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Everbank v. Vanarnhem

Court of Appeals of Ohio, Third District

September 9, 2013

EVERBANK, PLAINTIFF-APPELLEE,
v.
JAY B. VANARNHEM, DEFENDANT-APPELLANT, and JP MORGAN CHASE BANK, N.A., ET AL., DEFENDANTS-APPELLEES.

Appeal from Union County Common Pleas Court Trial Court No. 12 CV 0060.

Audra J. Tidball for Appellant, Vanarnhem

Scott A. King and Jessica E. Salisbury for Appellee, Everbank

OPINION

PRESTON, P.J.

(¶1} Defendant-appellant, Jay B. Vanarnhem, appeals the Union County Court of Common Pleas' judgment entry of foreclosure. We affirm.

(¶2} On August 9, 2005, Vanarnhem executed an interest-first adjustable-rate promissory note in the amount of $276, 850.00 payable to M/I Financial Corporation as lender to purchase a home located at 7036 Post Preserve Boulevard, Dublin, OH 43016. (Doc. No. 2, attached); (Cliatt Aff., Doc. No. 26, at ¶ 5); (Weatherly Aff, Doc. No. 42, at ¶ 6). The note was indorsed by Wells Fargo Bank, N.A., the servicing agent for the note. (Doc. No. 2, attached); (Cliatt Aff, Doc. No. 26, at ¶ 1); (Weatherly Aff Doc. No. 42, at ¶ 1). That same day, Vanarnhem executed a mortgage against the property to secure the debt in favor of Mortgage Electronic Registration Systems ("MERS") as nominee for M/I Financial and its successors and assigns. (Doc. No. 2, attached); (Cliatt Aff., Doc. No. 26, at ¶ 6). The mortgage was filed on September 6, 2005, recorded in Volume 634 of the Official Records at Page 664, in the Union County, Ohio Recorder's Office. (Doc. No. 2, attached).

(¶3} According to the terms of the note, the first five years of payments, up to and including the September 1, 2010 payment, were interest-only payments. (Weatherly Aff, Doc. No. 42 at ¶ 9). Beginning with the October 1, 2010 payment, payments would be made toward interest and principal. (Id. At ¶ 10-11). Vanarnhem made the October 1, 2010 payment, of which $620.72 was applied to principal, $692.13 was applied to interest, and $666.09 was escrowed. (Id. at ¶ 13). Vanarnhem failed to make payments on the note thereafter, leaving a principal balance of $276, 229.28. (Id. at ¶ 14); (Cliatt Aff., Doc. No. 26, at ¶ 8-9).

(¶4} On January 25, 2012, MERS, as nominee for M/I Financial, assigned the mortgage to Everbank. (Doc. No. 2, attached). The assignment was recorded on February 1, 2012 in Volume 949, Page 906 of the Official Records in the Union County, Ohio Record's Office.

(¶5} On February 17, 2012, Everbank filed a foreclosure complaint against Vanarnhem, his unknown spouse (if any), J.P. Morgan Chase Bank, N.A., Park Place/Post Preserve Homeowners' Association, Inc., and the Union County Treasurer. (Doc. No. 2). Vanarnhem was served with a copy of the complaint by certified mail on February 24, 2012. (Doc. No. 15).

(¶6} On February 27, 2012, the Union County Treasurer filed an answer claiming an interest in the property for current and delinquent taxes. (Doc. No. 20). No other defendant, including Vanarnhem, filed an answer.

(¶7} On September 27, 2012, Everbank filed a motion for default judgment against all the named defendants who failed to file an answer, including Vanarnhem. (Doc. No. 25).

(¶8} On October 4, 2012, Vanarnhem filed a motion for leave to file a responsive pleading alleging that he was unable to previously seek counsel due to a chronic medical illness that required frequent hospitalization. (Doc. No. 30).

(¶9} On October 30, 2012, the trial court denied Vanarnhem's motion, finding that he failed to demonstrate excusable neglect under Civ.R. 6(B)(2). (Doc. No. 31). That same day, the trial court granted Everbank's motion for default judgment but held the motion in abeyance on the issue of damages upon Everbank filing supporting documentation. (Doc. No. 33).

(¶10} On November 7, 2012, Vanarnhem filed a motion for reconsideration and motion to dismiss the complaint pursuant to Civ.R. 12(B)(1) and Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. (Doc. No. 35). Everbank filed a ...


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