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Daniely v. Accredited Home Lenders

Court of Appeals of Ohio, Eighth District

October 3, 2013

MONICA DANIELY PLAINTIFF-APPELLANT
v.
ACCREDITED HOME LENDERS, ET AL. DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-789457

ATTORNEYS FOR APPELLANT Monica Daniely, pro se.

ATTORNEYS FOR APPELLEES Melissa Zujkowski Warren T. McClurg, II Ulmer & Berne, LLP, Accredited Home Lenders.

BEFORE: E.T. Gallagher, J., Jones, P.J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, JUDGE

(¶ 1} Plaintiff-appellant, Monica Daniely ("Daniely"), appeals the dismissal of her complaint against defendants-appellees, Accredited Home Lenders, HSBC Mortgage Services ("HSBC"), and Mortgage Electronic Registration Systems, Inc. ("MERS") (collectively referred to as "appellees") pursuant to Civ.R. 12(C). We find no merit to the appeal and affirm.

(¶2} Daniely entered into a mortgage loan with Accredited Home Lenders, HSBC's predecessor-in-interest, for property located at 4650 Whitehall Road, South Euclid, Ohio 44121. The mortgage was duly recorded with the Cuyahoga County Recorder's Office and shows MERS as the nominee for the lender and the lender's successors and assigns.

(¶ 3} According to the complaint, MERS later assigned the mortgage to HSBC and instructed Daniely to make payments to HSBC. Daniely requested a declaratory judgment declaring that she is not obligated to make mortgage payments to HSBC because HSBC violated R.C. 5301.25 by failing to record its encumbrance on the property with the Cuyahoga County Recorder's Office. As a result, she alleged, "HSBC is committing fraud by demanding and accepting payments" from her.[1] The complaint also alleged that "MERS Terms And [sic] Conditions prohibit it from exerting any actions and/or authority over Promissory Notes and Payments."

(¶4} HSBC and MERS filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C), arguing that the complaint failed to state a claim for relief The trial court granted the motion and dismissed the complaint. This appeal followed.

(¶5} In her sole assignment of error, Daniely argues the trial court erred in dismissing her complaint for declaratory judgment because HSBC has no right to demand mortgage payments from her.

(¶6} We review a ruling on a motion for judgment on the pleadings de novo. Coleman v. Beachwood, 8th Dist. Cuyahoga No. 92399, 2009-Ohio-5560, ¶ 15. Motions for judgment on the pleadings are governed by Civ.R. 12(C), which states: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Unlike a motion for summary judgment where the parties are permitted to submit certain evidentiary materials for the court's review, the determination of a motion for judgment on the pleadings is restricted solely to the allegations in the pleadings and any writings attached to the complaint. Peterson v. Teodosio, 34 Ohio St.2d 161, 165-166, 297 N.E.2d 113 (1973).

(¶7} Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law. Burnside v. Leimbach, 71 Ohio App.3d 399, 403, 594 N.E.2d 60 (1991).

Under Civ.R. 12(C), dismissal is appropriate where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no ...

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