Wells Fargo Bank, N.A., etc. v. Kelly Johnson, et al.
Court of Appeals No. L-15-1111
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: March 18, 2016
2016-Ohio-1114
SINGER, J.
Trial Court No. CI0201403086
David G. Johnson II, pro se.
* * * * *
SINGER, J.
{¶ 1} Appellant, David Johnson, appeals pro se, a judgment of foreclosure issued by the Lucas County Court of Common Pleas. We affirm.
{¶ 2} In July 2006, Kelly Johnson borrowed $118,100 from Aegis Funding Corporation in order to finance the purchase of property on Glenn Street in Toledo, Ohio.
{¶ 3} On June 6, 2014, MERS assigned the mortgage to appellee, Wells Fargo Bank, N.A., as trustee for Carrington Mortgage Loan Trust, Series 2007-RFC1, Asset-Backed Pass-Through Certificates.
{¶ 4} On July 8, 2014, appellee filed a complaint in the trial court alleging that it was holder of the note which was now in default for want of payment. Appellee sought judgment on the note, foreclosure of the mortgage and sale of the property.
{¶ 5} The Johnsons each separately answered the complaint with appellant filing counterclaims. Appellee filed a motion to dismiss appellant‘s counterclaims arguing that pursuant to
{¶ 6} Appellee filed a motion for summary judgment on February 6, 2015, arguing that there were no genuine issues of material fact and that they were entitled to a judgment and decree in foreclosure as a matter of law. Appellant also filed a motion for summary judgment. The trial court granted appellee‘s motion and denied appellant‘s motion. The court simultaneously issued a decree of foreclosure, finding the amount
- I. The trial court erred when it dismissed the appellant‘s counter complaint pursuant to
Ohio Rule of Civil Procedure 12(B)(6) . - II. The trial court erred when it denied the appellant‘s motion for leave to amend his counter claim.
- III. That material issues of fact exist between the appellant and the appellees which precluded the trial court granting the appellees summary judgment on their complaint.
- IV. The trial court erred in accepting the appellee‘s
Ohio Civil Procedure Rule 56 affidavit as sufficient to establish standing of appellees to sue on the note and mortgage. - V. The trial court exhibited judicial bias in favor of the appellees.
{¶ 7} In his first assignment of error, appellant contends that the court erred in dismissing his counterclaim pursuant to
{¶ 8} We review a trial court order granting a motion to dismiss pursuant to
{¶ 9} Although factual allegations in the complaint are taken as true, [u]nsupported conclusions of a complaint are not considered admitted * * * and are not sufficient to withstand a motion to dismiss. State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989). When reviewing a judgment granting a
{¶ 10} Appellant asserted counterclaims for (1) appellee‘s lack of standing, (2) fraud in the inducement, (3) fraud in the concealment, (4) declaratory relief, (5) quiet title, (6) slander of title, and (7) intentional infliction of emotional distress.
{¶ 11} Before reviewing appellant‘s individual claims, we take note of the fact that a common theme throughout his counterclaims is appellant‘s objection to the practice of securitization. Securitization is the process in which certain types of assets are pooled
Standing
{¶ 12} The issue of standing concerns whether the party has alleged such a personal stake in the outcome of the controversy, as to ensure that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, syllabus.
{¶ 13} The current holder of the note and mortgage is the real party in interest in a foreclosure action. Wells Fargo Bank, N.A. v. Stovall, 8th Dist. No. 91802, 2010-Ohio-236, 2010 WL 320487, ¶ 15.
{¶ 14} In his complaint, appellant does not claim that appellee does not hold the note. Rather, he disputes the manner in which it was transferred. For purposes of this single issue, appellee, as holder of the note, has standing.
Fraud in the Inducement and Fraud in the Concealment
{¶ 15} The elements of fraud in the inducement are
(1) a representation of fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with utter disregard and recklessness, as to whether it is true or false, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the representation, (6) and a resulting injury proximately caused by the
reliance. H & M Landscaping Co., Inc. v. Abraxus Salt, L.L.C., 8th Dist. Cuyahoga No. 94268, 2010-Ohio-4138, ¶ 22.
{¶ 16} The elements of fraud in the concealment are
(1) a representation, or a concealment of fact when a duty to disclose exists, (2) which fact is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge can be inferred, (4) with the intent of causing another to rely on it, (5) justifiable reliance on the representation or concealment, and (6) injury proximately caused by the reliance. Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d 69, 491 N.E.2d 1101, (1986), paragraph two of the syllabus.
{¶ 17} Failure to plead the elements of fraud with particularity results in a defective claim that cannot withstand a
{¶ 18} Appellant alleged fraud, in a detailed narrative, by Aegis Funding, MERS, Premier Mortgage Group, William Wanke, agent for Premier Mortgage Group, and
Declaratory Relief
{¶ 19} The essential elements for declaratory relief are (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties. Aust v. Ohio State Dental Bd., 136 Ohio App.3d 677, 681, 737 N.E.2d 605 (10th Dist.2000).
{¶ 20} Appellant sought a judgment finding that appellee lacked authority to foreclose on the property. Appellant incorporated all of his arguments set forth for the other claims above. For the reasons addressed with regard to appellant‘s standing argument above, appellant did not present a justiciable controversy.
Quiet Title
{¶ 21} The purpose of any quiet-title action is to conclusively determine the allocation of property interests. Lincoln Health Care, Inc. v. Keck, 11th Dist. Lake No. 2002-L-006, 2003-Ohio-4864, ¶ 23. The burden of proof in a quiet title action rests with the complainant as to all issues which arise upon essential allegations of his complaint. He must prove title in himself if the answer denies his title or if the defendant
{¶ 22} Appellant contended that appellee is claiming title adversely due to the alleged fraudulent nature in which appellee ultimately ended up with the note. For the same reasons we found appellant‘s fraud claims to be lacking, this claim is also without merit.
Slander of Title
{¶ 23} Slander of title is a tort action which may be brought against anyone who falsely and maliciously defames the property, either real or personal, of another, and thereby causes him some special pecuniary damage or loss. Buehrer v. Provident Mut. Life Ins. Co. of Philadelphia, 37 Ohio App. 250, 257, 174 N.E. 597 (6th Dist.1930), aff‘d, 123 Ohio St. 264, 175 N.E. 25 (1931). To prevail, a claimant must prove (1) there was a publication of a slanderous statement disparaging claimant‘s title; (2) the statement was false; (3) the statement was made with malice or made with reckless disregard of its falsity; and (4) the statement caused actual or special damages. Whitman v. Gerson, 1st Dist. Hamilton Nos. C-140592, C-140595, 2016-Ohio-311.
{¶ 24} The basis of this claim is that appellant‘s title has been slandered by virtue of appellee bringing a foreclosure action. Having already determined that appellee had standing to do so, we find that appellant has failed to state an actionable claim.
{¶ 25} In order to recover in an action for intentional infliction of emotional distress, claimant must establish the following four elements:
(1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff;
(2) that the actor‘s conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community, Restatement of the Law 2d, Torts (1965) 73, Section 46, comment d;
(3) that the actor‘s actions were the proximate cause of plaintiff‘s psychic injury; and
(4) that the mental anguish suffered by plaintiff is serious and of a nature that no reasonable man could be expected to endure it, Restatement of the Law 2d, Torts, Section 46, comment j (1965). Pyle v. Pyle, 11 Ohio App.3d 31, 34, 463 N.E.2d 98, 103 (8th Dist.1983).
As a matter of public policy, under the doctrine of absolute privilege in a judicial proceeding, a claim alleging that a defamatory statement was made in a written pleading does not state a cause of action where the allegedly defamatory statement bears some reasonable relation to the
{¶ 26} Because appellant‘s claim for intentional infliction of emotional distress alleged nothing beyond the filing of the foreclosure complaints and necessary statements and furtherance of the claims set forth therein, the counterclaims are barred on their face by the doctrine of absolute privilege.
{¶ 27} Based on the foregoing, we conclude that the trial court properly dismissed appellant‘s counterclaim pursuant to
{¶ 28} In his second assignment of error, appellant contends that the court erred in denying his motion to amend his counterclaim. Appellant filed this motion three weeks after the trial court dismissed his original counterclaim. Appellant asserted the same claims he asserted in his original counterclaim. The court denied appellant leave to amend his counterclaim. In doing so, however, the court once again analyzed his claims in its judgment entry, ultimately concluding that [a]llowing [appellant] to amend his counter-complaint would be futile because none of the causes of action in his proposed amended counter-complaint states a cause of action upon which relief can be granted. Although his request was denied, his claims were nevertheless addressed for the second time. As such, appellant was not prejudiced. Appellant‘s second assignment of error is found not well-taken.
{¶ 30} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978),
Civ.R. 56(C) .
{¶ 31} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact.
{¶ 32} A party seeking to foreclose on a mortgage must establish execution and delivery of the note and mortgage; valid recording of the mortgage; it is the current holder of the note and mortgage; default; and the amount owed. Countrywide Home Loans, Inc. v. Baker, 10th Dist. Franklin No. 09AP-968, 2010-Ohio-1329, 2010 WL 1229180, ¶ 8.
{¶ 33} In support of their motion for summary judgment, appellee submitted the sworn affidavit of Elizabeth A. Osterman, Vice President of Carrington Mortgage Services LLC, as servicer for Wells Fargo Bank, N.A, as Trustee for Carrington Mortgage Loan Trust, Series-RFC1, Asset-Backed Pass-Through Certificates. She testified that her duties included accessing and reviewing the records relating to appellant‘s loan, that the records were made at or near the time by, or from information transmitted by, a person with knowledge, that the records were made and kept in the ordinary course of appellee‘s regularly conducted business activity, and that she had personally reviewed them.
{¶ 35} Also submitted in support of its motion for summary judgment was the adjustable rate note wherein borrower Kelly Johnson promised to pay $118,100, plus interest to the lender, Aegis Funding Corporation. The note was executed on July 17, 2006. A copy of the mortgage, also executed on July 17, 2006, was submitted with the motion for summary judgment. The mortgage lists the borrowers as David and Kelly Johnson. Both parties signed the mortgage.
{¶ 36} Finally, appellee submitted the Ohio Assignment of Mortgage, dated June 6, 2014, which reads in pertinent part:
[T]he undersigned mortgage Electronics Registration Systems Inc., as nominee for Aegis Funding Corporation its successors and assigns, * * * does hereby assign to Wells Fargo Bank N.A, as Trustee for Carrington Mortgage Loan Trust, Series-RFC1, Asset-Backed Pass-Through Certificates * * * all of its interest in that certain mortgage duly recorded in
the Office of the County Recorder of Lucas County, State of Ohio as follows: Mortgagor: Kelly Johnson and David Johnson
Mortgagee: Mortgage Electronics Registration Systems Inc., as nominee for Aegis Funding Corporation
Document date: July 17, 2006
Date recorded: July 24, 2006
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Original amount of mortgage: $118,100.00
Property address: 3230 Glenn St., Toledo, Oh 43613
{¶ 37} Appellant did not oppose appellee‘s motion for summary judgment. Instead, appellant filed his own motion for summary judgment once again arguing that appellee lacked standing. In light of the foregoing, appellant‘s third assignment of error is found not well-taken.
{¶ 38} In his fourth assignment of error, appellant contends that the court erred in accepting Osterman‘s affidavit because the note was never recorded. Appellee correctly counters that notes do not have the same recording requirement that mortgages have in that they are negotiable instruments merely evidencing the debt. Accordingly, appellant‘s fourth assignment of error is found not well-taken.
{¶ 39} In his fifth and final assignment of error, appellant contends he was the victim of judicial bias in favor of appellee.
{¶ 41} As thoroughly discussed above, appellant‘s counterclaim failed to state a claim and appellee sufficiently showed proof of execution and delivery of the note and mortgage; valid recording of the mortgage; proof that it is the current holder of the note and mortgage; default; and the amount owed. Appellant‘s fifth assignment of error is found not well-taken.
{¶ 42} For the foregoing reasons, we find that substantial justice was done the party complaining and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
James D. Jensen, P.J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.