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Citimortgage, Inc. v. Tillman

Court of Appeals of Ohio, Ninth District, Lorain

February 20, 2018

CITIMORTGAGE, INC. Appellee
v.
ROBERT L. TILLMAN, et al. Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11CV172231

          JACK MALICKI, Attorney at Law, for Appellant.

          RICK D. DEBLASIS and CYNTHIA FISCHER, Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, JUDGE.

         {¶1} Robert L. Tillman appeals from the judgment of the Lorain County Court of Common Pleas, which granted summary judgment in favor of Lerner, Sampson & Rothfuss, L.P.A ("LSR"). We reverse and remand the matter for further proceedings consistent with this decision.

         I.

         {¶2} CitiMortgage, Inc., who is not a party to this appeal, initiated a foreclosure action against Mr. Tillman based upon his alleged default on the terms of the note and mortgage of his residential property. Mr. Tillman filed a pro se answer, but subsequently obtained counsel. He then filed an amended answer and asserted counterclaims against CitiMortgage. Relevantly, he claimed that a forbearance agreement was in effect at the time CitiMortgage initiated the foreclosure action and, thus, CitiMortgage wrongfully filed the foreclosure action and breached the forbearance agreement.

         {¶3} Mr. Tillman later moved to join LSR, the law firm CitiMortgage used to file its foreclosure action, as a party, which the trial court granted. Mr. Tillman then filed a second amended answer and first amended counterclaim, wherein he asserted claims against LSR for violations of the Fair Debt Collection Practices Act, as well as civil conspiracy and aiding and abetting.

         {¶4} CitiMortgage moved for summary judgment, arguing that it was entitled to judgment as a matter of law because Mr. Tillman defaulted on the terms of the note and mortgage by failing to make the required monthly payments. CitiMortgage also argued that it was entitled to summary judgment on Mr. Tillman's counterclaims, arguing that Mr. Tillman never properly executed the forbearance agreement. The trial court denied CitiMortgage's motion, holding that "genuine issues of fact exist regarding whether CitiMortgage and Robert Tillman entered into a forbearance agreement."

         {¶5} Almost one year later, the trial court issued a "Consent Judgment Entry and Decree of Foreclosure, and Dismissal of Counterclaim against [CitiMortgage.]" In it, the trial court acknowledged that CitiMortgage and Mr. Tillman had resolved all claims between them and had consented to certain terms. More specifically, the parties agreed that Mr. Tillman breached the conditions of the note and mortgage by failing to make the required payments, and that CitiMortgage was entitled to a foreclosure. The consent judgment entry did not resolve any claims between Mr. Tillman and LSR.

         {¶6} Following the issuance of the consent judgment entry, LSR moved for summary judgment. In its motion, LSR made numerous arguments, including: (1) Mr. Tillman's claims against LSR failed as a matter of law under the issue preclusion branch of res judicata because the consent judgment entry indicated that the foreclosure was proper and that CitiMortgage was entitled to the relief it requested; (2) Mr. Tillman's claims were barred by judicial estoppel because he did not disclose any claims against LSR in his bankruptcy proceeding, which was both filed and dismissed during the pendency of the underlying foreclosure action; (3) Mr. Tillman's claims were barred by judicial estoppel because allowing his claims to go forward would result in Mr. Tillman taking a contrary position to the position he took relative to the consent judgment entry; (4) Mr. Tillman's claims failed on their merits in light of the concessions he made in the consent judgment entry; and (5) Mr. Tillman could not sue a law firm simply because it filed a foreclosure action on behalf of its client. LSR also argued that it was entitled to summary judgment on Mr. Tillman's claims for aiding and abetting and civil conspiracy, but Mr. Tillman voluntarily dismissed those claims prior to responding to LSR's motion.

         {¶7} In his response to LSR's motion for summary judgment, Mr. Tillman argued, in part, that the trial court should deny LSR's motion because: (1) the trial court had previously determined that genuine issues of material fact remained regarding the validity of the forbearance agreement when it denied CitiMortgage's motion for summary judgment; (2) he agreed to the consent judgment entry so that the property could be sold at a sheriffs sale and, in doing so, he did not abandon his position that a valid and enforceable forbearance agreement existed at the time CitiMortgage, through LSR, filed the foreclosure action; (3) issue preclusion did not apply because it requires the filing of a subsequent suit, and allowing him to pursue his FDCPA claim would not produce inconsistent results; (4) judicial estoppel did not apply because he had not taken a contrary position, and because his failure to disclose claims against LSR in the bankruptcy proceeding was of no consequence since he did not receive a discharge; and (5) attorneys may be held liable for violating the FDCPA.

         {¶8} The trial court granted LSR's motion. Mr. Tillman has appealed, raising one ...


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