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JPMorgan Chase Bank, NA v. Asbury

Court of Appeals of Ohio, Sixth District, Huron

April 27, 2018

JPMorgan Chase Bank, NA Appellee
Daniel Asbury, et al. Appellees [Marilyn S. Wilson-Appellant]

          Trial Court No. CVE 20130332

          Cynthia A. Lammert, George S. Coakley and Richard T. Lobas, for appellees.

          Reese M. Wineman, for appellant.


          PIETRYKOWSKI, J.

         {¶ 1} This is a consolidated appeal from the judgments of the Huron County Court of Common Pleas, granting a directed verdict in favor of appellees, Patrick Spettel and Coffman Group, Inc., dba RE/MAX Quality Realty, on appellant's, Marilyn Wilson, claims for civil conspiracy and violations of the Ohio Corrupt Practices Act and the federal RICO Act, and denying appellant's motion for a new trial. For the reasons that follow, we affirm.

         I. Facts and Procedural Background

         {¶ 2} Procedurally, this case began as a residential foreclosure action initiated by JPMorgan Chase Bank, N.A. against Daniel and Michelle Asbury, the owners of the property located at 2701 State Route 598, New Haven, Ohio. Appellant was also named as a defendant in the original complaint based upon a potential interest she had in the property via a land installment contract executed between herself and Daniel Asbury.

         {¶ 3} Appellant answered and filed a cross-claim against Daniel Asbury, joining as additional defendants to the cross-claim: HCMS Home Loans ("HCMS"), Huron County Title Agency, LLC, and appellees. The first count of the cross-claim alleged that Asbury, HCMS Home Loans, Huron County Title Agency, LLC, and appellees engaged in a pattern of corrupt activity in violation of R.C. 2923.32 and 18 U.S.C. 1961 et seq., and the second count alleged that those same defendants engaged in a civil conspiracy. The gravamen of the claims was that the defendants acted in concert to deprive appellant of her equity in the real property.

         {¶ 4} Appellant's cross-claims and the foreclosure action were bifurcated, with the former proceeding to a jury trial over the course of six days beginning on June 7, 2016. At the trial, the following facts were adduced.

          {¶ 5} Appellant originally owned the home at 2701 State Route 598. In 2003, Countrywide Home Loans ("Countrywide") foreclosed on the property, and was awarded the deed in a sheriffs sale. In the spring of 2004, Spettel, acting as the real estate agent for Countrywide, visited the home to determine its occupancy status for the purpose of reselling the property. Appellant, not wanting to leave her home, spoke with Spettel about purchasing the home from Countrywide. Appellant indicated that she was about to receive $110, 000 from the sale of some other property that she could use towards the purchase. Spettel, then acting as a disclosed dual agent, assisted appellant by drafting an offer to purchase the home from Countrywide. The May 21, 2004 offer included a purchase price of $155, 900, with a down payment of $110, 000, and was contingent upon appellant obtaining financing for the remaining $45, 900. As part of the offer, appellant gave Spettel a check for $1, 000 as an earnest money deposit. Countrywide rejected the offer.

         {¶ 6} Appellant then contacted her attorney from the foreclosure action, Tom Stoll, who recommended that she contact Dan Asbury at HCMS. HCMS was a mortgage origination company, and Asbury was a mortgage broker. It was disputed at trial whether Asbury owned an interest in HCMS. When appellant arrived at HCMS, she spoke with Mike Finegan, who attempted to get her qualified for a loan. Appellant met with Finegan several times, but he was unable to secure financing for her. Finegan then referred appellant to Asbury. Appellant explained her situation to Asbury, and he offered to help her by purchasing the home himself, and then selling it to her on a land installment contract.

         {¶ 7} On June 2, 2004, appellant and Asbury then met with Spettel, who, again as a disclosed dual agent, drafted a purchase agreement in which appellant offered to buy the home from Asbury for $155, 900, with a $1, 000 earnest money deposit, $109, 000 being placed in escrow at the closing, and the remaining balance to be financed by Asbury in the form of a land installment contract at 8.5 percent interest with a 30-year amortization. The monthly payment was stated to be $352 plus escrow for taxes and insurance, with a balloon payment within 24 months of filing of the land contract. Included in the terms of the purchase agreement were standard terms regarding title and conveyance:

12.Title. An Owner's Fee Policy of Title Insurance in the amount of the purchase price shall be provided to the Purchaser showing good and marketable title in fee simple, free and clear of all liens and encumbrances except those specifically set forth in this agreement. * * * If a defect in the title appears, Seller shall have thirty (30) days after notice to remove such defect. If the defect can not be remedied, then, at the option of the Purchaser, all funds and documents shall be returned to the parties depositing them and this agreement shall be null and void.
13.Conveyance. Seller shall deliver to Purchaser a general warranty deed with appropriate release of dower (or fiduciary deed, if applicable), conveying a good and marketable title in the Property to the Purchaser free and clear of all liens and encumbrances whatsoever * * *.

         Further, it was handwritten by Spettel into the agreement that "Acceptance of this offer is contingent upon Dan and Michele Asbury being able to purchase this home from Countrywide and obtaining a clear deed."

         {¶ 8} Thereafter, Asbury, with Spettel again acting as a disclosed dual agent, offered to buy the home from Countrywide for $147, 000, which Countrywide accepted on June 10, 2004. To pay for the home, Asbury obtained financing through HCMS for $102, 900. Regarding the financing, Spettel testified that he believed he forwarded a loan pre-approval letter from Asbury to Countrywide. That loan was ultimately approved and underwritten by Flagstar Bank.

         {¶ 9} On June 12, 2004, appellant deposited a check for $110, 000 with the Huron County Title Agency, LLC, who was acting as the escrow closing agent for purposes of this transaction. Asbury had an ownership interest in the Huron County Title Agency, LLC.

         {¶ 10} On June 14, 2004, Dan and Michele Asbury accepted appellant's June 2, 2004 offer to purchase the home.[1] The terms of the purchase agreement were then sent to appellant's attorney, who drafted the land installment contract. The land installment contract provided for financing of $49, 600 at 8.5 percent interest. It stated that the monthly payment on the principal and interest would be $548.62 beginning on July 1, 2004, with the remaining balance due on or before July 1, 2010. Further, the land installment contract provided that appellant agreed to pay the taxes and insurance "over and above the obligation of monthly installments as set forth in this Agreement." Upon fulfillment of all of the obligations of the agreement, Asbury was to convey to appellant a "good and sufficient deed of general warranty" to the property.

         {¶ 11} Additionally, regarding mortgages and other encumbrances, the land installment contract included the following provisions:

2. Existing Mortgages and Other Encumbrances. The premises are subject to mortgage to__from__, recorded in Mortgage Book__, pages__in the office of the Recorder of Huron County, to secure repayment of the original principal sum of ...

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