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Bank of America, N.A. v. Pandey

Court of Appeals of Ohio, Tenth District

September 5, 2013

Bank of America, N.A., Plaintiff-Appellee,
v.
Linda L. Pandey et al., Defendants-Appellants.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 11CVE09-11655

Lerner, Sampson & Rothfuss, LPA, and Adam R. Fogelman, for appellee.

Linda L. Pandey and Nawal K. Pandey, pro se.

DECISION

KLATT, P.J.

(¶ 1} Defendants-appellants, Linda L. and Nawal K. Pandey, appeal from a judgment entered by the Franklin County Court of Common Pleas denying their motion for relief from judgment and for stay. For the following reasons, we affirm that judgment.

I. Factual and Procedural Background

(¶ 2} On September 19, 2011, plaintiff-appellee, Bank of America, N.A., filed a complaint in the trial court alleging that the appellants were in default on a promissory note secured by a mortgage on property located at 2441 Bradenton Court, Columbus, Ohio, and seeking foreclosure on such mortgage. In response, appellants requested mediation. Accordingly, the trial court referred the matter for mediation, which was not successful. After the failed mediation, appellants filed an answer to the complaint. They asserted a number of defenses, including a claim of "unclean hands" and claims of res judicata and the "Two Dismissal Rule, " both based on appellee's two previous foreclosure filings against them that had both been dismissed without prejudice.

(¶ 3} Appellee filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law on its claim and that appellants' defenses all failed because appellants did not allege facts to support those defenses. In response, appellants attempted to provide more facts in support of their defenses. Specifically, they filed documents from the two previous foreclosure actions appellee filed against them. The trial court ultimately granted appellee summary judgment and ordered the sale of appellants' house.

(¶ 4} On August 23, 2012, appellants filed a motion for relief from judgment pursuant to Civ.R. 60(B) and for a stay of the proceedings pursuant to Civ.R. 62. They alleged that appellee's complaint was barred by the "Two Dismissal Rule" but did not argue their unclean hands defense. The trial court denied appellants' requests, concluding that the double-dismissal rule did not apply to bar this action because both of the previous actions had been dismissed by court order.[1]

II. The Appeal

(¶ 5} Appellants appeal the denial of their motion for relief from judgment and assign the following errors:

[1.] It was an abuse of discretion for the Trial Court to deny Appellants' 60(B) motion without holding [a] hearing.
[2.] The Trial Court erred when it summarily rejected or did not consider Defendants' allegation of ...

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