Wells Fargo Bank, N.A. v. Coil , 2021 Ohio 1814 ( 2021 )


Menu:
  • [Cite as Wells Fargo Bank, N.A. v. Coil, 
    2021-Ohio-1814
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    WELLS FARGO BANK, N.A.,                                :
    Plaintiff-Appellee,                    :
    No. 109861
    v.                                     :
    SANDRA ALLEN COIL,
    AKA SANDRA COIL, ET AL.                                :
    Defendants-Appellants.                 :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: AFFIRMED
    RELEASED AND JOURNALIZED: May 27, 2021
    Civil Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CV-19-911036
    Appearances:
    Sam A. Zingale, for appellants.
    Thompson Hine L.L.P., Scott A. King, and Caitlin R.
    Thomas, for appellee.
    LARRY A. JONES, SR., P.J.:
    In this appeal, defendant-appellant Sandra Allen Coil (“Coil”) and
    proposed intervenor Express Private Management, L.L.C. (“Express”) appeal from
    the trial court’s June 30, 2020 final judgment and decree of foreclosure that granted
    the motion for summary judgment of plaintiff-appellee Wells Fargo National Bank
    (“Wells Fargo”). For the reasons that follow, we affirm.
    Procedural and Factual History
    In February 2019, Wells Fargo filed this foreclosure action against
    Coil to foreclose on property located on Craig Drive in Strongsville, Ohio. Coil did
    not initially appear and Wells Fargo filed a motion for default judgment. However,
    on April 11, 2019, by and through counsel, Coil filed a motion for leave to file an
    answer. The trial court granted Coil leave, and on May 7, 2019, she filed an answer.
    The court thereafter denied Wells Fargo’s motion for default judgment.
    On July 25, 2019, Wells Fargo filed a motion for summary judgment.
    On August 20, 2019, Express, by and through the same counsel who
    represented Coil, filed the first of two motions to intervene in the action. In the
    motion, Express contended that it had entered into a contract with Coil to purchase
    the subject property. No proposed pleading was attached to the first motion to
    intervene, but the purported contract was attached to the motion.
    The purported contract, dated March 16, 2019, provided that the
    “Buyer,” which was defined as “Express or its assignee” agreed to buy the property
    from Coil. It set the purchase price as the “bank payoff of currunt [sic] (existing)
    loan.” Further terms of Express and Coil’s purported agreement were that Coil was
    to vacate the property by the first week of April 2019, and that Express would pay
    Coil $25,000 (in addition to paying the bank payoff amount).
    Express also attached an affidavit from a representative to this first
    motion to intervene. The representative averred that “Express stands ready to
    complete the purchase of the subject real estate.” The representative further averred
    that, “[w]ithin the past two months I have been made aware that the real property
    Express has contracted to purchase is moving toward a final decree of foreclosure.”
    On October 1, 2019, a magistrate issued a decision granting Wells
    Fargo’s motion for summary judgment. On October 3, 2019, the trial court denied
    Express’ motion to intervene on the ground that it lacked a proposed pleading.
    On October 14, 2019, Express filed its second motion to intervene and
    attached a proposed pleading.          The proposed pleading was captioned
    “Counterclaim.” It alleged that Express had entered into the contract with Coil to
    purchase the subject property, that “completion of the contract” would make Wells
    Fargo whole, and that the foreclosure of the mortgage would “prejudicially interfere”
    with its contractual rights. The pleading requested the trial court to take Express’
    “interest in the subject real estate into account when making any rulings in this
    case.”
    On June 30, 2020, the trial court issued its final judgment and decree
    of foreclosure from which Coil and Express now appeal. The judgment did not
    specifically reference Express’ second motion to intervene; it stated that the matter
    was before the court on “all pleadings and motions.”
    Coil and Express now present the following three assignments of
    error for our review:
    I.       Express’ motions to intervene showed that Express met all the
    criteria established by Rule 24(A)(2), Ohio Rules of Civil Procedure
    and should have been granted by the trial court.
    II.      The trial court erred in denying Express’ first motion to intervene
    for procedural reasons.
    III.     The trial court abused its discretion.
    Law and Analysis
    All three assignments of error are interrelated; for ease of discussion,
    they will be considered out of order.
    An appellate court reviews a trial court’s decision on a motion to
    intervene for an abuse of discretion. State ex rel. First New Shiloh Baptist Church
    v. Meagher, 
    82 Ohio St.3d 501
    , 503, 
    696 N.E.2d 1058
     (1998). “An abuse of
    discretion is more than an error of law or of judgment; it implies that the trial court’s
    attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
     (1983).
    Express’ motions to intervene were made under 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).
    Civ.R. 24(C) mandates that a 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.”
    In their second assignment of error, Express and Coil contend that
    failure to attach a pleading to a motion to intervene is not fatal, citing this court’s
    decision in Crittenden Court Apt. Assn. v. Jacobson/Reliance, 8th Dist. Cuyahoga
    Nos. 85395 and 85452, 
    2005-Ohio-1993
    .
    It is true that in Crittenden this court found the proposed intervenor’s
    failure to attach a pleading to their motion to not be fatal. Id. at ¶ 14. However, the
    Crittenden court noted the trial court did not base its denial of the proposed
    intervenor’s motion on the lack of an attached complaint. Id. In this case, however,
    with respect to Express’ first motion to intervene, the trial court specifically denied
    it for lack of pleading.
    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, 
    656 N.E.2d 1277
     (1995). Thus, we do
    not find that the trial court abused its discretion in denying Express’ first motion to
    intervene on this ground.
    The second assignment of error is overruled.
    In their first and third assignments of error, respectively, Coil and
    Express contend that the trial court abused its discretion in denying Express’ second
    motion to intervene because it met all the requirements for intervention under
    Civ.R. 24(A)(2), and by failing to set forth its reasons for the denial.
    Pursuant to Civ.R. 24(A)(2), a party can intervene as a matter of right
    (1) upon timely application, (2) if the applicant claims an interest relating to the
    property or transaction that is the subject of the action, (3) 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, and (4) the applicant’s interest is not
    adequately represented by existing parties. The Ohio Supreme Court has stated that
    the interest must be one that is legally protectable. State ex rel. Merrill v. ODNR,
    
    130 Ohio St.3d 30
    , 
    2011-Ohio-4612
    , 
    955 N.E.2d 935
    , ¶ 42. “Failure to meet any one
    of the elements in Civ.R. 24(A) will result in denial of the right to intervene.”
    Fairview Gen. Hosp. v. Fletcher, 
    69 Ohio App.3d 827
    , 831, 
    591 N.E.2d 1312
     (10th
    Dist.1990). Civ.R. 24(A) is to be liberally construed in favor of intervention, but the
    proposed intervenor still bears the burden of establishing each of the elements to
    intervene. Grover Court Condominium Unit Owners’ Assn. v. Hartman, 8th Dist.
    Cuyahoga No. 94910, 
    2011-Ohio-218
    , ¶ 14.
    Express failed to meet all the requirements to intervene as a matter of
    right. Initially we note that, in foreclosure actions, interests from unrecorded
    documents do not qualify as protected interests. See Deutsche Bank Natl. Trust Co.
    v. Hill, 5th Dist. Perry No. 14 CA 00021, 
    2015-Ohio-1575
    , ¶ 27 (“the land contract
    through which Appellants claim an interest in the property was never recorded,
    which makes it invalid as to all except the parties to the contract”); see also Emrick
    v. Multicon Builders, Inc., 
    57 Ohio St.3d 107
    , 109, 
    566 N.E.2d 1189
     (1991). There is
    no indication here that Express recorded its agreement with Coil; therefore, the
    contract did not qualify as a legally protectable interest in this foreclosure action. In
    addition to being unrecorded, the contract between Express and Coil did not bind
    Express; that is, “buyer” was defined as Express or “its assignee.”
    Further, an interest that would be barred by lis pendens is also
    insufficient to create a legally protectable interest. See Fantozz v. Cordle, 6th Dist.
    Erie No. E-14-130, 
    2015-Ohio-4057
    , ¶ 27. The doctrine of lis pendens “rests * * *
    upon the ground that the law will not allow parties litigant to give to others pending
    a suit rights to property in dispute so as to prejudice the opposite party, and defeat
    the execution of the decree which may finally be entered.” Eggleston v. Harrison,
    
    61 Ohio St. 397
    , 410, 
    55 N.E. 993
     (1900). The doctrine acts as constructive notice to
    all who would receive an interest in property that is the subject of ongoing action,
    that their interest will be impacted by the outcome of the action.
    R.C. 2703.26 provides, “[w]hen a complaint is filed, the action is
    pending so as to charge * * * third persons with notice of its pendency. While
    pending, no interest can be acquired by third persons in the subject of the action, as
    against the plaintiff’s title.” Here, the contract between Express and Coil was
    entered into after this foreclosure action was already commenced; thus, any interest
    Express had in the property was subject to the doctrine of lis pendens.
    Intervention was not the only way Express could have protected its
    interest. It could have simply performed under the contract ─ which, had it done,
    would have protected its interest and ended the litigation. It did not do so however;
    it did not even demonstrate that it had the financial ability to do so.
    Express also did not demonstrate that an existing party was unable to
    protect its interests. The opposite is true. In a foreclosure action, if the proposed
    intervenor buyer claims an interest in the subject property by virtue of having a
    purchase contract with the defendant homeowner, the defendant homeowner is
    deemed sufficiently aligned with the proposed intervenor buyer to protect its
    interest. See PNC Bank, N.A. v. Sedivy, 11th Dist. Lake Nos. 2004-L-102, 2005-L-
    033 and 2005-L-081, 
    2006-Ohio-6694
    , ¶ 40. Thus, Express’ interest was protected
    by Coil, who had as much incentive as Express (if not more, given that Express was
    to pay the bank payoff and pay her an additional $25,000) for their purchase
    agreement to be consummated.
    As to timeliness, it is debatable whether Express’ second motion ─
    filed over seven months after its contract with Coil, despite its representative’s
    averment that “[w]ithin the past two months I have been made aware that the real
    property Express has contracted to purchase is moving toward a final decree of
    foreclosure” ─ was timely. But as previously mentioned, “[f]ailure to meet any one
    of the elements in Civ.R. 24(A) will result in denial of the right to intervene.”
    Fairview Gen. Hosp., 
    69 Ohio App.3d 827
     at 831, 
    591 N.E.2d 1312
    . As set forth
    above, Express failed to meet the other requirements of Civ.R. 24 and therefore the
    trial court did not abuse its discretion by denying its motion.
    The first assignment of error is overruled.
    Finally, Express and Coil request that we remand this matter to the
    trial court so that it can provide reasons for its decision to deny its second motion to
    intervene. We note that the Fourth District Court of Appeals did just that in In re
    Estate of McMullen, 4th Dist. Lawrence No. 00CA27, 
    2001-Ohio-2534
    , 
    2001 Ohio App. LEXIS 3449
     (Aug. 2, 2001). The Fourth District found the following:
    The trial court in this case dismissed appellant’s motion to intervene in
    a two-sentence entry. The trial court did not include any rationale or
    discussion of the elements that must be established for intervention
    under Civ.R. 24(A)(2). As a general rule, Ohio appellate courts will
    assume the trial court considered relevant factors, unless findings are
    specifically mandated by the rule or statute at issue. We concede that
    the rule itself does not contain a mandate to make specific findings
    when deciding a motion to intervene. However, in light of the fact that
    the trial court is not given unfettered discretion to deny intervention as
    of right pursuant to Civ.R. 24(A)(2), we believe that the trial court
    should have stated its rationale for denying [appellant]’s intervention.
    Without some indication of what factors the trial court considered and
    the rationale for its decision, we are left to speculate why the court
    reached this decision. We believe that given the limited discretion to
    deny a motion to intervene as of right, the trial court should provide
    some indication that it adequately considered [appellant]’s
    intervention motion, not just summarily dismissed it. In other words,
    without some analysis from the trial court, we are unable to provide
    effective appellate review.
    Therefore, we reverse and remand with instructions to the trial court to
    prepare a revised entry that will allow effective appellate review of its
    decision in light of the requirements of Civ.R. 24(A).
    (Citations omitted.) Id. at 5-6.
    This court has, however, declined to adopt the Fourth Appellate
    District’s reasoning, noting that “Civ.R. 24 does not require the trial court to make
    findings of fact or conclusions of law. In the absence of such language, we presume
    the trial court issued its judgment upon thorough consideration of Civ.R. 24 and the
    relevant facts supporting the appellants’ motions to intervene.”          Rimmer v.
    Citifinancial, Inc., 
    2018-Ohio-2845
    , 
    117 N.E.3d 862
    , ¶ 18 (8th Dist.), citing Likover
    v. Cleveland, 
    60 Ohio App.2d 154
    , 
    396 N.E.2d 491
     (8th Dist.1978).
    In light of the above, we decline to remand for further proceedings.
    The third assignment of error is overruled.
    Judgment affirmed.
    It is ordered that appellee recover from appellants costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to said 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.
    LARRY A. JONES, SR., PRESIDING JUDGE
    MICHELLE J. SHEEHAN, J., and
    LISA B. FORBES, J., CONCUR
    

Document Info

Docket Number: 109861

Citation Numbers: 2021 Ohio 1814

Judges: Jones

Filed Date: 5/27/2021

Precedential Status: Precedential

Modified Date: 5/27/2021