew Ramsey et al., Defendants-Appellants.

 

No. 11AP-559.
Court of Appeals of Ohio, Tenth District, Franklin County. 

Rendered on February 21, 2012.
Lerner, Sampson & Rothfuss, and Patricia K. Block, for appellee.Goldman & Rosenthal, and Lee S. Rosenthal, for appellants.

DECISION

BRYANT, J.

{¶ 1} Defendants-appellants, Andrew Ramsey and Precision Real Estate Group, LLC, appeal from a judgment of the Franklin County Court of Common Pleas that granted the summary judgment motion of plaintiff-appellee, PHH Mortgage Corporation fka Cendent Mortgage Corporation dba Coldwell Banker Mortgage, entered judgment for plaintiff in the principal balance of $53,956.13 plus interest, determined plaintiff to be the first lien on the property subject of the mortgage, and ordered foreclosure on the subject premises. Defendants assign a single error:

The Trial Court committed error when it granted Summary Judgment to Appellee because Appellants presented evidence of genuine issues of material fact to be litigated.

Because genuine issues of material fact preclude granting summary judgment to plaintiff, we reverse.

I. Facts and Procedural History

{¶ 2} Plaintiff filed a complaint on November 10, 2009 against, among others, defendant Andrew Ramsey. Count One of the complaint alleged defendant owed plaintiff $53,956.13, together with interest at the rate of 7.00500 percent per year from July 1, 2009 as a result of his default on a note of which plaintiff was the holder. Count Two sought to reform the mortgage securing the note to correct a scrivener’s error, and Count Three asked the court not only to declare plaintiff to be the first lien on the property but to foreclose on the mortgage.

{¶ 3} After Precision Real Estate Group, LLC was added as a defendant, both defendants filed a joint answer to plaintiff’s complaint on April 27, 2010. Plaintiff responded to their answer with a motion for summary judgment filed on July 16, 2010; on the same date, plaintiff sought default judgment against those parties who had not filed an answer to the complaint. Before responding to plaintiff’s motion for summary judgment, defendants sought and were granted leave to file a counterclaim against plaintiff. They followed the counterclaim with a memorandum opposing plaintiff’s motion for summary judgment.

{¶ 4} On November 18, 2010, the trial court referred the case to mediation and vacated the scheduled trial date pending the outcome of mediation. When mediation proved unsuccessful, the court rescheduled the matter for trial. With leave of court, plaintiff filed a renewed motion for summary judgment on its complaint and defendants’ counterclaim.

{¶ 5} After the parties briefed the motion, the trial court filed an entry on May 27, 2011, determining no genuine issue of material fact existed and plaintiff was entitled to judgment and foreclosure as a matter of law. Accordingly, the trial court granted plaintiff summary judgment, entered a decree in foreclosure, reformed plaintiff’s mortgage and deed, and dismissed with prejudice defendants’ counterclaim.

II. Summary Judgment—Genuine Issues of Material Fact

{¶ 6} Defendants’ single assignment of error asserts the trial court wrongly granted plaintiff summary judgment because genuine issues of material fact exist to be resolved at trial.

A. Applicable Law

{¶ 7} An appellate court’s review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is proper only when the parties moving for summary judgment demonstrate: (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181 (1997).

B. Affidavit

{¶ 8} In responding to plaintiff’s summary judgment motion, Ramsey admitted to being the obligor on the note and mortgage attached to plaintiff’s complaint but stated payments were current through July 2009 under the terms of the note and mortgage. According to the affidavit, he “always made [his] payments online.” (Affidavit, ¶ 3.)

{¶ 9} As Ramsey’s affidavit explained, he attempted to make his August payment electronically, or online, on August 3, 2009 but received an online response that plaintiff was not able to process his payment at that time. He again attempted to pay online on August 6 and 10 but again received the response that plaintiff was unable to process the payment. Ramsey attached to his affidavit the responses received online.

{¶ 10} On August 13, he again attempted an online payment, and the payment appeared to be successful. At the end of the transaction, however, he did not receive a confirmation number. He called the help desk and was given a confirmation number for his August payment. The person at the help desk further told Ramsey “that the payment would be pushed through the system and `not to worry.'” (Affidavit, ¶ 5.) After receiving a late payment notice from plaintiff on August 16, 2009, Ramsey again called the help line on August 21, 2009. The person Ramsey spoke to informed him “that Plaintiff was having some system issues but that [his] payment would be processed as he could see it `stuck’ in the system.” (Affidavit, ¶ 6.)

{¶ 11} On September 3, 2009, Ramsey attempted to complete his September payment online, but it could not be processed. At that time, Ramsey became aware that the August 2009 payment was never processed as promised, because a late fee was charged to his account. When he checked his bank account, he learned his August payment was never debited from his account.

{¶ 12} Ramsey again called the help desk, and the person he spoke to said she would process his payment. Ramsey expressed his concern about the payment being considered late, and the help desk person acknowledged the late payment would be placed on his credit report. Ramsey asked that it be removed because the delay was not his fault, but he was told nothing could be done about it. Ramsey asked to speak with someone else; he “was told there was no one else to speak with.” (Affidavit, ¶ 7.) Ramsey requested to speak with the legal department, but the help desk person refused to transfer him and hung up the telephone.

{¶ 13} After being unable to make an online payment on September 3, Ramsey contacted the Coldwell Banker/King Thompson real estate agent who sold him the property to see if he could suggest any avenue to clear up the matter. Someone from the local office called Ramsey, said they would check on the situation and get back to him, but did not. As a result, on September 9, 2009, Ramsey physically went to the Coldwell Banker/King Thompson office on Polaris Parkway, explained the situation to the receptionist, and asked if he could speak with someone at that location. He was informed no one at the location had authority in the matter, he attempted payment, and his payment was refused.

{¶ 14} The next day, Ramsey forwarded a letter to Coldwell Banker/King Thompson, together with a check in the amount of $1,600 for the August and September 2009 payments on the note. The letter explained the situation, but the check was never cashed or returned to Ramsey. On October 5, 2009, Ramsey sent another check in the amount of $1,600 as payment for October and November, accompanied by another letter of explanation. Again, the check was neither cashed nor returned.

C. Plaintiff’s Arguments

{¶ 15} Aware of defendants’ factual contentions from their response to plaintiff’s first summary judgment motion, plaintiff’s renewed motion for summary judgment alleged plaintiff was entitled to judgment because (1) Ramsey did not attempt to make payment and has no contractual right to pay online, and (2) plaintiff was not required to accept partial payment in the event of default. Plaintiff argues similarly on appeal.

1. Online payments

{¶ 16} Plaintiff points to the terms of the note and mortgage to support its contention that Ramsey had no contractual right to pay electronically, as the mortgage specifies that payments shall be made in U.S. currency. Whether the provision addresses the issue at hand is questionable at best, as it appears to preclude payment in foreign currency. Moreover, nothing in the note or mortgage precludes electronic payment. To the contrary, the document contemplates electronic funds transfer as an acceptable mode of payment, specifying that if any check or other instrument the lender receives as payment is returned unpaid, the lender may require “any and all subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms, as selected by the Lender: * * * Electronic Funds Transfer.” (Mortgage, ¶ 1.)

{¶ 17} In addition, Ramsey’s affidavit states he always made payments electronically. As a result, a genuine issue of material fact exists as to whether plaintiff waived any provision of the agreement that possibly required other than electronic payment. See EAC Properties, L.L.C. v. Brightwell, 10th Dist. No. 10AP-853, 2011-Ohio-2373, ¶ 23, appeal not allowed, 129 Ohio St.3d 1506, 2011-Ohio-5358 (noting that whether a party’s inconsistent conduct amounts to waiver involves a factual determination within the province of the trier of fact).

{¶ 18} Plaintiff next suggests that even if online payments are acceptable, payments are not deemed received until the lender receives them at the location designated in the note or such other location as the lender may designate. Plaintiff argues that because Ramsey was aware his attempted online payments were ineffective but nonetheless failed to send them to the designated location, he failed to make payment according to the note and mortgage. Ramsey’s affidavit explains his efforts to make the regular payments beginning with his August payment. The affidavit states he called on August 13, 2009 concerning the August payment and received confirmation for it. Although plaintiff contends its records do not reflect a payment in August, the dispute over the August payment is in itself an issue for a trier of fact to resolve after hearing all the evidence, resolution of which may affect Ramsey’s subsequent payments, at least one of which was forwarded in advance of the due date.

2. Timeliness and partial payment

{¶ 19} Plaintiff also asserts Ramsey’s attempt to make his August payment was untimely, noting payments were to be made on the first of the month but Ramsey did not attempt payment until, at the earliest, August 3, 2009. Plaintiff’s argument presents at least two issues. Initially, the pertinent documents specify a late fee, suggesting failure to make payment on the first of each month is not necessarily a default on the note, even though it may cause Ramsey to incur late fees. Secondly, the exhibits attached to plaintiff’s affidavit indicate Ramsey on many occasions made payments after the first of the month, and plaintiff accepted them, thus raising an issue of plaintiff’s possible waiver of the provisions requiring payment on the first of the month.

{¶ 20} Pertinent to the waiver issue, both the note and mortgage contain anti-waiver provisions. The note states that “[e]ven if, at a time when [the borrower is] in default, the Note Holder does not require [the borrower] to pay immediately in full as described above, the Note Holder will still have the right to do so if [the borrower is] in default at a later time.” (Note, ¶ 6(D).) To the extent the provision applies under these circumstances, the record evidence does not appear to address whether plaintiff invoked its rights. The mortgage states that “Lender may accept any payment or partial payment insufficient to bring the Loan current, without waiver of any rights hereunder or prejudice to its right to refuse such payments or partial payments in the future.” (Mortgage, ¶ 1.) To the extent the provision applies, the evidence again is unclear that plaintiff ever invoked the provision, as its September 9, 2009 letter to Ramsey not only does not declare him in default, but demands payment for the months of August and September.

{¶ 21} In the end, Ramsey’s version of the payment history between the parties creates genuine issues concerning the due date for payments and the applicability of the anti-waiver provisions. Cf. Fairfield Natl. Bank v. Lininger, 5th Dist. No. 02-CA-25, 2002-Ohio-4875, ¶ 31 (noting “[i]t is well settled that if one accepts late payments and subsequently wishes to insist on a specific due date as a `time of the essence’ requirement, prior notification thereof is required”) and First Natl. Bank of Am. v. Pendergrass, 6th Dist. No. E-08-048, 2009-Ohio-3208, ¶ 25 (noting “it has repeatedly been held that a mortgagee’s previous acceptance of late loan payments does not constitute a waiver of the mortgagee’s right to accelerate and foreclose on a loan following a subsequent default where, as here, the relevant loan documents contain `anti-waiver’ provisions”). The trial court did not address those issues. In the absence of the trial court’s addressing the meaning and applicability of the note and mortgage anti-waiver provisions to the facts provided in the parties’ affidavits and exhibits, we decline to do so in the first instance.

{¶ 22} Lastly, plaintiff’s motion for summary judgment asserts that because Ramsey was in default on his payment, the entire amount of the note became due, leaving plaintiff free to reject Ramsey’s attempt to partially pay by tendering the September and October payments to plaintiff. Because a genuine issue of material fact exists as to whether Ramsey defaulted on the note, plaintiff’s argument premised on a default is premature.

{¶ 23} In the final analysis, the affidavits and exhibits submitted in connection with plaintiff’s summary judgment motion reveal genuine issues of material fact regarding whether Ramsey defaulted in his payment on the note, making summary judgment inappropriate. Defendants’ single assignment of error is sustained, the judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this decision.

Judgment reversed and cause remanded.

SADLER and CONNOR, JJ., concur.

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BAC HOME LOANS v BOOTH | Ohio 5th Appellate District “Dismissed W/ Prejudice” – Lerner, Sampson & Rothfuss Failue to Show, Failure to Prosecute

BAC HOME LOANS v BOOTH | Ohio 5th Appellate District “Dismissed W/ Prejudice” – Lerner, Sampson & Rothfuss Failue to Show, Failure to Prosecute


[Cite as BAC Home Loans Servicing, L.P. v. Booth, 2012-Ohio-487.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

BAC HOME LOANS SERVICING, L.P.
FKA COUNTRYWIDE HOME LOANS
SERVICING, L.P.
Plaintiff-Appellant

-vs-

CARL B. BOOTH, ET AL.
Defendant-Appellees

JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
Case No. 2011CA00161

O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Common
Pleas Court, Case No. 2010CV03436

JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 6, 2012

APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellees
ELIZABETH S. FULLER DAVID L. DINGWELL
Designated as Primary Counsel Tzangas, Plakas, Mannos & Raies, LTD

Lerner, Sampson & Rothfuss 220 Market Avenue South
120 East Fourth Street, 8th Floor Eighth floor
Cincinnati, Ohio 45202 Canton, Ohio 44702

Stark County, Case No. 2011CA00161 2

Hoffman, J.

(¶1) Plaintiff-appellant BAC Home Loans Servicing L.P., fka Countrywide
Home Loans Servicing L.P., appeals the June 22, 2011 Order entered by the Stark
County Court of Common Pleas in favor of Defendants-appellees Carl B. Booth and
Cynthia L. Booth.

STATEMENT OF FACTS AND THE CASE

(¶2) Appellees Carl and Cynthia Booth executed a promissory note in the
amount of $69,750.00 in favor of America’s Wholesale Lender to secure property at
9341 Oak Avenue S.E., East Sparta, Ohio. To secure the borrowed sum, Appellees
granted a first mortgage to Mortgage Electronic Registration Systems, Inc, as nominee
for America’s Wholesale Lender. The loan was later acquired by Appellant Countrywide
Home Loans Servicing, L.P., nka BAC Home Loans Servicing, L.P.

(¶3) Appellees defaulted on the mortgage, and Appellant accelerated the
amount due on the note. Appellant then filed a foreclosure action on September 20,
2010, and Appellees filed an answer on October 8, 2010. The trial court scheduled the
matter for mediation. Appellant failed to send a representative at the appointed time,
and did not make a representative available by phone as agreed upon. The trial court
then mandated a dispositive motion deadline of April 28, 2011, and scheduled a nonjury
trial for June 13, 2011. The assignment notice was sent via facsimile to Appellant’s
counsel.

(¶4) On June 13, 2011, Appellant’s counsel moved the trial court for a
continuance of the scheduled trial date, which the trial court denied.

(¶5) On June 13, 2011, Appellees’ counsel moved the trial court to dismiss the
complaint with prejudice.

(¶6) On June 22, 2011, the trial court ordered dismissal of the complaint with
prejudice. The same day, June 22, 2011, Appellant filed a notice of dismissal with the
trial court voluntarily dismissing the case without prejudice. The trial court’s order of
dismissal is filed prior to Appellant’s notice of dismissal in the trial court docket.

(¶7) On July 21, 2011, Appellant moved the trial court to vacate the dismissal
with prejudice pursuant to Civil Rule 60(B).

(¶8) Prior to the trial court’s ruling on Appellant’s 60(B) motion, Appellant filed a
notice of appeal with this Court, assigning as error:

(¶9) “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT DID NOT RECEIVE
SUFFICIENT NOTICE OF THE TRIAL COURT’S INTENTION TO DISMISS THE CASE
WITH PREJUDICE.

(¶10) “II. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT’S CONDUCT DID NOT
NECESSITATE SUCH A HARSH SANCTION.

(¶11) “III. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT WAS WITHIN ITS RIGHTS
TO VOLUNTARILY DISMISS ITS COMPLAINT WITHOUT PREJUDICE SINCE THE
JUNE 13, 2011 TRIAL NEVER COMMENCED.

(¶12) “IV. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE THE DISMISSAL UNJUSTLY ENRICHED

APPELLEES WHO WERE PREVIOUSLY DISCHARGED OF THE UNDERLYING
DEBT IN A CHAPTER 7 BANKRUPTCY.”
I, II, and III.

(¶13) Appellant’s first, second and third assignments of error raise common and
interrelated issues; therefore we will address the arguments together.

(¶14) The standard of review of an involuntary dismissal issued by the trial court
with prejudice is an abuse of discretion. Nelson v. Alpha Enterprises, Inc., 2003-Ohio-
5422. Civil Rule 41(B) states,

(¶15) “(B) Involuntary dismissal: effect thereof

(¶16) “(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply
with these rules or any court order, the court upon motion of a defendant or on its own
motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.

(¶17) “(2) Dismissal; non-jury action. After the plaintiff, in an action tried by the
court without a jury, has completed the presentation of the plaintiff’s evidence, the
defendant, without waiving the right to offer evidence in the event the motion is not
granted, may move for a dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. The court as trier of fact may then determine them
and render judgment against the plaintiff or may decline to render any judgment until the
close of all the evidence. If the court renders judgment on the merits against the plaintiff,
the court shall make findings as provided in Civ. R. 52 if requested to do so by any
party.

(¶18) “(3) Adjudication on the merits; exception. A dismissal under division (B) of
this rule and any dismissal not provided for in this rule, except as provided in division

(B)(4) of this rule, operates as an adjudication upon the merits unless the court, in its
order for dismissal, otherwise specifies.”

(¶19) Appellant argues the trial court did not afford them notice of the trial
court’s intent to dismiss the case with prejudice, and Appellant was unable to appear at
the scheduled trial on June 13, 2011.

(¶20) Upon review of the record, the March 24, 2011 Report of Mediation
indicates the case should be returned to the docket due to the failure of Appellant to be
available at mediation either in person or by phone as previously agreed upon. Further,
Appellant moved the trial court for a continuance of the trial date asserting:

(¶21) “Bank of America and BAC Home Loans Servicing, LP (together “BAC”)
has established a process to insure that reasonable efforts to avoid foreclosure
sale/judgment have been exhausted before proceeding to sale/judgment. These efforts
have not yet been completed in connection with this loan and plaintiff therefore requests
that the trial be postponed for 120 days to allow these efforts to conclude. Plaintiff
notes that the case is under the 1 year guideline as same was filed September of 2010.”

(¶22) The June 13, 2011 transcript of the proceedings before the trial court
indicates the trial court called the matter for trial and Appellees were present in the
courtroom with counsel. The trial court reviewed the record and Appellees’ counsel
made a brief statement as to the proceedings to date and Appellant’s failure to
prosecute and act in good faith. The trial court overruled Appellant’s motion for a
continuance, and dismissed Appellant’s complaint because counsel for Appellant failed
to appear for the scheduled trial.

(¶23) Appellant received notice the case had been set for trial, effectively putting
them on notice if they failed to appear for trial, the case may be dismissed for lack of
prosecution. The record reflects Appellant had notice of the trial date, and throughout
the proceedings had failed to actively participate. We find the trial court did not abuse
its discretion in dismissing Appellant’s complaint with prejudice due to Appellant’s failure
to appear at the scheduled trial. We find failure to appear for a scheduled trial different
from case law addressing dismissals for want of prosecution for failing to abide by
interlocutory court orders or discovery related disputes.

(¶24) Our review of the trial court docket indicates the trial court’s order of
dismissal was filed prior to Appellant’s notice of voluntary dismissal without prejudice in
the record.

(¶25) The first, second and third assignments of error are overruled.

IV.

(¶26) Appellant’s fourth assignment of error asserts Appellees were unjustly
enriched by the trial court’s judgment as the underlying debt was previously discharged
in a Chapter 7 bankruptcy.

(¶27) Appellant’s complaint states at Count I:

(¶28) “Plaintiff further says that the defendants, Carl B. Booth and Cynthia L.
Booth, are immune from personal liability on said note by virtue of Bankruptcy Case No.
08-64367, United States Bankruptcy Court, Northern District of Ohio, Eastern Division.”

(¶29) We find Appellant’s complaint does not set forth a claim for unjust
enrichment.

(¶30) Upon review of the record, while the trial court’s dismissal of Appellant’s
complaint with prejudice may well appear to present a windfall for Appellees, Appellant’s
failure to appear at trial cannot be circumvented by now claiming unjust enrichment.
Appellant’s own actions lead to the trial court’s dismissal of the complaint with prejudice,
and Appellant was the architect of that outcome.

(¶31) Appellant’s fourth assignment of error is overruled.

(¶32) The June 22, 2011 Order of the Stark County Court of Common Pleas is
affirmed.

By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN

s/ John W. Wise _____________________
HON. JOHN W. WISE

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BAC HOME LOANS SERVICING, L.P. :
FKA COUNTRYWIDE HOME LOANS :
SERVICING, L.P. :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
CARL B. BOOTH, ET AL. :
:
Defendant-Appellees : Case No. 2011CA00161
For the reasons stated in our accompanying Opinion, the June 22, 2011 Order of
the Stark County Court of Common Pleas is affirmed. Costs to Appellant.

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN

s/ John W. Wise______________________
HON. JOHN W. WISE

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FREEDOM MTG v. PERRY | OH Appeals Court Affirms Trial Ct “Note Endorsement 2006, MERS Assigned Mortgage 2008, Affidavit Fail”

FREEDOM MTG v. PERRY | OH Appeals Court Affirms Trial Ct “Note Endorsement 2006, MERS Assigned Mortgage 2008, Affidavit Fail”


NOTE: The last name Perry & Petty in this case. Not sure which is correct?

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA


FREEDOM MORTGAGE CORPORATION

vs.

JUANITA PERRY, ET AL.

EXCERPT:

{¶ 26} According to the note, Consumers endorsed it to Freedom on October 23, 2006. According to the assignment, MERS was Consumers’ “nominee,” and MERS had assigned the mortgage to Freedom in November 2008. Nothing indicates the latter was recorded. However, a “final judicial report” appears in the record that states the assignment had been recorded on December 19, 2008.1

[…]

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Magistrate Bucha Removed From Foreclosure Cases By Judge O’Donnell After Fraud Investigation By Prosecutor Mason

Magistrate Bucha Removed From Foreclosure Cases By Judge O’Donnell After Fraud Investigation By Prosecutor Mason


The Kathy Wray Coleman Online News Blog-

To perpetuate the alleged fraud lawyers for Chase Mortgage Company, namely Bricker and Eckler and Lerner, Sampson and Rothfuss, are falsifying notices of foreclosure sale to Bucha, O’Donnell and Reid and leaving off the name of Chase Mortgage Company because they know it no longer exist, and this is after the mortgage company lawyers file a second suit before Cuyahoga Judge Carolyn Friedland who goes along with it but dismissed the second suit in a particular case after grassroots activists complained, and after Cuyahoga County Clerk of Courts Gerald Fuerst allegedly harassed the homeowner with numerous summons of the illegal second suit, and deputy sheriffs sent to harass her at her home to deliver them.

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OH Appeals Court Affirms Trial Court Decision For Not Complying With HUD Regulations WELLS FARGO v. PHILLABAUM

OH Appeals Court Affirms Trial Court Decision For Not Complying With HUD Regulations WELLS FARGO v. PHILLABAUM


IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY

WELLS FARGO,
vs.
DANA PHILLABAUM

Excerpt:

{¶ 10} The acceleration clause of the note that the appellee executed states, inter alia, as follows:

“If [b]orrower defaults by failing to pay in full any monthly payment, then
[l]ender may, except as limited by regulations of the Secretary in the case of
payment defaults, require immediate payment in full of the principal balance
remaining due and all accrued interest.” (Emphasis added.)2

{¶ 11} Both parties agree that the pertinent federal regulation at issue is set out in Section
203.604(b), Title 24, C.F.R., and requires a “face-to-face” interview between a mortgagor and
mortgagee before three full monthly installments on the mortgage are unpaid. Here, there is no
dispute that the Bank did not conduct such a meeting. Instead, the Bank argues that it falls
under an exception to that requirement because the “mortgaged property is not within 200 miles
of the mortgagee, its servicer, or a branch office of either[.]” (Emphasis added.) Id at (c).
However, appellee’s affidavit in support of his cross-motion for summary judgment states that
“Wells Fargo has at least one branch office within 200 miles of my home” and goes on to explain
that he visited that office on at least one prior occasion. This is sufficient for appellee to carry
his initial Civ.R. 56(C) burden and, thus, the burden shifted to the Bank to provide rebuttal
materials.

continue below…

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KENTUCKY APPEALS COURT VACATES SJ “DEUTSCHE BANK DID NOT HAVE STANDING” AUGENSTEIN v. DEUTSCHE BANK

KENTUCKY APPEALS COURT VACATES SJ “DEUTSCHE BANK DID NOT HAVE STANDING” AUGENSTEIN v. DEUTSCHE BANK


Commonwealth of Kentucky
Court of Appeals

NO. 2009-CA-000058-MR

GLENN D. AUGENSTEIN

v.

DEUTSCHE BANK NATIONAL
TRUST COMPANY
, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS
OF SOUNDVIEW HOME LOAN TRUST
2005-OPT4, ASSET BACKED
CERTIFICATES, SERIES 2005-OPT4;
PAMELA FOREE; AND
DONALD T. PRATHER

OPINION
VACATING AND REMANDING

** ** ** ** **
BEFORE: DIXON AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.

excerpt:

In light of our analysis, we vacate the entry of summary judgment because Deutsche Bank did not have standing to commence this action when it did.

This matter is therefore remanded to the circuit court for the purpose of entering an order consistent with this opinion removing this case from its docket.

Continue below…

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OHIO WELLS FARGO QUIET TITLE FAIL | GROVE COURT CONDOMINIUM UNIT OWNERS’ASSN. v. Hartman

OHIO WELLS FARGO QUIET TITLE FAIL | GROVE COURT CONDOMINIUM UNIT OWNERS’ASSN. v. Hartman


2011 Ohio 218
Grove Court Condominium Unit Owners’ Association, Plaintiff-Appellee,
v.
Dorothy M. Hartman, et al., Defendants-Appellees,
[Appeal by Appellant Wells Fargo Bank, N.A.]

No. 94910.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: January 20, 2011.

Deanna C. Stoutenborough, Romi T. Fox, M. Elizabeth Hils, Lerner, Sampson & Rothfuss, 120 E. Fourth Street, 8th Floor, Cincinnati, OH 45202, For Wells Fargo Bank, N.A. Scott A. King, Terry W. Posey, Jr., Thompson Hine LLP, P.O. Box 8801, 2000 Courthouse Plaza, N.E., Dayton, OH 45401-8801, Dale S. Smith, Thompson Hine LLP, 3900 Key Center, 127 Public Square, Cleveland, OH 44114, Attorneys for Appellant.

James C. Wrentmore, Singerman, Mills, Desberg & Kauntz Co., LPA, 3401 Enterprise Parkway, Suite 200, Beachwood, OH 44122, For Grove Court Condominium Unit Owners’ Association, Kevin M. Fields, Darcy Mehling Good, Robert E. Kmiecik, Kimberly L. Strauss, Kaman & Cusimano, LLC, 50 Public Square, Suite 2000, Cleveland, OH 44113, Elizabeth A. Meers, 1370 Ontario Street, Suite 2000, Cleveland, OH 44113-1726, For Dorothy M. Hartman, et al., Jason P. Hager, Douglass & Associates Co., LPA, 4725 Grayton Road, Cleveland, OH 44135, For Plymouth Park Tax Services, Alexander E. Goetsch, Megan R. Miller, Cavitch, Familo & Durkin Co., LPA, 1300 East Ninth Street, 20th Floor, Cleveland, OH 44114, For Dino Selvaggio, Third Federal Savings & Loan Association, Legal Department, 7007 Broadway Avenue, Cleveland, OH 44105, For Third Federal Savings & Loan Association, Attorneys for Appellees.

Before: Gallagher, P.J., Kilbane, A.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, P.J.

{¶ 1} Appellant Wells Fargo Bank, N.A. (“Wells Fargo”) appeals the judgment of the Cuyahoga County Court of Common Pleas that denied its emergency motion to intervene. For the reasons stated herein, we affirm.

{¶ 2} This is a foreclosure action that was instituted by plaintiff Grove Court Condominium Owners’ Association, Inc. (“Grove Court”), on December 28, 2006. At the time the action was filed, defendants Dorothy and Richard Hartman (“the Hartmans”) owned two condominiums, units 307 and 405, in the Grove Court condominium development, located at 1900 Grove Court in Cleveland. They acquired ownership to the units in 1986 through separate and distinct instruments. Unit 405 is the subject property in this matter.

{¶ 3} After purchasing the units, the Hartmans added an internal stairway to connect the units in accordance with Grove Court’s declaration and Ohio law. They did not combine the units into a single unit for legal and tax purposes. Rather, the units retained their separate addresses and parcel numbers.

{¶ 4} In 2005, the Hartmans obtained refinancing from Wells Fargo. The legal description on the mortgage and title commitment only included unit 307. There was no recorded interest on unit 405.

{¶ 5} On December 28, 2006, Grove Court filed this foreclosure action against the Hartmans. Grove Court sought to foreclose on a certificate of lien recorded against unit 405, for unpaid maintenance fees and condominium assessments. The parties named in the action were consistent with the preliminary judicial report, which did not show any mortgages of record on unit 405.

{¶ 6} On August 7, 2007, Grove Court filed an unopposed motion for summary judgment against the Hartmans. On October 22, 2007, the trial court adopted a magistrate’s decision, granted Grove Court judgment against the Hartmans, and issued a decree of foreclosure.

{¶ 7} In the meantime, Wells Fargo had initiated foreclosure proceedings on unit 307 on June 8, 2007. After discovering this action, Wells Fargo filed an emergency motion to intervene, motion for relief from judgment and to vacate sale, and motion to quiet title. The motion was filed two months after judgment had been granted to Grove Court, four days prior to the scheduled foreclosure sale, and almost a year after the case had commenced. Wells Fargo did not attach any pleading to the motion to intervene.

{¶ 8} In its motion, Wells Fargo asserted that it had issued a refinance loan to the Hartmans in October 2005, that the parties intended the loan to be secured by both units 307 and 405, and that as a result of a scrivener’s error, only unit 307 was identified in the legal description on the mortgage. Wells Fargo sought an order recognizing that it had a superior lien interest in unit 405.

{¶ 9} Before the motion was ruled upon, unit 405 was sold at a sheriff’s sale to Dino Selvaggio for $76,667. Thereafter, a court magistrate issued an order denying Wells Fargo’s motion to intervene. The trial court confirmed the sale on June 6, 2008.

{¶ 10} Various distributions were made from the proceeds of the sale, including $10,256.49 to Grove Court in satisfaction of its judgment. A portion of the funds remain pending with the clerk of court.

{¶ 11} Wells Fargo filed objections to the magistrate’s decision. On February 26, 2010, the trial court overruled the objections, adopted the magistrate’s decision, and denied Wells Fargo’s motion to intervene. The trial court, through the adopted decision, found that Wells Fargo’s motion failed to attach a pleading detailing its claim as required by Civ.R. 24(C). The court further found the motion raised a number of new liability issues that would operate to severely prejudice the ability of Grove Court to satisfy its judgment, that Wells Fargo did not maintain an interest in the subject property, and that the motion was untimely.

{¶ 12} Wells Fargo has appealed the trial court’s decision. In its sole assignment of error, Wells Fargo claims “[t]he trial court erred in denying the motion to intervene.”

{¶ 13} Wells Fargo asserts that it had a right to intervene in this action pursuant to Civ.R. 24(A)(2), which provides for intervention of right in civil cases. The rule provides as follows: “Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” Civ.R. 24(A)(2).[1]

{¶ 14} The rule is to be liberally construed in favor of intervention. State ex rel. Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 534, 1998-Ohio-190, 696 N.E.2d 1079. Nevertheless, the putative intervenor still bears the burden of establishing the right to intervene.

{¶ 15} In this case, Wells Fargo claims that it has an interest in the subject property. Although its alleged interest was not recorded and does not appear of record, Wells Fargo asserts that this was the result of a scrivener’s error and that it has a legal or equitable lien on the property that is superior to other interests.

{¶ 16} In interpreting analogous Fed.R.Civ.P. 24(a)(2), federal courts have stated that intervention of right requires the interest to be “direct, substantial, and legally protectable.” U.S. v. Vasi (Mar. 6, 1991), N.D. Ohio Nos. 5:90 CV 1167 and 5:90 CV 1168; Grubbs v. Norris (C.A. 6, 1989), 870 F.2d 343, 346. Ohio courts have found the same requirements implicit in Civ.R. 24(A)(2). Duryee v. PIE Mut. Ins. Co. (Dec. 1, 1998), Franklin App. No. 98AP-535; Fairview Gen. Hosp. v. Fletcher (1990), 69 Ohio App.3d 827, 591 N.E.2d 1312. Further, the Ohio Supreme Court specifically has stated that the claimed interest under Civ.R. 24(A)(2) must be one that is “legally protectable.” State ex rel. Dispatch Printing Co. v. Columbus, 90 Ohio St.3d 39, 2000-Ohio-8, 734 N.E.2d 797; In re Schmidt (1986), 25 Ohio St.3d 331, 336, 496 N.E.2d 952.

{¶ 17} In this case, the trial court determined that the documentation provided by Wells Fargo only demonstrates that its mortgage encumbers a wholly different parcel than the parcel at issue in this matter. The court found that without the exercise of the court’s equitable power of reformation, Wells Fargo has no interest in the subject property.

{¶ 18} We recognize that Wells Fargo does not have a present interest in the property and that its claimed interest is contingent on a determination of the merits of the issues it seeks to raise in the action.[2] However, even assuming that Wells Fargo’s claimed interest is a direct, substantial and legally protectable interest, we still find that the trial court did not error in denying the motion to intervene on the grounds that a required pleading was not attached to the motion and the motion was untimely.

{¶ 19} Civ.R. 24(C) mandates that the motion to intervene “shall be accompanied by a pleading, as defined in Civ.R. 7(A) setting forth the claim or defense for which intervention is sought.” Civ.R. 7(A) defines a pleading as a complaint, an answer, a reply to a counterclaim, an answer to a cross-claim, a third-party complaint, or a third-party answer. No such pleading accompanied the motion to intervene filed by Wells Fargo.

{¶ 20} The Ohio Supreme Court has repeatedly held that a motion to intervene is properly denied when the “motion is not accompanied by a pleading setting forth the claim or defense for which intervention is sought” as mandated by Civ.R. 24(C). State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 21; State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 144, 1995-Ohio-269, 656 N.E.2d 1277.[3] Thus, we do not find that the trial court erred in denying the motion on this ground.

{¶ 21} “The timeliness of a motion to intervene pursuant to Civ.R. 24(A) is a matter within the sound discretion of the trial judge.” Univ. Hosps. of Cleveland, Inc. v. Lynch, 96 Ohio St.3d 118, 2002-Ohio-3748, 772 N.E.2d 105, ¶ 47. When determining the timeliness of the motion, the court should consider the following factors: “(1) the point to which the suit has progressed, (2) the purpose for which intervention is sought, (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case, (4) the prejudice to the original parties due to the proposed intervenor’s failure after he or she knew or reasonably should have known of his or her interest in the case to apply promptly for intervention, and (5) the existence of unusual circumstances militating against or in favor of intervention.” Id., quoting Triax Co. v. TRW, Inc. (C.A.6, 1984), 724 F.2d 1224, 1228.

{¶ 22} “Intervention after final judgment has been entered is unusual and ordinarily will not be granted.” Meagher, 82 Ohio St.3d at 504, 1998-Ohio-192, 696 N.E.2d 1058. However, intervention after final judgment may be allowed when the intervenor has no other alternative remedy and intervention is the only way to protect the intervenor’s rights. See Owens v. Wright (Feb. 18, 1993), Cuyahoga App. No. 64031; Likover v. Cleveland (1978), 60 Ohio App.2d 154, 159, 396 N.E.2d 491. Ultimately, the determination of whether a Civ.R. 24 motion to intervene is timely depends on the facts and circumstances of the case. Meagher, 82 Ohio St.3d at 503, 1998-Ohio-192, 696 N.E.2d 1058.

{¶ 23} In this case, Wells Fargo did not observe the alleged scrivener’s error at the time it received the title commitment or when the mortgage was recorded. It did not seek to intervene in this action until nearly a year after the case was filed, two months after final judgment was granted to Grove Court, and only four days before a scheduled sheriff’s sale of the subject property. Also, the motion was filed six months after Wells Fargo had filed its own foreclosure action against only unit 307. Wells Fargo sought to vacate the judgment, to interject newly contested issues into the matter, and to claim a potential superior interest in the subject property that would require the court to exercise its equitable powers to reform Wells Fargo’s mortgage. As a judgment had already been imposed, with priority interests established, allowing intervention would operate to prejudice the original parties. Further, the subject property was sold to Mr. Selvaggio.

{¶ 24} Considering the facts and circumstances of this case, we find the trial court did not abuse its discretion in denying Wells Fargo’s motion to intervene after judgment.[4] Accordingly, Wells Fargo’s sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellees recover from appellant 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. Case remanded to the trial court for execution of sentence.

Mary Eileen Kilbane, A.J., and Frank D. Celebrezze, Jr., J., concur.

[1] The Ohio Supreme Court has recognized that “Ohio courts have applied an abuse of discretion standard for all of the Civ.R. 24(A)(2) intervention of right requirements.” State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503 fn. 1, 1998-Ohio-192, 696 N.E.2d 1058. However, we observe that there is in fact some split in authority as to whether the review for intervention of right is de novo.

[2] We note that “equity will allow reformation of a written instrument for the erroneous omission of a material provision so that the instrument will evince the actual intention of the parties.” Berardi v. Ohio Turnpike Comm. (1965), 1 Ohio App.2d 365, 368, 205 N.E.2d 23.

[3] Insofar as this court found that the failure to attach a pleading was not fatal to intervention in Crittenden Court Apt. Assoc. v. Jacobson/Reliance, Cuyahoga App. Nos. 85395 and 85452, 2005-Ohio-1993, that case is distinguishable. In that case, the purpose for intervention “did not include the addition of any new liability or damages issues to the litigation,” and the proposed intervenor explained in its motion its reason for not attaching an intervening complaint as follows: “`Because [proposed intervenor] has no separate and independent claims to assert in this litigation, it is neither necessary or appropriate that it submit a pleading in conjunction with this motion as described in [Civ.R. 24(C)].'” Id. at ¶ 6. These are not the circumstances presented herein.

[4] The facts and circumstances in Rokakis v. Martin, 180 Ohio App.3d 696, 2009-Ohio-369, 906 N.E.2d 1200, a case relied on by Wells Fargo, were different from this matter. In Martin, the intervenor was a valid lienholder with a junior interest in the property to those already named in the action, its interest could be paid out of the excess sale proceeds remaining on deposit with the court, and its intervention would not operate to prejudice the original parties to the foreclosure action.

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FULL DEPOSITION TRANSCRIPT OF “SHELLIE HILL” OF LERNER, SAMPSON & ROTHFUSS LS&R

FULL DEPOSITION TRANSCRIPT OF “SHELLIE HILL” OF LERNER, SAMPSON & ROTHFUSS LS&R


THE BANK OF NEW YORK, etc.,
Plaintiff, :

vs.

JAMES M. UNGER, et al.,
Defendants

Deposition of Shellie Hill Vol. I by DinSFLA

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OHIO WOMAN SUES BANK OF AMERICA, ROBO SIGNER, FANNIE MAE, AG CORDRAY

OHIO WOMAN SUES BANK OF AMERICA, ROBO SIGNER, FANNIE MAE, AG CORDRAY


This may be the first lawsuit from an individual homeowner seeking to undo a completed foreclosure.

I am sure these are lining up as I type…

Keep your eye on Harmon Law Offices, P.C. in Newton Highlands, MA 02461 aka Mark P. Harmon who serves as a director of Law offices of David J. Stern’s “DJSP Enterprises Inc.”

Enjoy!

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Posted in STOP FORECLOSURE FRAUDComments (5)


GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Chip Parker, www.jaxlawcenter.com
Kenneth Eric Trent, www.ForeclosureDestroyer.com
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