BAC Home Loans Servicing, L.P. v. HallBAC Home Loans Servicing, L.P. v. Hall
Derryl T. Hall & Pamela K. Hall, 80 Cambridge Drive, Springboro, Ohio 45066, defendants-appellants, pro se
Nicholas J. Pantel, 221 East Fourth Street, Atrium II, Suite 400, Cincinnati, Ohio 45202, for defendant, United States of America
Rachel A. Hutzel, Warren County Prosecuting Attorney, Christopher A. Watkins, 500 Justice Drive, Lebanon, Ohio 45036, for defendant, United States of America
O P I N I O N
POWELL, P.J.
{¶1} Defendants-appellants, Derryl T. Hall and Pamela K. Hall, appeal pro
{¶2} On June 14, 2006, Derryl Hall executed a promissory note in favor of E-Loan, Inc., in the principal amount of $172,000. The note was secured by a mortgage on property owned by appellants and located at 80 Cambridge Drive in Springboro, Ohio. The mortgage listed appellants as the mortgagors, and Mortgage Electronic Registration Systems, Inc. (“MERS“), was designated as the mortgagee as the nominee for E-Loan.
{¶3} On June 15, 2009, appellee filed a foreclosure action against appellants, alleging that Derryl Hall was in default on the payment of the note. Appellee sought judgment on the note in the amount of $168,862.73, plus late fees and interest from November 1, 2008, and further sought to foreclose on the mortgage.
{¶4} Appellee‘s complaint also named the United States of America as a defendant. The United States answered, asserting that it had an interest in the property by virtue of a federal tax lien against “Pamela E. Hall and Felix M. Hall” which was reflected in the preliminary judicial report filed with appellee‘s complaint.
{¶5} On July 14, 2009, appellants, appearing pro se, filed an answer to the complaint and entered a general denial to the allegations. Although they did not separately set forth affirmative defenses in their answer, appellants averred generally that appellee was not the real party in interest because “the filing of the complaint occurred before [appellee] [was] the loan servicer of record.” Appellants attached a
{¶6} Appellants also claimed in their answer that appellee failed to provide them with written notice of the mortgage assignment pursuant to the requirements of the Real Estate Settlement Procedures Act (“RESPA“), and that the federal tax lien was invalid.
{¶7} On August 7, 2009 appellee moved for summary judgment. Appellants submitted a memorandum in opposition, and in its September 21, 2009 judgment entry, the trial court granted summary judgment in favor of appellee on its claims for judgment on the note and foreclosure of the mortgage.
{¶8} Appellants appeal the trial court‘s September 21 entry, raising a single assignment of error for our review:
{¶9} “THE COMMON PLEAS COURT[ ] IMPROPERLY RULED IN FAVOR OF THE PLAINTIFF. THE PLAINTIFF LACKED STANDING UNDER THE [OHIO REVISED CODE] TO FILE THE COMPLAINT.”
{¶10} In their sole assignment of error, appellants contend that the trial court improperly granted summary judgment in favor of appellee. They have raised several issues for our review under this assignment.
{¶11} Summary judgment is a procedural device used to terminate litigation and avoid a formal trial where there are no issues in a case to try. Burkes v. Stidham (1995), 107 Ohio App.3d 363, 370, citing Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2. This court reviews summary judgment decisions de novo, which means that we review the trial court‘s judgment independently and without deference to its
{¶12} The Ohio Supreme Court has repeatedly held that summary judgment is appropriate under
{¶13} Appellants initially contend that appellee was not the real party in interest and therefore lacked standing to initiate the foreclosure action because the mortgage assignment was not recorded until June 19, 2009, four days after the complaint was filed. In its decision, the trial court determined that the mortgage was duly assigned to appellee, but did not specifically address the merits of appellants’ standing claim.1
{¶14} Pursuant to
{¶15} Appellants cite
{¶16} Appellants also argue that appellee was required to demonstrate that it “suffered some actual injury” as a result of Darryl Hall‘s default on the note. This contention is without merit, as appellee was not required to establish that it suffered some form of damages beyond default in order to prevail on its foreclosure claim. See Bank of New York v. Barclay, Franklin App. No. 03AP-844, 2004-Ohio-1217, ¶15. In support of its motion for summary judgment, appellee attached the affidavit of David Perez, an assistant vice-president of appellee, who averred that appellee was in possession of the note, that the note was in default, and that “all prerequisites required under the note and mortgage necessary to accelerate the balance due” had been performed. At no point in the proceedings have appellants disputed that the note was in default, and they failed to present any evidence in their memorandum to rebut the averments in appellee‘s affidavit.
{¶17} As an additional issue presented for review, appellants claim that appellee failed to comply with the requirements of the RESPA, codified at
{¶18} However, our review of appellants’ answer to the complaint reveals that although they made reference to the RESPA and alleged that they did not receive
{¶19}
{¶20} Based upon our review of appellants’ answer, it cannot be said that a
{¶21} Finally, appellants contend that the federal tax lien is invalid. Appellants point out that the lien attached to the preliminary judicial report references the names of different individuals and an unknown property address.
{¶22} In its judgment entry, the trial court determined that any right, title, interest or lien the United States may have on the property was subordinate to appellee‘s mortgage lien. However, the court made no finding with respect to the validity of the tax lien, stating as follows:
{¶23} “The [c]ourt makes no finding as to the claim, right, title, interest or lien of the defendant, United States of America, as set forth in its respective [a]nswer filed herein, except to note that such claim, right, interest or lien of the hereinabove defendant is hereby ordered transferred to the proceeds derived from the sale of said
{¶24} Although the validity of the tax lien was not resolved in the trial court‘s entry, it was not a material issue preventing summary judgment in favor of appellee on its foreclosure claim. See Link v. Matthews, Allen App. No. 1-08-61, 2009-Ohio-1920, ¶31. “[M]aterial facts are those facts that might affect the outcome of the suit under the governing law of the case.” Id., quoting Lexie v. Ohio Edison Co. (2000), 140 Ohio App.3d 578, 582. In this case, the trial court‘s determination to continue the issue of lien validity did not prejudice the parties or affect the outcome of the action, as the court would be able to hear any issue raised by appellants with respect to the matter following the sale of the property. Id.
{¶25} Based on the foregoing, we conclude that summary judgment in favor of appellee on its note and mortgage foreclosure claims was property granted. Appellants’ sole assignment of error is accordingly overruled.
{¶26} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.