Arch Bay Holdings, L.L.C. v. Brown

[Cite as Arch Bay Holdings, L.L.C. v. Brown, 2012-Ohio-4966.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
ARCH BAY HOLDINGS, LLC :
SERIES 2010A
Plaintiff-Appellee : C.A. CASE NO. 25073
v. : T.C. NO. 11CV1960
DANIEL LEE BROWN, et al. : (Civil appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of October , 2012.
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PATRICK D. HENDERSHOTT, Atty. Reg. No. 0062447 and ERNEST D. DUCEY, Atty.
Reg. No. 0016715, P. O. Box 1252, Perrysburg, Ohio 43552
Attorneys for Plaintiff-Appellee
DANIEL LEE BROWN, 3624 Camelot Road, Dayton, Ohio 45426
Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of
Daniel Lee
Brown, filed December 15, 2011. Brown appeals from the trial court’s Judgment Entry and
Decree in Foreclosure, dated February 13, 2012. We hereby affirm the judgment of the
trial court.
{¶ 2} On March 15, 2011, Arch Bay Holdings, L.L.C. - Series 2010A (“Arch
Bay”) filed its Complaint in Foreclosure against Brown, asserting that it is the holder of a
Note executed by Brown on or about May 18, 2000, in the amount fo $74,900.00 plus
interest, and that Brown is in default on the Note. Arch Bay alleged that the Note is secured
by a Mortgage, which constitutes a valid first lien on real property located at 3624 Camelot
Road, in Dayton. Arch Bay also asserted that “it will be necessary for additional sums to be
advanced during the pendency of the action for taxes, assessments, insurance and/or
necessary expenditures for the protection of the property and under the terms of said
Mortgage said expenditures are the obligation” of Brown. Attached to the Complaint is a
copy of the Note, which identifies Aames Funding Corporation, DBA Aames Home Loan as
the lender. Copies of several documents relating to various assignments of the Note are
also attached, as well as a copy of the Mortgage, which refers to the Note and identifies
Aames Funding Corporation, DBA Aames Home Loan, as the lender, and which indicates
that it was filed for record on June 23, 2000. Arch Bay also filed a Preliminary Judicial
Report on March 15, 2011.
{¶ 3} Brown filed an Answer and Counterclaim, in which he requested
$125,000.00 in compensatory damages “for the filing of a wrongful foreclosure, Intentional
Infliction of emotional distress, Negligent infliction of emotional distress and Unfair
Business Practices and punitive damages.”
[Cite as Arch Bay Holdings, L.L.C. v. Brown, 2012-Ohio-4966.]
{¶ 4} Arch Bay filed a motion for summary judgment on May 5, 2011. Attached
to the motion is the affidavit of Susan Leduc, which provides that she is a Foreclosure
Specialist for Marix Servicing as Servicing Agent for Arch Bay, and provides that Arch Bay
is the “record holder of the Note and Mortgage” at issue. Also attached to the motion are: (1)
a copy of an assignment of mortgage, recorded May 9, 2003, from Aames Funding
Corporation, DBA Aames Home Loan, to Aames Capital Corporation; (2) a copy of an
assignment of mortgage, recorded May 9, 2003, from Ames Capital Corporation, DBA
Aames Home Loan, to Bank One, National Association, as Trustee; (3) a copy of an
assignment of mortgage, recorded December 18, 2009, from Bank One, National
Association, as Trustee, to Residential Funding Real Estate Holdings, L.L.C.; (4) a copy of
an assignment of mortgage, recorded March 9, 2011, from Residential Funding Real Estate
Holdings, L.L.C. to Arch Bay. Each assignment is notarized and provides that it transfers
both the Mortgage and the Note. Arch Bay also filed a Final Judicial Report on May 5,
2011.
{¶ 5} On May 18, 2011, Arch Bay filed a motion to dismiss Brown’s counterclaim
or alternatively for a more definite statement. On September 19, 2011, Arch Bay filed
another affidavit of Susan Leduc, which provides in part that she “has access of and has
actual and personal knowledge of the file and loan history in question and has personally
reviewed the documents, records or other data relied upon to make the statements contained
in this Affidavit.” The affidavit states that Arch Bay “acquired the actual possession of the
original Note in question” on May 3, 2010.
{¶ 6} In opposing the motion for summary judgment, Brown asserted that there is
no evidence that the Note and Mortgage were assigned to Arch Bay, and that Arch Bay is not
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the real party in interest and lacks standing to foreclose. Brown attached an affidavit that
provides in part that he owns the property at issue and “has never entered into any type of an
agreement” with Arch Bay.
{¶ 7} On November 30, 2011, the trial court sustained the motion for summary
judgment and dismissed Brown’s counterclaim. The court reasoned as follows:
In Fed. Home Loan Mtge. Corp. v. Schwartzwald, [194 Ohio App.3d
644, 2011-Ohio-2681, 957 N.E.2d 790], the Second District held that any
lack of standing as the real party in interest can be cured by filing the
assignment of the mortgage before final judgment. Therefore, even if
Plaintiff Arch Bay had failed to file its Complaint in the name of the real
party in interest, that error could be remedied before judgment.
More importantly, Plaintiff Arch Bay’s March 15, 2011 Complaint in
Foreclosure correctly identified itself as Plaintiff herein, as confirmed by
simple review of (1) the documentation attached to the Complaint and (2) the
Affidavit of Susan Leduc attached to Plaintiff Arch Bay’s motion for
summary judgment. That documentation, including Ms. Leduc’s affidavit,
conclusively demonstrates that Plaintiff Arch Bay was properly the holder of
the mortgage at the time it filed suit on March 15, 2011.
***
Regarding Brown’s counterclaim, the court determined that he “failed to plead any facts to
support these naked claims.”
{¶ 8} Brown filed a notice of appeal from the grant of summary judgment. This
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Court ordered Brown to show cause why his appeal should not be dismissed for lack of a
final appealable order, since the trial court had not entered a decree of foreclosure. After
Brown filed a response, this Court dismissed the appeal, concluding that the order of
November 30, 2011 “did not include a clear pronouncement of the trial court’s judgment and
relief granted, nor did it enable the parties to refer to the entry and determine their
responsibilities and obligations.”
{¶ 9} In its subsequent Judgment and Decree in Foreclosure, the trial court found
as follows:
* * * that the Mortgage was filed for record on June 23, 2000 and
recorded in Volume 00-06288, page 0010 and that Plaintiff is the owner and
holder of said Mortgage through the Assignments of Mortgage filed May 9,
2003 as Volume 03-067301, page 0002 and Volume 03-067302, Page 0002;
December 18, 2009 as Volume 09-084295, Page 003 and March 9, 2011 as
Volume 11-015055, Page 0003, of this County’s Recorder’s Office, which
are attached hereto as Exhibit “B”; that the conditions of said Mortgage
have been broken and Plaintiff is entitled to have the equity of redemption of
the defendants-titleholders foreclosed.
{¶ 10} First, we note that Brown’s brief does not comply with App.R. 16, which
requires in part a table of contents, table of authorities, statement of the assignments of error
with reference to the place in the record reflecting each error, and a statement of the issues
presented for review. As this Court has previously noted:
“Litigants who choose to proceed pro se are presumed to know the
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law and correct procedure, and are held to the same standard as other
litigants. See, e.g., Kilroy v. B.H. Lakeshore Co. (1996), 11 Ohio App.3d 357,
363, 676 N.E.2d 171. As the Eighth District Court of Appeals aptly noted
in Kilroy, a pro se litigant ‘cannot expect or demand special treatment from
the judge, who is to sit as an impartial arbiter.’ Id.” Yocum v. Means, 2d Dist.
Darke No. 1576, 2002-Ohio-3803, ¶ 20.
{¶ 11} Brown’s brief “assigns as error the trial court’s denial of his Constitutional
rights to due process and equal justice under the laws of the US constitution. Also that
[he] did not have a reasonable opportunity to present relevant evidence in support of his
respective positions.” Brown asserts that Residential Funding Real Estate Holdings L.L.C.
initially sought foreclosure against him in 2010, in Case No. 2010 CV 00402. According to
Brown, “Plaintiff * * * has asked the lower court to dismiss this case twice under Rule
41(A)(2). This case should be declared void under the rule of law,” pursuant to the
“‘two-dismissal rule’” in Civ.R. 41(A)(1). Brown argues that he was denied discovery and
that fraud exists. Brown asserts that Arch Bay lacked standing to foreclose, and that the
trial court lacked subject matter jurisdiction.
{¶ 12} As this Court has previously determined:
“Civ.R. 56(C) provides that summary judgment may be granted when
the moving part demonstrates that (1) there is no genuine issue of material
fact, (2) the moving party is entitled to judgment as a matter of law, and (3)
viewing the evidence most strongly in favor of the nonmoving party,
reasonable minds can come to but one conclusion and that conclusion is
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adverse to the party against whom the motion for summary judgment is made.
(Internal citations omitted). Our review of the trial court’s decision to grant
summary judgment is de novo.” Cohen v. G/C Contracting Corp., Greene
App. No. 2006 CA 102, 2007-Ohio-4888.
JPMorgan Chase Bank Trustee v. Murphy, 2d Dist. Montgomery No. 23927,
2010-Ohio-5285, ¶ 15.
{¶ 13} We note that Civ.R. 41(A)(1), upon which Brown relies, provides for
voluntary dismissal of civil actions by plaintiffs and provides:
(1) * * * Subject to the provisions of Civ.R. 23(E), Civ.R. 23.1, and
Civ.R. 66, a plaintiff, without order of court, may dismiss all claims asserted
by that plaintiff against a defendant by doing either of the following:
(a) filing a notice of dismissal at any time before the commencement
of trial unless a counter claim which cannot remain pending for independent
adjudication by the court has been served by that defendant;
(b) filing a stipulation of dismissal signed by all parties who have
appeared in the action.
Unless otherwise stated in the notice of dismissal or stipulation, the
dismissal is without prejudice, except
that a notice of dismissal operates as an
adjudication upon the merits of any
claim that the plaintiff has once
dismissed in any court.
[Cite as Arch Bay Holdings, L.L.C. v. Brown, 2012-Ohio-4966.]
{¶ 14} The “double-dismissal rule of Civ.R. 41(A)(1) applies only when both
dismissals were notice dismissals under Civ.R. 41(A)(1)(a).” Olynk v. Scoles, 114 Ohio
St.3d 56, 2007-Ohio-2878, 868 N.E.2d 254, ¶ 31. Brown did not file a motion to dismiss or
a motion for summary judgment regarding his argument that Arch Bay’s claims are barred
by Civ.R.41(A)(1)’s “two-dismissal rule” (and he alleges that the matter was twice
dismissed pursuant to Civ.R.41(A)(2)), and Brown has failed to point to any error in the
record before us entitling him to relief pursuant to Civ.R. 41(A)(1).
{¶ 15} Regarding the real party in interest herein, Civ.R. 17 provides in part, “Every
action shall be prosecuted in the name of the real party in interest.”
{¶ 16} As this Court has previously noted:
“Standing is a threshold question for the court to decide in order for it
to proceed to adjudicate the action.” * * * The issue of lack of standing
“challenges the capacity of a party to bring an action, not the subject matter
jurisdiction of the court.” * * * To decide if the requirement has been
satisfied that an action be brought by the real party in interest, “courts must
look to the substantive law creating the right being sued upon to see if the
action has been instituted by the party possessing the substantive right to
relief.” * * *
The real party in interest in a foreclosure action is the current holder
of the note and mortgage. * * * Because promissory notes are negotiable, they
may be transferred to someone other than the issuer. That person then
becomes the holder of the instrument. R.C. 1303.21(A). However, under
R.C. 1301.21(B), if the note is payable to an identified person, negotiation
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requires transfer of possession of the instrument and endorsement by the
holder. Bank of America, N.A. v. Miller, 194 Ohio App.3d 307,
2011-Ohio-1403, 956 N.E.2d 319, ¶ 24-25 (2d Dist.).
{¶ 17} Having thoroughly reviewed the record, we conclude that there is no genuine
issue of material fact that precludes summary judgment of foreclosure, and that the trial
court properly issued the Judgment and Decree in Foreclosure in favor of Arch Bay. The
affidavit of Susan Leduc, along with the notarized and recorded assignments of mortgage
attached to the motion for summary judgment, establish that Arch Bay is the real party in
interest. Viewing the evidence most strongly in favor of Brown, he failed to come forward
with any evidence that a genuine issue of material fact exists for trial, and Arch Bay is
accordingly entitled to judgment as a matter of law.
{¶ 18} Finally, we have reviewed Brown’s reply brief filed on September 27, 2012,
reasserting arguments already unpersuasively advanced in his merit brief, namely that Arch
Bay lacks standing and that fraud exists.
{¶ 19} The judgment of the trial court is affirmed.
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GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Patrick D. Hendershott
Ernest D. Ducey
Daniel Lee Brown
Hon. Steven K. Dankof