U.S. Bank Natl. Assn. v. MarcinoU.S. Bank Natl. Assn. v. Marcino
JUDGMENT: Appeal dismissed
APPEARANCES:
For Plaintiff-Appellee: Attorney Scott A. King, Attorney Terry W. Posey, Jr., Thompson, Hine LLP, P.O. Box 8801, 2000 Courthouse Plaza, NE, Dayton, OH 45401-8801
For Defendant-Appellant: Anthony Marcino, Pro-se, c/o 129 Caravel Place, Wintersville, OH 43853
JUDGES: Hon. Mary DeGenaro, Hon. Joseph J. Vukovich, Hon. Gene Donofrio
OPINION
{1} Pro-se appellant, Anthony T. Marcino timely appeals the July 31, 2009 decision of the Jefferson County Court of Common Pleas that granted summary judgment and a decree in foreclosure in favor of Appellee, U.S. Bank National Association, as Trustee for the Structured Asset Securities Corporation Mortgage Loan Trust, 2006-AM1. On appeal, Anthony argues that summary judgment was improper because a genuine issue of material fact remained as to whether U.S. Bank was a real party in interest to the foreclosure action. However, Anthony‘s appeal is moot, as the property in question has been sold, the proceeds have been distributed, and Anthony did not request a stay of the foreclosure judgment at any point. Accordingly, the appeal is dismissed.
Facts and Procedural History
{2} On January 19, 2006, Anthony executed a note, secured by a mortgage signed by Anthony and Melissa Marcino, in favor of Aames Funding Corporation, dba Aames Home Loan, for property at 129 Caravel Place in Wintersville, Ohio. The note included an acceleration clause to allow the note holder to demand full payment on the note in the case of default and subsequent to proper notice. On January 19, 2006, Aames executed a Corporation Assignment of Mortgage, leaving the name of the assignee blank.
{3} On November 8, 2007, U.S. Bank filed a complaint in foreclosure against the Marcinos. U.S. Bank asserted that it was the present holder and owner of the note, and that the Marcinos were in default under the terms of the note and mortgage as of June 1, 2007. In the Marcinos’ separate answers and joint response to U.S. Bank‘s first set of interrogatories, the Marcinos admitted that they were in default of the terms of the mortgage, but argued that U.S. Bank was not a real party in interest. The case proceedings included an unsuccessful attempt at mediation and culminated in U.S. Bank filing for summary judgment on its claim and Anthony‘s counterclaim, which Anthony and Melissa separately opposed on the basis of U.S. Bank‘s lack of standing, arguing the defect was incurable. Moreover, Anthony did not raise any argument in defense of U.S. Bank‘s motion for summary judgment on his counterclaim.
{4} The trial court held a hearing on U.S. Bank‘s motion for summary judgment, at which Melissa appeared with counsel, and Anthony appeared pro-se. Both defendants
{5} Anthony timely filed a pro-se notice of appeal, but Melissa did not join Anthony‘s notice of appeal or file a separate notice of appeal.
Mootness
{6} Most pertinent to our resolution of this appeal is Anthony‘s failure to request a stay of proceedings. The property in question was sold to US Bank in a sheriff‘s sale on March 25, 2010, and on May 17, 2010, a judgment entry of confirmation and order of distribution was filed. Thus, we must first address whether any live controversy remains for this court to resolve, because the Marcinos’ property has already been sold and the proceeds distributed.
{7} A case becomes moot when its issues are no longer live, or when the parties no longer have a legally cognizable interest in the outcome. State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-Ohio-1844, 928 N.E.2d 728, at ¶10. The Ohio Supreme Court has recognized only two exceptions to the mootness doctrine. First, “[a] case is not moot if the issues are capable of repetition, yet evading review.” In re Appeal of Suspension of Huffer from Circleville High School (1989), 47 Ohio St.3d 12, 546 N.E.2d 1308, paragraph one of the syllabus, approving and following State ex rel. The Repository v. Unger (1986), 28 Ohio St.3d 418, 28 OBR 472 504 N.E.2d 37. A situation is capable of repetition, yet evading review where two elements combine: “(1)
{8} “It is a well-established principle of law that a satisfaction of judgment renders an appeal from that judgment moot.” Blodgett v. Blodgett, (1990), 49 Ohio St.3d 243, 245, 551 N.E.2d 1249. “Where the court rendering judgment has jurisdiction of the subject-matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment.” Id., quoting Rauch v. Noble (1959), 169 Ohio St. 314, 316, 8 O.O.2d 315, 316, 159 N.E.2d 451, 453, quoting Lynch v. Lakewood City School Dist. Bd. of Edn. (1927), 116 Ohio St. 361, 156 N.E. 188, at paragraph three of the syllabus.
{9} The Ninth District has stated that, “[i]n foreclose cases, as in all other civil actions, after the matter has been extinguished through satisfaction of the judgment, the individual subject matter of the case is no longer under the control of the court and the court cannot afford relief to the parties to the action.” Bankers Trust Co. of Cal., N.A. v. Tutin, 9th Dist. No. 24329, 2009-Ohio-1333, at ¶16.
{10} However, many districts, including this one, have refused to moot a foreclosure action on appeal in certain situations, even when the judgment has already been satisfied through sale of the property and distribution of the proceeds. See, e.g., LaSalle Bank Natl. Assn. v. Murray, 179 Ohio App.3d 432, 2008-Ohio-6097, 902 N.E.2d 88 (7th Dist.); Ameriquest Mortgage v. Wilson, 11th Dist. No. 2006-A-0032, 2007-Ohio-2576; Chase Manhattan Mtge. Corp. v. Locker, 2d Dist. No. 19904, 2003-Ohio-6665; MIF Realty L.P. v. K.E.J. Corp. (May 19, 1995), 6th Dist. No. 94WD059 [1995 WL 311365].
{11} These cases mainly focus on the language found in
{12} Courts have interpreted this statutory language to mean that the appellants could still obtain a remedy from the appellee bank, even after distribution, through restitution, thus allowing a legally cognizable interest to survive. However, in most of the cases where appellate courts have refused to moot an already-executed foreclosure judgment, the analysis has stressed additional factors affecting the decision, namely when the appellants had at least requested a stay of the foreclosure judgment, or when confusion has arisen regarding multiple trial court orders.
{13} In Murray, the bank brought a foreclosure action and the homeowners filed and answer and counterclaim, yet the trial court granted default/summary judgment to the bank and dismissed mortgagors’ counterclaim with prejudice. This Court refused to moot the appeal even though the property had been sold and the proceeds distributed, concluding
{14} This Court differentiated Murray from a finding of mootness made in Meadow Wind Health Care Ctr., Inc. v. McInnes, 5th Dist. No. 2002CA00319, 2003-Ohio-979, because the appellants in Murray had requested a stay with the trial court. Id. at ¶26. Although this Court at first focused on this distinguishing fact, the remainder of the Murray opinion justifies not mooting the issue due to the applicability of
{15} These latter cases provide a different interpretation of the applicability of
Vukovich, P.J., concurs.
Donofrio, J., concurs.