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Ritchey v. JP Morgan Chase Bank

Court of Appeals of Ohio, Eleventh District, Lake

November 13, 2017

WILLIAM R. RITCHEY, et al., Plaintiffs-Appellants,
v.
JP MORGAN CHASE BANK, AS TRUSTEE ON BEHALF OF FIRST FRANKLIN MORTGAGE LOAN TRUST 2004-FF10 ASSET-BACKED CERTIFICATES SERIES 2004-FF10, Defendant-Appellee.

         Civil Appeal from the Lake County Court of Common Pleas, Case No. 2016 CV 000228.

          A. Clifford Thornton, Jr., PDC Building (For Plaintiffs-Appellants).

          Laura C. Infante and Jason A. Whitacre, Clunk, Paisley, Hoose Co., LPA, (For Defendant-Appellee).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellants, William and Saundra Ritchey, appeal the trial court's decision granting appellee, JP Morgan Chase Bank as Trustee on behalf of First Franklin Mortgage Loan Trust 2004-FF10 Asset-Backed Certificates Series 2004-FF 10, summary judgment. We affirm.

         {¶2} In February 2016, the Ritcheys filed their pro se complaint against appellee seeking damages for breach of contract and unjust enrichment. They also requested declaratory judgment as to their right to rescind and their general rights and responsibilities under their mortgage and note executed on August 13, 2004 regarding the property known as 9885 Weathersfield Drive, in Mentor, Ohio.

         {¶3} Appellee initially moved to dismiss the complaint pursuant to Civ.R. 12(B)(6), which the trial court denied. Thereafter, appellee sought discovery that the Ritcheys failed to provide, and as a result, ordered as sanctions that the Ritcheys were precluded "from using any evidence, documentation or information that was not provided to [appellee] as part of its discovery * * *."

         {¶4} In October 2016, appellee filed its motion for summary judgment, and the Ritcheys did not respond. In its motion, appellee argues the Ritcheys' claims are barred via res judicata because they already fully litigated these issues in a prior lawsuit. The trial court granted appellee summary judgment and journalized its decision November 10, 2016 at 1:05 p.m. Two minutes later, at 1:07 p.m. on November 10, 2016, the Ritcheys filed their notice of voluntary dismissal pursuant to Civ.R. 41 (A).

         {¶5} The Ritcheys raise two assigned errors:

         {¶6} "The trial court erred to the prejudice of the Appellants by granting the Appellee's motion for summary judgment when the Appellants had previously filed a voluntary dismissal without prejudice pursuant to 41(A) of the Ohio Rules of Civil Procedure. (T.d. 25, 26).

         {¶7} "Reviewing Appellee's motion for summary judgment de novo, the record is clear and convincing that the trial court erred to the prejudice of the Appellants by granting the Appellee's Motion for Summary Judgment as the Appellants were entitled to a full rescission of the alleged note and mortgage through a declaratory judgment."

         {¶8} The Ritcheys first argue that the trial court was precluded from entering summary judgment in light of their right to voluntarily dismiss under Civ.R. 41(A). We disagree.

         {¶9} Civ.R. 41(A) states:

         {¶10} "(1) By plaintiff; by stipulation. Subject to the provisions of Civ. R. 23(E), Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court, may dismiss all claims asserted by that ...


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