Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. Bank, N.A. v. Matthews

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 1, 2017

U.S. BANK, N.A. PLAINTIFF-APPELLEE
v.
BRUCE B. MATTHEWS, ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-844003

          ATTORNEY FOR APPELLANTS A. Clifford Thornton, Jr.

          ATTORNEYS FOR APPELLEE Richard A. Freshwater Thompson Hine L.L.P. Scott A. King Jessica E. Salisbury-Copper Thompson Hine L.L.P. Matthew I. McKelvey Carson A. Rothfuss Lerner, Sampson & Rothfuss

          ALSO LISTED James R. Bennett U.S. Attorney's Office

          BEFORE: E.A. Gallagher, P.J., Stewart, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, PRESIDING JUDGE

         {¶1} In this foreclosure action, defendants-appellants Bruce and Rhondalyn Matthews (collectively, "appellants") appeal from the trial court's decision granting summary judgment in favor of plaintiff-appellee U.S. Bank, N.A., as trustee, successor in interest to Wachovia Bank, N.A., as trustee for GSMPS Mortgage Loan Trust 2005-RP3 (the "trust") ("U.S. Bank"). Appellants claim that genuine issues of material fact exist as to U.S. Bank's standing and entitlement to foreclose on the mortgage at issue. Finding no merit to the appeal, we affirm the trial court's judgment.

         Factual and Procedural Background

         {¶2} On August 29, 2002, appellants executed a note payable to American Midwest Mortgage Corporation ("American Midwest Mortgage") for the principal amount of $132, 900 plus interest at the rate of 7.0% per year (the "note"). To secure payment of the note, appellants executed an open-end mortgage on real property located at 3372 Silsby Road, Cleveland Heights, Ohio (the "property") in favor of American Midwest Mortgage (the "mortgage").

         {¶3} Through a series of transactions, the note and mortgage were transferred and assigned to U.S. Bank. On August 29, 2002, American Midwest Mortgage endorsed the note to Washington Mutual Bank, F.A. ("Washington Mutual") in an endorsement rubber-stamped at the bottom of the note (the "rubber-stamped endorsement") and also assigned all of its "rights, title and interest" in the mortgage to Washington Mutual. Washington Mutual thereafter endorsed the note in blank in an allonge attached to the note (the "allonge"). The mortgage and assignment of mortgage were recorded on September 4, 2002.

         {¶4} On April 5, 2005, appellants and Washington Mutual entered into a loan modification agreement that increased the unpaid principal amount due under the note to $140, 872.68 (the "2005 loan modification agreement"). Two-and-a-half years later, appellants and Wells Fargo Bank, N.A. ("Wells Fargo"), the servicing agent for the trust, entered into a second loan modification agreement, increasing the unpaid principal due under the note to $148, 255.68 and extending its maturity date (the "2007 loan modification agreement"). On August 3, 2009, appellants and Wells Fargo entered into a third loan modification agreement, increasing the unpaid principal amount due under the note to $157, 148.91, reducing the interest rate to 5.625% per year and again extending the maturity date (the "2009 loan modification agreement"). (The 2005 loan modification agreement, 2007 loan modification agreement and 2009 loan modification agreement are collectively referred to herein as the "loan modification agreements").

         {¶5} On March 13, 2015, Wells Fargo, as attorney-in-fact for the Federal Deposit Insurance Corporation ("FDIC") as receiver for Washington Mutual Bank, Henderson, NV, fk.a. Washington Mutual, executed a "corrective assignment of mortgage" assigning the mortgage to U.S. Bank (the "corrective assignment of mortgage"). (The original assignment of mortgage and the corrective assignment of mortgage are collectively referred to herein as the "assignments of mortgage.") The corrective assignment of mortgage was recorded on March 25, 2015.

         {¶6} Appellants failed to make the payments due under the note as modified by the loan modification agreements and, on April 10, 2015, U.S. Bank filed a complaint in foreclosure.[1] The complaint alleged that U.S. Bank was the holder of the note and assignee of the mortgage, that appellants had defaulted under the terms of the note and loan modification agreements and that U.S. Bank had accelerated the debt, had complied with all conditions precedent and was entitled to enforce the note and foreclose on the mortgage. U.S. Bank averred that plaintiffs had filed a Chapter 7 bankruptcy and that it sought "no personal judgment, " only the foreclosure and sale of the property. U.S. Bank alleged that it was due $151, 942.96 together with interest at the rate of 5.625% from February 1, 2012, court costs, advances "and other charges as allowed by law." U.S. Bank requested a finding of default, that the mortgage be declared a valid first lien on the property, that the mortgage be foreclosed and the property sold and that it be paid the amount due it out of the proceeds of sale. Copies of the note (along with the rubber-stamped endorsement from American Midwest Mortgage to Washington Mutual and the allonge endorsing the note in blank), the mortgage, the loan modification agreements and the assignments of the mortgage were attached to the complaint.

         {¶7} On December 21, 2015, appellants filed an answer, pro se, denying the allegations of the complaint and asserting a laundry list of "affirmative defenses, " including failure to state a claim for which relief can be granted, lack of standing, waiver, release, estoppel, breach of contract, failure to join necessary parties, failure to mitigate damages, failure or want of consideration and unconscionability.

         U.S. Bank's Motion for Summary Judgment

         {¶8} On February 12, 2012, U.S. Bank filed a motion for summary judgment. U.S. Bank asserted that it was entitled to judgment and a decree of foreclosure as a matter of law because there was no genuine issue of material fact that (1) U.S. Bank was the current holder of the note and assignee of the mortgage, (2) appellants' loan was in default, (3) U.S. Bank had provided appellants with notice of default and an opportunity to cure but the default had not been cured, (4) U.S. Bank had exercised its option to accelerate the balance due on the note, (5) a principal balance of $151, 942.96 plus interest at the rate of 5.625% per year from February 1, 2012 was due on the note and (6) appellants could not establish any of their claimed affirmative defenses.

         {¶9} U.S. Bank supported its motion with an affidavit from Cynthia Thomas, vice president of loan documentation for Wells Fargo. Attached to her affidavit were copies of the note (along with the rubber-stamped endorsement and the allonge endorsing the note in blank), the mortgage, the assignments of mortgage, the loan modification agreements and a notice of default and intent to accelerate (the "notice of default"). Thomas attested that the copies of the note, mortgage, assignments of mortgage, loan modification agreements and notice of default attached to her affidavit were copies of the originals "redacted solely to protect any private, personal, financial information" and that at the time of the filing of the complaint (and through the date of her affidavit), U.S. Bank had possession of the note (along with the allonge endorsed in blank). She further attested that payments had not been made as required under the terms of the note and mortgage, that the last payment was made on February 26, 2012 and that prior to the filing of the complaint, appellants had been sent a notice of default but the default had not been cured. She indicated that as a result of the default and acceleration, a principal balance of $151, 942.96 plus interest at the rate of 5.625% per year from February 1, 2012 was due on the note.

         {¶10} Appellants did not oppose U.S. Bank's summary judgment motion. On March 18, 2016, the magistrate issued a decision granting summary judgment and a decree of foreclosure in favor of U.S. Bank. On April 7, 2016, appellants filed objections to the magistrate's decision. U.S. Bank moved to strike the objections on the grounds that (1) they were untimely and (2) although they were purportedly filed by appellants pro se (appellants signed the certificate of service), the objections were signed, in the form of an electronic signature, by counsel who had not filed a notice of appearance in the case and failed to include his attorney registration number and contact information as required under Civ.R. 11. Appellants did not oppose the motion to strike. The trial court granted the motion to strike and, on August 30, 2016, issued a judgment entry adopting the magistrate's decision and entering summary judgment and a decree of foreclosure in favor of U.S. Bank.

         {¶11} Appellants appealed the trial court's judgment, raising the following ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.