OneWest Bank, FSB v. Carol Stoner ( 2011 )

[Cite as OneWest Bank, FSB v. Carol Stoner, 2011-Ohio-4672.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
ONEWEST BANK, FSB :
Plaintiff-Appellee : C.A. CASE NO. 2011 CA 13
v. : T.C. NO. 09CV1566
CAROL STONER, et al. : (Civil appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 16th day of September , 2011.
..........
CHARLES R. JANES, Atty. Reg. No. 0013138, P. O. Box 165028, Columbus, Ohio 43216
Attorney for Plaintiff-Appellee
CAROL STONER, Atty. Reg. No. 0031084, 88 High Street, P. O. Box 179, Clifton, Ohio
45316
Defendant-Appellant
WILLIAM HOFFMAN, Atty. Reg. No. 0047109, 50 E. Columbia Street, P. O. Box 1608,
Springfield, Ohio 45501
Attorney for Clark County Treasurer
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Carol
Stoner, filed March 4, 2011. On December 9, 2009, OneWest Bank filed a Complaint for
2
Foreclosure against Stoner, alleging that she defaulted on a loan secured by a mortgage on
her home at 88 High Street in Clifton, Ohio. Attached to the Complaint is a copy of a Note
dated June 19, 2007, in which Stoner promised to pay Quicken Loans, Inc., the principal
amount of $259,000.00, plus interest; a copy of the Mortgage between Stoner and Quicken
Loans; an “Assignment,” dated November 30, 2009, which provides that Quicken Loans’
interest in the mortgage is assigned to OneWest Bank, FSB; and a preliminary judicial report
indicating that title to the property at issue is vested in Stoner.
{¶ 2} On March 3, 2010, Stoner filed an Answer which “denies that Plaintiff is the
mortgage holder of my loan, and thus lacks standing to foreclose,” and further asserts
thirteen “Affirmative Defenses.”
{¶ 3} On July 22, 2010, OneWest Bank filed a motion for summary judgment.
One West Bank also filed on the same date the affidavit of Brian Burnett, an “authorized
representative” of OneWest Bank, who averred that he “has personal knowledge and access
to records related to the promissory note and mortgage that are subject of this foreclosure
action,” and that the Note and Mortgage are in default. The Note, Mortgage, Assignment,
and a Military Status Report are attached to Burnett’s affidavit. Stoner did not respond to
the motion for summary judgment.
{¶ 4} On August 16, 2010, without setting a hearing date for the submission of the
summary judgment motion 1 , the trial court issued a Judgment Entry and Decree in
1
“[A]n oral hearing is not required for every summary judgment motion.
(Citations omitted). However, if the trial court does not set an oral hearing date,
the trial court must give the nonmoving party notice of the date on which the
motion will be deemed submitted for decision.” Anania v. Daubenspeck
Chiropractic (1998), 129 Ohio App.3d 516, 522. While Clark County Local Rule
3
Foreclosure, and an order of sale was issued.
{¶ 5} On September 17, 2010, OneWest Bank filed a Motion to Vacate Judgment
and Order of Sale, asserting that its motion for summary judgment was served at the wrong
address and Stoner was denied an opportunity to respond. The trial court granted the
motion and vacated the judgment and order of sale.
{¶ 6} On October 5, 2010, OneWest Bank again filed a Motion for Summary
Judgment, asserting in part that Stoner was in default for failure to file an Answer. The
attached supporting memorandum further provided that Stoner executed the Note and
Mortgage, that OneWest Bank is the holder of the Note and Mortgage, and that Stoner is in
default, and that the amount due is $252,556.17, plus interest. There were no evidentiary
materials attached to the second motion for summary judgment, but the memorandum
provided, “Plaintiff has submitted evidence in the form of an affidavit establishing its right
to judgment under Ohio law.” OneWest Bank also filed, on October 5, 2010, a “Notice of
Filing Assignment of Mortgage,” attached to which is the Assignment. Stoner did not
respond.
{¶ 7} On October 25, 2010, again without setting a hearing date for the submission
of the summary judgment motion, the trial court issued a Judgment Entry and Decree in
Foreclosure. The Judgment Entry provides in part, “the Court has reviewed the Complaint,
the Answer filed by Carol Stoner, and all evidence submitted, including the affidavit
10 provides in part that “[e]ach party opposing [a] motion shall serve and file
within 14 days after filing of such motion a brief containing the reasons and
authorities in opposition to the motion,” the rule excludes motions for summary
judgment.
4
submitted by Plaintiff * * * .” We note that the trial court did not endorse on the judgment
“a direction to the clerk to serve upon all parties not in default for failure to appear notice of
the judgment,” as required by Civ.R. 58(B). Further, there is no notation of service by the
clerk in the appearance docket, as Civ.R. 58(B) requires.
{¶ 8} On November 9, 2010, OneWest Bank filed a “Notice of Filing of Reverified
Affidavit,” which provides that OneWest Bank “previously filed an affidavit in support of its
motion for summary judgment in the above-entitled action on or about July 22, 2010. As
reflected in the attached reverified affidavit, all of the facts set forth in the previously filed
affidavit concerning defendant’s mortgage and loan and related transactions have been
reviewed and have been confirmed to be correct at all relevant times. The attached
reverified affidavit has been filed to correct the form of the previously filed affidavit without
altering the substantive contents of the previously filed affidavit, which remains identical.”
William Kana, the affiant, avers that he is a “duly authorized signer” on behalf of OneWest
Bank, that he is familiar with OneWest Bank’s business records, and that he has “personally
examined these business records reflecting data and information as of November 17, 2009.”
Attached to the Notice is the Note, Mortgage, Assignment, and a Military Status Report.
{¶ 9} On November 22, 2010, Stoner filed a “Motion for Stay of Execution of Sale
Pending HAMP Loan Modification & Referral to Mediation.” According to the Motion,
One West violated provisions of the Home Affordable Modification Program (“HAMP”)
which mandate a stay while the borrower is in HAMP review. The motion further asserted
that OneWest is not entitled to equitable relief due to its “egregious misconduct,” namely
that counsel for OneWest misrepresented to Stoner that she had 30 days to respond to the
5
motion for summary judgment; that OneWest misrepresented in its motion that Stoner failed
to file an Answer to the Complaint; that OneWest misrepresented that it is the holder of the
Note “when Note was not in plaintiff’s name and [A]ssignment did not delineate chain of
title,” the Assignment “contained no words of conveyance,” and on information and belief,
“was signed by well known robo-signer, not in front of a notary and not on the date of her
signature”; and that OneWest “arrogantly and audaciously attempted to remediate his failed
basis for Summary Judgment support by filing a so-call ‘substitute affidavit.’” Stoner
requested court-ordered mediation.
{¶ 10} On December 3, 2010, OneWest opposed Stoner’s motion, asserting that
Stoner is not entitled to a stay, and that she is not entitled to mediation.
{¶ 11} On December 9, 2010, Stoner filed a Reply.
{¶ 12} On December 17, 2010, the trial court journalized an Order denying Stoner’s
motion for stay and request for mediation, which provides that “there is no legal basis for
staying enforcement of the Judgment Entry and Decree in Foreclosure previously granted * *
* .” The Order further provides that there is “no basis for ordering mediation in this case,
after judgment has been entered, given that Defendant, an attorney, did not request
mediation in a timely fashion before the case went to judgment.”
{¶ 13} On December 28, 2010, Stoner filed an “Emergency Motion to Set Aside
Default Judgment & Order of Sale & Stay of Proceedings,” in reliance upon Civ.R. 55(B),
Civ.R. 60(B), and Civ.R. 62(A). According to Stoner she is entitled to relief from
judgment based upon inadvertence, surprise or excusable neglect, procurement by fraud,
misrepresentation, and misconduct of an adverse party, and upon “‘Other Grounds,’ as said
6
Entry is void for vagueness.” Stoner argued that the judgment entry and foreclosure decree
is invalid because it was not “preceded by notice of response period.” Stoner further
asserted that the judgment entry is invalid because OneWest did not provide her with Civ. R.
55 written notice that it sought a default judgment. Stoner asserted that the trial court
entered the judgment against her “two days prior to the first day available for a default
hearing.” Pursuant to Civ.R. 60(B), Stoner asserted that she has a meritorious defense to
present. She asserted that OneWest “offered no evidence it owned the note when the
complaint was filed.” Stoner asserted that OneWest failed to prove possession and
indorsement of the Note. According to Stoner, the complaint is subject to dismissal because
OneWest is not the real party in interest. Stoner asserted that the affirmative defenses she
pled in her Answer preclude summary judgment. Stoner contended that One West did not
attach an Affidavit to its second motion for summary judgment, “but made a mere reference
to it in an unsworn memorandum of law.” Stoner argued that OneWest failed to attach the
requisite exhibits to its affidavit. She asserted that the signatures of counsel for OneWest
are “deviant from each other.” Stoner argued that the reverified affidavit is a fraud upon the
court, and subject to dismissal pursuant to Civ.R. 56(G). Stoner asserted that she is entitled
to relief from judgment because OneWest has engaged in fraud, misrepresentation and other
misconduct. Stoner asserted that her motion for relief was timely. She asserted that she is
entitled to relief from judgment on the basis of “mistake, inadvertence, surprise and
excusable neglect regarding the ascertainment of time within which an answer motion to
summary judgment was due.” Finally, she asserted that she is entitled to a “stay of
proceedings to enforce a judgment, in accordance with Civ.R. 62(A).”
7
{¶ 14} On January 13, 2011, OneWest opposed the motion. According to OneWest,
the trial court did not enter a default judgment against her pursuant to Civ.R. 55, and she is
not entitled to relief pursuant to Civ.R. 60(B). OneWest asserts that, since Stoner did not
oppose the motion for summary judgment or appeal from the judgment against her, her
arguments are waived. Regarding Stoner’s assertion that she relied upon counsel for
OneWest’s representation that she had 30 days to respond to the summary judgment motion,
OneWest noted that Stoner’s allegation was not made in an affidavit, and it denied providing
advice to Stoner.
{¶ 15} Stoner filed a Reply on January 26, 2011.
{¶ 16} On February 2, 2011, the trial court issued an Order denying Stoner’s motion.
The Order provides in part that Stoner “has not proven that she is entitled to set aside the
judgment previously granted in Plaintiff’s favor and against Defendant.” We note that the
trial court again failed to comply with Civ.R. 58(B).
{¶ 17} Stoner asserts six assignments of error herein. We will address her first four
assignments of error together. They are as follows:
{¶ 18} “THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING
SUMMARY JUDGMENT TO PLAINTIFF WITHOUT GRANTING DEFENDANT A
FAIR OPPORTUNITY TO BE HEARD,” And,
{¶ 19} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO PLAINTIFF AS GENUINE ISSUES OF MATERIAL FACT EXIST REGARDING
WHETHER PLAINTIFF IS THE HOLDER OF THE NOTE UPON WHICH JUDGMENT
WAS SOUGHT,” And,
8
{¶ 20} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO PLAINTIFF BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED WITH
REGARD TO AFFIRMATIVE OFFENSES,” And,
{¶ 21} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO PLAINTIFF WHERE APPELLEE FAILED TO AUTHENTICATE ATTACHED
BUSINESS RECORD IN AFFIDAVIT.”
{¶ 22} According to Stoner, “the time for appealing the grant of summary judgment
is tolled, per App.R. 4.” However, Stoner’s Notice of Appeal indicates that she is
appealing solely the denial of her “Emergency Motion” filed on December 28, 2010. Stoner
did not appeal the trial court’s judgment and decree of foreclosure, but she instead sought
relief from that judgment pursuant to Civ.R.60(B). As we have previously determined, the
two avenues of relief are distinct, and “a party cannot use Civ.R. 60(B) relief as a substitute
for a timely appeal. (Citations omitted).” UBS Real Estate Securities, Inc. v. Teague, Darke
App. No. 2010 CA 5, 2010-Ohio-5634, ¶ 16. Any alleged error by the trial court in granting
summary judgment in favor of OneWest Bank and foreclosing upon the mortgage could
have been raised in a direct appeal, and Stoner cannot raise those issues in an appeal from
the denial of her “Emergency Motion.” Id.{¶ 23} Stoner’s first four assigned errors are overruled.
{¶ 24} We will consider Stoner’s remaining two assigned errors together. They are
as follows:
{¶ 25} “THE TRIAL COURT ABUSED ITS DISCRETION IN NOT HOLDING A
HEARING TO TAKE EVIDENCE BEFORE IT RULED ON THE DEFENDANT’S Civil
9
R. 60(B) MOTION TO VACATE SUMMARY JUDGMENT,” And,
{¶ 26} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S CIVIL R.
60(B) MOTION TO VACATE SUMMARY JUDGMENT.”
{¶ 27} “‘Civ. R. 60(B) represents an attempt to strike a balance between conflicting
principles that litigation must be brought to an end and that justice should be done.’”
Portfolio Recovery Associates v. Thacker, Clark App. No. 2008 CA 119, 2009-Ohio-4406(internal citation omitted).
{¶ 28} Civ.R. 60(B) provides in relevant part, “On motion and upon such terms as
are just, the court may relieve a party or his legal representative from a final judgment, order
or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) newly discovered evidence * * * ; (3) fraud * * * , misrepresentation or other
misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged;
or (5) any other reason justifying relief from the judgment.”
{¶ 29} To prevail on a motion pursuant to Civ. R. 60(B), a movant must establish
that: (1) he has a meritorious defense or claim to present if relief is granted; (2) he is entitled
to relief pursuant to 60(B)(1) - (5); and (3) the motion was made within a reasonable time,
and, where the grounds of relief are Civ.R. (60)(B)(1), (2) or (3), not more than one year
after the judgment or proceeding was entered or taken. GTE Automatic Elec. v. Arc
Industries, Inc. (1976), 47 Ohio St.2d 146, 150-51, 351 N.E.2d 113. All three requirements
must be met. Id., at 151.
{¶ 30} “A ‘meritorious defense’ means a defense ‘going to the merits, substance, or
essentials of the case.’” (Citations omitted). UBS Real Estate Securities, Inc., ¶ 23. “In
10
meeting the first requirement above, ‘[t]he movant need not prove that he will prevail on his
alleged meritorious defense. He need only allege that such a defense exists.’ (Emphasis
sic.) Williamson v. Saranda Consol. Ltd. Partnership (Dec. 14, 1989), Montgomery App.
No. 11507, 1989 WL 150791, citing Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d
17, * * * .” State v. Yount, 175 Ohio App.3d 733, 2008-Ohio-1155, ¶ 10.
{¶ 31} “In an appeal from a Civ.R. 60(B) determination, a reviewing court must
determine whether the trial court abused its discretion. (Internal citation omitted).” State ex
rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 1996-Ohio-54.
{¶ 32} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most
instances of abuse of discretion will result in decisions that are simply unreasonable, rather
than decisions that are unconscionable or arbitrary.
{¶ 33} “A decision is unreasonable if there is no sound reasoning process that would
support that decision. It is not enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive, perhaps in view of
countervailing reasoning processes that would support a contrary result.” AAAA
Enterprises, Inc. v. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 34} We initially note that OneWest Bank asserts that Stoner’s Notice of Appeal is
untimely. “The record reveals that the trial court failed to place an entry on its appearance
docket noting service of the judgment, and the failure to comply with Civ.R. 58(A) tolls the
time for filing the appeal.” State v. Moore, Clark App. No. 2007 CA 123, 2008-Ohio-5376,
¶ 4, citing In re J.F., Montgomery App. Nos. 22181, 22441, 2008-Ohio-4325. Accordingly,
11
Stoner’s appeal was not filed out of time.
{¶ 35} We agree with OneWest Bank that Civ.R. 55, which applies to default
judgments, does not apply to the matter herein, since the trial court granted summary
judgment, and not a default judgment, against Stoner.
{¶ 36} In its ruling, the trial court did not expressly address whether Stoner alleged a
meritorious defense, satisfied any of the grounds for relief under Civ.R. 60(B), or timely
sought relief. Instead, it determined that Stoner “has not proven that she is entitled to set
aside the judgment * * * .” (emphasis added). In its brief, OneWest Bank asserts that “a
hearing is not required unless the movant’s affidavit or other evidentiary material offered in
support demonstrates ‘operative facts’ and not mere general allegations in support of
vacating the judgment.” Civ.R. 60(B) does not require Stoner to provide evidentiary material
to prove that she is entitled to set aside the summary judgment granted against her, only that
she has a meritorious defense to present. “Although general denials in an answer are
insufficient to state a meritorious defense for purposes of Civ.R. 60(B), the meritorious
defense requirement is met by filing an answer that contains sufficient affirmative defenses
or facts sufficient to support the claim of a valid defense.” UBS Real Estate Securities, Inc.,
¶ 24. Stoner’s Answer contends in part that OneWest’s alleged interest in the Note and
Mortgage was not properly assigned to it, and that it accordingly lacks standing to pursue
foreclosure, which is a meritorious defense.
{¶ 37} Further, Stoner filed her “Emergency Motion” on December 28, 2010, a little
more than two months after the trial court’s October 25, 2010 Judgment Entry and Decree in
Foreclosure, and we conclude that Stoner’s motion was timely.
12
{¶ 38} Finally, Stoner asserted that she was entitled to relief in part on the basis of
surprise, inadvertence and excusable neglect, and with the record before us, she is entitled to
a hearing on her claims.
{¶ 39} The trial court erred in requiring that Stoner prove entitlement to relief from
judgment, and an abuse of discretion is demonstrated. Accordingly, Stoner’s fifth and sixth
assignments of error are sustained, the trial court’s order denying the motion for relief from
judgment is reversed, and the matter is remanded for an evidentiary hearing on Stoner’s
requested relief from summary judgment.
..........
GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Charles R. Janes
Carol Stoner
William Hoffman
Hon. Douglas M. Rastatter