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U.S. Bank, National Assn. v. Hull

Court of Appeals of Ohio, Ninth District, Lorain

May 22, 2017

U.S. BANK, NATIONAL ASSN. Appellee
v.
BRAD A. HULL, et al. Defendants and LISA A. HULL Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 12CV178512

          MARC E. DANN and EMILY WHITE, Attorneys at Law, for Appellant.

          SCOTT A. KING and TERRY W. POSEY, JR., Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          CALLAHAN, Judge.

         {¶1} Appellant, Lisa Hull, nka Pavkovich, appeals the judgment entered in favor of Appellee, U.S. Bank, National Association ("the Bank"), in the Lorain County Court of Common Pleas. For the reasons set forth below, this Court affirms.

         I.

         {¶2} The Bank filed a foreclosure action against Lisa and Brad Hull, the mortgagors, in November 2012. At the time of the foreclosure filing, Lisa and Brad Hull were involved in divorce proceedings.

         {¶3} Ms. Hull's divorce attorney filed an answer on her behalf on March 7, 2013. In this answer, she admitted the allegations in paragraph 1 of the complaint which stated "[the Bank] is in possession of, and entitled to enforce, a note executed by the defendants, Brad A. Hull and Lisa A. Hull." A month later, Mr. Hull's divorce attorney filed an answer on behalf of both of them. Their joint answer denied for want of knowledge that the Bank had possession of and was entitled to enforce the note. Neither answer asserted standing as an affirmative defense.

         {¶4} After a number of pretrials, the Bank filed a motion for summary judgment. The Bank supported its motion for summary judgment with the affidavit from a representative of the Bank's servicing agent. As to standing, the representative averred that "[a]t the time of the filing of the complaint * * *, and to date, [the Bank] * * *, has been in possession of the Promissory Note." The defendants failed to file a response brief.

         {¶5} On October 24, 2013, the magistrate granted the Bank's summary judgment and the judge adopted the magistrate's decision and entered a decree of foreclosure. No appeal was filed. Sheriffs sales were scheduled and canceled during the next two years, three times because the Bank was "reviewing the file for loss mitigation options" with the homeowners and one time due to an investor-directed moratorium.[1]

         {¶6} Twenty-six months after the trial court granted summary judgment, Ms. Hull filed a motion to set aside the judgment and requested a hearing. The Bank opposed the motion. The trial court denied the motion without a hearing.

         {¶7} Ms. Hull timely appeals, raising one assignment of error for review.

         II.

         ASSIGNMENT ...


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