829 N.E.2d 326 | Ohio Ct. App. | 2005
{¶ 2} Appellant assigns the following error for review:
"The trial court erred in granting title first's motion for summary judgment dated January 28, 2004 and mers' motion for summary judgment dated August 30, 2004, both decisions were based upon appellant's bankruptcy failing to list the appellant's claim against title first and mers." (sic)
{¶ 3} In February, 1999, appellant borrowed $145,800 from United Companies Lending Corporation (United). In return, he executed a promissory note and agreed to repay that sum plus 10.49% interest over a thirty year period. As security for that debt, he executed an open-end mortgage that granted United a mortgage interest in his real property at 4745 Baker Road, New Marshfield. There have been various mesne assignments of the note and mortgage over the years and, since that time, the instruments have been held by numerous parties.
{¶ 4} In 2000, appellant defaulted on the loan. EMC Mortgage Corporation (EMC), the holder of the note at this time, commenced a foreclosure action (Case No. 00CI351) and alleged that appellant was in default of payment and that the mortgage covenants had become absolute. EMC requested a $125,568.45 judgment against appellant plus interest as well as a determination that it had the first and best lien in the premises and that the lien be foreclosed and the property sold at Sheriff's sale with the proceeds to satisfy that lien.
{¶ 5} On January 25, 2001, appellant filed a Chapter 7 bankruptcy in federal court and triggered the Section 362(a), Title 11, U.S. Code automatic stay provisions. The United State Bankruptcy Court later vacated the stay and allowed EMC to proceed with the foreclosure action. On November 7, 2001, EMC filed a summary judgment motion and contended that no question existed that the note was in default and that it was entitled to foreclosure of its security interest.3
{¶ 6} On January 29, 2002, the trial court granted judgment for EMC and ordered foreclosure of the mortgage and sale of the property. Appellant then filed a pro se "motion for summary judgment" on March 12, 2002. Appellant argued, inter alia, that the trial court's summary judgment was erroneous because he was discharged in bankruptcy and a personal judgment could not be entered against him. The trial court vacated its previous judgment and order of sale until the situation could be sorted out.
{¶ 7} In the Spring of 2002, appellant retained counsel who entered an appearance in Case No. 00CI351 and commenced a new action (Case No. 02CI154) against Title First Agency, Inc. (Title First), defendant below and appellee herein, and EMC.4 He alleged that (1) the loan with United was intended to finance the construction of an addition to his home, (2) he entered into an escrow agreement whereby Title First deposited funds on his behalf in an escrow account, (3) he used loan proceeds from that account for several months to finance the construction, (4) on May 17, 1999, Title First paid in excess of $16,000 to a payee who had no connection to any of the parties or to the home construction project, (5) the payee did not receive that money, (6) without that money, he could not pay to complete the construction and the house was left in such a state that it suffered damage, and (7) he was so concerned about being defrauded that he stopped making payments on his mortgage. Based on these allegations, appellant asserted no fewer than nine (9) counts against Title First and EMC and sought $1,000,000 in compensatory damages and $1,000,000 in punitive damages from each defendant. Title First and EMC both denied liability and asserted a variety of defenses. Subsequently, the trial court consolidated the two cases for review and disposition.
{¶ 8} On June 27, 2002, appellant filed a memorandum contra EMC's original motion for summary judgment and argued that no genuine issues of material fact existed as to whether EMC was the holder of the note and whether it had standing to bring an action for default. Given these questions, as well as appellant's concerns expressed in his pro se pleadings as to the amount due on the note, the trial court overruled EMC's motion.
{¶ 9} On August 8, 2003, Title First requested summary judgment on appellant's claims. In particular, Title First argued that appellant's action was barred by res judicata because if he had a claim for wrongful disbursement of monies in the escrow account, he should have pursued that claim in the bankruptcy case. Thus, because appellant did not pursue a claim, and was ultimately discharged, Title First argued that his claims were barred by the doctrine of res judicata. Appellant, however, argued that Title First could not invoke res judicata because it was neither a party to his bankruptcy nor in privity with anyone who was a party.
{¶ 10} On January 2, 2004, MERS requested summary judgment5 and contended that whatever claim appellant may have had against Title First for the wrongful disbursement of the loan proceeds, that claim had nothing to do with his mortgagee who complied with its duties under the terms of the mortgage. Moreover, MERS argued that it did not violate federal bankruptcy law by pursuing foreclosure because the only remedy it sought was recovery on its security interest and not a deficiency judgment. Finally, MERS relied on David Johnson's affidavit, that appellant was in default on the mortgage and that the balance due was in excess of $127,000.6
{¶ 11} On January 8, 2004, the trial court announced that it would stay any decision on summary judgment until the parties briefed a federal bankruptcy issue that had arisen during the court's own research. Specifically, the court was concerned that appellant's claims in Case No. 02CI154 became part of his bankruptcy estate once he filed Chapter 7 and could either be abandoned, or pursued, by the estate but did not, however, revert to him after discharge so that he could pursue them in a court of law. The court directed the parties to brief whether appellant listed these million dollar claims as assets and, if not, whether they could now be pursued subsequent to his discharge.
{¶ 12} Title First filed its brief on January 22, 2004, and argued that any claims appellant had for wrongful disbursement of the loan proceeds belonged to the bankruptcy estate and only the trustee had standing to assert them. Title First also pointed out that appellant did not list these claims on his schedule of assets filed in the bankruptcy court and, thus, could not argue that the trustee had knowingly abandoned them for him to pursue. The next day, appellant filed his brief and argued that the bankruptcy trustee had abandoned the assets (claims), or at least declined to pursue them.7 Thus, he argued, the claims had been abandoned and he was free to pursue them in court.
{¶ 13} On January 28, 2004, the trial court granted Title First summary judgment and held that any claims appellant had against Title First were assets of the bankruptcy estate and could only be pursued by the trustee unless they were abandoned. Although appellant submitted an affidavit from his attorney stating that they were abandoned, the court did not find this persuasive because the affidavit (and letters incorporated therein) only addressed the alleged wrongful disbursement of loan proceeds which gave rise to his alleged claims(s). The trial court noted that the evidence did not address the actual multimillion dollar claims themselves. Thus, the court entered judgment in favor of Title First on the claims in Case No. 02CI154.
{¶ 14} On August 30, 2004, the trial court likewise granted summary judgment to MERS in Case No. 00CI351. The court found, inter alia, that (1) appellant was in default of his loan and that MERS was entitled to foreclose its security interest; (2) that MERS did not violate bankruptcy law as to appellant's discharge because it only sought foreclosure of its security interest rather than to collect on any deficiency judgment; and (3) MERS did not violate provisions of the Real Estate Settlement Procedures Act (RESPA), Section 2605, Title 12, U.S. Code, by failing to notify appellant that his note and mortgage had been assigned.
{¶ 15} Pursuant to that decision, on September 29, 2004 the trial court issued a judgment of foreclosure and found that MERS had the first and best lien in the premises, that appellant was in default of his obligations under the loan and that the mortgage covenants had become absolute. The court directed the property be sold at Sheriff's sale and the proceeds be applied to reduce the amount of the loan. This appeal followed.
{¶ 17} Further, whenever multiple claims and/or multiple parties appear in an action, the provisions of Civ.R. 54(B) also must be considered. See In re Berman (1990),
{¶ 18} It does not appear that any formal resolution occurred regarding appellant's claims from Case No. 02CI154 against EMC and we find no Civ.R. 54(B) finding of "no just reason for delay" in the trial court's summary judgment. We find no jurisdictional deficiency, however, as the trial court found that appellant's claims against Title First in Case No. 02CI154 could not be maintained because they had belonged to his bankruptcy estate. While the same finding was not formally made as to EMC, the clear implication is that they, too, could not be maintained and have been rendered moot. See General Accident Ins. CO. v. Insurance Co.of America (1989),
{¶ 19} Next, although not directly challenging our jurisdiction in this matter, Title First argues at the outset of its brief that we should dismiss this case because a number of procedural defects appear in appellant's notice of appeal. The first such defect is that appellant failed to include a Loc.R. 1 certification that the judgment being appealed is "final under both R.C.
{¶ 20} Title First also objects that the notice of appeal does not specifically mention "Title First" other than in the style of the case. We are somewhat perplexed by this objection as nothing in either Loc.R. 1 or App.R. 3(D) requires the name of the appellee to be mentioned (outside the style of the case). App.R. 3(D) and Loc.R. 1 require that the name of the "party or parties taking the appeal" be specified.
{¶ 21} Finally, Title First objects that appellant's notice of appeal specifies that the only judgment being appealed is the foreclosure decree of September 29, 2004, when, in fact, he is actually appealing the January 28, 2004, summary judgment on his claims in Case No. 02CI154. The flaw in this argument, however, is that appellant could only appeal a final order. The January 28, 2004 summary judgment was interlocutory and could not be appealed. The foreclosure decree, however, is a final order, see Third National Bank of Circleville v. Speakman (1985),
{¶ 22} One other procedural irregularity should be mentioned. Appellant advanced two assignments of error, but has one argument for both in his brief. We note that App.R. 16(A)(7) requires a separate argument for each assignment of error. A failure to make separate arguments for the assignments of error provides grounds to disregard them pursuant to App.R. 12(A)(2). Thus, we are well within our discretionary authority to summarily overrule appellant's assignments of error and affirm the decision of the trial court. See Park v. Ambrose (1993),
{¶ 24} Summary judgment is appropriate when the movant can demonstrate, after the evidence is construed most strongly in the nonmovants favor, that no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. See Zivich v. MentorSoccer Club, Inc. (1998),
{¶ 26} Initially we note that upon the filing of a bankruptcy petition, all of a debtor's property becomes property of the estate. Section 541, Title 11, U.S. Code; Folz v. Bancohio Natl. Bank (S.D.Ohio 1987),
{¶ 27} Those claims remain part of the bankruptcy estate unless the trustee "abandons" them. See McGlone, supra; Mele v. First Colony LifeIns. Co. (D.D.C. 1991),
{¶ 28} The parties do not dispute this rendition of the law. The parties also agree that appellant's claims in Case No. 02CI154 were part of his bankruptcy estate and could not be asserted by him in the trial court unless the trustee abandoned them. Where the parties disagree is the question of abandonment. Appellant asserts that the bankruptcy trustee abandoned his claims. Title First maintains, however, and the trial court concluded, that the trustee did not abandon them. After a thorough review of the record in the case sub judice, we believe that the trial court correctly determined this issue and we hereby adopt its reasoning.
{¶ 29} As we noted above, three ways exist under which appellant's claims could have been abandoned from the bankruptcy estate. One is if the claim is properly listed on a schedule filed when the case is commenced, but was otherwise not administered at the time the case was terminated. This did not happen in the case sub judice. Appellant's bankruptcy attorney's affidavit expressly stated that this issue "was not listed as an asset on Mr. Mullins' bankruptcy since the amount due on the mortgage . . . greatly exceeded the value of the real estate."
{¶ 30} The second way the asset could have been abandoned is if the bankruptcy court ordered its abandonment. Because the claims were not listed as assets of the estate, this apparently did not occur.
{¶ 31} That leaves the first option under Section 554, Title 11, U.S. Code the trustee expressly abandoned the claims after providing notice to creditors of the abandonment. This is the part of the statute on which appellant attempts to base his argument. He claims that he raised the issue with the trustee at a meeting of creditors, but that the trustee did not believe the dispute with the mortgage company was worth pursuing. Appellant relies, in particular, on the following attestations by his bankruptcy attorney:
"5. I represented Mr. Mullins at the meeting of creditors held in his bankruptcy case on March 29, 2001. Mr. Mullins did attempt to explain to the case trustee, Frederick M. Luper, the discrepancy in the amount due ECM [sic] Mortgage Corporation. Mr. Luper did not appear at the time to consider this to be significant, and subsequently closed the estate without administration of assets.
{¶ 32} Appellant also cites a letter from the trustee's attorney, incorporated into his bankruptcy attorney's affidavit, to the effect that the trustee did "not intend to take any action to reopen this case or administer any assets." He argues that this evidence shows that the claims were abandoned by the bankruptcy trustee. We disagree.
{¶ 33} First, as the trial court cogently noted in its decision, these materials only address the issue of Title First's allegedly misapplied disbursement. They do not address the multi-million dollar claims that appellant has advanced in the case sub judice. Another letter from the trustee's attorney, incorporated into the bankruptcy attorney's affidavit, revealed that the value of the secured real estate was approximately $75,000 and the amount due on the mortgage exceeded $125,000. Because of that discrepancy, it is not difficult to imagine that the trustee did not think it worth pursuing a claim worth $16,000. Even if that claim was proven true, there is no equity in the property and no assets for unsecured creditors. Had the trustee known that appellant claimed contract and tort actions against Title First and EMC that were worth millions of dollars, he may possibly have pursued those claims for the benefit of the unsecured creditors. Second, we do not accept appellant's argument that notice of a meeting of creditors in a dissolution case is tantamount to notice that the trustee is about to abandon assets allegedly worth millions of dollars.8
{¶ 34} For these reasons, we agree with the trial court's conclusion that appellant's claims in Case No. 02CI154 were part of his bankruptcy estate and were not abandoned. Thus, he could not pursue them in the instant case and the trial court correctly granted summary judgment in favor of Title First on this issue. Accordingly, we hereby overrule appellant's assignment of error.
{¶ 35} Having considered the error assigned and argued in appellant's brief, and having found no merit, we hereby affirm the trial court's judgment.
Judgment Affirmed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. McFarland, J.: Concur in Judgment Opinion