COMMUNITY NATIONAL BANK, PLAINTIFF-APPELLEE, v. GRANT R. PARSONS, DEFENDANT-APPELLANT, -and- DENISE PARSONS, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 8-11-15
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
June 10, 2013
[Cite as Community Natl. Bank v. Parsons, 2013-Ohio-2383.]
Appeal from Logan County Common Pleas Court Trial Court No. CV 09 07 0380 Judgment Affirmed
D. Jeffrey Ireland and Andrew J. Reitz for Appellant
John D. Smith and Andrew P. Meier for Appellee Community National Bank
{¶1} Defendant-appellant, Grant R. Parsons,1 appeals the Logan County Court of Common Pleas judgment denying his motion for relief from the trial court’s judgment entry and decree of foreclosure. For the reasons that follow, we affirm.
{¶2} On July 17, 2006, Mr. Parsons and his wife, Denise Parsons, executed an adjustable rate note with plaintiff-appellee, Community National Bank2 (“the Bank“), for a loan in the amount of $126,000.00 plus interest at a yearly rate of 7.00%. (Complaint, Doc. No. 1, Ex. A); (JE, Doc. No. 52). To secure payment of the adjustable rate note, the Parsons executed an open-end mortgage, dated July 17, 2006, against the real property at 7498 Dunns Pond Circle, Russells Point, Ohio. (Id., Ex. B); (Id.). On August 23, 2006, the open-end mortgage was recorded with the Logan County Recorder at Book 840, Page 127. (Doc. No. 1, Ex. B).
{¶3} The Parsons defaulted on the adjustable rate note and open-end mortgage by failing to make payments. (Chartrand Aff. at ¶ 2-4, Doc. No. 66,
{¶4} After the trial court scheduled and, at the request of the parties, continued a hearing on the Bank’s motion for summary judgment, the trial court stayed the case on February 4, 2010 because Mr. Parsons filed Chapter 13 bankruptcy. (JE, Doc. No. 29); (JE, Doc. No. 32). The trial court reactivated the case on December 10, 2010, following the dismissal of Mr. Parsons’ bankruptcy proceeding. (JE, Doc. No. 36).
{¶5} On March 14, 2011, the trial court held a hearing on the Bank’s previously filed motion for summary judgment. (JE, Doc. No. 45). The Parsons were represented by counsel at the hearing, but they failed to respond to or to request leave to respond to the Bank’s motion for summary judgment. (Id.); (JE, Doc. No. 72). The trial court granted the Bank’s motion for summary judgment on March 15, 2011. (Doc. No. 45). After the Bank filed the final judicial report and affidavit confirming the Parsons were not on active military duty, the trial
{¶6} On May 31, 2011, Mr. Parsons, acting pro se, filed a
{¶7} In a judgment entry dated July 12, 2011, the trial court concluded that it did not have jurisdiction to entertain Mr. Parsons’ motion for relief from judgment while the case was on appeal to this Court. (Doc. No. 68). On July 22, 2011, upon motion of Mr. Parsons, we dismissed that appeal and remanded to the trial court. (Doc. No. 71).
{¶8} On July 28, 2011, the trial court issued the judgment entry denying Mr. Parsons’ motion for relief from judgment, concluding “there is no meritorious
Assignment of Error No. I
The trial court erred by denying the Rule 60(B) Motion for Relief from Judgment filed by the Defendants-Appellants Grant and Denise Parsons [sic]. (Judgment Entry, Filed July 28, 2011).
{¶9} In his first assignment of error, Mr. Parsons argues that the trial court erred in denying his
{¶10}
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for
a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
In order to prevail on a motion brought pursuant to
{¶11} “A motion for relief from judgment under
{¶12} Here, the Bank concedes that Mr. Parsons timely filed his
{¶13} To demonstrate a meritorious defense under
{¶14} Mr. Parsons argues that his
{¶15} The existence of a valid mortgage is a prerequisite to foreclosure. Chase Home Fin., L.L.C. v. Heft, 3d Dist. Nos. 8-10-14 and 8-11-16, 2012-Ohio-876, ¶ 25. Thus, the lack of a valid mortgage—whether by satisfaction, release, or otherwise—serves as a meritorious defense in a foreclosure action. See Bank of Am. v. Kuchta, 9 Dist. No. 12CA0025-M, 2012-Ohio-5562, ¶ 12, 15, citing Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017.
{¶16} Our review of the record shows that Mr. Parsons presented nothing to the trial court suggesting that the Bank released the foreclosed-upon mortgage. Attached to Mr. Parsons’ affidavit supporting his
{¶17} The mortgage serving as the basis for the underlying foreclosure, however, was recorded on August 23, 2006 with the Logan County Recorder at Book 840, Page 127. (Doc. No. 1, Ex. B). Simply by comparing the copy of the released mortgage attached to Mr. Parsons’ affidavit with the copy of the mortgage attached to the Bank’s complaint, the trial court could easily and properly conclude that the mortgage that was released was not the one upon which the Bank filed the underlying foreclosure action. Additionally, counsel for the Bank explained at the July 8, 2011 hearing that the Parsons executed and the Bank held two separate mortgages for two separate loans. (Tr. at 14). The Bank released one mortgage because the Parsons satisfied the underlying loan; the Bank did not release the other mortgage, which served as the basis for its foreclosure action, because the Parsons did not satisfy that obligation. (Id.). Notably, Mr. Parsons did not dispute that he and his wife executed two mortgages dated July 17, 2006. The trial court, therefore, did not abuse its discretion in concluding that this defense was not meritorious. Natl. City Bank v. Abundant Life Apostolic, 9th Dist. No. 04CA008447, 2004-Ohio-5372, ¶ 18 (trial court did not abuse its discretion in denying appellant-mortgagor’s motion for relief from judgment because
{¶18} Mr. Parsons also argues that the Bank misapplied payments to his and his wife’s accounts and that this amounts to a meritorious defense. Even assuming misapplication of partial payments on an outstanding balance due on an adjustable rate note secured by a mortgage could constitute a meritorious partial defense under
{¶19} Mr. Parsons alleged in his
{¶20} Attached to the Bank’s response to Mr. Parsons’
{¶21} It was not an abuse of discretion for the trial court to conclude that Mr. Parsons’ payment-misapplication allegations did not amount to a meritorious defense. We begin by noting what Mr. Parsons did not allege. He did not dispute that he and his wife defaulted on the adjustable rate note secured by the mortgage. Nor did he allege that the outstanding balance stated in the complaint and judgment entry and decree of foreclosure—$120,482.92 plus interest at 7.00% per annum from May 21, 2009—was incorrect. In Mr. Parsons’ affidavit, he referred vaguely to “my account” and “this account,” and he alleged broadly that payments were “not recorded.” (G. Parsons Aff., Doc. No. 61, attached). He did not specify the account or accounts to which he was referring, nor did he attach any Bank statements, notices, or other documents. Broad, conclusory statements do not satisfy the requirement that a
{¶22} For these reasons, we hold that the trial court did not abuse its discretion when it concluded that Mr. Parsons failed to present a meritorious defense and denied his
{¶23} Mr. Parsons’ first assignment of error is, therefore, overruled.
Assignment of Error No. II
The trial court erred in failing to allow the Defendants-Appellants Grant and Denise Parsons [sic] the right to conduct discovery regarding the allegations contained in the Rule 60(B) Motion for Relief from Judgment. (Judgment Entry, Filed July 28, 2011).
{¶24} In his second assignment of error, Mr. Parsons argues that the trial court erred by not allowing him to conduct discovery in support of his
{¶25} We need not and do not decide in this case whether a party to a
{¶26} Mr. Parsons’ second assignment of error is, therefore, overruled.
{¶27} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
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