FREEDOM MORTGAGE CORPORATION v. JUANITA PETTY, ET AL.
No. 95834
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 23, 2011
2011-Ohio-3067
BEFORE: Rocco, J., Sweeney, P.J., and E. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-679554. RELEASED AND JOURNALIZED: June 23, 2011
Peter J. Vance
Romi T. Fox
Thomas L. Henderson
Sherrie M. Miday
Kimberlee S. Rohr
Lerner, Sampson & Rothfuss
120 E. Fourth Street - 8th Floor
Cincinnati, Ohio 45202-7012
ATTORNEY FOR APPELLEES
Robert S. Belovich
9100 South Hills Blvd.
Suite 300
Broadview Heights, Ohio 44147
KENNETH A. ROCCO, J.:
{¶ 1} Plaintiff-appellant Freedom Mortgage Corporation (“Freedom“) appeals from the trial court‘s orders in favor of defendant-appellee Juanita Petty on Freedom‘s complaint in which it sought judgment on a note of indebtedness and foreclosure on Petty‘s property.
{¶ 3} Upon a review of the record, this court cannot find any error occurred with respect to the trial court‘s orders, either on Freedom‘s motions or on the magistrate‘s decision. However, Freedom‘s last assignment of error has merit, since the trial court‘s dismissal of this case should have been without prejudice.
{¶ 4} Consequently, the trial court‘s orders that denied Freedom‘s motions for default judgment, summary judgment, and judgment on the pleadings, together with its order overruling the magistrate‘s decision, are affirmed. The trial court‘s order that dismissed this case is modified to a dismissal without prejudice.
{¶ 5} Freedom filed its complaint in this case on December 19, 2008. In the first count, Freedom alleged that it held a note of indebtedness secured by a mortgage on property, that Petty had defaulted under the terms of the note, and that Petty owed $94,493.53 on the note. In thе second count,
{¶ 6} Freedom attached to its complaint three exhibits; all were copies. The first was a copy of the note; it named Petty as the “Borrower” and Consumers Mortgage Corporation of Ohio (“Consumers“) “and its successors and assigns” as the “Lender” of a principal sum in the amount of $96,328.00 for the purchase of a property located at 1429 E. 175th Street in Cleveland. Petty‘s signature appeared over the line marked, “BORROWER - Juanita Petty - DATE.” A date of “10/23/06” was handwritten next to the foregoing words.
{¶ 7} Below the line for the borrower‘s signature were the typewritten words, “WITHOUT RECOURSE PAY TO THE ORDER OF” and, further below, “FREEDOM MORTGAGE.” The additional word “Corporation” was handwritten underneath the foregoing, with an asterisk before the initials “CK.” A signature appeared on the line above the words, “CONSUMERS MORTGAGE CORPORATION OF OHIO” and “ELIZABETH MILLER, CLOSER“; the signature could be read to be that of an Elizabeth Miller.
{¶ 8} The bottom of the document appeared to be stamped with a line above the typed words “P.O.A. by Freedom Mortgage Corporation.”
{¶ 9} The second document attached to Freedom‘s complaint as an exhibit was a copy of an “Open-End Mortgage.” Dated October 23, 2006, it indicated it was a “security instrument,” with Juanita Petty as the “mortgagor.” It further indicated that this security instrument was “given to Mortgage Electronic Registrations Systems, Inc. (‘MERS‘) (solely as nominee for Lender, as hereinafter defined, and Lender‘s successors and assigns), as beneficiary.” Consumers is named as the “Lender.” Petty initialed each page of the security instrument, and signed her name on the final page. The document concludes with a notarization of Petty‘s signature dated October 23, 2006.
{¶ 10} The last exhibit Freedom attached to its complaint was a copy of a document entitled, “Assignment of Mortgage.” The first page of this document states, in pertinent part, “the undersigned, Mortgage Electronic Registrations Systems Inc[. ,] as nominee for Consumers Mortgage Corporation,” transferred the Petty mortgage to Freedom, “whose address is Loan Care Servicing Center” in Virginia Beach, Virginia. The second page indicates that “Zeta Duffee Vice President” signed the document on behalf of MERS “as nominee” for Consumers on the “20th day of November, 2008.”
{¶ 12} On January 5, 2009, Petty filed in the trial court a letter addressed, “To: Whom it may concern.” She stated therein that she asked “you to reconsider your decision to file foreclosure on [her] home.” She further indicated she had fallen “behind” in her payments through no fault of her own but remained willing to do everything possible to reinstate her home loan. Petty indicated she understood her “obligations and commitment to the Lender,” and was “hoping you will take this into consideration.”
{¶ 14} On January 29, 2009, an attorney entered a notice of appearance on Petty‘s behalf. Counsel made no request, however, to file an amended answer.
{¶ 15} On February 13, 2009, the trial court issued a post-CMC journal entry ordering Freedom, in pertinent part, to provide “payoff figures, reinstatement figures, and loss mitigation information within 14 days,” and to attend a mediation on April 17, 2009.
{¶ 16} Although Freedom‘s counsel filed a timely “notice of compliance,” in which she informed the trial court that she had sent the required information to Petty‘s attorney, the record fails to reflect Freedom‘s counsel submitted that information to the court itself.
{¶ 17} On April 20, 2009, after the mediation, the trial court issued a journal entry setting dates for dispositive motions. The case also was set for trial on August 3, 2009. The journal entry stated that а “representative of Freedom Mortgage Company” must be “present in person” on the date of the final pretrial hearing, and further stated that failure to comply “shall result in dismissal for want of prosecution.”
{¶ 19} “When moving for default or summary judgment, the moving party is ordered to file proof that it owned the note and mortgage at the time the within case was filed. If the moving party cannot prove [the foregoing], * * * it lacks standing and the court will dismiss the case pursuant to the holding in Wells Fargo v. Jordan, [Cuyahoga App. No. 91675,] 2009-Ohio-1092 * * * . Failure to comply with this entry will result in the court dismissing the case.”
{¶ 20} On May 8, 2009, Freedom filed a motion that stated, in its entirety, as follows:
{¶ 21} “Now comes the plaintiff, Freedom Mortgage Corporation, and moves the Court for a Default Judgment and Decree in Foreclosure in its favor for the relief prayed for in its Complaint herein. This motion is made pursuant to
{¶ 22} That same day, Freedom filed a motion for summary judgment. Freedom asserted there was no genuine issue of material fact and that it was entitled to judgment on its cоmplaint. Freedom attached to its motion the affidavit of Serafin Hernandez.
{¶ 24} Hernandez also averred Freedom was “the holder of the note and mortgage which are the subject of the within foreclosure action,” and “true and accurate reproductions of the originals as they exist in Plaintiff‘s files” were attached. Hernandez averred that “there has been a default in payment under the terms,” therefore, since “the account is due for the August 1, 2008 payment and all subsequent payments,” Freedom had “elected to accelerate the entire balance due.” Attached as an exhibit to the affidavit were copies of the note and mortgage.
{¶ 25} Freedom also provided a “supplemental affidavit” from its attorney. The attorney averred that her affidavit was “based upon personal knowledge.” The attorney averred she “caused the records of the Cuyahoga County Recorder‘s officе to be searched for the real estate,” that “the judicial
{¶ 26} According to the note, Consumers endorsed it to Freedom on October 23, 2006. According to the assignmеnt, MERS was Consumers’ “nominee,” and MERS had assigned the mortgage to Freedom in November 2008. Nothing indicates the latter was recorded. However, a “final judicial report” appears in the record that states the assignment had been recorded on December 19, 2008.1
{¶ 27} Petty filed briefs in opposition to both the motion for default judgment and the motion for summary judgment. In the latter, Petty contended that Freedom‘s documents failed to prove it was an assignee of the lender. The trial court subsequently issued separate journal entries denying each of Freedom‘s motions.
{¶ 28} On July 31, 2009, two days prior to the date set for trial, Freedom filed a
{¶ 29} The record reflects the matter proceeded to trial before the magistrate. At the outset, the magistrate orally denied Freedom‘s
{¶ 30} Marrero stated she was “default manager for LoanCare Servicing Cеnter.” She further stated that her company was the “subservicer” for Petty‘s “account,” that her company was responsible for enforcing the note, and that Freedom was the “rightful owner of the servicing rights.” She stated that MERS was a “system” utilized “whenever transfers of loans happen in the industry, so that when you move from one particular client or owner of record it is registered to them, which will avoid actually having to do the manual paperwork for each loan.”
{¶ 31} In her testimony, Marrero identified documents presented to her as “true and accurate cop[ies].” She claimed Freedom “bought the mortgage” on Petty‘s property from Consumer “back at the origination time,” and that this fact was “documented” by the endorsement on “the note” beneath the borrower‘s signature.
{¶ 33} According to the magistrate‘s comment, another was “captioned Corporate Resolution at the top.” Marrero testified this document “provides the individuals at LoanCare Servicing Center that can sign or execute documents on behalf of MERS.” Marrero further indicated that the person whose signature appeared on the “Assignment of Mortgage,” viz., Zeta Duffee, was an employee of LoanCare, and that the Corporate Resolution showed Duffee was “identified as a certifying officer” who had the authority to sign on MERS’ behalf.
{¶ 35} The magistrate subsequently issued a decision finding that Frеedom demonstrated it owned the note and mortgage. The magistrate further determined, in pertinent part, that Petty “executed and delivered” the note to Consumers and the mortgage to MERS, that Consumers endorsed the note to Freedom, that MERS assigned the mortgage to Freedom, that Petty defaulted on the note, and that Freedom was within its rights to seek foreclosure on the property. The magistrate‘s decision fails to mention any ruling on Freedom‘s motion for judgment on the pleadings; instead, the magistrate issued a “journal entry” to that effect that the trial court never specifically adopted.
{¶ 36} Petty filed objections to the magistrate‘s decision. She argued Marrero‘s testimony had been inadequate to prove Freedom‘s ownership. Petty specifically referred to the “Corporate Resolution“; she contended Marrero lacked any personal knowledge about the exhibit, the exhibit contained neither a signature identifiable as that of the corporate secretary nor a “corporаte seal,” and the pages of the exhibit did not match.
{¶ 38} After Petty filed a response, the trial court issued a journal entry overruling the magistrate‘s decision. The trial court subsequently issued a judgment that dismissеd Freedom‘s complaint with prejudice.
{¶ 39} In its opinion, the trial court held that Marrero was unqualified to provide testimony about the assignment of the note and the mortgage. The court determined that, since Freedom “failed to prove that it was properly assigned the Mortgage and the Note,” it failed to prove its case.
{¶ 40} Freedom filed a timely appeal from the order of dismissal, and presents five assignments of error, as follows:
{¶ 41} “I. The trial court erred in denying Freedom‘s motion for default judgment where Petty failed to plead or otherwise defend as provided by the
{¶ 42} “II. The trial court erred in denying Freedom‘s motion for summary judgment where Petty admitted the allegations in the complaint and Freedom proved its case-in-chief.
{¶ 44} “IV. The trial court erred in overruling the magistrate‘s decision and dismissing Freedom‘s case with prejudice where the note, mortgаge, and assignment were admissible evidence that established Freedom‘s right to judgment as a matter of law.
{¶ 45} “V. The trial court erred in dismissing Freedom‘s case with prejudice for lack of standing.”
{¶ 46} In its first assignment of error, Freedom argues the trial court acted improperly in denying its motion for a default judgment, because Petty‘s letter did not defeat a conclusion that Freedom deserved judgment on the complaint. On the facts of this case, this court disagrees.
{¶ 47} A trial court‘s decision to grant or deny a motion for default judgment is reviеwed on appeal for an abuse of discretion. Fitworks v. Sciranko, Cuyahoga App. No. 90593, 2008-Ohio-4861, ¶4, citing Discover Bank v. Hicks, Washington App. No. 06CA55, 2007-Ohio-4448. The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or
{¶ 48}
{¶ 49} “(A) Entry of judgment. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing * * * to the court * * * . * * * If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take аn account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties.” (Emphasis added.)
{¶ 50} Only when the defendant “fails to contest the opposing party‘s allegations” by either pleading or “otherwise defending” does a default аrise. Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118, 121, 502 N.E.2d 599. Since granting a default judgment is analogous to granting a dismissal, it is a harsh remedy that is generally disfavored. Suki v. Blume (1983), 9 Ohio App.3d 289, 459 N.E.2d 1311. When possible, cases should be decided on their merits rather than on
{¶ 51} In this case, Freedom provided the trial court with no particular basis on which to grant a default judgment in its favor. Freedom‘s failure to present any argument to the trial court violated Loc.R. 11(B), and also permits this court to conclude Freedom has waived any argument with respect to thе trial court‘s decision. Moreover, before Freedom filed its motion, the trial court already had issued both a journal entry notifying Freedom that the court had deemed Petty‘s letter an answer, and a journal entry ordering Freedom “to file proof that it owned the note and mortgage at the time the within case was filed.” Kreps v. Pesina (Aug. 11, 1995), Lucas App. No. L-94-212.3
{¶ 52} Under these circumstances, this court cannot find the trial court abused its discretion in this matter. Freedom‘s first assignment of error, accordingly, is overruled.
{¶ 53} Freedom next argues in its second assignment of errоr that the trial court improperly denied its motion for summary judgment. For similar
{¶ 54} Appellate review of summary judgments is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. Pursuant to
{¶ 55} The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264. If the moving party satisfies its burden, the nonmoving party “may not rest upon the mere allegations or denials of the adverse party‘s pleadings, but the adverse 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.” Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197;
{¶ 56} When ruling on a motion for summary judgment, the only evidence a court may consider is that which complies with
{¶ 57} In this case, Hernandez‘s affidavit neither set forth an averment that she had personal knowledge of the facts to which she herself attested, nor were the attached copies of the documents to which she referred “sworn or certified.” Bank of New York v. Grome, Hamilton App. No. C-100059, 2010-Ohio-4595, ¶12-14; cf., Deutsche Bank Natl. Trust Co. v. Cassens, Franklin App. No. 09AP-865, 2010-Ohio-2851; Great Seneca Fin. v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶12. The affidavit of
{¶ 58} Since Petty objected to the adequacy of Freedom‘s evidence, the trial court acted within its discretion to deny Freedom‘s motion for summary judgment. Bowman v. Dettelbach (1996), 109 Ohio App.3d 680, 684, 672 N.E.2d 1081; cf., Bank of New York v. Dobbs, Knox App. No. 2009-CA-000002, 2009-Ohio-4742, ¶30.4 Accordingly, Freedom‘s second assignment of error also is overruled.
{¶ 59} In its third assignment of error, Freedom argues it was entitled to judgment on the pleadings in this case; therefore, the magistrate improperly denied Freedom‘s
{¶ 60} Typically,
{¶ 61} The trial court set this matter for trial on April 20, 2009. Trial was scheduled for Monday, August 3, 2009. At the outset of trial, Freedom‘s counsel acknowledged that he had filed the motion at 4:07 p.m. on Friday, July 31, 2009, less than an hour before the clerk‘s office closed for the weekend.
{¶ 62} Although the record thus reflects counsel had almоst four months to submit the motion, he provided no excuse for waiting until what was essentially the eve of trial to do so. The magistrate rightly determined on these facts that Freedom‘s motion was untimely.
{¶ 63} The record also reflects Freedom never notified the trial court that it objected to the magistrate‘s decision on this point. This court concludes that, under such circumstances, the trial court committed no error in declining to address this issue.
{¶ 64} Freedom‘s third assignment of error is overruled.
{¶ 65} Freedom argues in its fourth assignment of error that the trial court erred in overruling the magistrаte‘s decision in its favor on the complaint. Freedom contends the trial court improperly held in its “Findings
{¶ 66}
{¶ 67} Having stated the foregoing, this court‘s review of this assignment of error is constrained by the fact that the record on appeal does not contain any of the exhibits admitted by the magistrate at the trial of this matter. This court presumes that the trial court conducted the proper independent analysis of the magistrate‘s decision. Bradach v. Bradach, Cuyahoga App. No. 88622, 2007-Ohio-3417, ¶19. It is appellant‘s duty to
{¶ 68} The transcript of trial indicates that Freedom‘s exhibits numbers 9 and 10 were of particular importance in establishing whether or not Freedom had the necessary standing to prevail on its claims. In the absence of the exhibits the trial court found to be relevant to its overruling of the magistrate‘s decision, this court presumes the regularity of the proceedings below. Snyder v. Snyder, Cuyahoga App. No. 95421, 2011-Ohio-1372, ¶41, citing Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384.
{¶ 69} For the foregoing reasons, Freedom‘s fourth assignment of error is overruled.
{¶ 70} Freedom argues in its fifth assignment of error thаt the trial court‘s dismissal of the complaint with prejudice was unwarranted. This court agrees.
{¶ 71} A dismissal of a claim other than on the merits should be a dismissal without prejudice. See Chadwick v. Barba Lou, Inc. (1982), 69 Ohio St.2d 222, 226, 431 N.E.2d 660. A dismissal that is premised on jurisdiction “operate[s] as a failure otherwise than on the merits” and should be a dismissal without prejudice.
{¶ 72} The trial court determined that Freedom failed to establish it had standing to pursue this aсtion against Petty. Since this was a failure otherwise than on the merits, the trial court erred in dismissing this case with prejudice. Freedom‘s fifth assignment of error, therefore, is sustained.
{¶ 73} The trial court‘s orders that denied Freedom‘s motions for default judgment, summary judgment, and judgment on the pleadings are affirmed. The trial court‘s order overruling the magistrate‘s decision also is affirmed. The trial court‘s order of dismissal is modified to reflect Freedom‘s case is dismissed without prejudice.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KENNETH A. ROCCO, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR