United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
Terence P. Kemp, United States Magistrate Judge
case was brought by Ronald and Tonya Brown in an effort to
stop a foreclosure action which had been brought in the
Delaware County, Ohio Court of Common Pleas. This matter is
now before the Court on a motion for summary judgment filed
on behalf of defendants Florida Coastal Partners, LLC
(“Florida Coastal”) and Charles Griffith, its
statutory agent. The Browns have neither filed a response nor
requested additional time to do so. Thus, the motion is ripe
for decision. For the following reasons, the motion for
summary judgment (Doc. 76) will be granted.
it has done so previously, for ease of reference, the Court
will summarize the relevant facts. The Browns are property
owners who were parties to a foreclosure action filed in the
Delaware County Court of Common Pleas as Case No.
08-CVE-12-1598. On December 13, 2013, while the foreclosure
action was still pending in the Court of Common Pleas, the
Browns brought this action pursuant to this Court's
federal question jurisdiction. On May 23, 2014, with leave of
Court, the Browns filed a third amended complaint against
Florida Coastal, Mr. Griffith, the law firm of Carlisle,
McNellie, Rini, Kramer & Ulrich Co. LPA
(“Carlisle”), and John Doe, Individuals 1-50.
Count one of the third amended complaint alleges that the
defendants violated the Fair Debt Collections Practices Act
(“FDCPA”). The Browns alleged that Carlisle
falsely represented in the Common Pleas Court action that its
clients were proper party plaintiffs (specifically, holders
of the loan) when, in fact, they were debt collectors. The
Browns allege that Carlisle's false and misleading
representations resulted in judgments and sanctions against
them in the foreclosure action. Similarly, the Browns allege
that Mr. Griffith falsely represented that Florida Coastal
was a proper party plaintiff in that case when, in fact, it
was also a debt collector. The Browns further allege that
Florida Coastal and Mr. Griffith misrepresented the
character, amount, and legal status of the mortgage and note
in violation of the FDCPA. The Browns also set forth state
law claims for foreclosure fraud (count two), slander of
title (count three), slander of credit (count four),
emotional distress (count five), and quiet title (count six).
On October 10, 2014, the Court granted in part a motion to
dismiss by Carlisle, dismissing the Browns' claims
against Carlisle for the intentional infliction of emotional
distress and to quiet title. (Doc. 46).
February 20, 2015, Tonya Brown filed a Chapter 11 bankruptcy
petition in the United States Bankruptcy Court for the
Southern District of Ohio, Case No. 2:15-bk-50925. On
February 27, 2015, Mr. Griffith and Florida Coastal filed a
notice of bankruptcy and suggestion of stay. (Doc. 57). In
examining the bankruptcy, the Court noted that the case was
converted to a Chapter 7 bankruptcy. In an Opinion and Order
issued on July 10, 2015, the Court examined the impact of Ms.
Brown's bankruptcy on this litigation. The Court
determined that Ms. Brown lacked standing to pursue her
pre-petition claims because those claims were now considered
to be “property of the estate.” (Doc. 65 at 7).
In other words, because the United States Trustee
(“UST”) was the real party in interest to Ms.
Brown's claims, the Court analyzed motions before it only
to the extent that they pertained to Mr. Brown. Among other
rulings, the Court granted Carlisle's motion for summary
judgment as it applied to Mr. Brown's claims, but it
withheld judgment as to Ms. Brown's claims because those
claims belonged to the UST.
August 7, 2015, Carlisle filed a notice informing this Court
that the UST abandoned all claims of Tonya Brown against
Carlisle. (Doc. 66). In light of the UST's abandonment of
Ms. Brown's claims against Carlisle, Carlisle asked the
Court to grant it summary judgment on Ms. Brown's claims.
In an Opinion and Order dated February 9, 2016, the Court
granted Carlisle's motion for summary judgment as to all
of Ms. Brown's claims. On July 18, 2016, the UST also
filed an abandonment of all of Ms. Brown's claims against
Florida Coastal. The only remaining claims in this matter are
claims one through four against defendants Florida Coastal
and Mr. Griffith, who now seek summary judgment.
judgment is not a substitute for a trial when facts material
to the Court's ultimate resolution of the case are in
dispute. It may be rendered only when appropriate evidentiary
materials, as described in Fed.R.Civ.P. 56(c), demonstrate
the absence of a material factual dispute and the moving
party is entitled to judgment as a matter of law. Poller
v. Columbia Broad. Sys., Inc., 368 U.S. 464 (1962). The
moving party bears the burden of demonstrating that no
material facts are in dispute, and the evidence submitted
must be viewed in the light most favorable to the nonmoving
party. Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970). “[I]f the evidence is insufficient to
reasonably support a jury verdict in favor of the nonmoving
party, the motion for summary judgment will be
granted.” Cox v. Kentucky Dep't of
Transp., 53 F.3d 146, 150 (6th Cir. 1995)(citation
omitted). Additionally, the Court must draw all reasonable
inferences from that evidence in favor of the nonmoving
party. United States v. Diebold, Inc., 369 U.S. 654
(1962). The nonmoving party does have the burden, however,
after completion of sufficient discovery, to submit evidence
in support of any material element of a claim or defense on
which that party would bear the burden of proof at trial,
even if the moving party has not submitted evidence to negate
the existence of that material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986). Of course, since
“a party seeking summary judgment ... bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact, ” Celotex, 477
U.S. at 323, the responding party is only required to respond
to those issues clearly identified by the moving party as
being subject to the motion.
fact that a motion for summary judgment is unopposed does not
lessen the burden on the moving party or the court.
Guarino v. Brookfield Twp. Trustees, 980 F.2d 399,
410 (6th Cir. 1992) (citation omitted). “When a
non-moving party fails to respond, therefore, the district
court must, at a minimum, examine the moving party's
motion for summary judgment to ensure that it has discharged
its initial burden.” Miller v. Shore Fin. Services,
Inc., 141 F.App'x 417, 419 (6th Cir. 2005) (citation
omitted). Courts are not required to “comb the record
from the partisan perspective of an advocate for the
non-moving party, ” but rather courts “may rely
on the moving party's unrebutted recitation of the
evidence, or pertinent portions thereof, in reaching a
conclusion that certain evidence and inferences from evidence
demonstrate facts which are
‘uncontroverted.'” Guarino, 980 F.2d
at 410. It is with these standards in mind that the instant
motion must be decided.
October 28, 2016, defendants Florida Coastal and Mr. Griffith
(hereinafter “Defendants”) filed a motion for
summary judgment, arguing that the claims against them are
barred by the doctrine of res judicata because they
have already been decided by the state court in the November
12, 2014 final judgment rendered in case number
08-CVE-12-1598 (The State Foreclosure Action).” (Doc.
76-1). There is both a federal law standard and a state law
standard for issue preclusion, also known as collateral
estoppel, and these standards share several common elements.
Under the federal standard, the party claiming preclusion
(1) the precise issue raised in the present case must have
been raised and actually litigated in the prior proceeding;
(2) determination of the issue must have been necessary to
the outcome of the prior proceeding; (3) the prior proceeding
must have resulted in a final judgment on the merits; and (4)
the party against whom estoppel is sought must have had a
full and fair opportunity to litigate the issue in the prior
Kosinski v. Commissioner of Internal Revenue, 541
F.3d 671, 675 (6th Cir. 2008), quoting United States v.
Cinemark USA, Inc., 348 F.3d 569, 583 (6th Cir. 2003).
Similarly, issue preclusion under the Ohio standard applies
1) the fact or issue was actually litigated in the prior
action; 2) the court actually determined the fact or issue in
question; 3) the party against whom issue preclusion is
asserted was a party, or ...