M & T BANK v. OTIS STEEL, JR., ET AL.
No. 101924
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 19, 2015
2015-Ohio-1036
E.T. Gallagher, J., Kilbane, P.J., and Boyle, J.
M & T BANK PLAINTIFF-APPELLEE vs. OTIS STEEL, JR., ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-810884
BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: March 19, 2015
Otis Steel, Jr., pro se
889 Woodview Road
Cleveland Heights, Ohio 44121
ATTORNEYS FOR APPELLEE
Rachel M. Kuhn
Darryl E. Gormley
Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A.
30455 Solon Road
Solon, Ohio 44139
EILEEN T. GALLAGHER, J.:
The trial court erred as a matter of law when it granted Plaintiff‘s motion for summary judgment on its second amended complaint and when the evidence was in opposition to the claim.
{¶2} We find no merit to the appeal and affirm.
I. Facts and Procedural History
{¶3} On May 28, 2010, Steel executed a promissory note in the amount of $68,732, plus interest at the rate of 5.75 percent per annum, payable to Allied Home Mortgage Capital Corporation (Allied Home). Steel executed the note in connection with a loan to purchase property located at 889 Woodview Road, Cleveland Heights, Ohio. As security for the note, Steel and Lisa Steel (Lisa), Steel‘s wife at the time, executed a mortgage granting Mortgage Electronic Registration Systems (MERS), as nominee for Allied Home, its successors and assigns, a mortgage on the property. The note and mortgage deed were subsequently assigned to Lakeview Loan Servicing, L.L.C., who assigned them to M & T Bank (M & T).
{¶4} Steel defaulted on the note, and M & T filed a complaint in foreclosure against him and Lisa on July 18, 2013. In the complaint, M & T alleged that it was the holder of both the note executed by Steel and the mortgage for the real property located at 889 Woodview Road in Cleveland Heights. The complaint further alleged that Steel was in default of the note and that there was due and owing the unpaid principal balance of $65,609.66, plus interest at a rate of 5.75 percent per annum, as of January 1, 2013. M & T subsequently obtained leave to amend
{¶5} M & T filed a motion for summary judgment on its foreclosure claim. To establish standing, M & T submitted an affidavit in which the affiant averred that M & T maintains original records and that she reviewed the Note, Mortgage, Assignment of Mortgage and M & T‘s electronic servicing system. The affiant also stated that [t]rue and exact copies of the Note, Mortgage and Assignment of Mortgage were attached to the affidavit. Steel opposed the motion. However, on July 31, 2014, the trial court granted M & T‘s motion and entered a decree in foreclosure in its favor. Steel did not file an appeal from this judgment.
{¶6} On August 7, 2014, Steel filed a motion for relief from judgment, arguing he was entitled to relief pursuant to
II. Law & Analysis
{¶7} In his sole assignment of error, Steel asserts the trial court erred in granting M & T‘s motion for summary judgment. As previously stated, Steel did not appeal the order granting summary judgment; he appealed the denial of his
{¶8} Relief from judgment is governed by
On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment, order or proceeding for the following reasons: * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party.
{¶10} The requirements of
{¶11} The timeliness of Steel‘s motion for relief from judgment is not at issue since he filed it within one week of the court‘s order granting M & T‘s motion for summary judgment. Further, a mortgagee‘s lack of standing to bring an action in foreclosure, if established, would constitute a meritorious defense to the action. Bank of Am. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 11. Therefore, the issue presented in this case lies in the second prong of the GTE test, which Steel attempted to establish pursuant to
A. Alleged Fraud
{¶12} Steel argues the trial court erred in granting M & T‘s motion for summary judgment and thus should have granted his motion for relief from judgment because M & T did not have standing to sue him. He contends the copy of the mortgage attached to the complaint identifies a mortgagee other than M & T and that, therefore, M & T had no standing to bring this foreclosure action.
{¶13} Public policy favors the finality of judgments. Rhoads v. Greater Cleveland Regional Transit Auth., 8th Dist. Cuyahoga No. 92024, 2009-Ohio-2483, ¶ 5. If not appealed, a trial court‘s judgment must remain undisturbed pursuant to the doctrine of res judicata, which bars claims that were or could have been raised on direct appeal. LaBarbera v. Batsch, 10 Ohio St.2d 106, 113, 227 N.E.2d 55 (1967). Thus, relief from judgment under
{¶14} Steel argues he was entitled to relief from judgment pursuant to
{¶15} Here, Steel could see from the copies of the note and mortgage attached to the complaint if someone other than M & T was the assignee of the mortgage. Steel also had the opportunity to conduct discovery to ascertain the identity of the mortgagee before filing a brief in opposition to M & T‘s motion for summary judgment. Thus, Steel had the opportunity to present a fraud defense prior to the final judgment. Therefore, Steel‘s argument that M & T‘s motion for summary judgment should not have been granted, and thus should have been vacated, is barred by the doctrine of res judicata. Kuchta at ¶ 16.
B. Attachments to Foreclosure Complaint
{¶16} Steel also argues the trial court should not have granted M & T‘s motion for summary judgment because M & T failed to authenticate the copies of the note and mortgage attached to the complaint with an affidavit.
{¶18} The sole assignment of error is overruled.
Conclusion
{¶19} Therefore, because Steel failed to litigate his fraud defense in the trial court, the defense is barred by res judicata. And since there was no requirement that M & T verify copies of the note or mortgage attached to the complaint with an affidavit, the lack of verification of those instruments was not a valid ground for vacating the judgment in foreclosure.
{¶20} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
EILEEN T. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR