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Bank of New York Mellon v. Frey

Court of Appeals of Ohio, Sixth District

September 20, 2013

The Bank of New York Mellon, fka The Bank of New York, as Trustee For the Certificateholders of CWMBS, Inc., Alternative Loan Trust 2003-12CB, Mortgage Pass Through Certificates, Series 2003-30 Appellee
v.
Jean Frey, Executor of the Estate of of Robert Wott, deceased Appellant

Court of Appeals No. S-12-044 Trial Court No. 11 CV 1215

Jason A. Whitacre and T. Jeffrey Tumlin, for appellee.

Frank H. Bennett, for appellant.

DECISION AND JUDGMENT

SINGER, P.J.

(¶ 1} Appellant, Jean Frey, Executor of the Estate of Robert Wott, deceased, appeals from the November 1, 2012 judgment of the Sandusky County Court of Common Pleas granting summary judgment to appellee, The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc., Alternative Loan Trust 2003-12CB, Mortgage Pass Through Certificates, Series 2003-30, and ordering the mortgage on property commonly known as 238 Elmdale Avenue, Clyde, Ohio, to be foreclosed. For the reasons which follow, we affirm.

(¶ 2} On December 15, 2011, appellee filed its second amended complaint against Robert W. Wott, and other parties having an interest in the property at issue, including in part Wott's unknown heirs, at law, devisees, legatees, executors and administrators of Wott's estate. On December 23, 2011, Frey, Executor of the Estate of Robert Wott, deceased, filed a suggestion of death stating that Wott died on March 16, 2010. His heirs included Michelle Kay Wott, his surviving spouse, and his daughters, Leah J. Williams and Laurie A. McCleary.

(¶ 3} Appellee asserted in its complaint that Wott had defaulted on payment of a promissory note and owed appellee $70, 797.07, plus interest. Wott had executed the promissory note for $84, 000 on April 24, 2003. Appellee sought judgment on the note.

(¶ 4} Appellee further asserted that the promissory note was secured by a mortgage signed by both Robert Wott and Michelle K. Wott, which was assigned to appellee on September 28, 2011, from Countrywide Home Loans, Inc. dba America's Wholesale Lender. Appellee asserted that appellant and Michelle K. Wott are the owners of the property subject to the mortgage, 238 Elmdale Avenue, Clyde, Ohio. Appellee further asserts that the legal description in the mortgage deed does not conform to the legal description of the property due to a scrivener's error. Therefore, appellee sought reformation of the mortgage deed and deed of conveyance to include the entire legal description. Finally, appellee sought to foreclose on the mortgage.

(¶ 5} In her answer to the complaint, Frey asserted that appellee was required by law to present its claim as a creditor within six months of the date of Wott's death. Having failed to make such a claim, appellee's claim is now barred and the mortgage cannot be foreclosed.

(¶ 6} On June 7, 2012, appellee moved for summary judgment asserting that Frey neither admitted nor denied the allegations of the complaint and raised no valid defense. Therefore, appellee was entitled to judgment as a matter of law. While appellee may not be able to pursue personal judgment against the estate, appellee asserted it was not precluded from pursuing an in rem judgment against the property. On July 19, 2012, appellee moved for default judgment against Michelle Wott and the other parties who have an interest in the real property.

(¶ 7} On July 31, 2012, the court entered judgment in favor of appellee as against all defendants because they were in default for failing to file an answer to the complaint. Robert Wott, deceased, was dismissed as a party. The court ordered reformation of the mortgage deed and deed of conveyance to include the entire description of the property. The court further ordered the mortgage foreclosed to satisfy the debt owned on the promissory note.

(¶ 8} On August 13, 2012, however, Frank H. Bennett, attorney for Frey, filed an objection to the judgment asserting that there had been no scrivener's error and that he never received a copy of the motion for summary judgment and was never notified of any hearing on this case. He also asserted that Frey never received notice of the motion by ordinary mail. The court treated Bennett's motion as a Civ.R. 60(B) motion seeking relief from judgment due to surprise. On September 6, 2012, the court granted Frey additional time to file a response to the motion for summary judgment.

(¶ 9} Frey asserted in her memorandum in opposition to appellee's motion for summary for judgment that the claim for a judgment on the debt is barred because appellee failed to comply with the procedures of R.C. 2117.06 and that the statute does not provide an exception for an in rem proceeding. Frey asserts that R.C. 2117.06 is controlling because it was last enacted. Appellee argued that nothing in R.C. 2117.06 precluded it from foreclosing on the mortgage citing Weaver v. Bank of New York Mellon, 10th Dist. Franklin No. 11AP-1065, 2012-Ohio-4373. Furthermore, appellee argued that devisees and beneficiaries take real property subject to existing mortgage liens pursuant to R.C. 2113.52 and 2117.29.

(¶ 10} On November 1, 2012, the trial court reinstated the grant of summary judgment in favor of appellee on the authority of the Weaver case. Frey sought an appeal from that judgment asserting ...


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