Wells Fargo Bank, N.A. v. Odita

[Cite as Wells Fargo Bank, N.A., v. Odita, 2014-Ohio-2540.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Wells Fargo Bank, N.A., etc., :
Plaintiff-Appellee, :
No. 13AP-663
v. : (C.P.C. No. 2010 CVE-05-7254)
E. Okechukwu Odita et al., : (REGULAR CALENDAR)
Defendants-Appellants. :
D E C I S I O N
Rendered on June 12, 2014
Benesch, Friedlander, Coplan & Aronoff LLP, Ronald L.
House, Jr. and J. Allen Jones, III, for appellee.
Doucet & Associates, Inc., Troy J. Doucet and Daniel A.
Yarmesch, for appellants E. Okechukwu Odita and Florence
Odita.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendants-appellants, E. Okechukwu Odita and Florence Odita
("appellants"), appeal from a judgment of the Franklin County Court of Common Pleas
granting summary judgment in favor of plaintiff-appellee, Wells Fargo Bank, N.A.
("appellee"), on its complaint for foreclosure, approving the sale of the property at issue
by the court-appointed receiver, and awarding certain attorney fees sought by appellee.
For the following reasons, we affirm.
{¶ 2} The action giving rise to this appeal involves property located at 21-39 South
Burgess Avenue, Columbus, Ohio, which consists of multiple buildings containing a total
of 16 residential units ("the Property"). In June 2005, Paul and Kathleen Pearson ("the
No. 13AP-663 2
Pearsons") executed a promissory note for $445,000 ("the Note") to New Century
Mortgage Corporation ("New Century"). To secure payment of the note, the Pearsons
executed a mortgage ("the Mortgage") to New Century on the Property. Appellee asserts
that it took the Note for value in 2005. Appellee further asserts that New Century assigned
the mortgage to appellee in 2005. On June 10, 2008, appellants entered into a consent
and assumption agreement with the Pearsons, under which appellants assumed all
obligations under the Note and the Mortgage.
{¶ 3} In May 2010, appellee filed a complaint for foreclosure, asserting that
appellants were in default of the terms and conditions of the Note. Appellee sought
judgment against appellants for the outstanding balance due and accrued interest under
the Note, along with foreclosure of the Mortgage and sale of the Property. Appellee
subsequently amended its complaint to assert that appellants engaged in fraudulent
conveyances of certain other rental properties they owned to limited liability companies
under their control in an attempt to hinder appellee's ability to recover from them ("the
fraudulent conveyance claim").
{¶ 4} Appellee also sought the appointment of a receiver to manage the Property.
The trial court granted appellee's motion for appointment of a receiver, granting the
receiver authority to manage, control, operate, maintain, and protect the Property, as well
as authority to sell the Property. In July 2011, the receiver filed a motion requesting an
order authorizing sale of the Property free and clear of any liens, claims, encumbrances or
interests of the parties for $147,833. Following a hearing, the trial court issued an order
granting the receiver's motion and approving the sale.
{¶ 5} On November 9, 2011, the trial court granted summary judgment in favor of
appellee on its claims for judgment on the Note and foreclosure of the Mortgage. After
conducting a bench trial, on May 9, 2013, the trial court ruled in appellee's favor on the
fraudulent conveyance claim, concluding that the transfers of appellants' other rental
properties to limited liability companies were sham transactions performed with the
intent of avoiding obligations to appellants' creditors. The trial court also awarded
appellees attorney fees incurred in pursuing the fraudulent conveyance claim. After taking
evidence from the parties and conducting a hearing, on July 1, 2013, the trial court issued
No. 13AP-663 3
a judgment against appellants for $94,018.79 in attorney fees on the fraudulent
conveyance claim.
{¶ 6} Appellants appeal from the trial court's judgment, assigning three errors for
this court's review:
1. The trial court erred when it granted Wells Fargo summary
judgment on Counts I-IV of the Amended Complaint ("the
Foreclosure Claims").
2. The trial court erred when it permitted the receivership to
sell the Burgess Avenue Property free and clear of all liens and
encumbrances for $147,833.00.
3. The trial court erred when it awarded Wells Fargo its
attorney's fees in the amount of $94,018.79.
{¶ 7} In their first assignment of error, appellants assert that the trial court erred
by granting summary judgment in favor of appellee on the claims seeking judgment on
the Note and foreclosure of the Mortgage. Appellants argue that appellee failed to
demonstrate that it had standing to enforce the Note and the Mortgage at the time it filed
the complaint.
{¶ 8} We review a trial court's ruling on a summary judgment motion de novo.
Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.),
citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "De novo
appellate review means that the court of appeals independently reviews the record and
affords no deference to the trial court's decision." (Citations omitted.) Holt v. State, 10th
Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment is appropriate where "the
moving party 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) reasonable minds can
come to but one conclusion, and that conclusion is adverse to the party against whom the
motion for summary judgment is made." Capella III at ¶ 16, citing Gilbert v. Summit Cty.,
104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6.
{¶ 9} A party seeking summary judgment in a foreclosure action must
demonstrate that it was entitled to enforce the note and had an interest in the mortgage
on the date the complaint in foreclosure was filed. See Fed. Home Loan Mtge. Corp. v.
No. 13AP-663 4
Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 28 ("[B]ecause [Federal Home
Loan] failed to establish an interest in the note or mortgage at the time it filed suit, it had
no standing to invoke the jurisdiction of the common pleas court."); Bank of New York
Mellon v. Watkins, 10th Dist. No. 11AP-539, 2012-Ohio-4410, ¶ 18 ("An entity must prove
that it was the holder of the note and mortgage on the date that the complaint in
foreclosure was filed, otherwise summary judgment is inappropriate."); see also
Nationstar Mtge., L.L.C. v. Van Cott, 6th Dist. No. L-12-1002, 2012-Ohio-5807, ¶ 19
(concluding that a party seeking foreclosure was not entitled to summary judgment
because there was a genuine issue of material fact as to whether it owned the note or was
otherwise entitled to enforce the note at the time the foreclosure complaint was filed).
Appellants argue that appellee failed to demonstrate it had possession of the Note at the
time it filed the complaint and, therefore, failed to establish its status as holder of the
Note. Although a party must prove that it had standing when the foreclosure complaint
was filed, such proof may be provided after the filing of the complaint. Watkins at ¶ 18
("[A] mortgagee can offer proof after the filing of the foreclosure action to establish that
the mortgage was assigned to the mortgagee prior to or at the time of the filing of the
foreclosure action."). See also Deutsche Bank Natl. Trust Co. v Najar, 8th Dist. No.
98502, 2013-Ohio-1657, ¶ 57 ("[A] plaintiff can offer additional proof after the filing of the
foreclosure action, including with its motion for summary judgment, establishing that it
became the holder of the note and mortgage prior to or at the time of the filing of the
foreclosure action.").
{¶ 10} In this case, appellee attached with its complaint a copy of the Note
executed by the Pearsons in favor of New Century on May 13, 2005. This copy of the Note
contained a blank indorsement, signed by an employee of New Century. The blank
indorsement had the effect of making the Note payable to the bearer. R.C. 1303.25(B).
Because the Note was indorsed in blank, appellee may establish that it was the holder by
proving that it was possession of the Note at the time it filed the complaint. See R.C.
1303.201(B)(21)(a). See also Bank of Am., N.A. v. Pasqualone, 10th Dist. No. 13AP-87,
2013-Ohio-5795, ¶ 33 (concluding that the appellee was the holder of the note because it
was in possession of a promissory note containing a blank indorsement). In addition to
the copy of the Note attached to the complaint, we find further evidence in the record
No. 13AP-663 5
demonstrating that appellee was the holder of the Note at the time it filed the complaint.
On May 21, 2010, approximately eight days after filing the complaint, appellee filed an
affidavit to address issues raised by the trial court at the hearing on the motion for
appointment of a receiver. The affidavit was made by Ryan Lucas ("Lucas"), who attested
that he was an asset manager with Midland Loan Services, Inc., which was the master and
special servicer for appellee. Lucas further attested that "[a] copy of the Note contained in
my files is attached to the Complaint as Exhibit A." (Lucas affidavit, 2.)1 Based on this
evidence, we conclude that appellee established it had possession of the Note when the
complaint was filed in May 2010.
{¶ 11} Appellants argue further that appellee failed to establish its standing
because the plain language of the Note prohibited its transfer by indorsement in blank.
The relevant clause of the Note provided that the Pearsons agreed to pay New Century,
"or order" the amount specified in the Note. Without citing any statutory or common law
authority, appellants appear to claim that the use of the term "or order" prohibited the
Note from being transferred by blank indorsement. We note generally that an instrument
payable to order is payable to the identified person. R.C. 1303.10(C). The law provides
that an instrument payable to an identified person may become payable to bearer if it is
indorsed in blank. R.C. 1303.10(D). Furthermore, the "or order" language in the Note is
general and nowhere does the clause restrict the transfer from an instrument payable to
order to one payable to bearer. Absent any supporting authority, we are not convinced by
appellants' argument that the language of the Note prohibited transfer through blank
indorsement.
{¶ 12} With respect to the Mortgage, appellants claim that appellee lacks standing
because the assignment from New Century to appellee was executed after New Century
had transferred its interest in the Note and Mortgage to another entity. However,
assuming for purposes of analysis that appellants are correct, we conclude that appellee
1We note that, in support of its motion for summary judgment, appellee relied on a second affidavit from
Lucas, made in August 2010, which referred to a copy of the Note as contained in his files as an exhibit to the
affidavit, not as an exhibit to the complaint. However, there is no evidence that any party contested the
accuracy of Lucas's May 2010 affidavit and, therefore, we rely on it as further evidence that appellee had
possession of the Note when it filed the complaint.
No. 13AP-663 6
had standing to enforce the Mortgage when the complaint was filed. This court has
previously held that negotiation of a note secured by a mortgage operates as an equitable
assignment of the mortgage, even though the mortgage is not assigned or delivered.
Pasqualone at ¶ 39, citing U.S. Bank Natl. Assn. v. Gray, 10th Dist. No. 12AP-953, 2013-
Ohio-3340, ¶ 32. "In other words, '[t]he physical transfer of the note endorsed in blank,
which the mortgage secures, constitutes an equitable assignment of the mortgage,
regardless of whether the mortgage is actually (or validly) assigned or delivered.' " Gray at
¶ 32, quoting Najar at ¶ 65. As explained above, the evidence demonstrates that appellee,
through its special servicer, had possession of the Note, bearing a blank indorsement from
New Century, when the complaint was filed. The transfer of the Note from New Century
to appellee constituted an equitable assignment of the Mortgage. See Gray at ¶ 34;
Pasqualone at ¶ 40. Therefore, appellee had standing to enforce the Mortgage when it
filed the complaint.
{¶ 13} Accordingly, we overrule appellants' first assignment of error.
{¶ 14} Appellants' second assignment of error asserts that the trial court erred by
allowing the receiver to sell the Property. Appellants argue that the trial court abused its
discretion by allowing the receiver to sell the Property for a fraction of the amount
appellants owed on the Note.
{¶ 15} A court may appoint a receiver in a mortgage foreclosure case "when it
appears that the mortgaged property is in danger of being lost, removed, or materially
injured, or that the condition of the mortgage has not been performed, and the property is
probably insufficient to discharge the mortgage debt." R.C. 2735.01(B). Once appointed, a
receiver's powers include the ability to take and keep possession of the property, make
transfers, and perform other acts respecting the property authorized by the court. R.C.
2735.04. The Supreme Court of Ohio has held that R.C. 2735.04 enables a trial court to
exercise its discretion to limit or expand a receiver's powers as it deems appropriate. State
ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 74 (1991). "Absent a showing that the trial
court has abused that discretion, a reviewing court will not disturb the trial court's
judgment." Id. An abuse of discretion occurs where a trial court's decision is
"unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
No. 13AP-663 7
{¶ 16} Appellants argue that the approved sale price of $147,833 was significantly
lower than the value of the Property and the amount they owed on the Note. They assert
that the existing balance on the loan exceeded $400,000, when they assumed the Note
and the Mortgage in 2008. Further, they claim that the Property was appraised at a value
of $880,000 in August 2008. Appellants also refer to a 2011 property tax valuation from
the county auditor of $417,600. Based on these appraisals, appellants argue that the
receiver mismanaged the Property and that appellee simply wished to dispose of the
Property as quickly as possible. Appellants argue that, under these circumstances, the trial
court abused its discretion by approving the sale of the Property.
{¶ 17} In support of the motion to approve the sale, the receiver outlined the steps
taken with respect to marketing and selling the Property. Shortly after being appointed in
May 2010, the receiver retained a third-party residential management company to assist
in stabilizing and correcting problems with the Property. That company provided an
estimate of $41,000 in deferred maintenance and other improvements to make the
Property habitable. A witness for the receiver testified that, when the receiver took over
the Property, 13 of the 16 units were occupied, but 10 of the tenants were delinquent in
rent payments by a month or more. The receiver attempted to have the delinquent tenants
catch up on their rent but ultimately proceeded with eviction actions. Based on the
condition of the Property and the maintenance required, the receiver decided to secure
and hold the units, rather than trying to obtain new tenants.
{¶ 18} The receiver also obtained multiple opinions from real estate brokers
regarding the value of the Property. These value opinions ranged from $6,000 to $15,625
per unit, for a total "as-is" sale price range of $96,000 to $250,000. In support of the
motion to approve the sale, the receiver indicated that he listed the Property for sale in
September 2010 at a price of $250,000. After several showings, three purchase offers
ranging from $80,000 to $100,000 were received in January 2011. The receiver entered
into negotiations with two potential buyers, which ultimately resulted in two final offers in
April 2011: one offer of $141,600 and a competing offer of $147,833. The receiver argued
that, given the Property's location, occupancy rate, and deferred maintenance, the latter
offer was commercially reasonable.
No. 13AP-663 8
{¶ 19} The trial court admitted that the proposed sale price was far below the ideal
price but concluded that, under the circumstances, it was fair and reasonable. The trial
court further concluded that the 2011 appraisal value was not an appropriate reference
point because it did not reflect the present condition of the Property. Testimony presented
to the trial court suggested that the $880,000 appraisal was based on selling the units as
condominiums for $55,000 each and that such a price was inconsistent with the location
and present condition of the Property. The receiver presented ample evidence and
testimony demonstrating the deteriorating condition of the Property, as well as the
relative lack of interest from prospective buyers. Under these circumstances, we conclude
that the trial court did not abuse its discretion by approving the receiver's request to sell
the Property. See, e.g., Fifth Third Bank v. Q.W.V. Properties, LLC, 12th Dist. No.
CA2010-09-245, 2011-Ohio-4341, ¶ 44-45 (trial court did not abuse discretion in
approving sale where receiver acted to procure the highest possible sale price and
preserve the remaining value of the property).
{¶ 20} Accordingly, we overrule appellants' second assignment of error.
{¶ 21} In their third assignment of error, appellants argue that the trial court erred
by granting appellant the full amount of attorney fees it sought related to the fraudulent
conveyance claim. Appellants assert that appellee failed to prove that the attorney fees it
sought were reasonable.
{¶ 22} We review an award of attorney fees for abuse of discretion. Bittner v. Tri-
County Toyota, Inc., 58 Ohio St.3d 143, 146 (1991). Moreover, the Supreme Court of Ohio
has held that, "[u]nless the amount of [attorney] fees is so high or so low as to shock the
conscience, an appellate court will not interfere." Id.{¶ 23} When ruling on a request for attorney fees, the trial court must first
determine the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate, also referred to as the "lodestar" figure. Sims v. Nissan N. Am.,
Inc., 10th Dist. No. 12AP-833, 2013-Ohio-2662, ¶ 46, citing Bittner at 145. The court may
then modify that calculation in accordance with the factors set forth in Prof.Cond.R. 1.5(a)
to be considered in determining the reasonableness of a fee. Id. The party seeking an
award of attorney fees bears the burden of proving the reasonableness of the fees sought.
Id. at ¶ 47. See also Groza-Vance v. Vance, 162 Ohio App.3d 510, 2005-Ohio-3815, ¶ 44
No. 13AP-663 9
(10th Dist.) ("The party seeking an award of attorney fees bears the burden of proof to
establish their reasonableness."). An award of attorney fees must be based on actual
services performed, and there must be some evidence supporting the court's
determination. Sims at ¶ 47.
{¶ 24} Appellants argue that appellee failed to justify the reasonableness of its
attorney fees because appellee relied exclusively on an affidavit from its own attorney. In
the affidavit, appellee's attorney attested that his fees were reasonable based on his years
of experience and knowledge of the law. Appellee's attorney also asserted that his fees
were generally in accordance with rates charged by other attorneys in the area with
comparable experience and education. In Sims, this court noted that, absent contrary
evidence, an attorney's explanation of his fees may constitute sufficient evidence to
support a motion for attorney fees. Id. at ¶ 48. Appellants opposed the request for
attorney fees by citing the rate charged by their own attorney. However, the trial court
addressed this distinction in its judgment, explaining that appellants' attorney was a solo
practitioner with 11 years less legal experience than appellee's attorney, who was a partner
in a major, multi-city commercial law firm. The court also noted that Florence Odita
represented appellants herself for much of the case and concluded that the hours worked
and billing rate of appellants' attorney was limited by appellants' ability to pay. Therefore,
the court reasoned that the fees charged by appellants' attorney did not necessarily
contradict the reasonableness of the hourly rate charged by appellee's attorney.
{¶ 25} Appellants also argue that the trial court abused its discretion by conducting
an independent inquiry regarding the prevailing rates for attorney fees. As noted in its
judgment, the trial court inquired of several law firms regarding the hourly rates currently
charged in commercial litigation. At the hearing on the amount of attorney fees, the judge
asserted that he undertook this inquiry pursuant to common law providing that trial
judges may rely on their own experience and knowledge in determining the proper award
of attorney fees. In its judgment, the trial court indicated that the inquiries led to
discovery of a decision by a federal bankruptcy court in Columbus indicating that the
prevailing market rate for large firm bankruptcy partners was in the range of $400 per
hour or more. The court also noted that none of the parties objected or offered additional
data in response to the court's informal inquiry.
No. 13AP-663 10
{¶ 26} It is true that, "[i]n very limited circumstances this court has held that the
trial court may use its own knowledge and experience in reviewing the record to
determine the necessity and reasonableness of attorney fees." Goode v. Goode, 70 Ohio
App.3d 125, 134 (10th Dist.1991). That principle has generally been applied in domestic
relations cases. See id; Robinson v. Rummelhoff, 10th Dist. No. 13AP-410, 2014-Ohio-
1461, ¶ 49; Grundey v. Grundey, 10th Dist. No. 13AP-224, 2014-Ohio-91, ¶ 35; Groza-
Vance at ¶ 44; Tonti v. Tonti, 10th Dist. No. 03AP-494, 2004-Ohio-2529, ¶ 110-11; Ward
v. Ward, 10th Dist. No. 85AP-61 (June 18, 1985). But see Enyart v. Columbus Metro.
Area Community Action Org., 115 Ohio App.3d 348, 358 (10th Dist.1996); Yoder v.
Hurst, 10th Dist. No. 07AP-121, 2007-Ohio-4861, ¶ 36 (Sadler, J., concurring).
Furthermore, we note it is preferable that the trial court rely on the evidence presented by
the parties. See Enyart at 358 ("While the better practice is to receive testimony regarding
the reasonableness of fees, a trial court under some circumstances is permitted to use its
own knowledge in reviewing the record to determine the reasonableness and necessity of
the services rendered."). It appears that in this case the trial judge may have
supplemented his own knowledge by inquiring of sources not party to this case.
Nevertheless, because he relied on a recent federal bankruptcy decision addressing the
prevailing hourly rate in the same market area and the appellants offered little contrary
evidence, we conclude that the trial court's ultimate determination on fees was not an
abuse of discretion. Moreover, while the amount of fees awarded in this case was
substantial, given the significant complexity of fraudulent conveyance claims and the
lengthy history of the proceedings, this is not a case where the attorney fee award is so
high as to shock the conscience. See Bittner at 146.
{¶ 27} Accordingly, we overrule appellants' third assignment of error.
{¶ 28} For the foregoing reasons, we overrule appellants' three assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and O'GRADY, JJ., concur.
_______________