Bank of Am., N.A. v. ThompsonBank of Am., N.A. v. Thompson
Rendered on the 6th day of February, 2015.
J. BRADLEY LEACH, Atty. Reg. No. 0089592, and GREGORY H. MELICK, Atty. Reg. No. 0065694, Luper, Neidenthal & Logan, LPA, 50 West Broad Street, Suite 1200, Columbus, Ohio 43215-3374
Attorneys for Plaintiff-Appellee
VIVIAN L. THOMPSON, 180 North Ardmore Avenue, Dayton, Ohio 45417-2204
Defendant-Appellant, pro se
FAIN, J.
{¶ 1} Defendant-appellant Vivian Thompson appeals, pro se, from the order overruling her motions for a new trial and to vacate a judgment of foreclosure rendered
I. The Course of Proceedings
{¶ 2} In her first appeal, we summarized the facts, as follows:
In 2005, Thompson obtained a home loan from Countrywide Home Loans, Inc. She executed a promissory note to Countrywide for $91,248 and gave a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as Countrywide‘s nominee. On May 1, 2012, MERS assigned the mortgage to Bank of America.
Thompson defaulted on the note when she failed to make the June 2012 payment, and the following November, the Bank filed a foreclosure action against her. The Bank attached to its complaint, among other documents, a copy of the note, the mortgage, and the assignment of mortgage. Thompson filed a pro se answer captioned, “Answer in Affidavit of Negative Averment.” In February 2013, the Bank moved for summary judgment. The trial court entered an order stating that it
would decide the summary-judgment motion on March 11. The order states that no hearing will be held unless a party asks for one and that all summary-judgment memoranda and affidavits must be filed by March 10 unless a party asks for an extension. Neither party asked for a hearing or an extension. Five days before the filing deadline, Thompson refiled her “Answer in Affidavit of Negative Averment.” The same day, Thompson also filed a petition for bankruptcy in bankruptcy court. The bankruptcy case was dismissed on August 1, 2013. Almost a month-and-a-half later, the Bank filed a motion to reactivate the foreclosure proceeding, which the trial court granted. On September 16, 2013, the trial court sustained the Bank‘s motion for summary judgment and entered judgment on the note and ordered foreclosure if Thompson fails to pay.
Bank of America v. Thompson, ¶¶ 2-4.
{¶ 3} Prior to her appeal from the summary judgment, Thompson filed a motion for a new trial, based on
{¶ 4} In her first appeal, we summarized Thompson‘s legal contentions as four assignments of error, as follows:
The first contends that the trial court lacked jurisdiction because the Bank lacked standing when it initiated the foreclosure action. The second
contends that summary judgment is improper because genuine issues of material fact remain. The third contends that Thompson did not receive due process because she did not receive reasonable notice of judicial process and was not given a reasonable opportunity to be heard. And the fourth assignment of error contends that the Bank violated Civ.R. 8(E) by failing to state, in the complaint, its true relationship to the note.
Bank of America v. Thompson, ¶ 6.
{¶ 5} We overruled all four assignments of error. First, we concluded that the Bank of America did have standing to file the action, based on its possession of the note with a blank indorsement, which it was entitled to enforce. Id. at ¶¶ 9-10. Second, we concluded that the Bank presented all of the evidence required to prove that it was entitled to judgment; it was the holder of the note, all conditions precedent were met, and Thompson was in default. Id. at ¶ 14. We rejected Thompson‘s contentions that the bank did not prove she was in default because its affidavit was defective, that MERS had no authority to assign the mortgage, and that the court failed to consider correspondence from the bank that she had not properly authenticated. Id. at ¶¶ 17-22. Third, we concluded that Thompson was given sufficient due process when the trial court granted the summary judgment motion approximately six weeks after her bankruptcy case had been dismissed. Id. at ¶¶ 24-27. Fourth, we rejected Thompson‘s claim that the complaint should have stated that the bank was the servicer of the loan, and we found no violation of
{¶ 6} After our opinion was issued in her first appeal, Thompson filed a demand for reconsideration. We denied the application for reconsideration on the basis that Thompson did not establish any obvious error in our decision, or raise any issue that we failed to consider in whole or in part. The decision and entry rejecting reconsideration specifically addresses several of the issues that are raised again in the current appeal. We specifically rejected Thompson‘s claims concluding that the bank was not a foreign state subject to
{¶ 7} After the judgment of foreclosure was affirmed on appeal, the trial court overruled the post-judgment motions, finding
II. Standard of Review
{¶ 8} The issues raised in Thompson‘s twelve assignments of error involve questions of law. We review questions of law with a de novo standard of review. Dayspring of Miami Valley v. Shepherd, 2d Dist. Clark No. 06-CA-113, 2007-Ohio-2589, ¶
III. A Civ.R. 59 Motion for a New Trial Does Not Lie from a Summary Judgment
{¶ 9} In her Second, Ninth and Tenth Assignments of Error, Thompson contends that the court erred by not conducting a jury trial, by granting judgment without requiring the parties to appear in Court, and by violating her right to due process by granting judgment without a hearing. These issues were raised and rejected by the trial court in its denial of Thompson‘s motion for a new trial pursuant to
{¶ 10}
{¶ 11} Accordingly, we conclude that the trial court did not err when it denied Thompson‘s motion for a new trial. Thompson‘s Second, Ninth and Tenth Assignments of Error are overruled.
IV. The Law-of-the-Case Doctrine Prevents the Relitigation of Legal Issues Previously Affirmed on Appeal
{¶ 12} All of the issues raised in the First, Fifth, Sixth, Eleventh and Twelfth Assignments of Error were previously raised and addressed in Thompson‘s first appeal. In her First Assignment of Error, Thompson alleges that the trial court and the appellate court are foreign corporations pursuant to
{¶ 13} In the decision and entry denying the motion for reconsideration in Thompson‘s first appeal, we also addressed and rejected the same claim Thompson raises as her Sixth Assignment of Error. We concluded that neither federal law nor state law prohibited the court from using electronic signatures to document approval of final entries. See also, Huntington Natl. Bank v. Thompson, 2d Dist. Montgomery No. 26265, 2014-Ohio-5168, ¶¶ 54-58.
{¶ 14} In the Fifth Assignment of Error, Thompson alleges that the trial court abused its discretion by granting the summary judgment when there were clear issues of fact, and the Bank was not entitled to judgment as a matter of law. This is the same error raised in her Second Assignment of Error in her first appeal, which we rejected. Bank of America v. Thompson, at ¶ 14. We also specifically addressed and rejected the issue Thompson raises in her Twelfth Assignment of Error, by finding that the summary judgment was based on a proper affidavit. Bank of America v. Thompson, at ¶¶ 14-15.
{¶ 15} “The law-of-the-case doctrine provides that ‘the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.‘” Meyer v. Chieffo, 193 Ohio App.3d 51, 2011-Ohio-1670, 950 N.E.2d 1027, ¶ 27 (10th Dist.), quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). Our decision in the first appeal created the law of this case that applied when Thompson returned to the trial court and filed post-judgment motions, and when she filed this appeal. In the first appeal,
{¶ 16} In her Third, Seventh and Eighth Assignment of Errors, Thompson alleges that Bank of America lacks standing to pursue the foreclosure action, that Bank of America was not the owner of the note and not the real party in interest. We specifically addressed all of these claims in the first appeal, concluding that Bank of America had standing, and was the holder of the note and mortgage at the time the judgment was rendered. Therefore, the law-of-the-case doctrine prevents these issues from being re-litigated, and our holding in the first appeal remains the law of the case.
{¶ 17} Thompson‘s First, Third, Fifth, Sixth, Seventh, Eighth, Eleventh and Twelfth Assignments of Error are overruled.
V. All issues that Should Have Been Raised in the Previous Appeal are Waived
{¶ 19} In a foreclosure action, a homeowner‘s grounds for challenging a summary judgment decision not raised in the trial court are waived, and may not be raised for the first time on appeal. FirstMerit Bank, N.A. v. Shaheen, 5th Dist. Stark No. 2011CA00079, 2011-Ohio-6146, ¶ 13. The Shaheen decision relies on a rule of law established by the Supreme Court of Ohio when it stated, “errors which arise during the course of a trial, which are not brought to the attention of the trial court by objection or otherwise, are waived and may not be raised upon appeal.” Id. at ¶ 12, citing Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975).
{¶ 20} Thompson is also prevented from initiating any new action in an attempt to collaterally attack the judgment granted against her on the basis of res judicata. “Res judicata is a doctrine of judicial preclusion. There are two theories on which it operates, claim preclusion (estoppel by judgment) and issue preclusion (collateral estoppel).” State v. Harris, 2d Dist. Montgomery No. 24739, 2012-Ohio-1853, ¶ 14, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995). “‘Both theories of res judicata are used to prevent relitigation of issues already decided by a court, or matters that
{¶ 21} As we discussed in our opinion in Thompson‘s previous appeal, she was initially given the opportunity to respond to the Bank‘s motion for summary judgment and she was provided the opportunity to raise all of these issues she now raises in the present appeal. Her failure to timely present these issues to the trial court constitutes her waiver of the right to raise these issues on appeal.
VI. Conclusion
{¶ 22} All of Thompson‘s assignments of error having been overruled, the order of the trial court overruling Thompson‘s motions for a new trial and to vacate judgment is Affirmed.
FROELICH, P.J., and HALL, J., concur.
J. Bradley Leach
Gregory H. Melick
Vivian L. Thompson
Jonathan Croft
Michael Sandner
Douglas Trout
Joseph Chapman
Hon. Mary K. Huffman