U.S. BANK, N.A. v. THOMAS E. JEFFERS, ET AL.
No. 105002
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 21, 2017
2017-Ohio-9153
BEFORE: E.T. Gallagher, J., Keough, A.J., and Jones, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-13-804713
Harry J. DePietro
The DePietro Law Office, L.L.C.
7 West Liberty Street
Girard, Ohio 44420
ATTORNEYS FOR APPELLEES
John E. Codrea
Matthew J. Richardson
Manley, Deas & Kochalski, L.L.C.
P.O. Box 165028
Columbus, Ohio 43216
Melany A. Fontanazza
McGlinchey Stafford
25550 Chagrin Blvd., Suite 406
Cleveland, Ohio 44122
For the Cuyahoga County Treasurer
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Gregory B. Rowinski
Assistant Prosecuting Attorney
310 West Lakeside Avenue, Suite 300
Cleveland, Ohio 44113
Also Listed
Matthew J. Marotta, pro se
6215 Virginia Avenue
Parma, Ohio 44129
Nora Marotta, pro se
15834 Parklawn Avenue
Cleveland, Ohio 44130
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Thomas Jeffers, Jr., appeals from the judgment of the common pleas court that granted the motion of plaintiff-appellee, U.S. Bank, N.A., to substitute Christiana Trust, a Division of Wilmington Savings Fund Society, FSB (“Christiana Trust“), as party plaintiff in this foreclosure action. Jeffers raises the following assignments of error for review:
- The trial court erred, as a matter of law, when it considered the unserved motion to substitute a new party plaintiff, and when it denied Jeffers‘s oral motion for a directed verdict or dismissal of the case as no properly substituted party plaintiff, nor the original party plaintiff, was present to prosecute the action at trial.
- The trial court erred as a matter of law and abused its discretion when it found that Jeffers‘s failure to object to the unserved motion prior to trial constituted an implicit waiver of Jeffers‘s argument that the unserved motion could not be used to permit the substitution of the party plaintiff; and the denial of Jeffers‘s motion for dismissal of the case.
{¶2} After careful review of the record and relevant case law, we affirm the trial court‘s judgment.
I. Procedural and Factual History
{¶3} In April 2013, U.S. Bank filed a foreclosure action against Jeffers, seeking judgment on a mortgage and note secured by real property in Parma Heights, Ohio. In response, Jeffers filed counterclaims premised on the Fair Debt Credit Collection Practices Act (“FDCPA“), the Ohio Consumer Sales Practice Act (“OCSPA“), and common-law fraud.
{¶5} In October 2014, U.S. Bank moved to substitute Christiana Trust as party plaintiff. In its motion, U.S. Bank stated that “while this litigation was pending, an assignment of mortgage from Plaintiff to Christiana Trust * * * was executed on December 12, 2013, and recorded with the Cuyahoga County Recorder on August 21, 2014.” U.S. Bank asserted that substituting Christiana Trust as plaintiff was appropriate under
{¶6} The matter was scheduled for a bench trial to commence in December 2014. On the day of trial, however, Jeffers filed a written memorandum in opposition to U.S. Bank‘s previously granted motion to substitute. In the motion, Jeffers argued that U.S. Bank‘s motion to substitute was invalid and “must be struck” because U.S. Bank failed to properly serve the motion pursuant to
{¶7} At the conclusion of the bench trial, the magistrate issued a decision, finding “that substitute plaintiff [Christiana Trust] is entitled to a decree of foreclosure, judgment on its note, and judgment in its favor on the counterclaims of [Jeffers].”
{¶8} As a preliminary matter, the magistrate found that it was necessary to first address Jeffers‘s challenge to the substitution of the plaintiff on the eve of trial. In rejecting Jeffers‘s reliance on
{¶9} In January 2015, Jeffers filed objections to the magistrate‘s decision, arguing that the magistrate‘s decision improperly “permitted the matter to go to trial with a party illegally substituted for the original plaintiff” and “repeatedly failed to enforce the Ohio Civil Rules against the substituted plaintiff herein.”
{¶11} In August 2016, the trial court overruled Jeffers‘s objections and adopted the magistrate‘s decision in its entirety.
{¶12} Jeffers now appeals from the trial court‘s judgment.
II. Law and Analysis
A. Electronic Service
{¶13} In his first assignment of error, Jeffers argues the trial court erred as a matter of law when it granted U.S. Bank‘s motion to substitute Christiana Trust as the new party plaintiff. Jeffers further contends that the trial court erred by failing to dismiss the case because “no properly substituted party plaintiff, nor the original party plaintiff, was present to prosecute the action at trial.”
{¶14} In this case, Jeffers does not dispute that U.S. Bank‘s interest in the subject note and mortgage was transferred to Christiana Trust during the pendency of this case. Instead, Jeffers maintains that the motion to substitute was never served on him or his counsel of record in violation of
{¶15}
{¶16} Pursuant to
Before adopting any local rule of practice that relates to the use of information technology, a court shall submit a copy of the proposed local rule to the Supreme Court Commission on Technology and the Courts for review in accordance with the process established by the Commission. A local rule of practice that relates to the use of information technology shall be considered inconsistent with this rule and of no force and effect unless the Commission determines that the local rule complies with the minimum, uniform standards adopted by the Commission.
Sup.R. 27.
{¶17} As stated, the trial court set forth its rules and procedures for electronic filings in its E-Filing Order, dated October 4, 2013. The order provides that all documents filed in foreclosure cases “shall” be electronically filed using the trial court‘s e-filing system. The E-Filing Order states that registered users of the e-filing system “must consent to receiving electronic service of papers in lieu of other methods of service,” and specifies that electronic service of registered parties “shall have the same
- When a document (other than and subsequent to a Complaint or Third-Party Complaint) is filed electronically in accordance with these procedures, the e-Filing System will generate a “Notice of Electronic Filing” to the filing party and to any other party who is a registered user of the e-Filing System. If the recipient is a registered user, a courtesy “Notice of Electronic Filing” e-mail will be delivered to the user‘s e-Filing-designated e-mail account and a similar notification will appear on the user‘s notifications page in the e-Filing System. This electronic notice through the e-Filing System shall constitute service of that document upon that party in accordance with the applicable rules of the Court.
- It is the responsibility of the registered user to check his/her notifications page in the e-Filing System for notices pertaining to recent filings, and to not rely solely on the courtesy e-mails delivered to the user‘s designated e-Filing e-mail account. It is also the responsibility of the registered user to ensure the courtesy e-mails with notices of electronic filings are not blocked by the spam filter of his/her designated e-Filing e-mail account.
- A Certificate of Service is still required when a party files a document electronically. The Certificate of Service shall state the manner, including by e-Service if applicable, in which service or notice was accomplished on each party entitled to service. The Certificate of Service shall set forth the date on which the attached document is being submitted for e-Filing, and shall designate that date as the date of service of the document.
- A party who is not a registered user of the e-Filing System is entitled to a paper copy of an electronically filed document. The filing party shall serve the non-registered party with the document in accordance with the applicable rules of Civil Procedure or as ordered by the assigned Judge in the case.
(Emphasis added.) Id. at Section XIII(B)(3)(a)-(d). Thus, service of an electronically filed document is “deemed complete when a registered user receives the notice on his or
{¶18} In this case, counsel for Jeffers is a registered user of the court‘s e-filing system. Therefore, counsel consented to the procedural mandates of the E-Filing Order, including the required use of electronic service in lieu of other methods of service in foreclosure cases. The record reflects that U.S. Bank electronically filed its motion to substitute on October 9, 2014. The Certificate of Service contained in the motion states as follows:
I [counsel for U.S. Bank] certify that a true and accurate copy of the foregoing Motion to Substitute Plaintiff was filed using the court‘s electronic filing system this 9th day of October, 2014. Notice will be sent to the following:
[Co-Counsel for Plaintiff]
[Counsel for Defendants Thomas and Stephanie Jeffers]
[Counsel for Defendant Cuyahoga County Treasurer]
{¶19} Thus, the Certificate of Service complied with the requirements of the E-Filing Order and demonstrates that counsel for Jeffers received notice on his e-service notification page that U.S. Bank‘s motion to substitute was electronically filed. As set forth in the order, such notice of the electronic filing constituted proper service on Jeffers. Under these circumstances, we find no merit to Jeffers‘s contention that he was not served with U.S. Bank‘s motion to substitute. As such, the trial court did not err by granting the unopposed motion to substitute and had no basis to dismiss the foreclosure action.
{¶21} After careful consideration, we find Jeffers has failed to establish that he was prejudiced by the alleged violation of
{¶22} As stated, Jeffers was promptly served with U.S. Bank‘s motion to substitute pursuant to the E-Filing Order and was provided the opportunity to file a timely brief in opposition, but failed to do so. Accordingly, Jeffers was not prejudiced by the practically
{¶23} Finally, we note that the E-Filing Order was adopted in compliance with Rule 27 of the Ohio Supreme Court‘s Rules of Superintendence and the requirements of the Ohio Supreme Court‘s Advisory Committee on Technology. Thus, the order was not “inconsistent with the rules promulgated by the supreme court” as Jeffers suggests.
{¶24} Jeffers‘s first assignment of error is overruled.
B. Waiver of Objection
{¶25} In his second assignment of error, Jeffers argues the trial court improperly found that counsel‘s “failure to object to the unserved motion prior to trial constituted an implicit waiver of Jeffers‘s argument that the unserved motion could not be used to permit the substitution of the party plaintiff.” Jeffers contends that he had no duty to respond to the arguments raised in U.S. Bank‘s motion to substitute where proper service was never made.
{¶26} In this case, Jeffers‘s counsel was notified of the motion to substitute via the trial court‘s e-filing system on October 9, 2014. Nevertheless, the record reflects that Jeffers waited until the day of trial before opposing the motion to substitute or the validity of its service. Beyond counsel‘s unpersuasive reliance on
{¶28}
In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. * * *.
{¶29} In this case, U.S. Bank assigned the mortgage to Christiana Trust after this foreclosure case was filed. The mortgage was recorded on June 21, 2014. When the mortgage was assigned to Christiana Trust, counsel for U.S. Bank “continued to physically possess the Note, now on behalf of Christiana Trust” and presented the Note during trial. Under these circumstances, we are unable to conclude that the trial court abused its discretion by granting U.S. Bank‘s motion to substitute pursuant to
{¶30} Jeffers‘s second assignment of error is overruled.
{¶31} 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 said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
LARRY A. JONES, SR., J., CONCUR