U.S. BANK NATIONAL ASSOCIATION, as Trustee Successor in Interest to Bank of America, National Association as Trustee, successor by merger to LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Mortgage Pass-Through Certificates, Series 2004-8 v. WALTER G. BROADNAX, JR., et al.
APPEAL NO. C-180650
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 18, 2019
[Cite as U.S. Bank, Natl. Assn. v. Broadnax, 2019-Ohio-5212.]
BERGERON, Presiding Judge.
TRIAL NO. A-1307447
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 18, 2019
Eckert Seamans Cherin & Mellott, LLC and Gwenn S. Karr, for Plaintiff-Appellee,
Robbins, Kelly, Patterson & Tucker, Michael A. Galasso and Robert M. Ernst, for Defendant-Appellant.
{1} In this foreclosure action, the parties devote most of their briefing attention on appeal to issues that were never broached with the trial court below. Resisting the temptation to wade into this thicket, we instead confine ourselves to the arguments properly preserved in the record. We ultimately find the defendant‘s statute of limitations argument meritorious, as the bank waited for too long to commence this suit after accelerating the loan (granted, there were some twists and turns along the way, which we describe below). We accordingly reverse summary judgment in favor of the bank and remand with instructions to enter judgment for the defendant.
I.
{2} The roots of this case stretch back to April 2004, as it involves a promissory note, executed by defendant-appellant Walter Broadnax and secured by a mortgage on a residential property located in Cincinnati. Nearly three years into his payments (and on the cusp of the global financial crisis), Mr. Broadnax defaulted on the note, failing to make his March 2007 payment. LaSalle Bank, the holder of the note at that time (and predecessor in interest to plaintiff-appellee U.S. Bank) dutifully sent him a notice of default, informing him of the default and advising that, in the absence of curing the default within 30 days, the bank had the right to accelerate the full amount due under the note. The 30 days came and went without any payment from Mr. Broadnax, prompting LaSalle Bank to file, on June 13, 2007, the first (of several) foreclosure complaints against Mr. Broadnax and other parties with interests in the property. After two years of litigation, LaSalle Bank and Mr. Broadnax agreed to a stipulated dismissal signed by counsel, resulting in the court dismissing the case without prejudice.
{4} In November 2013, after a merger with LaSalle Bank, U.S. Bank joined the festivities, filing a third complaint against Mr. Broadnax—once again seeking to obtain judgment on the same promissory note and to foreclose on the mortgage securing the note. In response to this complaint, Mr. Broadnax raised myriad affirmative defenses, chief among them that the statute of limitations barred U.S. Bank from bringing its claims. Following discovery, both parties moved for summary judgment. In Mr. Broadnax‘s motion, he argued that because the first complaint filed in June 2007 triggered acceleration of the entire debt, the statute of limitations ran six years later, in June 2013, thereby barring the complaint filed in November 2013. To get around the statute of limitations, U.S. Bank staked out the position that the statute never ran because the third complaint filed in November 2013 accelerated the loan, not the first complaint filed in June 2007. Buttressing the point, U.S. Bank explained (1) that the filing of a complaint alone is not necessarily evidence of acceleration, and (2) that even if the first complaint did somehow prompt acceleration of the loan, then the first complaint‘s dismissal without prejudice “deaccelerated” the loan.
{5} Upon considering the competing arguments, the magistrate granted summary judgment for U.S. Bank and accordingly denied Mr. Broadnax‘s motion for summary judgment. Over Mr. Broadnax‘s objections, the trial court adopted the magistrate‘s decision
{6} Mr. Broadnax now appeals the trial court‘s judgment, raising a single assignment of error challenging the court‘s failure to apply the statute of limitations as a bar to the suit. Complicating this appeal, U.S. Bank scuttles its legal theories below (about deacceleration and the like) and now concedes that the first complaint filed in June 2007 accelerated the debt. But to stave off reversal, U.S. Bank fashions a new argument out of whole cloth, insisting that the saving statute pursuant to
II.
{7} Construing the facts in the light most favorable to Mr. Broadnax, summary judgment is proper where no genuine question of material fact exists and the moving party is entitled to judgment as a matter of law. First Fin. Bank, N.A. v. Mendenhall, 2017-Ohio-7628, 84 N.E.3d 1113, ¶ 6 (1st Dist.). We review a grant of summary judgment de novo. Ligon v. Winton Woods Park, 1st Dist. Hamilton No. C-180073, 2019-Ohio-1217, ¶ 6.
{8} As noted above, the dispute below turned on whether the first complaint filed in June 2007 accelerated the entire debt, thus triggering the six-year statute of limitations period. Notably, both parties agree that, because the promissory note here is a “negotiable
{9} Based on this language, the date of acceleration commences the running of the six-year statute of limitations under
{10} In other words, a default by itself does not suffice; rather, acceleration requires “some affirmative action on the part of the lender.” Walker at ¶ 11; DePizzo at ¶ 18 (“While there are limited cases in Ohio interpreting acceleration under
{11} During the lower proceedings, U.S. Bank and Mr. Broadnax fenced over the date of acceleration, with Mr. Broadnax pointing to June 2007 and U.S. Bank insisting on November 2013. To reach that date, U.S. Bank crafted a novel “deacceleration” argument, positing that even if the 2007 complaint accelerated the debt, the subsequent stipulated dismissal deaccelerated it. Presumably because it could find no authority substantiating the point, it abandons this argument on appeal. When a party raises an argument below, but forsakes it on appeal, we treat it as abandoned and should not consider the point. See Dept. of Natural Resources v. Ebbing, 2015-Ohio-471, 28 N.E.3d 682, ¶ 78 (3d Dist.), fn. 15 (“We note that in its motion in limine, [plaintiff-appellant] also argued that [defendants-appellees’ expert‘s] report should be excluded * * *. However, because [plaintiff-appellant] abandoned this argument on appeal, we will not address the merits of this argument.“).
{12} Instead, U.S. Bank now admits, in its appellate brief, that “the date of acceleration may be assumed as June 13, 2007,” the date of filing for the first complaint.
{13} But, as we have already noted, U.S. Bank did not present this saving statute argument to the trial court below, and therefore waived its right to raise it for the first time on appeal. Ditech Fin., LLC v. Balimunkwe, 1st Dist. Hamilton No. C-180445, 2019-Ohio-3806, ¶ 11, quoting State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993) (“[A] party who fails to raise an argument in the court below waives his or her right to raise it [on appeal].“). And even if we could review the saving statute‘s
{14} Because the bank accelerated the entire debt in June 2007, pursuant to
III.
{15} For the foregoing reasons, we sustain Mr. Broadnax‘s sole assignment of error and find the trial court erred in granting U.S. Bank‘s motion for summary judgment and denying Mr. Broadnax‘s motion for summary judgment. Accordingly, we reverse the trial court‘s judgment and remand the cause for entry of judgment in Mr. Broadnax‘s favor based upon his statute of limitations defense.
Judgment reversed and cause remanded.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.