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Bank of New York Mellon, Fka the Bank of New York As Successor In v. Joseph F. Wahle

December 28, 2012

BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE BANK NA AS TRUSTEE FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. BEAR STEARNS ALT-A TRUST 2005-3, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-3 APPELLEE
v.
JOSEPH F. WAHLE, ET AL. APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2010 03 2074

The opinion of the court was delivered by: Moore, Presiding Judge.

Cite as Bank of New York v. Wahle,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant, Joseph F. Wahle, appeals from the January 26, 2012 judgment entry of the Summit County Court of Common Pleas. This Court affirms.

I.

{¶2} Plaintiff-Appellee, The Bank of New York Mellon ("Bank of New York"), filed a complaint in foreclosure against Mr. Wahle alleging that he defaulted upon his mortgage note and owed $156,568.45 plus interest at the rate of 5.8750% per year from October 1, 2009. Mr. Wahle filed an answer pro se requesting that the case be referred to mediation, but did not deny the allegations set forth in the complaint, or allege any affirmative defenses.

{¶3} Bank of New York filed a motion for summary judgment arguing that Mr. Wahle's answer did not deny the allegations set forth in the foreclosure complaint, and that no genuine issues of material fact existed, entitling the bank to judgment as a matter of law. Mr. Wahle retained counsel, filed an amended answer denying the allegations in the complaint, and moved for an extension of time to respond to the motion for summary judgment.

{¶4} Later, Bank of New York filed a supplemental motion for summary judgment arguing that Mr. Wahle's general denials and affirmative defenses cannot withstand summary judgment.

{¶5} Mr. Wahle filed a memorandum in opposition to Bank of New York's motions for summary judgment contending that genuine issues of material fact existed as to (1) the amount and status of the delinquency, and (2) whether Mr. Wahle was accepted into a loan modification program. Further, after the dispositive motion deadline of October 18, 2010, Mr. Wahle filed a notice of submission of evidentiary materials and reservation of rights, and a notice of deposition duces tecum to China Brown.

{¶6} In response, Bank of New York filed motions to strike Mr. Wahle's notice of submission of evidentiary materials and reservation of rights, to quash his notice of deposition duces tecum, and for a protective order. Mr. Wahle then requested that the trial court compel China Brown to appear at the deposition.

{¶7} On November 30, 2010, the trial court (1) granted Bank of New York's motions to strike, quash, and for a protective order, (2) denied Mr. Wahle's motion to compel, and (3) granted Bank of New York's motion for summary judgment. Mr. Wahle moved for reconsideration, which was denied.

{¶8} After two unsuccessful attempted appeals were dismissed, the trial court issued a final appealable order on January 26, 2012. Mr. Wahle timely appealed and raised three assignments of error for our consideration.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT IN FAVOR OF [] BANK OF NEW YORK, WHERE THERE EXISTED ...


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