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Equilibrium Pictures, Inc. v. Toth

Court of Appeals of Ohio, Eleventh District

June 17, 2013

EQUILIBRIUM PICTURES, INC., Plaintiff-Appellant,
v.
JOE TOTH, et al., Defendant-Appellee. J.P. MORGAN CHASE BANK NATIONAL ASSOCIATION, Plaintiff-Appellee,

Civil Appeals from the Trumbull County Court of Common Pleas, Case Nos. 2007 CV 798 and 2008 CV 364.

Bruce M. Broyles, (For Plaintiff-Appellant).

Edward M. Kochalski, Manley, Deas, Kochalski, L.L.C. Michael L Dillard, Jr., Thompson Hine LLP, Stephen D. Williger, Thompson Hine LLP, (For Plaintiff-Appellee).

Joe Toth, pro se, (Defendant-Appellee).

OPINION

DIANE V. GRENDELL, J.

{¶1} Plaintiff/intervening defendant-appellant, Equilibrium Pictures, Inc., appeals two Judgments of the Trumbull County Court of Common Pleas, entering a Decree of Foreclosure and subsequently denying its Motion for Relief from Judgment. The issues before this court are whether a third party to a mortgage may raise an argument regarding the mortgagee's corporate existence as an issue of material fact to preclude a grant of summary judgment, and whether the division of a parcel of property subject to a mortgage requires the decree of foreclosure to reflect the alteration of the official record. For the following reasons, we affirm the judgment of the court below.

{¶2} The present appeal is the consolidation of two cases: Equilibrium Pictures, Inc. v. Toth, Trumbull C.P. No. 2007 CV 00798, and Washington Mutual Bank v. Rush, Trumbull C.P. No. 2008 CV 00364.

{¶3} On March 23, 2007, Equilibrium Pictures filed a Complaint against Joe Toth for Breach of Contract and Specific Performance. The Complaint alleged that, on or about March 6, 2006, Equilibrium Pictures and Toth entered into a Land Installment Contract "to convey the premises known as 2052 Custer-Orangeville Road[, ] Masury, Trumbull County, Ohio, being described as a house with 2 or more acres but not less than 2 acres." The Complaint further alleged "that the property had a title defect, and that defect required Joe Toth to partition the described parcel of land from the entire forty-two (42) acre parcel of land known as parcel number 05-046800." According to the terms of the Contract, Toth would "have 60 days from the date of execution of this contract to correct defects." The Complaint alleged that Toth had "failed to cure the title defect, " and prayed for "an Order to issue from this Court requiring Joe Toth to specifically perform the parties' land installment contract by having the property * * * conveyed by the parties' agreement surveyed, having the parcel of property described by a metes and bounds legal description * * * and presenting the parcel of land to the appropriate authorities of Trumbull County, Ohio to seek partition of the described parcel of real property from the parcel now known as parcel number 05-046800."

{¶4} On April 9, 2007, an Amended Complaint was filed, adding claims for Fraud and Misrepresentation.

{¶5} On October 25, 2007, Equilibrium Pictures filed a Motion for Default Judgment.

{¶6} On January 31, 2008, plaintiff-appellee, Washington Mutual Bank, filed a Complaint in Foreclosure.[1] The Complaint alleged that Terry and Stephanie Rush executed a Promissory Note and Mortgage, and that the Note was in default "because payments required to be made under the terms of the Note and Mortgage have not been made." The Complaint further alleged:

{¶7} The mortgage encumbers a 41.21 acre tract. After the mortgage was filed, the borrowers, Terry L. Rush and Stephanie M. Rush, conveyed title of the entire 41.21 acre tract to Joseph J. Toth. Without the consent of the Plaintiff, Joseph J. Toth split a 1.0560 acre tract from the original 41.21 acre tract. Joseph J. Toth is the record owner of the properties now known by parcel numbers 05-046800 and 05-078483.

{¶8} Washington Mutual Bank prayed for judgment against the Rushes in the amount of $86, 219.69, plus interest and additional fees and costs; a finding that the Mortgage is a valid and subsisting first lien on the property, subject only to the interests of the Trumbull County Treasurer; an order that the Trumbull County Auditor and Engineer transfer the property, "even if such transfer requires the two parcels mentioned previously in the Complaint be combined"; and an order for the foreclosure of the equity of redemption and dower of all defendants and the sale of the property.

{¶9} On June 3, 2008, Equilibrium Pictures filed a Motion to Intervene in Washington Mutual Bank v. Rush, Trumbull C.P. No. 2008 CV 00364, on the grounds that "it purchased an interest in the real property, " and a Motion to Consolidate the Rush case with Equilibrium ...


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