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First Place Bank v. Blythe

Court of Appeals of Ohio, Seventh District

June 10, 2013

FIRST PLACE BANK, PLAINTIFF-APPELLEE,
v.
WALTER BLYTHE, et al., DEFENDANTS-APPELLANTS.

Civil Appeal from Common Pleas Court, Case No. 10CV702.

For Plaintiff-Appellee: Attorney Eric Deighton

For Defendants-Appellants: Attorney Michael Roth

Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro.

OPINION

VUKOVICH, J.

{¶1} Defendant-appellant Walter Blythe appeals the decision of the Columbiana County Common Pleas Court granting First Place Bank's motion for summary judgment and ordering foreclosure on his property located at 31991 St. Rt. 172, Hanoverton, Ohio. Three issues are presented in this appeal. The first issue is whether the trial court erred when it granted summary judgment in First Place Bank's favor after it had previously denied an almost identical request. The second issue is whether the trial court's indication in the foreclosure order that Walter Blythe was in default is inconsistent with its previous order that denied the request for default judgment against Walter Blythe. The third issue is whether a personal judgment against Blythe could be ordered after he was granted a general discharge in U.S. Bankruptcy Court in the Southern District of Florida.

{¶2} For the reasons expressed below, the trial court did not err when it granted First Place Bank's second request for summary judgment and entered a personal judgment against Blythe. However, in the foreclosure decree, the trial court incorrectly stated that Blythe is in "default of answer or other pleading." This incorrect statement does not provide a basis for reversal because the trial court was already correctly granting summary judgment and ordering foreclosure. Therefore, no prejudice results from the incorrect statement. Accordingly, for those reasons, the trial court's judgment is affirmed in part and modified in part. The third paragraph of the June 13, 2012 foreclosure judgment entry that indicates that Blythe is in default is struck. The remainder of the judgment stands.

Statement of the Case

{¶3} In August 2010 and November 2010, First Place Bank filed a complaint and amended complaint sounding in foreclosure and money judgment against Walter Blythe in his individual capacity and in his capacity as Trustee of the Blythe Family Trust and against Gary Blythe as Successor Trustee of the Blythe Family Trust. In the complaint, First Place Bank alleged that the defendants were in default on two notes secured in 2003. The property that allegedly secured these notes was located at 31991 St. Rt. 172, Hanoverton, Ohio. The alleged amount owing on the first note is $142, 474.16. The alleged amount owing on the second note is $31, 124.91. These notes were signed by Walter Blythe and Kathryn Blythe (now deceased) in their individual capacities.

{¶4} Gary Blythe, as successor trustee, answered the complaint and amended complaint denying all allegations.

{¶5} First Place Bank filed its first motion for summary judgment on January 21, 2011. Attached to the motion was an affidavit from Donna Shaw, a senior loan default specialist.

{¶6} In response to the motion for summary judgment, Walter and Gary Blythe, as trustees, filed a motion to dismiss claiming that the notes were signed in Walter's individual capacity, not as trustee for the trust. Furthermore, the trustees asserted that property located at 31991 St. Rt. 172, Hanoverton, Ohio is in Walter Blythe's name individually, not in the name of the trust.

{¶7} First Place Bank opposed the motion to dismiss claiming that the trustees are correctly named in the complaint. Attached to the motion is a quit-claim deed filed in May 2004 that indicates that the trust owns the property located at 31991 St. Rt. 172, Hanoverton, Ohio.

{¶8} Walter and Gary Blythe, as trustees, filed a response to First Place Bank's opposition motion. Attached to that motion is a May 2010 deed that was recorded prior to the foreclosure action that transferred the property to Walter Blythe in his individual capacity.

{¶9} Following these filings, the trial court converted the motion to dismiss into a motion for summary judgment because the trustees had included documentation outside the pleadings in their response. The trial court then denied the motion for summary judgment ...


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