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CitiMortgage, Inc. v. Bennett

Court of Appeals of Ohio, Tenth District

September 19, 2013

CitiMortgage, Inc., Plaintiff-Appellee,
v.
Vicki L. Bennett et al., Defendants-Appellants.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 11CVE-05-6684

Graydon Head & Ritchey LLP, Lynda Hils Mathews and Harry W. Cappel, for appellee.

Duncan Simonette, Inc., Brian K. Duncan and Bryan D. Thomas, for appellant Vicki L. Bennett.

DECISION

TYACK, J.

(¶ 1} Defendant-appellant, Vicki L. Bennett, is appealing from the Franklin County Court of Common Pleas' judgment granting plaintiff-appellee, CitiMortgage, Inc.'s motion for summary judgment. For the following reasons, we affirm the trial court's judgment.

(¶ 2} Appellant asserts the following assignments of error:

1. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO ITS COMPLAINT BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT, INCLUDING BUT NOT LIMITED TO, WHETHER PLAINTIFF HAD THE RIGHT TO FORCE DEFENDANTS TO CARRY FLOOD INSURANCE ON THE UNDERLYING PROPERTY, ALLOCATION OF PAYMENTS, AND WHETHER DEFENDANTS' COUNTERCLAIMS WERE BARRED AS A RESULT OF A PREVIOUSLY FILED BANKRUPTCY.
2.THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO DEFENDANTS' COUNTERCLAIMS, INCLUDING BUT NOT LIMITED TO THEIR RESPA CLAIM, BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER PLAINTIFF FAILED TO PERFORM ITS DUTIES UNDER THAT STATUTE.
3. THE TRIAL COURT ERRED IN FINDING THE PLAINTIFF WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON DEFENDANTS' RESPA COUNTERCLAIMS BECAUSE THE SAME WERE NOT BARRED BY HER PRIOR BANKRUPTCY FILING.
4.THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO DEFENDANTS' BREACH OF CONTRACT CLAIM, BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT, INCLUDING WHETHER PLAINTIFF FAILED TO PERFORM ACCORDING TO THE TERMS OF THE UNDERLYING NOTE AND MORTGAGE AND WHETHER PLAINTIFF HAD THE UNILATERAL RIGHT TO IMPLEMENT FLOOD INSURANCE ON THE UNDERLYING PROPERTY.
5. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON DEFENDANTS' BREACH OF CONTRACT CLAIM.
6.THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO DEFENDANTS' UNJUST ENRICHMENT CLAIM, BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER PLAINTIFF RETAINED A BENEFIT WHICH IT WAS UNJUST IN RETAINING.
7. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON DEFENDANTS' UNJUST ENRICHMENT CLAIM.

(¶ 3} On August 23, 2002, Ms. Bennett, executed a note with ABN AMRO Mortgage Group, Inc., who was the original lender and holder for the principal amount of $150, 829. This note was secured by a mortgage on the property located at 5673 Siler Spurs Lane, Galloway, Ohio 43119. CitiMortgage is the successor by merger to ABN ...


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