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Growth v. Rucci

Court of Appeals of Ohio, Seventh District, Mahoning

December 15, 2017

SHELTER GROWTH PLAINTIFF-APPELLANT
v.
SEBASTIAN RUCCI, TRUSTEE, et al. DEFENDANTS-APPELLEES

         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2015 CV 3244

          For Plaintiff-Appellant: Atty. David T. Brady Atty. Brian S. Gozelanczyk Sandhu Law Group, LLC

          For Defendants-Appellees: Atty. James Vitullo Vitullo Law Office

          Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb

          OPINION

          WAITE, JUDGE.

         {¶1} Appellant, Shelter Growth Opportunities Master Fund, LP c/o MBank appeals the January 5, 2017 judgment of the Mahoning County Common Pleas Court dismissing Appellant's complaint for foreclosure filed against Appellees Sebastian Rucci, Trustee of the Vittorio Rucci Irrevocable Trust, Yellow Creek Ledges Condominium Association and the Mahoning County Treasurer. The central issue is whether the trial court erred in granting Appellees' motion to enforce a settlement agreement and dismissing Appellant's case with prejudice. Based on the following reasons, the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} Appellee Rucci executed a note secured by a mortgage on a property located in Youngstown, Ohio on March 1, 2012. After nonpayment on the mortgage by Appellee Rucci, a complaint for foreclosure was filed by Appellant on December 18, 2015 seeking judgment in the amount of $91, 350 together with interest at the rate of 14% from May 1, 2015. An answer was filed by Appellees on February 29, 2016 alleging numerous affirmative defenses including standing, fraud, unjust enrichment and unclean hands.

         {¶3} While the matter was pending, Appellees sold the property at issue and informed Appellant, seeking a payoff statement on the total balance owed. On July 7, 2016, Appellant sent Appellee Rucci a payoff letter which stated:

         The following is the payoff figure you requested * * *

Unpaid Principal Balance
$91, 350.00
Interest
$15, 586.23
Negative Escrow Balance
$981.88
Late Charges
$692.77
Corporate Advance
$1, 419.05
NSF Fees
$20.00
Total
$110, 049.93

(11/4/16 Defendant's Motion to Enforce Settlement.)

         {¶4} The bottom portion of the payoff letter also contained the following language:

Upon timely receipt of good funds for the full amount set forth herein, we will seek to have the action dismissed. You should contact our office 24 hours prior to submitting/wiring funds to ensure no additional fees or costs have been incurred between ...

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