DITECH FINANCIAL LLC, еt al., Appellees, - vs - SAMANTHA JO EBBING, Appellant.
CASE NO. CA2018-09-182
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
5/28/2019
2019-Ohio-2077
S. POWELL, J.
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2017 08 1877
McGlinchey Stafford, Stefanie L. Deka, Brian T. Kostura, 340 Tuttle Road, Suite 200, Cleveland, Ohio 44122, for appellee, Bank of New York Mellon
Samantha Jo Ebbing, 3800 Princeton Road, Hamilton, Ohio 45011, appellant, pro se
S. POWELL, J.
{¶ 1} Appellant, Samantha Jо Ebbing, appeals the decision of the Butler County Court of Common Pleas granting summary judgment to appellee, Ditech Financial, LLC (“Ditech“). For the reasons outlined below, we affirm the trial court‘s decision.
{¶ 2} On January 29, 2001, Jennette E. Weik executed a promissory note in favor of America‘s Wholesale Lender (“America‘s Wholesale“) in the amount of $75,200. Weik executed the note in order to purchase a home located at 1001 Hayes Avenue, Hamilton, Butler County, Ohio. The note executed by Weik was endorsed in blank by America‘s Wholesale and secured by a mortgage on the subject property by Mortgage Electronic Registration Systems, Inc. (“MERS“), as nominee for America‘s Wholesale, its successors, and assigns.
{¶ 3} During the early months of 2017, Weik, who is now deceased, defаulted on the note, thereby triggering the acceleration clause provided therein. The record indicates the note had an unpaid balance of $53,480.94 plus interest at a rate of 6.75% as of November 1, 2016. The record also indicates that following Weik‘s death Ebbing became the subject property‘s titleholder. Ebbing remained the titleholder to the property at all times relеvant.
{¶ 4} On August 3, 2017, MERS, as nominee for America‘s Wholesale, assigned the mortgage to Ditech. Two weeks later, on August 17, 2017, Ditech filed a complaint in foreclosure. Due to her status as the titleholder to the property, Ebbing was named as a defendant. Ditech also named as defendant, appellee, The Bank of New York Mellon fka The Bank of New York as Successor Indenture Trustee tо JPMorgan Chase Bank, N.A., as Indenture Trustee for the CWABS Revolving Home Equity Loan Trust, Series 2004-E (“Bank of New York Mellon“), “by virtue of a mortgage from Jeannette E. Weik, filed for record on September 15, 2003[.]”
{¶ 5} On August 25, 2017, Bank of New York Mellon was served with Ditech‘s complaint via certified mail. Six days later, on September 1, 2017, Ebbing was also served with Ditech‘s complaint via certified mail. The certified mailing was sent to Ebbing‘s home
{¶ 6} On September 12, 2017, Bank of New York Mellon filed an answer to Ditech‘s complaint. In its answer, Bank of New York Mellon acknowledged that it had an interest in the subject property resulting from the mortgage described in the complaint. Due to its stаtus as mortgagee, there is no dispute that Bank of New York Mellon‘s interest in the subject property rendered it a junior lienholder to that of Ditech.
{¶ 7} On September 19, 2017, Ebbing moved the trial court to dismiss Ditech‘s complaint. Relying primarily on
{¶ 8} On September 28, 2017, Ditech moved the trial court for leave to file an amended complaint. Ditech sought to amend the complaint to add certain necessary parties to the foreclosure action. The trial court granted Ditech‘s motion on October 18, 2017. Ditech filed its amended complaint later that same day. It is undisputed that Ditech‘s amended complaint neither changed the original causes of action nor added any additional causes of action as it relates to either Ebbing or Bank of New York Mellon.
{¶ 9} On November 22, 2017, Ebbing moved the trial court to dismiss Ditech‘s amended complaint. In support, Ebbing asserted the same
{¶ 11} On April 26, 2018, Ditech moved for summary judgment against both Ebbing and Bank of New York Mellon. In support of its motion, Ditech included an affidavit and several accompanying exhibits. The affidavit and exhibits provided evidence that Ditech was both the holder of the note and the assignee of the mortgage at the time both its original and amended complaints were filed. This, as Ditech alleged, entitled it to enforce the note and mortgage and foreclose on the subject property now owned by Ebbing.
{¶ 12} On May 18, 2018, Ebbing filed a memorandum in opposition to Ditech‘s motion for summary judgment. Rather than providing evidence establishing a genuine issue of material fact, Ebbing‘s memorandum merely requested the trial court deny Ditech‘s motion because she “was never served notice of or served” with the trial court‘s December 13, 2017 decision. Therefore, according to Ebbing, Ditech‘s motion for summary judgment should be denied because she was “unaware to give her responsive pleading.”
{¶ 13} That same day, Ebbing also filed a pleading entitled “Verified Answer; Counterclaims; and, Cross-claims.” The pleading set forth Ebbing‘s answer to Ditech‘s
{¶ 14} On June 18, 2018, Ditech moved the trial court to strike Ebbing‘s pleading in accordance with
{¶ 15} On July 13, 2018, the trial court denied Ebbing‘s motion for leave. In so holding, the trial cоurt stated, in pertinent part, the following:
[T]his case is a month shy of a year old. The Court denied Ebbing‘s motion to dismiss on December 13, 2017. Ebbing waited seven months to request leave to file her answer, counterclaim and cross-claim out of time. The Court notes that Ebbing was at least aware of the December 13, 2017 decision back on May 18, 2018, when she filed her pleadings, as she referenced such in her mеmorandum opposing summary judgment filed that same day. Yet, she still did not request leave to plead out of time until July 11, 2018. Under these circumstances, the Court cannot find excusable neglect that
warrants extending the pleading stage of this case beyond the one-year mark.
The trial court then concluded by noting Ebbing‘s pleading would be stricken from the record and “be treated as a nullity.” The trial court‘s decision also contains a note that a copy of the decision was sent to Ebbing at her home address; “3800 Princeton Road, Hamilton, OH 45011.”
{¶ 16} Later that day, the trial court issued a decision and entry granting Ditech‘s motion for summary judgment. The trial court issued its decision upon finding Ditech provided sufficient evidence to meet its burden establishing the essential elements necessary to prevаil in a foreclosure action; namely, execution and delivery of the note and mortgage, valid recording of the mortgage, its status as the current holder of the note and assignee of the mortgage, default, and the amount then due and owing. The trial court‘s decision likewise contains a note that a copy of the decision was sent to Ebbing at her home address; “3800 Princeton Rоad, Hamilton, OH 45011.”
Appeal
{¶ 17} Ebbing now appeals the trial court‘s decision granting Ditech‘s motion for summary judgment, raising three assignments of error for review. Prior to addressing the merits of her appeal, however, we note that Ebbing was acting pro se in the proceedings below. Ebbing also appears pro se in the proceedings before this court. While we understand that Ebbing is not an attorney, it is well-estаblished that the law does not afford pro se litigants greater rights and they must accept the results of their own mistakes and errors. Milton v. Pierce, 12th Dist. Clermont No. CA2016-03-013, 2017-Ohio-330, ¶ 23; Countrywide Home Loans, Inc. v. Reece, 12th Dist. Warren No. CA2010-08-078, 2011-Ohio-541, ¶ 12 (“although she is appearing pro se in this appeal [appellant] is nevertheless bound by the same rules and procedures as licensed attorneys“).
{¶ 19} Assignment of Error No. 1:
{¶ 20} THE TRIAL COURT ERRED IN DEROGATION OF LAW IN DENYING APPELLANT‘S MOTION TO DISMISS AS PLAINTIFF LACKS STANDING WITHOUT EVINCING ALL STATUTORY REQUIREMENTS PRECEDENT TO INVOKING THE JURISDICTION OF THE COURT.
{¶ 21} In her first assignment of error, Ebbing argues the trial court erred by denying her
{¶ 22}
{¶ 23} Although difficult to deciрher, Ebbing essentially argues the trial court erred by denying her motion to dismiss because its decision was contrary to law and based on several incorrect factual findings. But, after a simple review of the record, we find no error in the trial court‘s decision. Ditech‘s amended complaint, just as its original complaint, contained sufficient allegations to overcome a
{¶ 24} “A party seeking to foreclose on a mortgage must establish execution and delivery of the note and mortgage; valid recording of the mortgage; it is the current holder of the note and mortgage; default; and the amount owed.” Countrywide Home Loans, Inc. v. Baker, 10th Dist. Franklin No. 09AP-968, 2010-Ohio-1329, ¶ 8. Ditech, clearly having standing to bring a foreclosure action as both the holder of the note and assignee of the mortgage at issue, alleged sufficient facts related to each of these essential elements. Therefore, finding no error in the trial court‘s decision denying her
{¶ 25} Assignment of Error No. 2:
{¶ 26} THE TRIAL COURT ERRED IN DEROGATION OF APPELLANT‘S RIGHT[S] WHEN IT FILED ITS DECEMBER 13, 2017 ENTRY PRIOR TO APPELLANT BEING HEARD AND ALSO WHEN IT FAILED TO SERVE APPELLANT A COPY OF SAID ENTRY
{¶ 27} In her second assignment of error, Ebbing argues the trial court violated her right to due process by issuing its December 13, 2017 decision without giving her an opportunity to be heard. In support, Ebbing cites to the trial court‘s Loc.R. 6.02(D). Pursuant to that rule:
Unless an extension of time is granted for good cause shown, any memorandum in opposition to a motion, or a memorandum of a co-party in support of the motion, shall be filed within twenty-one (21) days of the service of the motion and the movant shall file any reply memorandum in support of the motion within ten (10) days of the service of the last memorandum in opposition. No memorandum shall exceed fifteen (15) pages in length without leave of court. Unless oral argument is requested or ordered by the Court, a motion shall be considered submitted to the court for decision upоn the expiration of said time period.
{¶ 28} This court is baffled by Ebbing‘s argument. It would seem that Ebbing is arguing that she was not provided with the opportunity to file a reply brief to Ditech‘s memorandum in opposition. But, even when taking Ebbing‘s claim as true, the record indicates Ditech did not file its opposing memorandum until after the trial court had already issued its decision; the trial court issued its decision on Decеmber 13, 2017 at 3:50 p.m., whereas Ditech fax filed its memorandum approximately two hours later at 5:41 p.m. If the trial court violated Ebbing‘s due process rights by issuing its decision without first giving her the opportunity to file a reply brief, the trial court also violated Ditech‘s right to due process by issuing its decision before Ditech filed its memorandum in opposition. Therefore, all things equal, Ebbing cannot claim any resulting prеjudice.
{¶ 29} In so holding, we note that trial courts “are given great latitude in following and
{¶ 30} We also find no merit to Ebbing‘s claim the trial court violated her right to due process by failing to “serve” her a copy of its December 13, 2017 decision. This, according to Ebbing, resulted in her being “unjustly penalized” due to the trial court‘s own nonfeasance and malfeasance. However, contrary to Ebbing‘s claim, the record indicates a copy of the trial court‘s decision was sent to her home address that she supplied in her initial pleadings, “3800 Princeton Road, Hamilton, OH 45011,” shortly after the decision was issued. Contrary to Ebbing‘s claims, there is nothing in the record to indicate the trial court‘s decision was not sent to Ebbing nor is there anything in the record to indicate the trial court‘s decision was not received by Ebbing. Ebbing‘s claim that the trial court failed to send her a copy of its decision is based on nothing more than pure speculation. We decline to engage in such speculation here.
{¶ 31} In light of the foregoing, we find no merit to Ebbing‘s claim that the trial court violated her due process rights by denying her an opportunity to be heard prior to issuing its December 13, 2017 decision. The same is true regarding Ebbing‘s claim the trial court violated her right to due process by allegedly failing to “serve” her a copy of its December 13, 2017 decision. We instead find the trial court acted well within its authority when
{¶ 32} Assignment of Error No. 3:
{¶ 33} THE TRIAL COURT ERRED WHEN IT FILED ENTRIES PRIOR TO APPELLANT BEING HEARD BY THE TRIAL COURT; FAILING TO SERVE APPELLANT A COPY OF SAID ENTRIES; AND ENTERING FALSE JUDGEMENT.3
{¶ 34} In her third assignment of error, Ebbing argues the trial court erred by denying her motion for leave to file her answer out of time. Again citing to Loc.R. 6.02(D), Ebbing argues the trial court violated her right to due process by issuing its July 13, 2018 decision denying her motion for leave without first giving her an opportunity to be heard. Ebbing also argues the trial court violated her right to due process by failing to “serve” her a сopy of its decision. For the reasons outlined above in our discussion of Ebbing‘s second assignment of error, Ebbing‘s identical arguments raised herein as it relates to the trial court‘s July 13, 2018 decision also lack merit.
{¶ 35} Also lacking merit is Ebbing‘s claim the trial court entered a “false judgment” by granting Ditech‘s motion for summary judgment. Ebbing claims the trial court “testified falsely” and “judged falsely” when issuing its decision. But, as the record рlainly reveals, Ditech satisfied its initial burden requiring it to provide evidence demonstrating the absence of a genuine issue of material fact. See Touhey v. Ed‘s Tree & Turf, L.L.C., 194 Ohio App.3d 800, 2011-Ohio-3432, ¶ 7 (12th Dist.). Ebbing, however, did not meet her reciprocal burden as the nonmoving party to rebut Ditech‘s evidence with specific facts showing the existence of a genuine triable issue. See Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7.
Conclusion
{¶ 37} Finding no violation to Ebbing‘s due process rights, the trial court did not err by granting Ditech‘s motion for summary judgment. Ditech, having standing to bring a foreclosure action, provided sufficient evidence that established it was entitled to foreclose on the subject property as a matter of law. That is to say Ditech provided sufficient, unrefuted evidence to establish the essential elements necessary to prevail on a motion for summary judgment in a foreclosure action; namely, execution and delivery of the note and mortgage, valid recording of the mortgage, its status as the current holder of the note and assignee of the mortgage, default, and the amount then due and owing. Therefore, because the trial court did not err by granting Ditech‘s motion for summary judgment, the trial court‘s decision is affirmed.
{¶ 38} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.