Wood v. Fillinger
2014 Ohio 1842
Ohio Ct. App.2014Background
- In Sept. 2009 John Wood loaned Judy Fillinger $110,000 secured by a mortgage on 3718 Ingleside Rd.; Wood filed a foreclosure complaint Dec. 18, 2009 and named RBC Mortgage Company as having an interest.
- The preliminary judicial report showed an earlier (2004) recorded mortgage from Fillinger to MERS, as nominee for RBC, securing a $139,000 note.
- Wood moved for default judgment in Feb. 2010; the magistrate denied it, finding necessary parties were missing (MERS and unknown spouse); magistrate concluded RBC was not a proper party.
- Chase Home Finance (successor: JPMorgan Chase Bank, N.A.) moved to intervene in Sept. 2010, producing an assignment from MERS to Chase dated Aug. 18, 2010 (recorded Aug. 24, 2010); court granted intervention.
- Chase moved for summary judgment in March 2012, submitted the mortgage assignment and an affidavit showing it was holder/servicer and that the note was endorsed in blank; the magistrate and trial court granted summary judgment to Chase in 2013.
- On appeal Wood challenged denial of his early default motion, a clerical date error, and Chase’s intervention during lis pendens; the appellate court affirmed in part but sua sponte remanded to vacate a default judgment entered against RBC and to dismiss RBC as not a real party in interest.
Issues
| Issue | Wood's Argument | Chase/Defendants' Argument | Held |
|---|---|---|---|
| Whether trial court erred denying Wood’s Feb. 2010 default motion | Wood asserted defendants defaulted and judgment should be entered | Court found necessary parties were missing and procedural defects warranted denial | Moot as to denial (default later entered against RBC), but court sua sponte ordered vacatur of default as to RBC because RBC was not a real party in interest |
| Whether the court’s statement that Chase received the mortgage in 2004 was erroneous | Wood pointed out clerk/magistrate misstated that Chase (not RBC) received the 2004 mortgage | Defendants: clerical error; record shows Chase acquired interest by assignment in 2010 | Harmless clerical error; judgment stands |
| Whether Chase could intervene and enforce a mortgage assigned after the foreclosure complaint (lis pendens) | Wood argued lis pendens bars interests acquired after filing and thus Chase cannot intervene/enforce | Chase showed MERS assigned the recorded 2004 mortgage to Chase in 2010 and Chase is holder of the note; intervention timely under Civ.R. 24 and necessary to protect its interest | Intervention proper; Chase is real party in interest and may enforce the mortgage despite assignment during pendency |
| Whether default judgment against RBC could stand where RBC was named but not the holder of the note/mortgage | Wood relied on default to extinguish superior lien | Court/Chase: real party in interest is current holder of note/mortgage; RBC was not holder | Appellate court found plain error: vacate default judgment against RBC and dismiss RBC because it was not a real party in interest |
Key Cases Cited
- U.S. Bank, N.A. v. Richards, 938 N.E.2d 74 (Ohio Ct. App.) (foreclosure real party in interest is current holder of note and mortgage)
- ABN AMRO Mtge. Group, Inc. v. Kangah, 934 N.E.2d 924 (Ohio 2010) (mortgage priority governed by order of recording)
- Swallie v. Rousenberg, 942 N.E.2d 1109 (Ohio Ct. App.) (recording provides constructive notice and preserves lien priority)