Christine M. Houtz, Administratrix of the Estate of Susan Marie Clowtis v. Christine M. Houtz, et al. [PHH Mortgage Corporation—Appellant] and Mathew T. Crane, Administrator of the Estate of Leon Anthony Clowtis v. Christine M. Houtz, et al. [PHH Mortgage Corporation—Appellant]
Court of Appeals Nos. H-17-007, H-17-008; Trial Court Nos. LS 2016 00003, LS 2016 00005
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
May 4, 2018
2018-Ohio-1738
SINGER, J.; PIETRYKOWSKI and OSOWIK, JJ., concur.
Paul D. Dolce, for appellee Mathew T. Crane, Administrator of the Estate of Leon Anthony Clowtis.
Adam J. Turer, for appellant.
{¶ 1} Appellant, PHH Mortgage Corporation, appeals the June 12 and July 18, 2017 judgments of the Huron County Court of Common Pleas, Probate Division, denying its motions to intervene. For the reasons that follow, we affirm.
Assignments of Error
{¶ 2} Appellant sets forth the following assignment of error:
- Appellant argues that the trial court erred when it found Appellant PHH Mortgage Corporation was not entitled to post-judgment intervention under
Civ.R 24(A) .
Background
{¶ 3} Susan and Leon Clowtis died in December 2015, leaving behind real property (“the property“) located at 1518 Settlement Rd., Norwalk, Ohio 44857.
{¶ 4} At that time, the property was encumbered by two mortgages. The first mortgage instrument was recorded in October 2012, and listed as lender was KeyBank National Association, with an address of 1 Mortgage Way, Mount Laurel, New Jersey
{¶ 5} The second mortgage instrument was recorded in June 2015. This mortgage instrument was not made part of the record. However, a “judicial report,” issued based on an examination of the record title by First American Title Insurance Company, reveals that the second mortgage was issued to KeyBank National Association, 4910 Tiedeman Rd., Suite C, Brooklyn, Ohio 44144.
{¶ 6} On June 22, 2016, a complaint to sell real estate was filed in case No. LS 16 00003, by Christine Houtz, the administrator of the estate of Susan Clowtis. On July 5, 2016, virtually the same complaint was filed in case No. LS 16 00005, by Mathew Crane, the administrator for the estate of Leon Clowtis. These complaints sought authorization to sell the property, as both Susan and Leon had a half-interest in the property.
{¶ 7} Additionally, both complaints had instructions for the clerk to serve KeyBank at its Mount Laurel, New Jersey and Brooklyn, Ohio addresses. The deputy clerk certified and provided proof the complaints were served at both KeyBank locations. MERS was not served with the complaints.
{¶ 8} On September 1, 2016, Christine Houtz as administrator in case No. LS 16 00003 filed for default judgment against KeyBank. The court granted default judgment against KeyBank on September 2, 2016.
{¶ 10} KeyBank answered both complaints on September 6, 2016. Although the trial court had already granted default judgment in case No. LS 16 00003, KeyBank and Houtz submitted a joint motion to withdraw the default judgment as to the second mortgage on October 3, 2016. The court granted the motion and withdrew the default judgment as to the second mortgage only on October 4, 2016.
{¶ 11} KeyBank assigned its interest in the first mortgage to appellant, PHH Mortgage Corporation, on October 13, 2016.
{¶ 12} Appellant filed for foreclosure on the first mortgage in the Huron County Court of Common Pleas, General Division, on December 1, 2016, but voluntarily dismissed the action on December 30, 2016. Appellant claims it dismissed the action because it “discovered that the property was within the jurisdiction of the probate court[.]”
{¶ 13} Appellant then filed motiоns to intervene and answers to both complaints in the probate court. More specifically, appellant filed its answer in case No. LS 16 00003 on March 7, 2017, and in case No. LS 16 00005 on June 1, 2017.
{¶ 14} In its motions to intervene and answers, aрpellant claimed it had an interest in the first mortgage. Attached to the motions were the mortgage and assignment.
The Court finds that when KeyBank assigned its interest in the First Mortgage to PHH Mortgage, that interest had already been disposed of by the default judgment entered against KeyBank. Even if KeyBank effectively assigned to PHH an interest in filing a motion to vacate the default judgmеnt, PHH‘s delay in filing its Motion to Intervene in this case was also inexcusable. The Court therefore finds that PHH is not entitled to intervention under either
Civ.R. 24(A) orCiv.R. 24(B) .
{¶ 16} The entry of case No. LS 16 00003 was journalized on June 12, 2017, and that of No. LS 16 00005 was journalized on July 18, 2017. Appеllant timely appealed both cases, and the appeal was consolidated for purposes of addressing the assigned error.
Standard of Review
{¶ 17} A ruling on a motion to intervene under
Legal Analysis
{¶ 18} In its assigned error, appellant claims the trial court acted inconsistent with
{¶ 19}
(A) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant‘s ability to рrotect that interest, unless the applicant‘s interest is adequately represented by existing parties.
See, e.g., Velocity Dev., LLC v. Perrysburg Twp. Bd. of Trustees, 6th Dist. Wood No. WD-11-037, 2011-Ohio-6192, ¶ 12-15.
{¶ 20} In order to intervene under
{¶ 21} “Failure of the party seeking to intervene to satisfy each of the requirements will result in a denial of the motion.” Velocity Dev., LLC at ¶ 15, citing Fletcher at 831.
{¶ 22} Here, we find the trial court did not err in denying appellant‘s intervention because appellant failed to meet the necessary elements for purposes of
(1) Timeliness
{¶ 23} We first consider the following factors in determining timeliness: the point to which the suit progressed; the purpose of the intervention; the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; the prejudice to the original parties due to the proposed intervеnor‘s failure to apply promptly for intervention; and, the existence of unusual circumstances militating against or in favor of intervention. First Natl. Bank of Bellevue v. NE Port Invests., LLC, 6th Dist. Ottawa No. OT-13-024, 2014-Ohio-1760, ¶ 10, citing Triax Co. v. TRW, Inc., 724 F.2d 1224 (6th Cir.1984).
{¶ 24} In this case, the trial court stated appellant‘s delays in filing its motions to intervene were “inexcusable.” We cannot say the trial court abused its discretion where appellant acquired its interest in the subject property in October 2016, which was more
{¶ 25} Although this alone is ground to affirm the trial court judgments, we proceed and address the remaining elements of
(2) Intervenor‘s Interest
{¶ 26} Default judgment rendered by the probate court against a party may extinguish the party‘s interest in the subject property. See, e.g., Kormanik v. Haley, 10th Dist. Franklin No. 12AP-18, 2012-Ohio-5975, ¶ 42. Consequently, the party would no longer be “in the proper position to assert a claim or seek judicial enforcement of a duty or right.” Id. at ¶ 41. “The burden is on [the party] to establish it has a present interest in the subject matter of the litigation and that [it] has been prejudiced.” (Inner quotations omitted.) Id.
{¶ 27} Here, the trial court found appellant did not hаve standing to intervene because the October 13, 2016 assignment of the first mortgage was null and void. More specifically, the trial court stated that appellant‘s interest “had already been disposed of by the default judgment еntered against KeyBank.” Thus the rationale was that KeyBank no longer had an interest to convey when appellant was assigned the first mortgage. We cannot say the trial court abused its discretion.
{¶ 28}
(A) The surviving spouse;
(B) The heirs, devisees, or рersons entitled to the next estate of inheritance from the decedent in the real property and having an interest in it, but their spouses need not be made parties defendant;
(C) All mortgagees and other lienholders whose claims affect the real property or any part of it;
(D) If the interest subject to sale is equitable, all persons holding legal title to the interest or any part of it, and those who are entitled to the purchasе money for it, other than creditors;
(E) If a fraudulent transfer is sought to be set aside, all persons holding or claiming under the transfer;
(F) All other persons having an interest in the real property.
See
{¶ 29} Here, appellant argues it was not able to protect its interest before default judgment was granted in September 2016, as it was not a party to the probate proceedings and did not acquire its interest in the first mortgage until October 2016.
{¶ 30} Although we, like the trial court, find аppellant did not have a valid interest, we nevertheless address the arguments as if appellant maintained a valid interest.
{¶ 32} Appellant further argues MERS was a necessary party and was not served and, as a result, appellant was deprived of the opportunity to protect its interest. We, nevertheless, find MERS was not a holder of an interest that would affect the real property or any part of it. MERS was nominated and appointed by KeyBank, and the record reflects KeyBank received notice and filed answers to the complaints in an effort to protect its interest. Consequently, we cannot say MERS not being served with the complaints rendered appellant unable to protect its interest.
{¶ 33} In sum, we find the trial court did not abuse its discretion, and appellant‘s assignment of error is not well-taken.
Conclusion
{¶ 34} The June 12 and July 18, 2017 judgments of the Huron County Court of Common Pleas, Probate Division are affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgments affirmed.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
CONCUR.