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Bank of New York Mellon Trust Co. v. Shaffer

Court of Appeals of Ohio, Eleventh District

July 22, 2013

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. f.k.a. THE BANK OF NEW YORK TRUST COMPANY, N.A., AS SUCCESSOR IN INTEREST TO JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, f.k.a. JPMORGAN CHASE BANK, AS TRUSTEE-SURF-BC2, Plaintiff-Appellee,
v.
THERESA A. SHAFFER a.k.a. THERESA MCFAUL, et al., Defendant-Appellant, GEAUGA COUNTY TREASURER, et al., Defendants-Appellees.

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 09F000648.

Matthew I. McKelvey, and Bill L. Purtell, Lerner, Sampson & Rothfuss, (For Plaintiff-Appellee).

James R. Douglass, James R. Douglass Co., L.P.A., (For Defendant-Appellant).

David P. Joyce, Geauga County Prosecutor, Courthouse Annex, (For Appellee-Geauga County Treasurer).

David W. Cliffe, (For Appellee-The Huntington National Bank, Successor by Merger to Sky Bank).

OPINION

CYNTHIA WESTCOTT RICE, J.,

{¶1} Appellant, Theresa A. Shaffer, appeals the default judgment of foreclosure entered in favor of Appellee, The Bank of New York Mellon Trust Company, N.A. ("New York Mellon"), by the Geauga County Court of Common Pleas. At issue is whether New York Mellon's lack of standing when it filed this action could be cured by the assignment of the mortgage prior to the entry of final judgment. For the reasons that follow, the trial court's judgment is reversed, and this matter is remanded for the trial court to dismiss the complaint without prejudice.

{¶2} On June 8, 2009, New York Mellon filed a complaint in foreclosure in the Geauga County Court of Common Pleas against appellant.

{¶3} New York Mellon alleged it was "the holder of a note, a copy of which is unavailable at this time." New York Mellon further alleged that the note and the mortgage securing the note were in default. The mortgage attached to the complaint identifies "Wilmington Finance" as the lender. That mortgage was recorded on January 21, 2004.

{¶4} On September 11, 2009, New York Mellon filed an affidavit in which it stated that the principal balance owed by appellant was $178, 505.91; "[t]he Creditor does hold the Debtor[']s note by assignment;" and "[a]n assignment of mortgage was recorded with [the] Geauga County Recorder on June 22, 2009." As noted above, New York Mellon filed its complaint two weeks earlier on June 8, 2009.

{¶5} Also, on September 11, 2009, New York Mellon filed a motion for default judgment against appellant.

{¶6} On December 9, 2009, appellant filed a motion for leave to plead, which the trial court granted until January 4, 2010.

{¶7} On January 5, 2010, appellant filed a motion for extension of time to respond to the complaint, which the trial court granted until February 8, 2010.

{¶8} On February 8, 2010, appellant filed another motion for extension of time to respond to the complaint, which the trial court denied.

{¶9} On February 25, 2010, the trial court entered a default judgment in foreclosure. The court found appellant was "in default of * * * Answer;" "that the allegations contained in the Complaint are true;" and "that the conditions of [the] Mortgage have been broken and plaintiff is entitled to have the equity of redemption of the defendant-titleholders foreclosed."

{¶10} Later that same date, appellant, appearing pro se, filed her answer.

{¶11} On March 2, 2010, appellant filed a "motion to vacate order for sale and withdraw property from sale" in which she requested mediation "to prevent foreclosure sale."

{¶12} On March 19, 2010, the trial court ordered the case stayed and the parties to attend mediation.

{¶13} On July 9, 2010, appellant filed a motion to dismiss on the grounds that New York Mellon did not have standing to file the action. She also asked that the mediation ...


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