Aurora Loan Servs., L.L.C. v. WilcoxAurora Loan Servs., L.L.C. v. Wilcox
O P I N I O N
Rendered on the 4th day of September, 2009.
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RICK D. DеBLASIS, Atty. Reg. No. 0012992 and CHRIS MARKUS, Atty. Reg. No. 0081221, 120 E. Fourth Street, Suite 800, Cincinnati, Ohio 45202
Attorneys for Plaintiff-Appellee
ALAN J. STATMAN, Atty. Reg. No. 0012045 and JEFFREY P. HARRIS, Atty. Reg. No. 0023006, and W. KELLY LUNDRIGAN, Atty. Reg. No. 0059211, 3700 Carew Tower, 441 Vine Street, Suite 3700, Cincinnati, Ohio 45202
and
HANNAH W. HUTMAN, Atty. Reg. No. 0081022, 110 N. Main Street, Suite 1520, Dayton, Ohio 45402
Attorneys for Defendant-Appellant, Intervenor Thomas Noland
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FROELICH, J.
{¶ 1} Thomas Noland, bankruptcy trustee for Michael Wilcox, (hеreinafter referred
{¶ 2} Because thе trial court did not abuse its discretion in concluding that the Trustee had failed to set forth a meritorious defense in his motion to vacate, the judgment denying the motion will be affirmed.
{¶ 3} On April 26, 2007, Aurora Loan Services, LLC (“Aurora“) filed a complaint in foreclosure against Wilcox. The complaint alleged that Aurora was the holder and owner of a note on which Wilcox had defaulted and that Wilcox owed over $250,000, plus interest аnd other costs. The note was secured by a mortgage. Aurora attached to the Complaint a copy of the mortgage, but the Complaint stated that a copy of the note was “unavailable at [that] time.”
{¶ 4} On June 18, 2007, Wilcox, through counsel, filed an Answer containing general denials and asserting fourteen defenses, including failure to name the real party in interest; the Answer did not allege fraud.
{¶ 5} Aurora filed a motion fоr summary judgment, in which it argued that the defenses pled in Wilcox‘s answer were “insufficient to comply with the Civil Rules’ requirement of notice pleading” in that he had failed to allege any operative facts. Aurora specifically refuted each of the affirmative defenses raised in Wilcox‘s answer and attached additional documentation in support of its claim. These documents, supported by affidavits, included thе note, with endorsements representing the transfers of the note, the total amount owed on the note, and a file-stamped copy of the Corporate Assignment of Mortgage filed with the Miami County Recorder.
{¶ 6} Wilcox filed a Memorandum in Opposition to Plaintiff‘s Motion for Summary
{¶ 7} On September 10, 2007, the trial court granted Aurora‘s motion for summary judgment and entered a decree of foreclosure. The cоurt found that the note was secured by a mortgage, that the mortgage had been filed with the county recorder, that the conditions of the mortgage had been broken, and that Aurora was entitled to foreclоsure. Wilcox did not appeal. One month later, Wilcox filed for bankruptcy.
{¶ 8} On September 3, 2008, the Trustee filed a Motion to Intervene and for Leave to File Motion to Vacate Judgment under Rule 60(B). In his motion to vаcate, the Trustee argued that claims made by Aurora in the foreclosure action and upon which the judgment of foreclosure was based were false. Numerous documents were attached, including mortgage documents and filings from the bankruptcy proceedings. The trial court granted the motion to intervene and allowed the Trustee to file a
{¶ 9} The Trusteе appeals, raising an assignment of error which challenges three
{¶ 10} “THE TRIAL COURT ERRED IN FINDING THAT: 1) IT HAD JURISDICTION SINCE AURORA HAD NO STANDING TO SUE, WAS NOT A REAL PARTY IN INTEREST, AND COULD NOT PROPERLY INVOKE THE JURISDICTION OF THE TRIAL COURT UPON COMMENCEMENT OF THE CASE; 2) AURORA‘S LACK OF STANDING AND FAILURE TO BE A REAL PARTY IN INTEREST COULD BE CURED; AND 3) APPELLANT WAIVED ITS RIGHT TO CHALLENGE AURORA‘S MISREPRESENTATION, FRAUD OR OTHER MISCONDUCT IN INTENTIONALLY MISREPRESENTING ITS STANDING AND STATUS AS A REAL PARTY IN INTEREST IN THE TRIAL COURT, AND THEREFORE THE TRIAL COURT SHOULD HAVE GRANTED APPELLANT TRUSTEE‘S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO OHIO CIVIL RULE 60(B).”
{¶ 11} The first and second arguments challenge the trial court‘s jurisdiction and Aurora‘s status as a real party in interest. The third argument alleges that Aurora committed fraud or misrepresentation when it filed its Complaint because it was not the holder of the note at that time. Each of these arguments would require us to examine the underlying judgment of foreclosure. Since the appeal is from the overruling of the motion to vacate the foreclosure judgment and not from the underlying judgment itself, these arguments beg the question of whether the trial court properly concluded that the Trustee was not entitled to
{¶ 12} ”
{¶ 13} To prevail on a motion brought under
{¶ 14} In order to establish a meritorious claim or defense under
{¶ 15} “[A] movant has no automatic right to a hearing on a motion for relief from judgment.” Hrabak v. Collins (1995), 108 Ohio App.3d 117, 121. It is an abuse of discretion for a trial court to overrule a
{¶ 16} We review the trial court‘s determination of a
{¶ 17} The trial court found that the Trustee‘s motion did not contain operative facts justifying relief under
{¶ 19} A movant for summary judgment bears the initial burden of demonstrating, with
{¶ 20} Aurora supported its motion for summary judgment with documentary evidence that it was the holder of the note, which was a bearer instrument. In
{¶ 21} The Trustee, in his
{¶ 22} The Trustee alleged that Aurora committed fraud and misrepresentation in the filing of its Complaint and that such conduct justified vacating the judgment. However, even assuming, for the sake of argument, that Aurora did engage in fraud by filing a Complaint to collect on a note that it did not then hold, the Trustee was still required to establish a meritorious defense to the claim to bе entitled to relief under
{¶ 24} The judgment of the trial court will be affirmed.
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FAIN, J. and GRADY, J., concur.
Copies mailed to:
Rick D. DeBlasis
Chris Markus
Alan J. Statman
Jeffrey P. Harris
W. Kelly Lundrigan
Hannah W. Hutman
Hon. Jeffrey M. Welbaum