WELLS FARGO BANK, N.A., Plaintiff-Appellee -vs- BRUCE NEAL, ET AL., Defendants-Appellants
Case Nos. 11CA16, 11CA17, 11CA19
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 5, 2011
2011-Ohio-3952
Hon. William B. Hoffman, P. J., Hon. Sheila G. Farmer, J., Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 09 CV 1283; JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee
JASON A. WHITACRE
LAURA C. INFANTE
KATHRYN M. EYSTER
LAW OFFICES OF JOHN D. CLUNK
4500 Courthouse Boulevard, Suite 400
Stow, Ohio 44224
For Defendants-Appellants
TROY J. DOUCET
4200 Regent Street
Suite 200
Columbus, Ohio 43219
{¶1} Defendants-Appellants Bruce Neal and Susan Neal (Duncan) appeal from three judgment entries addressing denial of relief from judgment in a foreclosure action in the Court of Common Pleas, Fairfield County, brought by Plaintiff-Appellee Wells Fargo Bank, N.A., Successor by Merger to Wells Fargo Bank Minnesota, N.A., as Trustee f/k/a Norwest Bank Minnesota, N.A., as Trustee for the Registered Holders of Renaissance Home Equity Loan Asset-Backed Certificates, Series 2003-3. The relevant facts leading to this appeal are as follows.
{¶2} The subject property of this case is appellants’ residence at 523 Spring Street in Lancaster, Ohio. In September 2003, appellants executed a note and mortgage with Fidelity Mortgage, Inc. for a principal amount of $102,600.00, to be paid initially in the amount of $858.23 per month.
{¶3} Appellants subsequently experienced difficulty making the payments, leading to a foreclosure action filed on October 1, 2009 by Appellee Wells Fargo, assignee of the note and mortgage. Appellants were duly served with the complaint on October 6, 2009. Appellee filed a motion for default judgment on December 21, 2009, alleging a default in answer by appellants. On December 22, 2009, the trial court issued a default judgment and decree in foreclosure.
{¶4} The property at issue was scheduled to go to a sheriff’s sale in February 2010. However, on February 9, 2010, the trial court issued an order withdrawing the sale, indicating that the parties were seeking alternatives to resolving the matter. Nonetheless, on November 12, 2010, a sheriff’s sale was conducted, and the property at issue was sold to appellee.
{¶6} On February 7, 2011, the trial court denied appellants’ motion for relief from judgment. Appellants filed a motion for reconsideration on the same day. On March 8, 2011, appellants filed a notice of appeal of the aforesaid February 7, 2011 judgment entry.
{¶7} On March 15, 2011 and March 17, 2011, the trial court issued nunc pro tunc entries to correct typographical errors. Appellants filed notices of appeal therefrom as well.
{¶8} The three notices of appeal have each been assigned a separate appellate case number, which have now been consolidated in the within appeal. Appellants now raise the following sole Assignment of Error:
{¶9} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE DEFENDANT-APPELLANTS’ MOTION FOR RELIEF FROM JUDGMENT UNDER
I.
{¶10} In their sole Assignment of Error, appellants contend the trial court erred in denying their motion for relief from the default foreclosure judgment under
{¶11}
{¶12} “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following
{¶13}
{¶14} Specifically, “
{¶15} In their affidavit in support of a
{¶16} It appears appellants duly paid the $482.43 sums via cashier’s checks on April 8, April 28, and May 25, 2010. See Appellants’ Exhibit B. Appellants also made a fourth temporarily modified $482.43 payment via automated clearing (ACH) on Jul 2, 2010. However, Ocwen refused to accept an August 2010 attempted payment. See Appellants’ Exhibit C. There is no evidence that Ocwen ever followed up on a permanent modification; Ocwen instead sent a letter to appellants on or about August 17, 2010 demanding an immediate amount due of $25,951.03. See Appellants’ Exhibit
{¶17} While this Court is somewhat troubled by Ocwen’s treatment of appellants in the case sub judice as they sought a permanent loan modification, we remain mindful that this attempted modification process was occurring months after Appellee Wells Fargo had obtained a valid foreclosure in the common pleas court, the complaint for which appellants had chosen to ignore. While appellants most likely counted on Ocwen to work with them for a permanent modification, the decision to pursue that avenue post-foreclosure was something within appellants’ control, thus removing the matter from the applicability of
{¶18} Appellants’ sole Assignment of Error is overruled.
{¶19} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Fairfield County, Ohio, is affirmed.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., dissents.
JUDGES
JWW/d 0722
{¶20} I respectfully dissent from the majority opinion.
{¶21} I find it significant, if not determinative, Ocwen received and accepted Appellants’ fourth payment under the modification plan after Appellants had successfully completed the three month trial period.1
{¶22} Having successfully completed the trial period and, therefore, qualifying for the permanent loan modification as evidenced by Exhibit B, I find the underlying foreclosure action had been essentially satisfied by novation and it would be inequitable for the foreclosure to have prospective application.
{¶23} While Appellants had control over the decision to enter the trial period and make the three modified payments required, they did not foresee nor could they control Appellee’s refusal to honor the loan modification. Under these circumstances, I find it no longer equitable to give prospective application to the original order of foreclosure.
HON. WILLIAM B. HOFFMAN
WELLS FARGO BANK, N.A., Plaintiff-Appellee -vs- BRUCE NEAL, et al., Defendants-Appellants
Case Nos. 11CA16, 11CA17, 11CA19
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.
Costs are to be assessed to appellants.
JUDGES