Bayview Loan Servicing, L. L.C. v. Likely
2017 Ohio 7693
| Ohio Ct. App. | 2017Background
- In 2005 the Likelys executed a promissory note secured by a mortgage on Akron property; they defaulted within a year.
- Bank (Bayview) sued in 2006 for breach, foreclosure, and reformation; final decree of foreclosure entered in 2007 but multiple sheriff’s sales were repeatedly withdrawn.
- In March 2014 the trial court vacated/dismissed the 2006 foreclosure action for lack of standing under Schwartzwald; Bayview refiled on May 1, 2014.
- After a bench trial the magistrate ruled for Bayview; the Likelys timely filed objections but failed to timely file the transcript or praecipe as required by Civ.R. 53 and local rule.
- The trial court denied motions for extension/leave to file the late transcript, declined to consider the untimely transcript, adopted the magistrate’s decision, entered a final decree of foreclosure, and this appeal followed.
Issues
| Issue | Plaintiff's Argument (Bayview) | Defendant's Argument (Likelys) | Held |
|---|---|---|---|
| Trial transcript timeliness / consideration of untimely transcript | Bank argued rules require timely praecipe/transcript; courts have discretion to deny late filing | Likelys argued court abused discretion by refusing to accept/consider late transcript and extensions | Court: No abuse of discretion; Likelys failed to show good cause or excusable neglect and did not comply with Civ.R.53/Loc.R.18.05; untimely transcript properly not considered |
| Applicability of savings statute (R.C. 2305.19) to refiled action | Bank: 2006 action was commenced and dismissed otherwise than on the merits (lack of standing), so savings statute permits 2014 refile within one year | Likelys: 2006 dismissal for lack of standing voided commencement / deprived court of subject-matter jurisdiction so savings statute does not apply | Court: Held dismissal for lack of standing is without prejudice and not an adjudication on merits; subject-matter jurisdiction existed; savings statute applies and 2014 filing was timely |
| Standing vs. subject-matter jurisdiction | Bank: had standing to enforce the note at time of trial; dismissal in 2006 was for lack of standing (not lack of subject-matter jurisdiction) | Likelys: contend Bank never had standing to invoke subject-matter jurisdiction and thus prior case never commenced | Court: Distinguishes standing from subject-matter jurisdiction (citing Kuchta); lack of standing does not deprive court of subject-matter jurisdiction; Likelys’ contention unpersuasive and facts indicate 2006 case was commenced and dismissed without prejudice |
| Merits: Bank's entitlement to foreclosure and reformation / standing to enforce the note | Bank: produced evidence supporting standing and possession/allonge sufficient for foreclosure and reformation | Likelys: contested standing and authenticity/ownership of the allonge and note | Court: Likelys forfeited key challenges by not raising them specifically in objections and failed to supply transcript to contest factual findings; court affirmed foreclosure and reformation judgment |
Key Cases Cited
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012) (dismissal for lack of standing is without prejudice and is not an adjudication on the merits)
- Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75 (2014) (distinguishes standing from subject-matter jurisdiction; lack of standing does not deprive court of subject-matter jurisdiction)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard defined)
- State v. Adams, 62 Ohio St.2d 151 (1980) (abuse-of-discretion definition cited)
- Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619 (1993) (appellate review limits—do not substitute own judgment for trial court)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing evaluated as of commencement of suit)