U.S. Bank Natl. Assn. v. MoralesU.S. Bank Natl. Assn. v. Morales
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2008 CV 1608.
Judgment: Affirmed.
M. Elizabeth Hils, Lerner, Sampson & Rothfuss, L.P.A., 120 East Fourth Street, #800, Cincinnati, OH 45202 (For Plaintiff-Appellee).
Edward C. Learner, 3761 Fishcreek Road, Stow, OH 44224 (For Defendants-Appellants, Joseph G. and Mary E. Morales).
COLLEEN MARY O’TOOLE, J.
{¶1} Joseph G. and Mary E. Morales appeal from the grаnt of summary judgment by the Portage County Court of Common Pleas to U.S. Bank National Association, as Trustee for the Specialty Underwriting and Residential Finance Trust
{¶2} October 5, 2006, Mr. Morales borrowed $102,000 from Wilmington Finance, Inc. He signed a note promising to repay the loan over thirty years. The note was secured by a mortgage on the Moraleses’ home located at 429 Harris Street, Kent, Ohio. Mrs. Morales did not sign the note, but did sign the mortgage, in order to subject her dower interest to thе lien. The mortgage was recorded October 6, 2006 with the Portage County Recorder. Wilmington Finance thereafter endorsed the note in blank, per an allonge.
{¶3} In early 2008, Mr. Morales defaulted on the loan. September 26, 2008, Wilmington Financial assigned the mortgage and note to U.S. Bank. October 1, 2008, U.S. Bank brought this action for foreclosure. It recorded the assignment of the mortgage from Wilmington Financial October 3, 2008.
{¶4} Pursuant to the directive of the Supreme Court of Ohio, the Portage County Court of Common Pleas includes a “Request for Mediation Hearing” form when a complaint in fоreclosure is served. The Moraleses filled this out, and filed it October 17, 2008. The request stayed the foreclosure. However, November 4, 2008, they contacted the trial court’s mediation office, to inform it that they had filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Northеrn District of Ohio, Case No. 08-54062. The Moraleses never filed a suggestion of bankruptcy with the trial court.
{¶5} U.S. Bank moved the bankruptcy court to lift the automatic stay regarding its foreclosure action, which motion the bankruptcy court granted December 11, 2008.
{¶6} January 30, 2009, the trial court filed a judgment entry scheduling non-oral hearing on the summary judgment motion twenty-one days hence – i.e., February 20, 2009. It ordered that all memoranda and evidence opposing the motion were to be filed before the hearing date, as well as any request for an extension of time. Notably, Portage Cty. Loc.R. 8.02 requires specifically that memoranda in opрosition to a motion be filed fourteen days following filing of the motion, and that reply memoranda be filed within seven days thereafter.
{¶7} February 17, 2009, prior to the scheduled hearing date, but following the time mandated by Portage Cty. Loc.R. 8.02 for filing a memorandum in opposition to the summary judgment motiоn, the trial court filed its judgment entry granting summary judgment to U.S. Bank. February 19, 2009, the Moraleses filed an “objection” to the summary judgment motion, asserting their right to mediation per their October 17, 2008 request, prior to any summary judgment proceedings. The Moraleses re-filed this objection February 23, 2009.
{¶8} March 2, 2009, the trial cоurt filed a judgment entry, construing the Moraleses’ objection as a motion to vacate the grant of summary judgment. It ordered
{¶9} March 5, 2009, U.S. Bank filed a praecipe for sale. March 11, 2009, the Moraleses noticed this appeal, and moved the trial court for a stay pending its outcome. March 12, 2009, the trial court denied the stay. April 20, 2009, U.S. Bank filed notice of thе Moraleses’ bankruptcy case with the trial court, as well as of the termination of the automatic stay. That same day, U.S. Bank noticed to the trial court it was relieved of jurisdiction to consider the motion to vacate as a result of the appeal. May 18, 2009, on U.S. Bank’s aрplication, the trial court ordered the Moraleses’ home be removed from the sheriff’s sale.
{¶10} The Moraleses assign four errors on appeal:
{¶11} “[1.] THE TRIAL COURT ERRED IN FAILING TO SCHEDULE A MEDIATION IN THIS CASE THAT WAS REQUESTED BY APPELLANT *** [.]
{¶12} “[2.] THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF/APPELLEE US BANK NA *** [.]
{¶13} “[3.] THE TRIAL COURT DENIED APPELLANT HIS RIGHT TO DUE PROCESS BY PREMATURELY GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF/APPELLEE US BANK NA *** [.]
{¶14} “[4.] THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF/APPELLEE US BANK NA WHEN PLAINTIFF/APPELLEE DID NOT HAVE LEGAL TITLE OF THE NOTE AT THE TIME OF FILING THE COMPLAINT *** [.]”
{¶16} “Accordingly, ‘(s)ummary judgment may not be granted until the moving party sufficiently demonstrates the аbsence of a genuine issue of material fact. The moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim.’ Brunstetter v. Keating, 11th Dist. No. 2002-T-0057, 2003-Ohio-3270, ¶12, citing Dresher at 292. ‘Once the moving party meets the initial burden, the nonmoving party must then set forth specific facts demonstrating that a genuine issue of material fact does exist that must be preserved for trial, and if the nonmoving party does not so respond, summary judgment, if approрriate, shall be entered against the nonmoving party.’ Id., citing Dresher at 293.
{¶17} “***
{¶18} “***
{¶19} “Since summary judgment denies the party his or her ‘day in court’ it is not to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary
{¶20} “The court in Dresher went on to say that paragraph three of the syllabus in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, ***, is too broad and fails to account for the burden
{¶22} By their first assignment of error, the Moraleses contend they were entitled to mediation by the request filed October 17, 2008. They note that the form itself provides that mediation is designed to resolve litigation prior to entry оf a final judgment – such as the summary judgment granted U.S. Bank herein. Consequently, they argue their request for mediation divested the trial court of power to enter a final judgment until mediation had occurred.
{¶23} We respectfully disagree. Mediation is, by its very nature, a voluntary process; and, no law or rulе cited by the Moraleses indicates that a trial court is required to offer it once litigation has commenced. It is discretionary. Thus, in response to Ohio’s foreclosure crisis, the General Assembly has granted trial courts discretionary power to require parties to a foreclosure to participate in mediation.
{¶24} Further, once the Moraleses had requested mediation in this case, October 17, 2008, they cancelled it November 4, 2008, upon the filing of their bankruptcy сase. Thereafter, once the automatic stay was lifted by the bankruptcy court, December 11, 2008, the Moraleses did not again request mediation: they answered the complaint. They did not raise the issue again until they filed their objection to the summary judgment motion, February 19, 2009. By its judgment entries оf March 2, 2009, the trial court attempted to reach the issue, construing the objection as a motion to vacate, and scheduling hearing in front of its magistrate for May 20, 2009. But prior to the hearing date, the Moraleses divested the trial court of jurisdiction to consider the issue of mediatiоn (the only one raised by the February 19, 2009 objection), by noticing this appeal. Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 147.
{¶25} The first assignment of error lacks merit.
{¶26} By their second assignment of error, the Moraleses assert the trial court erred in ruling on the motion for summary judgment prior to the expiration of the twenty-one day period set forth in its judgment entry of January 30, 2009 for holding nоn-oral hearing. By their third assignment of error, the Moraleses assert they were denied due process of law when the trial court ruled on the motion for summary judgment prior to the date set for non-oral hearing. We analyze these assignments together.
{¶27} By its January 30, 2009 judgment entry, the trial court required that any memoranda and evidence opposing the motion for summary judgment be submitted
{¶28} In support of their argument that the trial court deprived them of duе process by ruling on the summary judgment motion prior to the scheduled hearing date, the Moraleses cite to this court’s decision in Zamos v. Zamos, 11th Dist. No. 2004-P-0108, 2005-Ohio-6075. In that case, we held: “In applying
{¶29} We think the citation inapposite. First, as discussed above, the trial court did abide by its own local rule. And even if the January 30, 2009 judgment entry is
{¶30} The second and third assignments of error lack merit.
{¶31} By their fourth assignment of error, the Moraleses allege that U.S. Bank was not the proper holder of the note at the time this action was filed, and thus, lacked standing. They premise this argument on the fact that U.S. Bank did not record the Septеmber 26, 2008 assignment of the note from Wilmington Financial until October 3, 2008, two days after filing for foreclosure.
{¶32} We respectfully disagree. The Moraleses do not contest the validity of the assignment itself. The purpose of the recording statute regarding transfers in real property interests,
{¶34} The fourth assignment of error lacks merit.
{¶35} The judgment of the Portage County Court of Common Pleas is affirmed.
{¶36} It is the further order of this court that appellants are assessed costs herein taxed.
{¶37} The court finds there were reasonable grounds for this appeal.
MARY JANE TRAPP, P.J.,
DIANE V. GRENDELL, J.,
concur.