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U.S. Bank, N.A. v. Bryant

Court of Appeals of Ohio, Twelfth District

September 16, 2013

U.S. BANK, N.A., Plaintiff-Appellee,
v.
TIMOTHY J. BRYANT, et al., Defendants-Appellants.

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2007-12-5005

Carpenter, Lipps & Leland LLP, David A. Wallace, Jeffrey A. Lipps and Joel E. Sechler, for plaintiff-appellee

McGookey Law Offices LLC, Daniel L. McGookey, Kathryn M. Eyster and Lauren E. McGookey, for defendants-appellants, Timothy J. Bryant and Gloria J. Bryant

OPINION

S. POWELL, J.

(¶ 1} Defendants-appellants, Timothy J. Bryant and Gloria J. Bryant, appeal from the Butler County Court of Common Pleas decision granting a judgment decree of foreclosure in favor of plaintiff-appellee, U.S. Bank, N.A. For the reasons outlined below, we affirm.

(¶ 2} The Bryants are owners of real property located at 7214 Barrett Road, West Chester, Butler County, Ohio ("Property"). On June 21, 2005, the Bryants executed an adjustable rate note and mortgage through Argent Mortgage Company, LLC ("Argent"). Argent then executed a Corporation Assignment of Mortgage to GMAC Mortgage, LLC ("GMAC"), which transferred and assigned all of its rights, title and interest in the mortgage together with the notes described therein. A Securitized Trust was later established and a Trust Agreement was executed identifying U.S. Bank, N.A., as trustee ("U.S. Bank"). Included within the trust assets was the note at issue here.

(¶ 3} In August of 2007, the Bryants stopped making their required monthly payments on their mortgage. At that time, due to an increased interest rate of 10.5%, the Bryants' mortgage payments had ballooned to approximately $1, 600 per month. As a result of the Bryant's failure to pay, GMAC filed a complaint seeking to foreclose on the Property on December 27, 2007. After some delay, which included protracted litigation based on the Bryants' motion for contempt, as well as GMAC's motion for sanctions, GMAC assigned all of its interest in the note and mortgage to U.S. Bank on August 24, 2009. Thereafter, the trial court issued an order on February 4, 2010 substituting U.S. Bank as plaintiff for GMAC.

(¶ 4} After several additional delays, including a stay due to the Bryants filing for bankruptcy, the trial court completed a four-day bench trial on August 17, 2012. Following the bench trial, the trial court issued a decision granting a judgment decree of foreclosure to U.S. Bank allowing it to foreclose on the Property.[1] The Bryants now appeal from the trial court's decision granting U.S. Bank the judgment decree of foreclosure, raising a single assignment of error for review.

(¶ 5} THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN FORECLOSURE TO U.S. BANK, NA, AS TRUSTEE, AND ERRED IN FINDING THAT EQUITY DID NOT BAR U.S. BANK, NA, AS TRUSTEE FROM BEING GRANTED RELIEF.

(¶ 6} In their single assignment of error, the Bryants argue the trial court erred in granting U.S. Bank's request to foreclose on the Property. In support of this claim, although not particularly clear, the Bryants essentially argue the trial court's decision allowing U.S. Bank to foreclose on the Property was inequitable and amounted to an abuse of discretion. We disagree.

(¶ 7} As this court has stated previously, a mortgage foreclosure action involves two issues: "the first is whether the mortgagor has defaulted upon the terms of the mortgage, and the second is whether the mortgagor's equity of redemption should be cut off." Rosselot v. Heimbrock, 54 Ohio App.3d 103, 105 (12th Dist.1988), citing Wheatstone Ceramics Corp. v. Turner, 32 Ohio App.3d 21 (12th Dist.1986), paragraph two of the syllabus; see also Gevedon v. Hotopp, 2d Dist. Montgomery No. 20673, 2005-Ohio-4597, ¶ 28. In other words, "once a court has determined that a default on an obligation secured by a mortgage has occurred, " such as the case here, "it must then consider the equities of the situation in order to decide whether foreclosure is appropriate." Rosselot at 106.

(¶ 8} "As an equitable remedy, a trial court's decision to grant foreclosure is reviewed for an abuse of discretion." Chase Home Fin., LLC. v. Heft, 3d Dist. Logan Nos. 8-10-14 and 8-11-16, 2012-Ohio-876, ¶ 25; Stidham v. Wallace, 12th Dist. Madison No. CA2012-10-022, 2013-Ohio-2640, ¶ 8; Buckeye Retirement Co., LLC. v. Walling, 7th Dist. Mahoning No. 05 MA 119, 2006-Ohio-7059, ¶ 16. A decision constitutes an abuse of discretion only when it is found to be unreasonable, arbitrary, or unconscionable. State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, ¶ 13; Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "Deference is always due in an abuse-of-discretion case." State ex rel. Nese v. State Teachers Retirement Bd. of Ohio, Slip Opinion No. 2013-Ohio-1777, ¶ 28.

(¶ 9} Initially, the Bryants argue it was inequitable to grant a foreclosure in this matter because the trial court failed to enforce the consent judgment decree reached in United States v. Bank of America Corp., D.C.Cir. No. 1:12-cv-00361, which settled certain state and federal investigations against the nation's five largest mortgage servicers relating to mortgage servicing, foreclosure, and bankruptcy abuses. However, the Bryants did not appeal from the trial court's decision finding the consent judgment decree inadmissible and irrelevant. In fact, the Bryants do not even mention the trial court's evidentiary ruling in their appellate brief. By not appealing from the trial court's decision, we find the Bryants have effectively waived any argument on appeal relating to the application of the consent judgment.

(¶ 10} Regardless, even if the Bryants had appealed from the trial court's evidentiary ruling, which they did not, it is well-established that "[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court." Ohmer v. Renn-Ohmer, 12th Dist. Butler No. CA2012-02-020, 2013-Ohio-330, ¶ 17, quoting State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. Based on the record here, it simply cannot be said that the trial court abused its discretion in excluding the consent judgment decree at trial. This is particularly true considering the Bryants merely provided the trial court with an uncertified copy of a portion of the decree printed from an online docket that was missing all attached exhibits. The Bryants also failed to provide any evidence the consent judgment was applicable to U.S. Bank or that they met the "eligibility requirements" entitling them to relief. Therefore, the Bryants' claim that the ...


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