Picalovski v. Humphreys

[Cite as Picalovski v. Humphreys, 2014-Ohio-1709.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Dragon Picalovski et al., :
Plaintiffs-Appellees, :
No. 12AP-103
v. : (C.P.C. No. 07 CVE06 7292)
Gloria L. Humphreys, a.k.a. : (REGULAR CALENDAR)
Gloria Humphreys,
:
Defendant-Appellant,
:
Bayview Loan Servicing, LLC et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on April 22, 2014
Kevin R. Nose, for appellant.
The Law Offices of John D. Clunk, Jason A. Whitacre, and
Laura C. Infante, for appellee Bayview Loan Servicing, LLC.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} Gloria L. Humphreys, a.k.a. Gloria Humphreys, defendant-appellant,
appeals from the judgment of the Franklin County Court of Common Pleas in which the
court granted the motion for default judgment filed by Bayview Loan Servicing, LLC
("Bayview") defendant-appellee.
{¶ 2} In 1997, Boris Picalovski sold Humphreys his home, located at 7575
Riverside Drive, Dublin, Ohio, with a second mortgage taken back by Picalovski. Through
a series of subsequent assignments, Bayview became the owner and holder of the first
No. 12AP-103 2
mortgage and note. Thereafter, Humphreys discovered alleged misrepresentations
Picalovski made to her during the sale of the home. She and Picalovski were allegedly
attempting to resolve these issues when Picalovski died in a vehicular accident in 2001.
Humphreys apparently stopped paying on both the first and second mortgages.
{¶ 3} On June 1, 2007, Picalovski's siblings, Dragon Picalovski and Elizabeth
Vargo ("plaintiffs"), as the current holders of the note securing the second mortgage
between Picalovski and Humphreys, initiated the present foreclosure action against
Humphreys and Bayview, as well as several other defendants. Humphreys claims she was
never served with the complaint. On June 28, 2007, Bayview filed an answer and cross-
claim. Humphreys claims she was never served with Bayview's answer and cross-claim.
{¶ 4} On September 7, 2007, after learning of plaintiffs' complaint, Humphreys'
counsel appeared and filed an answer.
{¶ 5} On February 21, 2008, plaintiffs filed a motion for summary judgment
which the trial court denied on June 30, 2008. On September 5, 2008, Bayview filed a
motion for default judgment on its cross-claim.
{¶ 6} On September 30, 2008, the trial court adopted a stipulation between
Bayview and Humphreys that, absent a resolution and final determination of plaintiffs'
claims, Humphreys and Bayview would be unable to resolve their differences. The
stipulation also provided that Bayview's cross-claim against Humphreys would be
bifurcated from the other claims in the case. The parties further stipulated: (1) any
hearing and determination of Bayview's cross-claim shall occur after resolution and final
determination of plaintiffs' claims, and (2) Bayview's motion for default judgment upon
its cross-claim shall be held in abeyance by the court for briefing and determination after
resolution and final determination of plaintiffs' claims.
{¶ 7} On November 12, 2008, the trial court granted Bayview's motion for default
judgment on its cross-claim. On December 15, 2008, plaintiffs filed a motion to vacate the
trial court's November 12, 2008 judgment which the trial court granted May 20, 2009.
According to several entries from the magistrate, the parties participated in mediation
efforts and reached a tentative settlement.
{¶ 8} On May 24, 2010, Bayview filed a motion for leave to file default judgment
and motion for default judgment on its cross-claim in foreclosure. Humphreys claims the
No. 12AP-103 3
motion for default judgment contained no certificate of service, and the motion for leave
to file the motion for default was not served upon her counsel but was mailed to an
incorrect home address for her.
{¶ 9} On January 11, 2012, the trial court granted Bayview's motion for default
judgment. On January 23, 2012, the trial court filed an amended judgment entry granting
Bayview's motion for default judgment and entering a decree of foreclosure. Humphreys
appeals the judgment of the trial court, asserting the following assignment of error:
The trial court erred in granting the (Foreclosure) Judgment
Decree with Reformation filed on January 11, 2012, and the
Amended Judgment Entry with Reformation filed on
January 23, 2012.
{¶ 10} Humphreys argues in her assignment of error that the trial court erred
when it granted default judgment in favor of Bayview on its cross-claim against her.
Humphreys contends the trial court erred in granting default judgment because (1) the
cross-claim was not served upon her, (2) the entry of default was contrary to the prior
stipulation entered into between her and Bayview on September 30, 2008, (3) the trial
court did not comply with Loc.R. 55.01, and the motion for default was filed without
notice to her or her counsel, and (4) the evidence to support the motion for default
judgment was not properly authenticated and sworn to as required by law.
{¶ 11} In addressing Humphreys' second argument above, Bayview notes in its
brief that it believes the parties entered into an agreement subsequent to the
September 30, 2008 stipulation that effectively amended or negated the stipulation.
However, Bayview concedes that, because the subsequent agreement is not part of the
record before the court, the stipulation rendered its motion for default judgment
premature and prohibited the trial court from granting default judgment. We agree that
the stipulation clearly sets forth that the trial court would not address Bayview's cross-
claim and motion for default judgment until after the legal issues between plaintiffs and
Humphreys were resolved. As the claims between plaintiffs and Humphreys had not yet
been resolved at the time the trial court granted Bayview's motion for default judgment,
the trial court erred and the default judgment must be reversed. We also note that,
although Humphreys' four arguments all raise separate legal and factual questions, they
No. 12AP-103 4
all seek the same result; that is, Humphreys seeks to vacate the default judgment. As we
have found the trial court's default judgment must be reversed due to the parties'
stipulation, we need not address Humphreys' other arguments. For these reasons,
Humphreys' assignment of error is sustained.
{¶ 12} Accordingly, Humphreys' single assignment of error is sustained, and the
judgment of the Franklin County Court of Common Pleas is reversed.
Judgment reversed.
SADLER, P.J., and CONNOR, J., concur.
_____________________