Danny Chenault et al., Plaintiffs-Appellants, v. Deutsche Bank National Trust Co. et al., Defendants-Appellees.
No. 14AP-669 (C.P.C. No. 12CV-6237)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 14, 2015
[Cite as Chenault v. Deutsche Bank Natl. Trust Co., 2015-Ohio-1850.]
TYACK, J.
(REGULAR CALENDAR)
Rendered on May 14, 2015
The Behal Law Group LLC, and John M. Gonzales, for appellants.
Manley Deas Kochalski LLC, and Matthew J. Richardson, for appellees.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} Plaintiffs-appellants, Danny Chenault and Linda McCreary, appeal the Franklin County Court of Common Pleas decision granting motions for summary judgment and for default judgment filed by defendants-appellees, Deutsche Bank National Trust Co. et al. Appellants also appeal the trial court‘s denial of their motion for summary judgment. For the following reasons, we affirm the decision of the trial court.
{¶ 2} Appellants present three errors for our consideration:
I. The trial court erred when it allowed Deutsche Bank to prevail on a time-barred foreclosure claim that hinged on disputed facts and that was precluded as res judicata.
II. The court erred in granting summary judgment to Defendants on Plaintiffs’ unjust enrichment claims.
III. Deutsche Bank should not have been permitted to belatedly plead a mandatory counterclaim that it did not file on time.
{¶ 3} In 2004, appellants Danny Chenault and Linda McCreary entered into a note and mortgage, originated by IndyMac Bank, pertaining to their residence located in New Albany, Ohio. Late in 2006, IndyMac became insolvent and ceased operation, transferring a portion of its assets to Deutsche Bank National Trust. In November 2006, Deutsche Bank filed a foreclosure action after appellants defaulted on the note. Deutsche Bank received a default judgment on January 30, 2007, but moved to vacate that judgment and dismiss the foreclosure action on February 18, 2009. The purported date of the assignment of the mortgage to Deutsche Bank is December 14, 2006, so the filing was premature. From 2007 through much of 2012, payments were made on the mortgage.
{¶ 4} On February 7, 2007, Linda McCreary filed for Chapter 13 bankruptcy. IndyMac Bank F.S.B., the loan servicer, filed a claim with the bankruptcy trustee and filed an objection to confirmation of the Chapter 13 debt repayment plan. In May 2010, a Home Affordable Modification Agreement was executed between appellants and IndyMac Mortgage Services, a division of One West Bank which brought the loan current.
{¶ 5} On March 23, 2011, appellants filed a complaint against Deutsche Bank and One West Bank F.S.B. alleging negligence, fraud, breach of contract, and a truth in lending violation among other charges, but appellants voluntarily dismissed that complaint in August 2011.
{¶ 6} On May 15, 2012, appellants filed an amended complaint. In response, Deutsche Bank and One West Bank F.S.B. filed a motion to dismiss. The trial court granted a partial motion to dismiss on June 13, 2013, allowing only appellants’ quiet title and unjust enrichment claims to remain. On July 19, 2013, appellants moved for judgment by default for appellees’ failure to file a responsive pleading within the time required. In response, appellees moved for leave to file an answer instanter and deny judgment by default. On August 19, 2013, the trial court denied the motion for default judgment and granted leave to appellees to file an answer instanter.
{¶ 7} In 2012, appellants defaulted on the loan after the 2010 modification agreement had brought the loan current. On November 7, 2012, Deutsche Bank gave notice of possible acceleration of the loan and foreclosure if appellants failed to cure the
{¶ 8}
[T]he pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion * * *.
{¶ 9} Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the non-moving party. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 629 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66 (1978).
{¶ 10} When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party‘s pleadings, but the party‘s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
{¶ 12} De novo review is well established as the standard of review for summary judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). We stand in the shoes of the trial court and conduct an independent review of the record applying the same summary judgment standard. As such, we must affirm the trial court‘s judgment if any of the grounds raised by the moving party, at the trial court‘s level, are found to support it, even if the trial court failed to consider those grounds. See Dresher v. Burt, 75 Ohio St.3d 280 (1996); Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
{¶ 13} Appellants first argue that the trial court erred in three different ways in allowing Deutsche Bank to prevail on its foreclosure claim: (1) the claim was time-barred; (2) Deutsche Bank failed to file a claim in the bankruptcy case; and (3) the facts are in dispute as to whether the note was properly assigned to Deutsche Bank. We address first whether there are any facts in dispute about whether the note and mortgage were properly assigned to Deutsche Bank and whether Deutsche Bank now properly holds these instruments.
{¶ 14} Deutsche Bank submitted an affidavit with a copy of the note. (R. 175, Appellees’ Motion for Summary Judgment, Rebecca Marks’ affidavit, exhibit A.) Appellants do not contest that Deutsche Bank possesses the note. The note is a “blank endorsement” payable to the bearer. The note, therefore, may be negotiated and transferred.
{¶ 16} However, even if the December 2006 assignment of the mortgage is fraudulent, under Ohio Law, Deutsche Bank can still enforce the note and the mortgage. Pursuant to
{¶ 18} Appellants argue that Deutsche Bank‘s motions are barred by the six-year statute of limitations from the time when the note was accelerated in June 2006. “[A]n action to enforce the obligation of a party to pay a note payable at a definite time shall be brought within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.”
{¶ 19} Having determined that Deutsche Bank can enforce the note and that motion for default judgment is not time barred or precluded by res judicata, we find the foreclosure claims were properly granted.
{¶ 20} The first assignment of error is overruled.
{¶ 21} In their second assignment of error, appellants argue that the trial court erred in granting summary judgment against their claim of unjust enrichment. Appellants argue that Deutsche Bank did not have the right to collect payments. Appellants argue that the assignment of the note and mortgage from IndyMac was invalid
{¶ 22} “The elements of unjust enrichment or quasi-contract are: (1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment.” Saraf v. Maronda Homes, Inc., 10th Dist. No. 02AP-461, 2002-Ohio-6741, ¶ 10, citing Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984). However, when a written contract between the parties addresses the matter in dispute, the contract governs the parties’ performance, unless the contract is void due to illegality, fraud, or otherwise cannot govern the relationship. Saraf at ¶ 12.
{¶ 23} We have found that the note between Deutsche Bank and the Appellants is valid and thus governs the relationship. Appellants’ motion for summary judgment on unjust enrichment was properly denied.
{¶ 24} The second assignment of error is overruled.
{¶ 25} Appellants’ argue in their third assignment of error, that the trial court improperly permitted Deutsche Bank to file a mandatory counterclaim of foreclosure after time had expired.
{¶ 26} On August 19, 2013, the trial court denied appellants’ motion for default judgment and granted leave to appellees to file an answer instanter. On October 1, 2013, appellees moved for leave to file an amended answer and counterclaim for foreclosure. The trial court granted leave on December 20, 2013, and Deutsche Bank filed its answer and counterclaim on March 10, 2014.
{¶ 27} Appellants argue that the appellees’ foreclosure action is a compulsory counterclaim governed by
{¶ 28} As noted above, appellants argue that counterclaim of foreclosure was mandatory and governed by
{¶ 29} Deutsche Bank‘s foreclosure action clearly arises out of the same transaction and occurrence but it sought leave of the trial court to amend its claim as permitted by
{¶ 30}
{¶ 31} The third assignment of error is overruled.
{¶ 32} We deny appellees’ February 5, 2015 motion to strike a portion of appellants’ reply brief.
{¶ 33} Having denied the motion to strike and having overruled the three assignments of error, the decision of the Franklin County Court of Common Pleas is affirmed.
Motion to strike denied; judgment affirmed.
SADLER and DORRIAN, JJ., concur.