Bank of New York Mellon v. HutchinsBank of New York Mellon v. Hutchins
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 26, 2014
James R. Douglass
James R. Douglass Co., L.P.A.
4600 Prospect Avenue
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
James L. Sassano
Eric T. Deighton
Carlisle, McNellie, Rini, Kramer & Ulrich Co., L.P.A.
24755 Chagrin Boulevard, Suite 200
Cleveland, OH 44122
{¶1} Defendant-appellant Eddie Hutchins appeals the trial court‘s denial of his motion to vacate judgment in a foreclosure action. In two assigned errors, Hutchins argues that the trial court erred when it failed to grant his emergency motion to vacate void judgment on the basis that it was untimely and, secondly, that plaintiff-appellee bank lacked standing to sue because it failed to plead and prove compliance with certain conditions precedent. We affirm the decision of the trial court.
{¶2} Bank of New York Mellon commenced a foreclosure action against Hutchins on September 8, 2009, after Hutchins defaulted on a promissory note and mortgage that secured the note. Hutchins filed, pro se, an answer containing a general denial of the allegations and a motion to dismiss the action with prejudice. The trial court denied the motion to dismiss. Hutchins filed subsequent motions for dismissal and for summary judgment on the basis of lack of standing, claiming that the bank had not produced any documentation demonstrating that it was the owner and holder of the note at the time the complaint was filed. The trial court likewise denied these motions. The bank moved for summary judgment in April 2010 that was opposed by Hutchins. The magistrate granted the motion, and the trial court adopted the magistrate‘s decision in June 2010. Hutchins did not appeal this decision. Instead, Hutchins filed an action in federal court contesting the bank‘s jurisdiction. This action was dismissed in August 2010.
{¶4} Pursuant to
{¶5} We review a trial court‘s decision to deny or grant a
{¶6} In this case, we need not review whether the trial court abused its discretion in denying Hutchins‘s motion to vacate. Res judicata bars our consideration of his assigned errors.
{¶8} In its motion for summary judgment that the trial court granted in June 2010, the bank attached a supporting affidavit that averred the following:
- The note and mortgage attached to Plaintiff‘s Complaint are true copies of the original note and mortgage executed by the Defendant.
- The Defendant is in default of payment of said note; and
- There is an acceleration provision in Plaintiff‘s note and Plaintiff has exercised said provision and called the entire unpaid principal balance with interest immediately due and payable.
Hutchins did not appeal the trial court‘s grant of summary judgment in favor of the bank. As previously noted, he did, however, file various motions with the trial court that challenged the bank‘s standing and the trial court‘s jurisdiction, and also requested that the court stay the foreclosure action. These motions were denied and Hutchins filed no appeal. Res judicata, therefore, bars Hutchins from using this appeal to attack the trial court‘s final judgment in the underlying case.
Schwartzwald does not stand for the proposition that a court of common pleas lacks subject-matter jurisdiction over a foreclosure action where the plaintiff lacks standing at the time the complaint is filed. * * * “[a] lack of standing does not deprive a court of subject-matter jurisdiction” in a mortgage foreclosure action. (Citation omitted.) Id. at ¶ 12.
The court went on to state that even if there was a defect in the bank‘s standing, this would only result in the court‘s judgment being voidable — not void. Id. at ¶ 13. A voidable judgment may not be “collaterally, repeatedly, and duplicatively attacked
{¶10} We find this case analogous to Perkins. Any issues relating to the bank‘s standing to file the complaint did not deprive the court of subject matter jurisdiction and res judicata bars these claims where the issue was previously litigated in the trial court and not appealed. Since Hutchins failed to file a direct appeal, he cannot now assert these claims again in the form of a
{¶11} Lastly, Hutchins has waived the arguments concerning the bank‘s alleged failure to satisfy conditions precedent to the foreclosure action because he failed to assert these claims during the pleadings stage when he answered the complaint. “In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.”
{¶12} In paragraph three of its complaint, the bank stated “it has performed all of the conditions required to be performed by it.” While Hutchins‘s answer contained general denials of the allegations to the bank‘s complaint, he made no specific mention of which conditions precedent the bank failed to satisfy. He has therefore failed to comply with
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
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KEY WORDS AND SUMMARY
Mortgage; note; standing, res judicata;