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Nimble Corp. v. Wilson

Court of Appeals of Ohio, Fifth District

July 15, 2013

NIMBLE CORP. Plaintiff-Appellee
v.
JONATHAN L. WILSON, et al. Defendants-Appellants

Civil Appeal from the Court of Common Pleas, Case No. 2010 CV 04202

For Plaintiff-Appellee ASHLEY E. MUELLER JASON A. WHITACRE

For Defendants-Appellants DAVID A. VAN GAASBEEK

Hon. William B. Hoffman, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

Wise, J.

{¶1} Appellants Jonathan L. Wilson and Kim J. Wilson appeal the decision of the Court of Common Pleas, Stark County, which granted summary judgment in favor of Appellee Nimble Corporation in a foreclosure action initiated by appellee. The relevant facts leading to this appeal are as follows.

{¶2} The real property at issue in this appeal is located at 5395 Fulton Drive N.W. in Jackson Township, Stark County. On September 19, 2006, Appellant Jonathan L. Wilson executed a promissory note in favor of Freedom Mortgage Solutions, LLC in the amount of $228, 000.00. On the same date, Appellants Jonathan L. Wilson and Kim J. Wilson executed a Mortgage in favor of Mortgage Electronic Registration Systems, Inc., solely as nominee for Freedom Mortgage Solutions, LLC. The mortgage was recorded in Stark County on September 27, 2006. An assignment of mortgage from Mortgage Electronic Registration Systems, Inc., acting solely as nominee for Freedom Mortgage Solutions, LLC, to Appellee Nimble Corporation was executed on October 2, 2009 and recorded in Stark County on November 6, 2009.

{¶3} On November 18, 2010, appellee filed a "complaint in foreclosure with reformation." Appellants answered the complaint and raised several defenses, including the assertion that foreclosure was inappropriate "due to an improper and incorrect legal description." See Answer of Defendants at para. 7.

{¶4} The case was referred to mediation on January 31, 2011, but was thereafter returned to the regular docket.

{¶5} In July 2011, both parties filed motions for summary judgment. The main issue raised as to summary judgment was the reformation of the legal description of the mortgage.

{¶6} On October 14, 2011, the trial court granted summary judgment in favor of appellee and denied summary judgment for appellants.

{¶7} On September 27, 2012, following final judgment, appellants filed a notice of appeal. They herein raise the following sole Assignment of Error:

{¶8} "I. THE TRIAL COURT ERRED BY SUSTAINING THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE APPELLEE CANNOT OBTAIN A FORECLOSURE ON A MORTGAGE THAT IS DEFECTIVE AND CANNOT INCLUDE A CAUSE OF ACTION IN ITS ACTION OF FORECLOSURE SEEKING REFORMATION OF THE ...


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