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PNC Bank, N.A. v. Roemer

Court of Appeals of Ohio, Fourth District, Hocking

December 15, 2017

PNC BANK, NATIONAL ASSOCIATION successor by merger to NATIONAL CITY MORTGAGE, A DIVISION OF NATIONAL CITY BANK, Plaintiff-Appellee,
v.
MARY L. ROEMER, et al., Defendants-Appellants.

         CIVIL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED

          Grace M. Doberdruk, Beachwood, Ohio, for appellant.

          H. Toby Schisler and Alicia Bond-Lewis, Cincinnati, Ohio, and Ellen L. Fornash, Cincinnati, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Peter B. Abele, Judge

         {¶ 1} This is an appeal from a Hocking County Common Pleas Court judgment that denied a Civ.R. 60(B) motion for relief from judgment filed by Mary Roemer, plaintiff below and appellant herein. Appellant assigns the following errors for review:

         FIRST ASSIGNMENT OF ERROR:

         "THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT MARY ROEMER'S MOTION TO VACATE WHEN THERE WAS EXCUSABLE NEGLECT AND GROUNDS UNDER CIVIL RULE 60(B)(5) FOR RELIEF"

         SECOND ASSIGNMENT OF ERROR:

         "THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT MARY ROEMER'S MOTION TO VACATE WITHOUT HOLDING A HEARING"

         THIRD ASSIGNMENT OF ERROR:

         "THE TRIAL COURT ERRED OR ABUSED ITS DISCRETION BY AMENDING THE JULY 14, 2015 ENTRY NUNC PRO TUNC INSTEAD OF VACATING THE INVALID JUDGMENT."

         {¶ 2} On August 1, 2014, PNC Bank, National Association Successor by Merger to National City Mortgage, a Division of National City Bank, plaintiff below and appellee herein, filed a foreclosure complaint against Mary L. Roemer and John Doe, name unknown, spouse of Mary L. Roemer. Appellant did not answer the complaint. Instead, she filed a pro se motion to stay the proceedings in order to allow the parties to participate in mediation. The trial court granted appellant's motion.

         {¶ 3} On January 7, 2015, the court filed an entry documenting the course of proceedings up to that date. The court noted that the matter had been set for a November 12, 2014 mediation conference, but appellant requested a continuance. The court thus rescheduled the mediation conference to January 7, 2015. On January 7, 2015, appellant called the court's mediator to request another continuance due to "recent snow." The mediator informed appellant that she was expected to appear for the mediation and informed her that she could drive herself or that the sheriffs office could transport her. Appellant stated that she was not going to drive to the courthouse and that she did not want the sheriff to transport her. The court thus cancelled the mediation hearing and returned the case to its active docket.

         {¶ 4} Appellee subsequently filed an amended complaint that requested a declaration of its rights under the mortgage, an equitable lien on appellant's one-half interest in the property, a constructive trust over appellant's interest, a resulting trust, an order that it is entitled to foreclose upon the mortgage, and a $128, 103.92 judgment.

         {¶ 5} Appellant did not answer the amended complaint, but instead filed a "motion to request review of cancellation of a mediation hearing with PNC Mortgage." Appellant asserted that she has "a recent diagnosis of a serious medical condition * * * that has greatly debilitated [her] with constant pain, and endless worsening symptoms that have been going on, undiagnosed for years. The diagnosis just occurred on March 14, 2015." She alleged that on November 9, 2014, she experienced heart attack symptoms and went to the emergency room, but was released without a diagnosis. Appellant additionally asserted that she previously informed the mediator that she forwarded "40 documents" via certified mail to appellee's counsel. She claimed that she intended to attend the rescheduled mediation hearing in January, but the snow hampered her efforts. She stated that she would not be able to extricate her vehicle from her driveway and that "no one could get in." She asked the court to order mediation and to assign a new mediator. The court overruled appellant's motion.

         {¶ 6} On June 15, 2015, appellee filed a summary judgment motion and asserted that it "is entitled to summary judgment as to the interests of [appellant]." Appellee argued that no genuine issues of material fact remained as to whether it is entitled to (1) an equitable lien on the undivided one-half interest of appellant's interest in the mortgaged property, (2) a constructive trust as to appellant's interest in the mortgaged property, and (3) judgment against appellant in the amount of the delinquency. To support its motion, appellant attached the affidavit of Ryan Carey, an "authorized signer." Carey attested that on March 6, 2008, Robert E. Roemer, through appellant, his attorney in fact, executed a promissory note in the amount of $140, 000, and that appellant signed the mortgage in order "to release her dower rights." Carey's affidavit further asserts that (1) appellee is the holder of the note in the amount of $140, 000 with interest at the rate of 5.8750 percent per annum, (2) Robert E. Roemer failed to make the payment due for March 1, 2014, and has not satisfied the payments due thereafter, and (3) as of July 3, 2014, there is due and owing on the note the sum of $128, 103.92 with interest at the rate of 5.8750 percent per annum from February 1, 2014. Appellant did not respond to appellee's summary judgment motion.

         {¶ 7} On June 25, 2015, appellee filed a motion for default judgment against John Doe, the unknown spouse of Mary L. Roemer, and The Unknown Heirs and Next of Kin of Robert E. Roemer. Appellee alleged that the parties were properly served with a copy of the amended complaint and that they failed to answer or appear. Appellee requested the trial court to enter a "Finding of Default and Decree in Foreclosure (In Rem)" in its favor.

         {¶ 8} On July 14, 2015, the trial court filed a "judgment entry" and indicated that the matter was before the court upon appellee's summary judgment and default judgment motions. The court (1) found that appellee is the owner and holder of the mortgage, (2) determined that appellee is entitled to an equitable lien on appellant's undivided one-half interest, as well as a constructive trust, (3) found that appellee "is entitled to judgment against Mary L. Roemer in the amount of $128, 103.92 * * *, " and (4) additionally determined that the mortgage is a valid ...


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