U.S. Bank Natl. Assn. v. Lavelle
2016 Ohio 7783
Ohio Ct. App. 9th2016Background
- In 2006 Daniel Lavelle executed a $199,500 note secured by a mortgage on property owned with Mary Lavelle; the note was later indorsed to LaSalle Bank as trustee for an Ownit trust.
- Daniel defaulted; LaSalle filed a foreclosure, then entered a loan modification with Daniel increasing principal and changing the interest rate, and voluntarily dismissed that foreclosure without prejudice.
- LaSalle later filed a second foreclosure alleging default on the modified loan; it voluntarily dismissed that action as well.
- U.S. Bank acquired the note by allonge and filed a third foreclosure in 2013 alleging default on the modified loan terms; Mary moved for summary judgment invoking the Civ.R. 41(A)(1) double-dismissal rule.
- The trial court granted summary judgment for U.S. Bank after resolving an evidentiary issue about inconsistent notes; this court previously reversed on the inconsistent-notes issue and on remand the trial court again granted foreclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 41(A)(1) double-dismissal bars the third foreclosure | Third suit alleges default on the modified loan and is a new claim, so double-dismissal does not apply | Third suit is barred because plaintiff previously voluntarily dismissed two foreclosure actions | Court held double-dismissal inapplicable because the first suit was on original loan terms; second and third alleged defaults under a modified agreement, so the third claim is different and not barred |
| Whether genuine issues of material fact precluded summary judgment | U.S. Bank produced the original note and evidence resolving prior inconsistency; no material factual disputes as to standing and default | History of three suits and earlier evidentiary inconsistencies created factual disputes | Court held no genuine issue: U.S. Bank established possession/standing and default; summary judgment and foreclosure affirmed |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (standard of review for summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (party moving for summary judgment bears initial burden)
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (Ohio 1998) (summary judgment construed in favor of nonmoving party)
- U.S. Bank Natl. Assn. v. Gullotta, 120 Ohio St.3d 399 (Ohio 2008) (Civ.R. 41(A) does not bar a third claim if the third claim is different from the dismissed claims)