Wells Fargo Bank, N.A. v. Lundeen
2020 Ohio 28
Ohio Ct. App.2020Background
- Wells Fargo filed a foreclosure complaint (third amended complaint attached note and mortgage) alleging Lundeen owed $364,579.25 and had defaulted on a loan originally with World Savings Bank.
- The promissory note bore an endorsement showing Wells Fargo as successor by merger; merger documents were attached to the complaint.
- Service by certified mail was returned unclaimed; the clerk then mailed the summons and endorsed an answer date; Lundeen moved for extensions and participated in proceedings (including mediation) but never filed an answer.
- Lundeen filed a Civ.R.12(B)(6) motion arguing lack of standing (Wells Fargo did not allege successor status); the court denied it; Wells Fargo moved for summary judgment supported by an affidavit from bank officer Shae Smith attaching copies of the note, mortgage, notice of default, and merger docs.
- A magistrate granted summary judgment to Wells Fargo; Lundeen did not timely object to the magistrate’s decision, later filed untimely objections that were stricken, and appealed the trial court’s adoption of the magistrate’s decision.
Issues
| Issue | Plaintiff's Argument (Wells Fargo) | Defendant's Argument (Lundeen) | Held |
|---|---|---|---|
| Sufficiency of service to commence action | Service was proper: certified returned unclaimed then ordinary mail per Civ.R.4.6(D); clerk’s certificate and endorsed answer date establish service | Never served with the third amended complaint; action not properly commenced under Civ.R.3(A) | Waived and meritless: Lundeen participated in the case, clerk’s certificate present; timing of her motions shows she received the complaint |
| Failure to raise insufficiency of service below | Insufficiency-of-service defense was waived because it was not raised by motion under Civ.R.12 or in a responsive pleading (Civ.R.12(H)) | On appeal, argues service was insufficient | Waived: cannot raise on appeal when not raised below; Civ.R.12(H) bars belated challenge |
| Authentication of note and mortgage (Smith affidavit) | Smith (bank officer) had personal knowledge, reviewed business records, attached copies of documents; complies with Civ.R.56(E) and Evid.R.901 | Attached exhibits labeled only as “copies”; Smith did not say she compared to originals, so documents are not properly authenticated | Affidavit sufficient: averments authenticated the copies; no plain error; Wells Fargo had standing to enforce the note and foreclose |
| Failure to timely object to magistrate's decision / plain error review | Objections must be timely under Civ.R.53(D)(3)(b); late objections are untimely and issues are waived except for plain error | Filed objections after adoption of magistrate’s decision and argues errors on appeal | Objections stricken as untimely; appellate review limited to plain error (none shown); summary judgment affirmed |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (summary-judgment standard reviewed de novo)
- Reichert v. Ingersoll, 18 Ohio St.3d 220 (Ohio 1985) (definition of plain error in the judicial process)
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (Ohio 1997) (plain-error doctrine in civil cases is narrowly applied)
- Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141 (Ohio 2007) (party may waive insufficiency-of-service defense by participating in proceedings)