FAHEY BANKING COMPANY v. CAROLE SQUIRE, et al.
CASE NO. 11 MA 178
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
September 14, 2012
2012-Ohio-4211
Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 10 CV 3723. JUDGMENT: Affirmed. Summary Judgment Arguments Dismissed.
For Plaintiff-Appellee: Atty. Michael N. Schaeffer, Atty. Scott N. Schaeffer, Atty. Richard G. Murray, II, Kemp, Schaeffer & Rowe Co., LPA, 88 West Mound Street, Columbus, Ohio 43215
For Defendants-Appellants: Percy Squire, Pro se, Percy Squire Co., LLC, 341 S. Third Street, Suite 101, Columbus, Ohio 43215
VUKOVICH, J.
{¶1} Defendant-appellant Percy Squire appeals the decision of the Mahoning County Common Pleas Court denying his
STATEMENT OF THE CASE
{¶2} On September 27, 2010, Fahey Banking Company filed a complaint in foreclosure on note and mortgage against Percy and Carole Squire. In the complaint, Fahey alleged that in August 1995, the Squires executed a promissory note for $115,00.00. As security for the payment of the note, the Squires executed and delivered to Fahey Banking Company a mortgage deed to the premises located at 3405 Kiwatha Road, Youngstown, Ohio. Complaint ¶8. It is alleged that the Squires have defaulted in the payment on the note.
{¶3} The Squires filed their answer and admitted that a loan had been secured on the property, but denied that they were in default.
{¶4} Thereafter, Fahey Banking Company filed a motion for default judgment and summary judgment. It attached documentation showing that the Squires were in default on the loan and that it was exercising its option to accelerate the loan.
{¶5} The Squires filed a
{¶6} In May 2011, Fahey Banking Company filed a notice of service of responses to discovery and asked the trial court to make a ruling on its motion for summary judgment. In that motion it indicated that it had hand-delivered the Squires its responses to discovery on March 30, 2011. Thus, it concluded that the time for filing a motion in opposition to summary judgment expired on April 30, 2011.
{¶7} An oral hearing on the summary judgment motions occurred at 1:30 p.m. on June 22, 2011. The Squires failed to appear. The trial court granted summary judgment for Fahey Banking Company and entered a judgment entry and decree of foreclosure on the Kiwatha Road property. 6/22/11 J.E. (Summary judgment and decree of foreclosure order).
{¶8} After the hearing had concluded, the Squires faxed a motion requesting leave to file a response to Fahey Banking Company‘s motion for summary judgment by June 27, 2011. The trial court denied that request. 6/23/11 J.E.
{¶9} The Squires did not appeal the June 22, 2011 ruling. Instead, the Squires filed a
{¶10} The trial court denied the motion to vacate. The Squires filed a timely notice of appeal from that judgment.
ASSIGNMENT OF ERROR
The trial court erred when it granted Appellee‘s summary judgment motion. Despite Appellant failing to timely respond to Appellee‘s Motion for Summary Judgment, Appellee was not entitled to judgment as a matter of law by reason of failure to comply with the provisions of
12 U.S.C. §1701x(c)(5) .
{¶11} As aforementioned, Squire filed a timely notice of appeal from the trial court‘s denial of his
{¶12} However, we lack jurisdiction to review these arguments because a timely notice of appeal was not filed from the grant of summary judgment and decree of foreclosure. The grant of summary judgment and decree of foreclosure disposed of all claims and thus, constituted a final appealable order which Squire could have appealed from. See PHH Mtge. Corp. v. Albus, 7th Dist. No. 09MO9, 2011-Ohio-3370, ¶18; Second Nat. Bank of Warren v. Walling, 7th Dist. No. 01CA62, 2002-Ohio-3852. The record clearly indicates that Squire filed the notice of appeal 105 days after the summary judgment and decree of foreclosure order. As such, it was filed outside the 30-day time limit prescribed by the
{¶13} Squire cannot use the order denying his motion to vacate as a means to extend the time for filing an appeal from the grant of summary judgment and decree of foreclosure order. The filing of a
{¶14} Therefore, since the notice of appeal was not timely as to the summary judgment and decree of foreclosure order, we are without jurisdiction to consider issues that are raised in this appeal regarding that order. See State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58, 60, 531 N.E.2d 713 (1988). Consequently, those arguments are dismissed as untimely.
{¶15} As to the propriety of the trial court‘s denial of the
{¶16} In conclusion, the trial court‘s
Donofrio, J., concurs.
DeGenaro, J., concurs.