DEUTSCHE BANK TRUST COMPANY AS TRUSTEE FOR RALI 2006QA11 C/O GMAC MORTGAGE CORP. v. MICHAEL A. FOX, et al.
Case No. 11CA0065
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 22, 2012
2012-Ohio-2855
W. Scott Gwin, P.J., John W. Wise, J., Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Civil Appeal from Licking County Court of Common Pleas Case No. 09CV0205TMM; JUDGMENT: Affirmed
For Plaintiff-Appellee
JEFFREY A. LIPPS
DAVID A. WALLACE
BARTON R. KEYES
Carpenter Lipps & Leland LLP
280 Plaza, Suite 1300
280 North High Street
Columbus, Ohio 43215
For Defendants-Appellants
JOHN SHERROD
SARAH WILLIAMS
JUMP LEGAL GROUP, LLC
2130 Arlington Avenue
Columbus, Ohio 43221
Edwards, J.
{¶1} Appellant, Michael A. Fox, appeals a judgment of the Licking County Common Pleas Court overruling his motions for sanctions and for
STATEMENT OF FACTS AND CASE
{¶2} In 2006, appellant signed a promissory note and mortgage to borrow $540,000 to purchase property at 10999 Jug Street in Johnstown, Ohio. The note was payable to Aegis Wholesale Corporation, and the mortgage was given to Mortgage Electronic Registration Systems, Inc. (MERS) as mortgagee and nominee for Aegis.
{¶3} Appellant defaulted on the loan and appellee filed a complaint in foreclosure on February 2, 2009. Attached to the complaint were the note, the mortgage, and an assignment of the mortgage dated January 26, 2009, executed by Jeffery Stephan on behalf of MERS.
{¶4} Appellee filed a motion for summary judgment supported by an affidavit of Stephan which averred that the note and mortgage were in default and that appellee was due principal in the amount of $537,024.92 plus interest at the rate of 7.375% from September 1, 2008.
{¶5} Appellant did not file a substantive response to the motion for summary judgment and filed no evidence to contradict the evidence in the Stephan affidavit. Appellant filed a
{¶6} On October 20, 2010, appellant filed a motion for sanctions pursuant to
{¶7} Appellant filed a
{¶8} The trial court held an oral hearing on both motions on May 17, 2011. No transcript of this hearing was requested or filed with this Court. The trial court overruled appellant‘s motions and he assigns three errors on appeal:
{¶9} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S CIVIL RULE 60(B) MOTION FOR RELIEF FROM JUDGMENT IN THE FACE OF OVERWHELMING
{¶10} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION FOR SANCTIONS, REASONABLE ATTORNEY‘S FEES, AND EXPENSES PURSUANT TO
{¶11} “III. THE TRIAL COURT ERRED IN RELYING ON TWO DECISIONS IN SIMILAR CASES FROM OTHER OHIO COURTS OF COMMON PLEAS AS ‘AUTHORITY’ AS OHIO COURTS OF COMMON PLEAS ARE BOUND BY THE DECISIONS OF THE OHIO DISTRICT COURTS, NOT OTHER COURTS OF COMMON PLEAS.”
I
{¶12} In his first assignment of error, appellant argues that the court erred in overruling his
{¶13} To prevail on a motion to vacate a judgment pursuant to
{¶14} The decision to grant or deny a
{¶15}
{¶16} “(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms that 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, 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.”
{¶17}
{¶18} Appellant filed his motion pursuant to
{¶19} Appellant‘s allegations that Stephan signed the affidavit as a “robo-signer” without personal knowledge of the information he attested to sound in fraud or newly discovered evidence, which specifically are covered by
{¶20} The Ohio Supreme Court attempted to define the elusive concept of “fraud upon the court” in Coulson v. Coulson, 5 Ohio St.3d 12, 448 N.E.2d 809 (1983):
{¶21} “‘Fraud upon the court’ is an elusive concept. ‘The distinction between ‘fraud’ on the one hand and ‘fraud on the court’ on the other is by no means clear, and most attempts to state it seem to us to be merely compilations of words that do not clarify.’ Toscano v. Commr. of Internal Revenue (C.A.9, 1971), 441 F.2d 930, 933.
{¶22} “One commentator, however, had provided this definition: ‘Fraud upon the court’ should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by the officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court, but redress should be left to a motion under 60(b)(3) or to the
{¶23} “It is generally agreed that ‘* * * [a]ny fraud connected with the presentation of a case to a court is a fraud upon the court, in a broad sense.’ 11 Wright & Miller, Federal Practice and Procedure (1973) 253, Section 2870. Thus, in the usual case, a party must resort to a motion under
{¶24} In a supplement to his motion for sanctions, appellant attached an affidavit of Stephan given in a case in Maine. This affidavit is not authenticated. Further, it does not indicate in any way that the attorneys in the instant case committed fraud upon the court. There is no evidence to suggest that the attorneys, as officers of the court, actively participated in defrauding the court. Appellant‘s allegations sound in fraud pursuant to
{¶25} Further, the Third District Court of Appeals has held that allegations of “robo-signing” are akin to the traditional legal concept of fraud which is specifically addressed
{¶26} We further find that appellant did not demonstrate that he had a meritorious defense to raise if relief were to be granted. Appellant argued in his motion that appellee was not the real party in interest. However, appellant did not raise this defense in his answer or in response to appellee‘s motion for summary judgment. If not raised in the initial pleading stage in the proceedings, the defense that a party is not the real party in interest is waived. Id. at ¶37. In addition, appellant presented no evidence that appellee was not the real party in interest but merely asserts that the document which established that appellee was the real party in interest, namely the Stephan affidavit, was potentially fraudulent because it was “robo-signed.”
{¶27} The first assignment of error is overruled.
II
{¶28} In his second assignment of error, appellant argues that the court erred in overruling his motion for sanctions pursuant to
{¶29} “Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney‘s fees, and any offending party or attorney may be adjudged guilty of contempt.”
{¶30} There is a dearth of Ohio case law interpreting “bad faith” within the meaning of
{¶31} “In the context of Rule 56(g), courts have found ‘bad faith’ only “‘where affidavits contained perjurious or blatantly false allegations or omitted facts concerning issues central to the resolution of the case.‘” See Sutton v. U.S. Small Bus. Admin., 92 Fed. Appx. 112, 118 (6th Cir.2003) (quoting Jaisan, Inc. v. Sullivan, 178 F.R.D. 412, 415-16 (S.D.N.Y. 1998)). Awarding sanctions under Rule 56(g) is “rare” and the conduct involved generally must be ‘egregious.’ See Jaisan, 178 F.R.D. at 415.” Abdelkhaleq v. Precision Door of Akron, 653 F.Supp.2d 773, 787 (N.D. Ohio 2009).
{¶32} The federal court ultimately concluded that while the affidavit was not based on personal knowledge, submission of this affidavit did not rise to the level of bad faith required for an award of sanctions pursuant to Fed.
{¶33} Similarly, while appellant alleges that the affidavit was not made on Stephan‘s personal knowledge, nothing submitted by appellant in the instant case suggests that the affidavit contained perjurious or false allegations, or omitted facts central to the resolution of the case. Appellant has presented no evidence that any of the allegations in the Stephan affidavit in the instant case were in fact untrue. The trial court did not err in overruling the motion for sanctions pursuant to
{¶34} The second assignment of error is overruled.
III
{¶35} In his final assignment of error, appellant argues that the trial court erred in relying on two Common Pleas Court cases as binding authority. This claim is without merit. While the trial court cites to two Common Pleas Court opinions in its decision, nothing in the trial court‘s judgment indicates that the trial court believed these opinions to be binding authority.
{¶36} The third assignment of error is overruled.
{¶37} The judgment of the Licking County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
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JUDGES
JAE/r0227
DEUTSCHE BANK TRUST COMPANY AS TRUSTEE FOR RALI 2006QA11 C/O GMAC MORTGAGE CORP. v. MICHAEL A. FOX, et al.
CASE NO. 11CA0065
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
2012-Ohio-2855
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to appellant.
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JUDGES