2012 Ohio 3435
Ohio Ct. App.2012Background
- In June 2007, Kashanians executed two promissory notes totaling $1,000,000 secured by a mortgage on 1811 Losantiville Ave.
- In April 2010, WesBanco foreclosed the mortgage naming DNK Holdings, Ltd. as a defendant as property owner.
- On Nov. 19, 2010, court entered default judgment against Kashanians; WesBanco sought substitution of Losantiville as plaintiff after an assignment.
- WesBanco assigned the mortgage to Losantiville, recorded Nov. 18, 2010; Losantiville moved to be substituted as plaintiff.
- Dec. 27, 2010, Losantiville sought relief from the default judgment under Civ.R. 60(B) and to name Losantiville as prevailing party.
- Trial court granted relief, substituted Losantiville on Apr. 11, 2011; Kashanians objected; court adopted magistrate’s decision on Jun. 30, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R.60(B) relief and substitution were proper | Losantiville was the real party in interest after assignment | No proper substitution; no valid grounds for relief | No abuse; substitution proper; relief warranted |
| Whether leave to file an answer and default judgment were proper | Default judgment appropriate given lack of defense | Should have been allowed to answer | No abuse; denial of leave and default affirmed |
| Whether any summary judgment mattered given default | Summary judgment cited but unnecessary due to default | Judgment based on evidence should be considered | Summary judgment observations were superfluous; default judgment affirmed |
Key Cases Cited
- State ex rel. Botkins v. Laws, 69 Ohio St.3d 383 (1994) (real party in interest; substitution of parties governs foreclosure)
- Condit v. Condit, 190 Ohio App.3d 634 (2010) (correction of judgments; Civ.R. 60(A) corrections permissible)
- Boedecker v. Rogers, 140 Ohio App.3d 11 (2000) (substitution of parties when interest transferred)
- Ahlrichs v. Tri-Tex Corp., 41 Ohio App.3d 207 (1987) (abuse of discretion standard for substitution decisions)
- Hall v. Gill, 108 Ohio App.3d 196 (1996) (Civ.R. 60 relief and related standards)
- Dater v. Charles H. Dater Found., Inc., 166 Ohio App.3d 839 (2006) (real party in interest; substitution and joinder considerations)