JPMоrgan Chase Bank, N.A., Plaintiff-Appellee, v. Todd Allton & Carrie Allton, Defendants-Appellants.
No. 14AP-228
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 28, 2014
[Cite as JPMorgan Chase Bank, N.A. v. Allton, 2014-Ohio-3742.]
(C.P.C. No. 13CV-2539) (REGULAR CALENDAR)
Rendered on August 28, 2014
Thompson Hine LLP, Thomas Wyatt Palmer and Michael L. Dillard, Jr., for appellee.
Philip Wayne Cramer, for appellants.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{1} Defendants-appellants, Todd and Carrie Allton (“appellants“), appeal from a judgment of the Franklin County Court оf Common Pleas resulting from the granting of a motion for summary judgment filed by plaintiff-appellee, JPMorgan Chase Bank, N.A. (“Chase“). For the reasons that follow, we affirm the judgment of the trial court.
A. Facts and Procedural History
{2} In March 2000, appellants executed a first mortgage on real property located at 5171 Singleton Drive, Hilliard, Ohio (“Mortgage“), as security for a $70,000 promissory note (“Note“) to First National Funding (“FNF“). The complaint filed in this case alleges the following: FNF assigned the Mortgage to Gold Banc Mortgage, Inc. (“Gold Banc“), on April 6, 2000, and endorsed the Note to Gold Banc pursuant to an “Allonge To Note“; Gold Banc subsequently assigned the Mortgage to Banc One Financial Services, Inc. (“Banc One“) on April 13, 2000, and endorsed the Note to Banc One pursuant to an
{3} When appellants defaulted on payment, Chase commenced a foreclosure action in the Franklin County Court of Common Pleas on March 8, 2013. The complaint sought a judgment on the note in the amount of $62,551.84, plus interest at 10.55 percеnt per annum from March 1, 2011, court costs, advances, and other allowable charges. Chase also named Hilliard Heights Condominium No. 2 Association (“Hilliard Heights“), as a defendant to the complaint in recognition of Hilliard Heights’ judgment lien against the property filed February 21, 2013. Appеllants filed an answer to the complaint and a counterclaim alleging a violation of
{4} On December 13, 2013, Chase filed a motion for summary judgment both as to its claims for relief and the counterclaim. Appellants did not oppose the motion. On February 20, 2014, the trial court granted the motion for summary judgment and issued a Judgment and Decree in Foreclosure in favor of Chase in the amount sought in the complaint. The trial court also granted summary judgment in favor of Chase as to appellants’ counterclaim. Appellants filed a timely nоtice of appeal to this court on March 20, 2014.
B. Assignments of Error
{5}
[I.] Counsel for JP Morgan Chase caused to be filed a fraudulent Affidavit of Assignment purportedly from Gold Banc Mortgage Inc. directly to J.P. Morgan Chase Bank, N.A. knowing that a foreclosure judgment had been granted to Bank One.
[II.] A Court is without jurisdiction to foreclose on an Affidavit of Assignment when another Court previously entered a foreclosure judgment against the same property.
{6} This court has previously stated that “appellant‘s failure to follow the dictates of
{7} In this case, the assignments of error are readily discernible from appellants’ propositions of law, and Chаse has responded to appellants’ propositions of law as if they were assignments of error. Accordingly, we perceive no prejudice to appellee resulting from appellants’ failure to comply with
C. Standard of Review
{8} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). “When reviewing a trial court‘s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Banc Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997).
{9} Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of matеrial fact exists, (2) the moving
{10}
D. Legal Analysis
{11} Both of appellants’ propositions of law raise questions regarding Chase‘s standing to prosecute this action and the defense of res judicata. Accordingly, we will consider them together.
1. Standing
{12} Summary judgment in a foreclosure action is not appropriate unless the party seeking foreclosure demonstrates that it is entitled to enfоrce the note and had an interest in the mortgage on the date it filed the complaint. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 28. “Although a party must prove that it had standing when the foreclosure complaint was filed, such proof may be provided after the filing of the complaint.” Wells Fargo Bank, N.A. v. Odita, 10th Dist. No. 13AP-663, 2014-Ohio-2540, ¶ 15, citing Bank of New York Mellon v. Watkins, 10th Dist. No. 11AP-539, 2012-Ohio-4410, ¶ 18. “‘[T]he issue of standing, inasmuch as it is jurisdictiоnal in nature, may be raised at any time during the pendency of the proceedings.‘” Schwartzwald at ¶ 22, quoting New Boston Coke Corp. v. Tyler, 32 Ohio St.3d 216, 218 (1987).
{13} In support of its summary judgment motion, Chase submitted the affidavit of Aaron Kaufman, assistant secretary, who avers in relevant part as follows:
1. Chase is the successor by merger to Banc One Financial Services Inc.
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3. A Note dated March 31, 2000, in the original principal amount of $70,000 (the “Note“) was signed by or on behalf of Todd A. Allton (the “Borrower“), and was secured by a Mortgage on a property located at 5171 Singleton Drive, Hilliard, Ohio 43026 that the Borrower also signed and also is datеd March 31, 2000 (the “Mortgage“). Also recorded is an Assignment of Deed of Trust/Mortgage dated March 31, 2000, by which the Mortgage was assigned to Gold Banc Mortgage, Inc. (the “Gold Banc Assignment“). Gold Banc Mortgage, Inc. then assigned the Mortgage to Banc One Financial Services, Inc., by an Assignment of Dеed of Trust/Mortgage dated April 13, 2000 (the “Banc One Assignment“). The original of the Banc One Assignment was lost or destroyed before it could be recorded. Accordingly, in October 2012, Chase recorded an Affidavit of Assignment stating that the Mortgage was assigned to it.
* * *
6. Chase is in possession of the original Note and the original Mortgage, and was in possession of those documents prior to and at the time of filing of the Complaint in this action.
(Chase‘s Motion for Summary Judgment, exhibit No. 1.)
{14} A copy of the “Affidavit of Assignment” is attached to Chase‘s motion for summary judgment as “Exhibit E.” The document bears the notarized signature of Chase‘s Vice President, Cheryl Spence, dated October 4, 2012. The “Affidavit of Assignment” states in relevant part:
1. THAT Todd A. Allton, a single person, CONVEYED A MORTGAGE/DEED OF TRUST, DATED March 31, 2000, IN THE AMOUNT OF $70,000.00, FOR PROPERTY LOCATED AT 5171 Singleton Drive, Hilliard, OH 43026 TO First National Funding, LLC AND WAS RECORDED WITH THE Franklin COUNTY CLERK‘S OFFICE IN Instr. #200004060065753 on April 05, 2000.
2. THAT THE MORTGAGE WAS ASSIGNED TO JPMorgan Chase Bank, N.A., 1111 Polaris Parkway, Columbus, OH 43240 HOWEVER, THE ORIGINAL OF THE SAID ASSIGNMENT TO JPMorgan Chase Bank, N.A., WAS LOST MISPLACED OR
DESTROYED BEFORE SAME COULD BE PLACED OF RECORD WITH THE Franklin COUNTY CLERK‘S OFFICE.
3. THAT Gold Banc Mortgage, Inc., ITS SUCCESSORS AND/OR ASSIGNEE IS NO LONGER IN BUSINESS OR DOES NOT RESPONSD [sic] TO OUR REQUEST FOR A DUPLICATE ASSIGNMENT, AND THEREFORE, A DUPLICATE ORIGINAL OF THE SAID ASSIGNMENT CANNOT BE OBTAINED.
4. THAT THE SAID MORTGAGE HAS NOT BEEN ASSIGNED BY Gold Banc Mortgage, Inc. TO ANY OTHER PARTY.
{15} Chase also submitted the affidavit of trial counsel, Wyatt A. Palmer, who avers that he is in possession of an original “Certificate of Merger issued by the Indiana Secretary of State showing that [Banc One] merged out of existence and into [Chase] in March 2006.” (Chase‘s Motion for Summary Judgment, еxhibit No. 2, ¶ 2.) Attached to Chase‘s motion for summary judgment as “Exhibit D” is a copy of the unrecorded assignment from Gold Banc to Banc One. The document bears a notary stamp verifying that Peggy J. Maltz, vice president of Gold Banc, signed the document on April 13, 2000.
{16} The “Affidavit of Assignment” submitted by Chase, provides statutory notice that the assignment to Chase was lost, misplaced or destroyed before recordation.3 As noted above, appellants did not oppose the motion for summary judgment. Consequently, appellants presented no evidence to support thеir claim that the “Affidavit of Assignment” is fraudulent. Appellants’ merit brief in this court contains nothing more than a bald assertion that Chase‘s counsel “should not be free to utilize documents created by persons using robo signatures.” Although the “Affidavit of Assignment” avers that Gold Banc assigned the Note and Mortgage directly to Chase, when in fact Gold Banc‘s assignment was to Banc One, the affidavits of Kaufman and Palmer establish that Chase is the legal successor to Banc One by operation of the 2006 merger.
{17} In short, our de novo review of the record reveals no support for appellants’ fraud claim. Furthermore, based upon the unchallenged affidavits submitted by Chase,
2. Res Judicata
{18} Appellants argue that res judicata bars Chase from obtaining a judgment and decree in foreclosure in this action because Banc One has previously foreclosed on the property. Under the doctrine of res judicata, “an existing final judgment or decree between the parties to litigation is conclusive as to all claims which werе or might have been litigated in a first lawsuit.” Rogers v. Whitehall, 25 Ohio St.3d 67, 69 (1986). The doctrine serves the valid policy of ultimately ending any given litigation and ensuring that no party will be required to relitigate the same cause. Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60 (1990).
{19} We find that appellants waived the affirmative defense of res judicata by failing to assert it in the trial court. Pursuant to
{20} Moreover, as noted above, appellants did not oppose the motion for summary judgment. Accordingly, even if we were to consider appellants’ res judicata defense, the prior judgment upon which appellants now rely is not part of the record in this case. Chase‘s complaint in this case acknowledges only that Hilliard Heights previously obtained a judgment lien against the property. Hilliard Heights’ cross-claim seeks to enforce the judgment in the event of sale. Thus, the record in this case contains no evidence that Banc One asserted a claim against appellants in the prior litigation and no proof that Banc One obtained a judgment and decree in foreclosure in the prior litigation.
{21} We note that appendix A to аppellants’ merit brief purports to be a copy of a decision issued by the Franklin County Common Pleas Court in the prior litigation. Therein, the court denied Banc One‘s motion to substitute Chase as a defendant and for leave to assert a cross-claim against appеllants. In denying the motion, the trial court
{22} As a general rule, it is appellants’ duty to show error by reference to matters in the record. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). “A reviewing court cannot add matter tо the record before it, which was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. However, even if we were to consider this appendix, it proves only that аppellants and Banc One were co-defendants in the prior litigation. Thus, appellants’ appendix establishes that any claim by Banc One against appellants would have been permissive in nature rather than compulsory. See Huntington Natl. Bank v. Ross, 130 Ohio App.3d 687, 694 (10th Dist.1998), citing
{23} In short, we find that the res judicata argument is both factually unsupported and legally flawed.
E. Conclusion
{24} Based upon the foregoing, we find that there are no genuine issues of material fact and that Chase is entitled to judgment as a matter of law. Accordingly, we hold that the trial court did not err when it granted summary judgment in favor of Chase. Having overruled each “proposition of law” asserted by appellants, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and BROWN, JJ., concur.