Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Citimortgage, Inc. v. Draper

Court of Appeals of Ohio, Second District

July 3, 2013

CITIMORTGAGE, INC. Plaintiff-Appellee
v.
DONALD H. DRAPER, et al. Defendants-Appellants

(Civil appeal from Common Pleas Court) T.C. NO. 12CV187.

JOHN C. GREINER, Atty. Reg. No. 0005551 and HARRY W. CAPPEL, Atty. Reg. No. 0066513, Attorneys for Plaintiff-Appellee

DONALD H. DRAPER and BETTY DRAPER, Attorney for Defendants-Appellants

OPINION

FROELICH, J.

{¶ 1} Donald H. and Betty S. Draper appeal from a judgment of the Clark County Court of Common Pleas, which denied their motions for an emergency injunction and to set aside the judgment and decree of foreclosure in favor of CitiMortgage, Inc. For the following reasons, the trial court's judgment will be affirmed.

{¶ 2} The evidence submitted by CitiMortgage in support of its motion for summary judgment reflects that, on January 21, 2002, Donald and Betty (aka Suzie) Draper executed a note in which they agreed to pay ABN AMRO Mortgage Group, Inc., over a period of 30 years, the principal amount of $115, 115, plus interest at a rate of 6.5%. The note was secured by a mortgage on the Drapers' property located at 3340 Heatherwood Avenue in Springfield, Ohio. ABN AMRO Mortgage Group subsequently merged into CitiMortgage.

{¶ 3} On February 23, 2012, CitiMortgage brought a foreclosure action against the Drapers, claiming that the Drapers had defaulted on their note. CitiMortgage sought judgment on the note, foreclosure of the mortgage, reimbursement of any advancements that CitiMortgage had or would pay to preserve the property, and the sale of the property. The Drapers were personally served with the complaint and summons, and they timely answered the complaint. Among their affirmative defenses, the Drapers claimed that CitiMortgage lacked standing to bring the lawsuit against them.

{¶ 4} On August 2, 2012, CitiMortgage moved for summary judgment. In support of its motion, CitiMortgage submitted an affidavit by Crystal Berry, a document control officer for CitiMortgage. Berry stated that CitiMortgage was the successor by merger to ABN AMRO Mortgage Group, Inc., and that CitiMortgage is the holder and servicer of the note executed by the Drapers in the amount of $115, 115, which was secured by a mortgage on the Heatherwood Avenue property. Berry further stated that the Drapers defaulted on the note and mortgage, that the loan balance was properly accelerated, and that the entire balance was due and owing. As of December 22, 2011, the Drapers owed a principal amount of $98, 680.26, with interest at a rate of 6.5% from August 1, 2011. Berry attached "true and accurate copies" of the note and mortgage to her affidavit.

{¶ 5} On August 20, the Drapers responded to the motion for summary judgment by filing a "Motion to Set Aside Summary Judgment and Default Judgment and Decree of Foreclosure."[1] The Drapers stated that they had terminated their retained counsel because counsel "failed to require the original note to be brought forward to be sequestered by the court. He has allowed the Court to rely on an affidavit to have standing." The Drapers asked the court to set aside the summary judgment and to compel CitiMortgage to "bring forward certification of the authenticate [sic] securitization with a chain of custody of the note/security in question." On the same day, the Drapers filed a "Notice of Termination of the Attorney of Record, " which indicated that counsel had been terminated, effective immediately. The Drapers' counsel did not file a notice to withdraw with the court.

{¶ 6} Two days later, on August 22, the trial court filed a notice that the motion for summary judgment would be deemed submitted on August 29, 2012. The notice stated that "any response to the pending motions must be filed on or before August 29, 2012 with any replies due on or before August 29, 2012. A copy of each filing must be delivered to the Court not later than twenty four hours prior to the non-oral hearing date [August 29] unless the Court, upon oral or written request, grants an extension." The court's notice was sent to the Drapers' counsel of record. No additional response to the summary judgment motion was filed by the Drapers.

{¶ 7} On August 30, 2012, the trial court issued a judgment entry granting CitiMortgage's motion for summary judgment, awarding judgment to CitiMortgage in the amount of $98, 680.26 plus interest, and ordering the equity of redemption be foreclosed. The Drapers did not file a direct appeal from the trial court's judgment. The court subsequently ordered the property to be sold.

{¶ 8} On October 12, 2012, the Drapers filed a motion for emergency injunction, seeking to halt all actions related to the foreclosure. They claimed that CitiMortgage did not have standing to bring the foreclosure action and that the court had failed to rule on their previous motion to set aside the summary judgment.

{¶ 9} On October 19, the trial court considered the Drapers' motions to set aside the judgment and for an emergency injunction and denied the motions. The trial court initially noted that the Drapers' motion to set aside the summary judgment had been "prematurely filed, " i.e., it was filed before summary judgment was granted. The trial court then stated that it had conducted "a thorough review of the record and the arguments of the parties" and found that "defendant's arguments lack merit, that the plaintiff has satisfied it's [sic] burden of proof on summary judgment, and that the previously entered judgment and decree in foreclosure cannot, in good faith, be set aside."

{¶ 10} The Drapers appeal from the denial of their motions to set aside judgment and for an emergency injunction. Although their brief does not contain an assignment of error, as required by App.R. 16(A)(3), we infer their argument to be that the trial court erred in denying their motions. Specifically, the Drapers argue that the trial court erroneously "allowed the Plaintiff to move forward without standing, merely on an affidavit." They further claim that the trial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.