Nationstar Mtge. v. Waisanen
2017 Ohio 131
| Ohio Ct. App. | 2017Background
- Brian and Sarah Waisanen defaulted on their mortgage, filed Chapter 7 in 2013, received a discharge, and stopped making payments.
- Nationstar filed an in rem foreclosure action; the Waisanens asserted counterclaims including invasion of privacy, trespass, civil conspiracy, FDCPA and CSPA violations, and wrongful foreclosure/quiet title.
- Both parties moved for summary judgment; the trial court entered summary judgment for Nationstar on the foreclosure and all counterclaims.
- While this appeal was pending, the property sold at sheriff’s sale; the trial court confirmed the sale and ordered distribution of proceeds, and the Waisanens did not seek a stay or appeal that confirmation.
- The Court of Appeals concluded the foreclosure and quiet-title issues were moot and reviewed whether the trial court properly granted summary judgment on the remaining counterclaims and related evidentiary issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of foreclosure and quiet-title after sheriff’s sale and confirmed distribution | Waisanens: trial court erred granting summary judgment on foreclosure | Nationstar: sale confirmed and proceeds distributed moots relief | Court: Appeal is moot as to foreclosure and quiet-title; dismissed those claims |
| Whether trial court properly granted summary judgment on counterclaims (invasion of privacy, trespass, FDCPA, CSPA) | Waisanens: genuine issues of material fact exist; trial court misweighed evidence | Nationstar: evidence fails to create genuine issues; entitled to judgment | Court: trial court erred by weighing evidence and resolving credibility; summary judgment improper on these counterclaims |
| Civil conspiracy claim dependent on underlying torts | Waisanens: conspiracy supported by underlying tort allegations | Nationstar: no underlying unlawful act, so conspiracy fails | Court: because summary judgment on underlying torts was improperly decided, summary judgment on conspiracy also erred |
| Admissibility/personal-knowledge of Mr. Hyne’s affidavit supporting Nationstar’s motion | Waisanens: affidavit lacks personal knowledge for Civ.R. 56(E) | Nationstar: affidavit sufficient or at least not shown to be inadmissible on record | Court: Issue is premature here; declined to rule and remanded for reconsideration in proper evidentiary framework |
Key Cases Cited
- Byrd v. Smith, 110 Ohio St.3d 24 (2006) (summary judgment standard and burden allocation)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (de novo review of summary judgment)
- Stewart v. Urig, 176 Ohio App.3d 658 (2008) (nonmoving party benefit of all reasonable inferences at summary judgment)
- Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215 (1988) (competing inferences and credibility resolved for nonmoving party)
- Williams v. Aetna Fin. Co., 83 Ohio St.3d 464 (1998) (civil conspiracy fails without underlying unlawful act)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standards regarding evidence and inferences)
- Dietl v. Sipka, 185 Ohio App.3d 218 (2009) (quiet-title claim moot after confirmed sheriff’s sale and distribution)