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

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-804713

          ATTORNEY FOR APPELLANTS Harry J. DePietro The DePietro Law Office, L.L.C.

          ATTORNEYS FOR APPELLEES John E. Codrea Matthew J. Richardson Manley, Deas & Kochalski, L.L.C. Melany A. Fontanazza McGlinchey Stafford For the Cuyahoga County Treasurer Michael C. O'Malley Cuyahoga County Prosecutor BY: Gregory B. Rowinski Assistant Prosecuting Attorney Also Listed Matthew J. Marotta, pro se Nora Marotta, pro se

          BEFORE: E.T. Gallagher, J., Keough, A.J., and Jones, J.



         {¶1} Defendant-appellant, Thomas Jeffers, Jr., appeals from the judgment of the common pleas court that granted the motion of plaintiff-appellee, U.S. Bank, N.A., to substitute Christiana Trust, a Division of Wilmington Savings Fund Society, FSB ("Christiana Trust"), as party plaintiff in this foreclosure action. Jeffers raises the following assignments of error for review:

1. The trial court erred, as a matter of law, when it considered the unserved motion to substitute a new party plaintiff, and when it denied Jeffers's oral motion for a directed verdict or dismissal of the case as no properly substituted party plaintiff, nor the original party plaintiff, was present to prosecute the action at trial.
2. The trial court erred as a matter of law and abused its discretion when it found that Jeffers's failure to object to the unserved motion prior to trial constituted an implicit waiver of Jeffers's argument that the unserved motion could not be used to permit the substitution of the party plaintiff; and the denial of Jeffers's motion for dismissal of the case.

         {¶2} After careful review of the record and relevant case law, we affirm the trial court's judgment.

         I. Procedural and Factual History

         {¶3} In April 2013, U.S. Bank filed a foreclosure action against Jeffers, seeking judgment on a mortgage and note secured by real property in Parma Heights, Ohio. In response, Jeffers filed counterclaims premised on the Fair Debt Credit Collection Practices Act ("FDCPA"), the Ohio Consumer Sales Practice Act ("OCSPA"), and common-law fraud.

         {¶4} After filing responsive pleadings, U.S. Bank filed a motion for judgment on the pleadings on Jeffers's counterclaims. In February 2014, the trial court granted U.S. Bank's motion for judgment on the pleadings on Jeffers's fraud claim, but denied the motion as to Jeffers's claims under the FDCPA and the OCSPA.

         {¶5} In October 2014, U.S. Bank moved to substitute Christiana Trust as party plaintiff In its motion, U.S. Bank stated that "while this litigation was pending, an assignment of mortgage from Plaintiff to Christiana Trust * * * was executed on December 12, 2013, and recorded with the Cuyahoga County Recorder on August 21, 2014." U.S. Bank asserted that substituting Christiana Trust as plaintiff was appropriate under Civ.R. 25 because there was a transfer of interest in the subject mortgage and note. The motion was electronically filed through the trial court's electronic filing system in compliance with the court's October 4, 2013 First Amended Temporary Administrative Order ("E-Filing Order"). Jeffers did not oppose the motion, and the trial court granted U.S. Bank's motion to substitute Christiana Trust as the party plaintiff

         {¶6} The matter was scheduled for a bench trial to commence in December 2014. On the day of trial, however, Jeffers filed a written memorandum in opposition to U.S. Bank's previously granted motion to substitute. In the motion, Jeffers argued that U.S. Bank's motion to substitute was invalid and "must be struck" because U.S. Bank failed to properly serve the motion pursuant to Civ.R. 5. Counsel for Jeffers reiterated his position on the record before the magistrate, claiming that "we weren't served at all, with respect to [the motion to substitute]." Following a brief discussion on the record, the magistrate stated that it would not vacate its previous order substituting Christiana Trust as the party plaintiff.

         {¶7} At the conclusion of the bench trial, the magistrate issued a decision, finding "that substitute plaintiff [Christiana Trust] is entitled to a decree of foreclosure, judgment on its note, and judgment in its favor on the counterclaims of [Jeffers]."

         {¶8} As a preliminary matter, the magistrate found that it was necessary to first address Jeffers's challenge to the substitution of the plaintiff on the eve of trial. In rejecting Jeffers's reliance on Civ.R. 5, the court found that counsel for Jeffers was properly served with the motion to substitute pursuant to the court's E-Filing Order, which states that service of documents filed after the original complaint on registered users of the e-filing system is made by the service of an electronic notice sent to the registered user's email address. In addition, the court found that Jeffers "waived any arguments related to defective service of the motion to substitute plaintiff because Jeffers's counsel received electronic notice of the motion but "failed to raise any issues regarding service of the motion until the eve of trial." Alternatively, the magistrate found that "even if one were to consider the merits of the motion to substitute, it was properly granted" as Civ.R. 25(C) "permits the substitution of the plaintiff where the interest of the plaintiff is transferred after the case was filed."

         {¶9} In January 2015, Jeffers filed objections to the magistrate's decision, arguing that the magistrate's decision improperly "permitted the matter to go to trial with a party illegally substituted for the original plaintiff and "repeatedly failed to ...

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