2015 Ohio 456
Ohio Ct. App.2015Background
- In 2005 Thompson took a mortgage loan from Countrywide and gave a mortgage to MERS; MERS assigned the mortgage to Bank of America in 2012.
- Thompson defaulted (failed June 2012 payment); Bank sued in November 2012 and moved for summary judgment in February 2013.
- Thompson filed a pro se answer, later filed for bankruptcy (case dismissed August 1, 2013), and refiled pleadings; the trial court granted Bank’s summary-judgment motion on September 16, 2013 and entered foreclosure judgment.
- Thompson appealed; this court (2d Dist.) affirmed the summary-judgment foreclosure in a prior opinion, rejecting her standing, due-process, and evidentiary challenges.
- After the prior affirmance and denial of reconsideration, Thompson filed post-judgment motions (Civ.R. 59 and to vacate); the trial court denied them and Thompson appealed again.
- This appeal challenges the denial of the post-judgment motions; the court affirms, applying waiver, res judicata / law-of-the-case, and the rule that Civ.R. 59 does not lie from a summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 59 may be used to seek a new trial from a summary judgment | Civ. argues judgment stands; Civ.R. 59 inapplicable to summary judgment | Thompson argues she was denied a jury/hearing and seeks new trial under Civ.R. 59 | Court: Civ.R. 59 does not lie from a Civ.R. 56 summary judgment; motions for new trial denied |
| Whether Bank of America had standing / was real party in interest | Bank says it possessed the note (blank indorsement) and had standing to enforce | Thompson contends Bank lacked standing, wasn’t real party in interest | Court: Standing previously decided; Bank was holder and had standing—law of the case bars relitigation |
| Whether procedural/due-process defects (notice, electronic signatures, foreign-state arguments) invalidate the judgment | Bank says procedures were proper; electronic signatures and bank status lawful; Thompson had notice and opportunity to be heard | Thompson claims lack of reasonable notice, improper use of e-signatures, and that parties are foreign states/corporations requiring federal consent | Court: These arguments were raised and rejected in prior appeal and reconsideration; law of the case/res judicata precludes relitigation |
| Whether issues not raised in the prior appeal or trial are preserved now | Bank: Issues not timely raised are waived; post-judgment motions insufficient to relitigate | Thompson asserts various procedural irregularities and newly framed challenges | Court: Issues not raised timely in trial court or prior appeal are waived; no docket evidence of pleadings being struck; res judicata bars collateral attacks |
Key Cases Cited
- Meyer v. Chieffo, 950 N.E.2d 1027 (Ohio App. 2011) (describing law-of-the-case doctrine application)
- Nolan v. Nolan, 462 N.E.2d 410 (Ohio 1984) (defining law-of-the-case principle)
- L.A. & D., Inc. v. Bd. of Lake Cty. Comm’rs, 423 N.E.2d 1109 (Ohio 1981) (motion for new trial does not lie from summary judgment precedent)
- Stores Realty Co. v. Cleveland, 322 N.E.2d 629 (Ohio 1975) (errors not raised at trial are waived on appeal)
- Grava v. Parkman Twp., 653 N.E.2d 226 (Ohio 1995) (res judicata requires presenting every ground for relief in first action)
- Deaton v. Burney, 669 N.E.2d 1 (Ohio App. 1996) (claim preclusion bars claims that were or could have been litigated)