BAC Home Loans Servicing, L.P. v. Loethen , 2011 Ohio 1503 ( 2011 )

[Cite as BAC Home Loans Servicing, L.P. v. Loethen, 2011-Ohio-1503.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
BAC HOME LOANS SERVICING, : Julie A. Edwards, P.J.
L.P. fka COUNTRYWIDE HOME : W. Scott Gwin, J.
LOANS SERVICING, L.P. : Patricia A. Delaney, J.
:
Plaintiff-Appellee : Case No. 10CAE070050
:
-vs- :
: OPINION
JEFFREY E. LOETHEN
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Delaware County
Court of Common Pleas Case No.
09CVE121837
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 22, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STACY L. HART JEFFREY E. LOETHEN, Pro Se
Lerner, Sampson, & Rothfuss, LPA P.O.Box 401553
120 East Fourth Street, 8th Floor Las Vegas, NV 89140
Cincinnati, Ohio 45202
[Cite as BAC Home Loans Servicing, L.P. v. Loethen, 2011-Ohio-1503.]
Edwards, P.J.
{¶1} Appellant, Jeffrey E. Loethen, appeals a summary judgment of the
Delaware County Common Pleas Court on a complaint for foreclosure filed by appellee
BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP.
STATEMENT OF FACTS AND CASE
{¶2} Appellee filed the instant foreclosure action against appellant on
December 31, 2009, alleging that appellant was in default under a promissory note for
the purchase of real property at 8951 Stonebridge Place, Powell, Ohio, and demanding
enforcement of the mortgage. On January 19, 2010, appellee filed a Statement of
Acceptability of the Legal Description for Transfer Purposes, as required by Delaware
County Common Pleas Court Local Rule 38.02.
{¶3} Appellant filed a pro se answer on January 25, 2010. In his answer,
appellant set forth the defense that Local Rule 38.02 requires the Statement of
Acceptability to be filed simultaneously with the complaint.
{¶4} Appellee filed a motion for summary judgment. Appellant moved to
dismiss the complaint for noncompliance with Local Rule 38.02. The motions were
scheduled jointly for non-oral hearing by the trial court on June 2, 2010. The court
granted appellee’s motion for summary judgment and denied appellant’s motion to
dismiss on June 3, 2010. On June 23, 2010, the court issued a judgment on the
complaint and decree in foreclosure. Appellant assigns a single error on appeal:
{¶5} “THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT WITHOUT ADDRESSING THE FAILURE OF THE
PLAINTIFF TO COMPLY WITH RULE 38.02 – STATEMENT OF ACCEPTABILITY OF
Delaware County App. Case No. 10CAE070050 3
THE DELAWARE COUNTY LOCAL RULES OF PRACTICE OF THE COURT OF
COMMON PLEAS.”
{¶6} Local Rule 38.02 provides in pertinent part:
{¶7} “[T]he attorney for the plaintiff shall secure from the Delaware County
Engineer, and file simultaneously with the complaint, a statement reflecting the
acceptability, or lack thereof, of the description of the subject real estate, for transfer
purposes.”
{¶8} It is undisputed in the instant case that the statement of acceptability was
not filed simultaneously with the complaint, but was filed nineteen days thereafter.
{¶9} Ohio courts are permitted to enact local rules as long as such rules are not
inconsistent with any rules governing practice and procedure promulgated by the Ohio
Supreme Court. State ex rel. Henneke v. Davis (1986), 25 Ohio St.3d 23, 494 N.E.2d
1133.
{¶10} It is well-settled in Ohio law that the enforcement of local rules is a matter
within the discretion of the court promulgating the rules. E.G. Dvorak v. Petronzio, 11th
Dist. No. 2007-G-2752, 2007-Ohio-4957, ¶30; In re D.H., 8th Dist. No. 89219, 2007-
Ohio-4069, ¶25.
{¶11} Appellant has not demonstrated that the court abused its discretion in
overruling his motion to dismiss for appellant’s failure to file the Statement of
Acceptability simultaneously with the complaint. The statement was filed January 19,
2010, a mere nineteen days after the complaint was filed, and before appellant filed an
answer to the complaint. Appellant was not prejudiced in any way by the late filing of
the statement of acceptability.
Delaware County App. Case No. 10CAE070050 4
{¶12} The assignment of error is overruled.
{¶13} The judgment of the Delaware County Common Pleas Court is affirmed.
By: Edwards, P.J.
Gwin, J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r1130
[Cite as BAC Home Loans Servicing, L.P. v. Loethen, 2011-Ohio-1503.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BAC HOME LOANS SERVICING, :
L.P. fka COUNTRYWIDE HOME :
LOANS SERVICING, L.P. :
:
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JEFFREY E. LOETHEN :
:
Defendant-Appellant : CASE NO. 10CAE070050
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed
to appellant.
_________________________________
_________________________________
_________________________________
JUDGES