WELLS FARGO BANK, N.A., Plаintiff-Appellee, vs. BRYAN C. DUMM, et al., Defendants-Appellants.
Case No. 13CA5
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
DATE JOURNALIZED: 7-9-14
2014-Ohio-3124
APPEARANCES:
COUNSEL FOR APPELLANTS: John Sherrod, Mills, Mills, Fiely & Lucas, L.L.C., 503 South Front Street, Ste. 240, Columbus, Ohio 43215
COUNSEL FOR APPELLEE: Scott A. King and John B. Kopf III, Thompson Hine, L.L.P., 41 South High Street, 17th Floor, Columbus, Ohio 43215
CIVIL APPEAL FROM COMMON PLEAS COURT
PER CURIAM.
{¶ 1} This is an appeal from an Athens County Common Pleas Court summary judgment in favor of Wells Fargo Bank, N.A. (Wells Fargo), plaintiff below and appellee herein, on its claims against Bryan C. Dumm and others1, defendants below and appellants herein, as well as on appellant‘s counterclaim against Wells Fargo. Appellants assign the following errors
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT IN GRANTING APPELLEE WELLS FARGO BANK, NA‘S MOTION TO DISMISS APPELLANT‘S COUNTERCLAIM.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN GRANTING APPELLEE ANNE NEELY‘S MOTION TO DISMISS APPELLANT‘S COUNTERCLAIM.”
{¶ 2} On or about July 8, 2003, appellant executed a note to Wells Fargo Home Mortgage, Inc. and promised to repay $119,312.00 in monthly installments for thirty years, together with 5.5% per annum interest. As security for that note, appellant and his wife executed a mortgage on their Rardin Drive property to Wells Fargo Home Mortgage, Inc. Apparently, Wells Fargo is the successor-in-interest to Wells Fargo Home Mortgage, Inc.
{¶ 3} In 2009, appellant defaulted on the note. Although Wells Fargo made efforts to help appellant comply with the instrument‘s terms, he apparently experienced personal difficulties that impeded the rehabilitation effort.
{¶ 4} Wells Fargo commenced the instant action and sought foreclosure of the mortgage. Appellant did not initially respond to the complaint and a default judgment was taken against all defendants, except the Athens County Treasurer. However, on January 25, 2011, the trial court granted appellant‘s
{¶ 5} In November 2011 appellant sought, and was granted, leave to file an amended answer and counterclaim. This time, appellant‘s counterclaim swelled from twelve claims to fourteen, and was merged with a third-party complaint against Anne Neely (Neely) who is, apparently, a Wells Fargo agent.2 It appears, appellants noted, that Neely executed an affidavit in support of Wells Fargo‘s motion and stated that she had “personal knowledge” of appellant‘s account. In appellant‘s combined counterclaim/third-party complaint, he alleged “this statement was false” and that Wells Fargo used Neely as a “robo-signer.”3 Appellant sought numerous financial damages, as well as “rescission” of something that was unspecified in the pleading but, presumably, meant the note and mortgage.4
{¶ 6} Wells Fargo and Neely both filed
{¶ 7} On December 17, 2012, the trial court granted Wells Fargo‘s motion. In so doing, the court concluded that Wells Fargo is entitled to judgment on the note and the foreclosure of the mortgage. The court, however, did not address the other claims against Wells Fargo in the Counterclaim/Third-Party Complaint. The court entered a “final” judgment on that decision on January 17, 2013 that dismissed the “Counterclaims of Bryan C. Dumm” against Wells Fargo” in their entirety. This appeal followed.
I
{¶ 8} Before we address the merits of the assignments of error, we must first consider a threshold jurisdictional issue that is, unfortunately, made more complicated in view of this case‘s procedural abyss. The Ohio Constitution grants appellate jurisdiction over trial courts when a final, appealable order exists. Davison v. Reni, 115 Ohio App.3d 688, 692, 686 N.E.2d 278 (4th Dist.1996); Prod. Credit Assn. v. Hedges, 87 Ohio Ap.3d 207, 210, 621 N.E.2d 1360 (4th Dist.1993); Kouns v. Pemberton, 84 Ohio App.3d 499, 501, 617 N.E.2d 701 (4th Dist.1992). If the judgment appealed is not a final order, an appellate court has no jurisdiсtion to review the judgment and the case must be dismissed.
{¶ 9} In the case sub judice, the judgment appealed appears to contemplate taking
{¶ 10} If this were the only procedural issue that we must consider, our ruling on the jurisdictional problem would be simple and straightforward. Unfortunately, that is not the case. We believe that another arguable jurisdictional impediment concerns the Athens County Treasurer‘s counterclaim. The trial court‘s January 17, 2013 “final” entry incorrectly stаtes that the Treasurer did not enter an appearance when, in fact, the Treasurer answered on May 12, 2010. The failure to note the Treasurer‘s appearance would have been a meaningless oversight, except for the inclusion of a cross-claim through which the Treasurer asked for both penalties and unpaid taxes to be deemed a first and best lien. Although the trial court‘s January 17, 2013 entry failed to expressly resolve this cross-claim, it nevertheless called for marshalling of liens аnd ruled the Treasurer‘s lien for taxes “superior in priority” to Wells Fargo‘s mortgage. Thus, even if not expressly resolved, this portion of the trial court‘s ruling5 has rendered the
{¶ 11} In summary, we conclude that the trial court‘s judgment constitutes a final, appealable order such that we have jurisdiction to consider this case.
II
{¶ 12} Although we conclude that we do indeed have jurisdiction to review this case, we observe that other procedural rules have apparently been ignored. Appellant assigns two errors for our reviеw, although his brief contains one combined argument. This is improper.
{¶ 13}
{¶ 14} Additionally, the notice of appeal only references the trial court‘s January 17, 2013 final judgment. Working backwards, that entry, in turn, referenced the December 17, 2012 decision regarding Wells Fargo‘s motion for summary judgment. In short, our review of this
III
{¶ 15} With all of this in mind, we now turn, out of order, to appellant‘s second assignment of error wherein he argues that the trial court erred by granting judgment that dismissed his third-party claim against Neely.
{¶ 16} When considering a
{¶ 17} First, in the case sub judice the trial court aptly noted in its June 5, 2012 judgment
{¶ 18} Even on the merits, however, and even applying a de novo standard of reviеw, we believe that the trial court correctly decided the issue. Of the one hundred and forty four (144) paragraphs of the allegations that comprise the intertwined counterclaim and third party claim, Neely‘s name appears in paragraphs twenty three (23), twenty eight through thirty (28-30), and ninety one through ninety four (91-94).6 All of these allegations revolve around her alleged robo-signing the affidavit that Wells Fargo used in its motion for default judgment.
{¶ 19} Assuming that all of the allegations of the third party claim are true, as we must for purposes of
{¶ 21} Thus, we hereby overrule appellant‘s second assignment of error.
IV
{¶ 22} We now turn to appellant‘s first assignment of error wherein he asserts that the trial court erred by dismissing (or, more appropriately, in granting summаry judgment) his counterclaims against Wells Fargo. We agree with appellant, albeit to a more limited extent than appellant argues in his brief.
{¶ 23} In the case sub judice, the judgment appealed is the trial court‘s January 17, 2013 “final” entry. Again, working backward, that entry references the trial court‘s December 17, 2012 decision (or judgment entry) that ruled on Well‘s Fargo‘s motion for summary judgment. That motion, filed July 10, 2012, sought summary judgment on Wells Fargo‘s claims for the default of appellant‘s note and foreclosure of the mortgage. Howеver, Wells Fargo did not seek summary judgment on the civil claims that appellant appears to have asserted against Wells Fargo in the remaining allegations of the counterclaim.
{¶ 24} We hasten to add that we are not unsympathetic to the trial court on this issue. Those other claims are difficult to understand. However, appellant‘s prayer for relief in the amended counterclaim/third-party claim makes clear that he is seeking relief from Wells Fargo
{¶ 25} However, regarding appellant‘s arguments that the trial court erred by granting summary judgment to Wells Fargo on the note and mortgage, we come to a different conclusion. Unfortunately, we also observe that the combination of arguments for appellant‘s assignments of error are as difficult to understand as his combined counterclaim/third-party claim.
{¶ 26} The pivotal question, as the trial court aptly noted, is whether any of the multitude of actions appellant asserted in his counterclaim are sufficient to prevent Wells Fargo frоm going forward with judgment on the note and the foreclosure of the mortgage. The trial court concluded they were not. For the following reasons, we agree that summary judgment for Wells Fargo is appropriate.
{¶ 27} Appellate courts review summary judgments de novo. Sutton Funding, L.L.C. v. Herres, 188 Ohio App.3d 686, 2010-Ohio-3645, 936 N.E.2d 574, at ¶59; Broadnax v. Greene Credit Service, 118 Ohio App.3d 881, 887, 694 N.E.2d 167 (2nd Dist. 1997). In other words, appellate courts afford no deference whatsoever to a trial court decision, see Sampson v. Cuyahoga Metro. Hous. Auth., 188 Ohio App.3d 250, 935 N.E.2d 98, 2010-Ohio-3415, at ¶19; Kalan v. Fox, 187 Ohio App.3d 687, 933 N.E.2d 337, 2010-Ohio-2951, at ¶13, and conduct their own, independent review to determine whether summary judgment is appropriate. Woods v. Dutta, 119 Ohio App.3d 228, 233-234, 695 N.E.2d 18 (4th Dist. 1997); McGee v. Goodyear Atomic Corp., 103 Ohio App.3d 236, 241, 659 N.E.2d 317 (4th Dist. 1995).
{¶ 28} Summary judgment under
{¶ 29} With this standard in mind, we note that Wells Fargo‘s motion for summary judgment included an affidavit by Beverly DeCaro,8 who attested that she is (1) a vice president of “Loan Documentation” for Wells Fargo, (2) could verify the note and mortgage, and (3) the note and mortgage at issue herein were “in default[.]” This is sufficient for Wells Fargo to carry its initial burden on summary judgment. Therefore, the burden shifted to appellant to show that Wells Fargo is not entitled to judgment and foreclosurе of its security interest.
“(b) The mortgagee must have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid. If default occurs in a repayment plan arranged other than during a personal interviеw, the mortgagee must have a face-to-face meeting with the mortgagor, or make a reasonable attempt to arrange such a meeting within 30 days after such default and at least 30 days before foreclosure is commenced, or at least 30 days before assignment is requested if the mortgage is insured on Hawaiian home land pursuant to section 247 or Indian land pursuant to section 248 or if assignment is requested under
§ 203.350(d) for mortgages authorized by section 203(q) of the National Housing Act.(c) A face-to-face meeting is not required if:
(1) The mortgagor doеs not reside in the mortgaged property,
(2) The mortgaged property is not within 200 miles of the mortgagee, its servicer, or a branch office of either,
(3) The mortgagor has clearly indicated that he will not cooperate in the interview,
(4) A repayment plan consistent with the mortgagor‘s circumstances is entered into to bring the mortgagor‘s account current thus making a meeting unnecessary, and payments thereunder are current, or
(5) A reasonable effort to arrange a meeting is unsuccessful.” (Emphasis added.)
{¶ 31} Appellant argues that Wells Fargo is in default of the federal regulatory provision and did not afford him an opportunity for a face-to-face meeting before it commenced the instant action. Indeed, in his affidavit contra summary judgment, he states “I would have jumped at the opportunity” to have had such a face-to-face meeting with federal regulators. We, however, are not persuaded that any merit exists to this defense.
{¶ 32} First, appellant has not convinced us that compliance with this regulation is a
{¶ 33} However, even if we assume, arguendo, that compliance with
“I am familiar with and have access to records showing where Wells Fargo maintains its offices. Wells Fargo does not have within 200 miles of 121 Lamar Street, Athens, Ohio 45701 a branch office with personnel trained in debt collection under HUD‘s Loan Mitigation Program.”
{¶ 34} By the same token, appellant‘s affidavit in opposition to summary judgment responded that “[t]here are at least 5 ‘Wells Fargo Home Mortgage’ locations within 100 miles of my address.” In instances in which summary judgment boils down to which affidavit (or evidence) is the most credible, summary judgment should be denied and the issue should be left
{¶ 35} Affidavits in support of, or in opposition to, summary judgment must be bаsed on personal knowledge. See
{¶ 36} Simply put, without deciding the actual reach of
{¶ 37} Having partially sustained the first assignment of error, we hereby affirm the trial court‘s judgment in part, reverse the judgment in part, and remand the case sub judice for further proceedings on whatever civil claims appellant asserted against Wells Fargo, separate and distinct from judgment on the note and foreclosure on the mortgage.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Hoover, J.:
{¶ 38} I respectfully concur in part and dissent in part.
{¶ 39} In Wells Fargo v. Phillabaum, 192 Ohio App.3d 712, 2011-Ohio-1311, 950 N.E.2d 245 (4th Dist.), this Court affirmed the judgment of the trial court that granted the borrowers summary judgment in a foreclosure action. This Court found that the bank did not comply with all pertinent HUD regulations before it initiated the foreclosure process. Id. at ¶ 9. The pertinent federal regulation at issue was
{¶ 40} In the case sub judice, appellant Dumm states that “[t]here are at least 5 ‘Wells
{¶ 41} I would find that appellant‘s assertion that “[t]here are at least 5 ‘Wells Fargo Home Mortgage’ locations within 100 miles of my address” raises a genuine issue of material fact to rebut the DeCaro affidavit. It seems strange that appellant would make the assertion using the number “5” for the Wells Fargo locations without knowing the location of at least one of the five.10
{¶ 42} I would reverse the judgment of the trial court with respect to the trial court‘s granting of summary judgment in favor of Wells Fargo Bank, N.A.
{¶ 43} I concur in the remainder of the principal opinion.
It is ordered the judgment be affirmed in part, reversed in part, and the case be remanded for further proceedings consistent with this opinion. The parties shall equally share the costs herein taxed.
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.
Abele, P.J. & McFarland, J.: Concur in Judgment & Opinion
Hoover, J.: Concurs in part & Dissents in part with Opinion
For the Court
BY:
Peter B. Abele
Presiding Judge
BY:
Matthew W. McFarland, Judge
BY:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.