2013 Ohio 4278
Ohio Ct. App.2013Background
- In 2006, Kenneth and Alicia Taylor purchased a home in Twinsburg, Ohio, signing a promissory note with Option One Mortgage Corp. secured by a mortgage.
- Option One defaulted in 2007 for nonpayment and assigned its interest to Deutsche Bank in June 2007.
- Deutsche Bank filed a foreclosure action in November 2007; Taylor counterclaimed under the FDCPA and Ohio Rev. Code 2921.03.
- On initial appeal, the court affirmed foreclosure but reversed on Taylor’s counterclaims; remanded for proceedings consistent with that opinion.
- On remand, the trial court set case management, ruled on discovery motions, and, after Deutsche Bank moved for summary judgment, the court eventually granted summary judgment on the counterclaims.
- Taylor appeals raising eight errors, with the appellate court affirming in part and reversing in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court followed the mandate on remand | Taylor asserts court failed to follow our special mandate | Deutsche Bank contends court properly complied and proceeded under civil rules | Assignment I overruled; court correctly applied mandate |
| Whether the trial court properly considered recorded documents for summary judgment | Taylor argues documents weren’t properly incorporated or authenticated | Bank asserts documents were properly attached or incorporated and admissible | Assignment II overruled; no improper evidence considered |
| Whether due process was violated by not holding a hearing on summary judgment | Taylor claims no hearing deprived him of due process | No oral hearing required; notice and response satisfied due process | Assignment III overruled; no due process violation |
| Whether Deutsche Bank lacked standing due to defective assignment | Taylor challenges standing under Schwartzwald | Assignment from Option One to Deutsche Bank pre-dates filing; standing intact | Assignment IV overruled; standing upheld |
| Whether trial court lacked jurisdiction due to alleged bias and misconduct | Taylor alleges judge bias and denied recusal; due process concerns | Court declined to review bias claims; no basis shown | Assignment V overruled |
| Whether summary judgment was improper on counterclaims against former counsel | Taylor argues counterclaims against Deutsche Bank's former counsel were not properly disposed | Non-moving party cannot obtain summary judgment; Deutsche Bank’s former counsel was not a party | Assignment VII sustained; summary judgment improper on counterclaims against former counsel |
Key Cases Cited
- Sherlock v. Myers, 9th Dist. Summit No. 22071 (2004-Ohio-5178) (liberal construction for pro se litigants to decide merits)
- Bank of New York v. Brunson, 9th Dist. Summit No. 25118 (2010-Ohio-3978) (nonoral vs. oral summary-judgment hearings allowed)
- Hooten v. Safe Auto Ins. Co., 100 Ohio St.3d 8 (2003-Ohio-4829) (nonoral Civil Rule 56 proceedings permissible)
- Shih v. Byron, 9th Dist. Summit No. 25319 (2011-Ohio-2766) (court cannot adjudicate bias; disqualification process exists)
- Schwartzwald, Fed. Home Loan Mortgage Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012-Ohio-5017) (standing requires present interest in note/mortgage at filing)
- Nolan v. Nolan, 11 Ohio St.3d 1 (1984) (mandate of superior court generally controls; extraordinary circumstances required to depart)