US Bank Natl. Assn. v. Purola ( 2020 )

[Cite as US Bank Natl. Assn. v. Purola, 2020-Ohio-5579.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
US BANK NATIONAL ASSOCIATION : OPINION
AS SUCCESSOR BY MERGER OF
US BANK NATIONAL ASSOCIATION ND, :
CASE NO. 2020-L-040
Plaintiff-Appellee, :
- vs - :
ALBERT L. PUROLA, et al., :
Defendant-Appellant. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 2019 CF 000416.
Judgment: Affirmed.
Rick D. DeBlasis & William P. Leaman, Lerner, Sampson & Rothfuss, 120 East Fourth
Street, Suite 800, Cincinnati, OH 45202 (For Plaintiff-Appellee).
Albert L. Purola, pro se, 38298 Ridge Road, Willoughby, OH 44094 (Defendant-
Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Albert L. Purola, appeals from the judgment of foreclosure issued
by the Lake County Court of Common Pleas. For the reasons discussed below, the trial
court's judgment is affirmed.
{¶2} The following facts were provided by the parties and are supported by the
record:
{¶3} Appellee, U.S. Bank National Association, filed a complaint for foreclosure
on May 13, 2019, with regard to property located at 38298 Ridge Road, Willoughby, Lake
County, Ohio. Attached to the complaint were copies of, inter alia, the promissory note
and mortgage. The complaint named as defendants (1) appellant; (2) the unknown
spouse of appellant;1 (3) the Lake County Treasurer; (4) the Ohio Department of Taxation;
and (5) Fidelity Bank.
{¶4} On April 10, 2019, Fidelity Bank filed an answer, and on April 12, 2019,
appellant filed an answer. On April 22, 2019, the trial court referred the matter to
mediation.
{¶5} The first mediation phone call occurred on May 8, 2019. At that time,
appellant alleged that an offer had been received to purchase the property at a private
sale, and the parties agreed to conduct another mediation phone call on July 10, 2019.
The property ultimately never sold, and the second mediation phone call never took place.
{¶6} On July 15, 2019, appellee filed a motion to reinstate the foreclosure
proceeding following the unsuccessful mediation. On July 22, 2019, appellee filed a
motion to return the foreclosure to the active docket, stating: “As grounds, mediation
completed without resolution/settlement of the issues underlying this matter due to the
borrower’s failure to appear at the July, 10, 2019 Mediation hearing and the Plaintiff
wishes to proceed with the foreclosure action at this time.” On July 26, 2019, the trial
court ordered the matter be returned to the active docket.
{¶7} Appellant disputes he failed to attend the July 10, 2019 mediation, and he
filed an objection to the trial court’s order returning the case to the active docket on July
1. The unknown spouse was ultimately determined not to exist and was dismissed in the final judgment.
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31, 2019. The objection stated, in full: “The Defendant objects to returning the case to
the active docket. Defendant did not fail to attend the mediation hearing. There was no
hearing. No one ever called that day, and Defendant reported that fact to the mediator
later, but he has not heard from him.” No subsequent request for mediation was made
by appellant.
{¶8} On August 20, 2019, appellee filed a motion for summary judgment with an
affidavit in support attached. The affidavit stated, inter alia, that appellee was the servicer
of the promissory note on the property; that appellant had defaulted on his payment
obligations and failed to cure the default; and that the conditions for acceleration of the
loan had been met. The promissory note, mortgage, and merger documents were also
among the attached documents to the filing. On September 13, 2019, appellant filed a
brief in opposition to summary judgment and supporting affidavit. The sole contention
made in the opposition brief was that appellant had an enforceable due process right to
mediation, which he was not afforded because the July 10, 2019 mediation hearing was
never actually conducted. Appellant did not challenge any of the evidence submitted by
appellee in support of its motion for summary judgment.
{¶9} On February 24, 2020, the trial court—after considering the motion for
summary judgment, the brief in opposition, and the evidence and affidavits submitted by
the parties—determined that no genuine dispute of material fact existed. The trial court
granted appellee’s motion for summary judgment and entered a foreclosure decree.
{¶10} Appellant filed a timely appeal and asserts one assignment of error:
The trial court erred in granting summary judgment that resulted from
a structural error, as opposed to trial error, that undermines the entire
framework in which a trial proceeds, Arizona v. Fulminate, 479 U.S.
279 i.e. by eliminating a pre-condition, mediation that had been
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properly asked for and judicially ordered, which voids the entire
process.
{¶11} In appellant’s sole assignment of error, he argues the right to mediation
vested once ordered by the trial court. Therefore, the trial court was without authority to
return the matter to the active docket and decide the motion for summary judgment, and
the matter should be returned to mediation for further settlement efforts. We disagree.
{¶12} “Where possible, it is generally within the discretion of the trial court to
promote and encourage settlements to prevent litigation.” Rulli v. Fan Co., 79 Ohio St.3d
374, 376 (citation omitted). R.C. 2323.06 states that “[i]n an action for the foreclosure of
a mortgage, the court may at any stage in the action require the mortgagor and the
mortgagee to participate in mediation as the court considers appropriate * * *.” (Emphasis
added.) Likewise, this court reviews the decision to order or return a matter from
mediation for an abuse of discretion. Bank of Am., N.A. v. Singh, 12th Dist. Butler No.
CA2012-07-146, 2013-Ohio-1305, ¶22, citing Bank of Am. v. Litteral, 191 Ohio App.3d
303, 2010-Ohio-5884, ¶20-21 (2d Dist.). Under this standard, the reviewing court must
consider all the evidence in the record, the reasonable inferences, and the credibility of
the witnesses to determine whether the trier of fact clearly lost its way and created such
a manifest miscarriage of justice that the decision must be reversed. State v. Thompkins,
78 Ohio St.3d 380, 387 (1997); Smith v. Smith, 11th Dist. Geauga No. 2013-G-3126,
2013-Ohio-4101, ¶42, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179.
{¶13} In the matter sub judice, the mediation order “was merely an interlocutory
order of the court and, as such, ‘subject to change or revision by the trial court any time
prior to the issuance of a final judgment.’” U.S. Bank Natl. Assn. v. Birovsek, 11th Dist.
Lake No. 2018-L-074, 2019-Ohio-838, ¶30, quoting Whitehall v. Olander, 10th Dist.
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Franklin No. 14AP-6, 2014-Ohio-4066, ¶21. This court discussed the discretionary nature
of mediation in a foreclosure context in U.S. Bank Natl. Assn. v. Morales, 11th Dist.
Portage No. 2009-P-0012, 2009-Ohio-5635:
Mediation is, by its very nature, a voluntary process; and, no law or
rule cited by the Moraleses indicates that a trial court is required to
offer it once litigation has commenced. It is discretionary. Thus, in
response to Ohio’s foreclosure crisis, the General Assembly has
granted trial courts discretionary power to require parties to a
foreclosure to participate in mediation. * * *
Further, once the Moraleses had requested mediation in this case,
October 17, 2008, they cancelled it November 4, 2008, upon the filing
of their bankruptcy case. Thereafter, once the automatic stay was
lifted by the bankruptcy court, December 11, 2008, the Moraleses did
not again request mediation: they answered the complaint. They did
not raise the issue again until they filed their objection to the
summary judgment motion, February 19, 2009. By its judgment
entries of March 2, 2009, the trial court attempted to reach the issue,
construing the objection as a motion to vacate, and scheduling
hearing in front of its magistrate for May 20, 2009. But prior to the
hearing date, the Moraleses divested the trial court of jurisdiction to
consider the issue of mediation (the only one raised by the February
19, 2009 objection), by noticing this appeal.
Id. at ¶23-24, citing Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., 79 Ohio St.3d
141, 147 (1994).
{¶14} Similarly, appellant in the matter sub judice points to no case law or statute
vesting a right to continue mediating in perpetuity until a resolution has been reached.
Appellant was a participant in mediation in May 2019. The outcome of that mediation
was apparently that appellant had a buyer prepared to purchase the property at a private
sale. This sale apparently fell through. Following that, a second mediation was scheduled
which was never conducted. Thereafter, appellee filed a motion with the trial court, and
the trial court granted, the motion to return the case to the active docket because a
resolution had not resulted from the mediation efforts.
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{¶15} Finally, appellant has provided no information that would suggest any
mediation would have been productive. A sale had fallen through, and there is apparently
no dispute regarding the allegations in the complaint regarding the balance due or the
entitlement of appellee to proceed with foreclosure. Given our standard of review, we
cannot find that the trial court abused its discretion in returning the matter to the active
docket and proceeding to rule on appellee’s motion for summary judgment.
{¶16} Appellant’s sole assignment of error lacks merit.
{¶17} In appellee’s brief, it goes on to further address the issue of the granting of
summary judgment on the merits as a secondary issue raised; however, appellant has
not challenged the merits of the summary judgment determination outside of the issue of
mediation. Appellant has not challenged any of the evidence presented to the trial court
in support of summary judgment and has not assigned error on that basis. Therefore, the
determination of summary judgment on the merits of the foreclosure claim filed by
appellee is not before this court for review.
{¶18} The judgment of the Lake County Court of Common Pleas is hereby
affirmed.
THOMAS R. WRIGHT, J.,
MARY JANE TRAPP, J.,
concur.
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