Countrywide Home Loans Servicing, L.P. v. Nichpor
990 N.E.2d 565
Ohio2013Background
- Feb. 27, 2009: Countrywide filed foreclosure against Nichpor; May 18, 2009: trial court entered judgment on note; writ issued for order of sale; sheriff’s sale July 1, 2010; third party purchased property; July 12, 2010: Countrywide filed Civ.R. 41(A) voluntary dismissal; August 3, 2010: trial court dismissed and moot; July 16, 2010: Countrywide refiled foreclosure; Aug. 5, 2011: summary judgment for Countrywide; March 16, 2012: Sixth District affirmed; issue certified to Supreme Court; Court accepted for review and held in favor of lenders or borrowers respectively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 41(A)(1)(a) permits post-judgment dismissal of foreclosure | Nichpor argues Civ.R. 41(a) dismissal applies and ends action | Countrywide argues dismissal cannot dissolve foreclosure after judgment | Civ.R. 41(A)(1)(a) cannot dissolve foreclosure post-judgment |
| Is foreclosure a two-stage process allowing dismissal before sale confirmation | Foreclosure and sale confirmation are separate; dismissal allowed before confirmation | Dismissal after judgment would undo final foreclosure actions | Foreclosure remains final; dismissal not permitted after judgment |
| Does a default judgment in foreclosures render the sale final and un-dissolvable | Default judgment represents final determination; dismissal possible pre-confirmation | Finality of sale should preclude post-judgment dismissal | Default judgment does not allow post-judgment Civ.R. 41 dismissal |
Key Cases Cited
- GTE Auto Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (1976) (default judgment is a final determination of rights)
- Ohio Sav. Bank v. Ambrose, 56 Ohio St.3d 53 (1990) (sales and foreclosure finality; respect finality in judgments)
- Kahler v. Capehart, 2004-Ohio-2224 (3d Dist. 2004) (default judgment and finality; Civ.R. 41 analysis in foreclosure context)
- Ohio Dept. Taxation v. Plickert, 128 Ohio App.3d 445 (1998) (order of sale and decree of foreclosure as final, appealable)
- Speakman v. Third Natl. Bank of Circleville, 18 Ohio St.3d 119 (1985) (finality of orders following decree of foreclosure and sale)