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GMAC Mortgage, LLC v. Giuliano

Court of Appeals of Ohio, Eleventh District, Trumbull

April 30, 2018

GMAC MORTGAGE, LLC, f.k.a. GMAC MORTGAGE CORPORATION d.b.a. DITECH.COM, Plaintiff-Appellee,
v.
RICHARD M. GIULIANO, et al., Defendants-Appellants.

          Brooke Turner Bautista and Melany K. Fontanazza, McGlinchey Stafford, PLLC, (For Plaintiff-Appellee).

          Philip D. Zuzolo, Zuzolo Law Office, LLC, (For Defendants-Appellants).

          Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2010 CV 1658.

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellants, Richard M. and Margaret J. Giuliano, appeal the judgment and decree in foreclosure issued in favor of appellee, GMAC Mortgage, LLC ("GMAC"). Appellants allege the trial court erred in granting summary judgment in favor of GMAC. We affirm.

         {¶2} In December of 2000, appellants took a loan with appellee in connection with the purchase of a house and executed a 30-year note ("Note"). Appellants' repayment obligations under the Note were secured by a mortgage ("Mortgage") executed on the same day. Appellants defaulted on the loan in August 2008, and failed to cure the default by paying the total reinstatement amount. Appellee exercised its rights under the Mortgage and accelerated the entire principal balance on the Note together with interest, fees, advances for taxes, insurance, and other costs.

         {¶3} In June 2008, appellee agreed to a repayment agreement ("Repayment Agreement") requiring appellants to make six consecutive monthly payments in an amount sufficient to bring their account current by December 2008. The Repayment Agreement included a provision permitting appellee to undertake collection or foreclosure activities without notice if payments were not timely received. In addition, the Repayment Agreement provided that it would be automatically voided if appellants filed for bankruptcy during the Repayment Agreement.

         {¶4} Appellants failed to make timely payment under the Repayment Agreement, and shortly after, in October 2008, filed for Chapter 7 bankruptcy. Both of these events resulted in automatic cancellation of the Repayment Agreement.

         {¶5} In December 2008, appellee filed its first foreclosure action against appellants. Appellee was denied summary judgment in that case in May 2010 and voluntarily dismissed the action. Despite appellants' failure under the Repayment Agreement, appellee considered appellants for loan modifications in January 2009 and March 2009, but appellants did not qualify. Appellee eventually offered appellants a loan modification in December 2009, but they chose not to accept the offer and never tendered sufficient funds to reinstate their defaulted mortgage loan. Consequently, appellee filed the underlying second foreclosure complaint in June 2010. Appellants filed an answer and counterclaim in September 2010.

         {¶6} In July 2011, the trial court granted appellee's motion for summary judgment, dismissed appellants' counterclaim with prejudice, and issued the decree in foreclosure.

         {¶7} Appellants filed the present appeal, which was stayed pending their bankruptcy proceedings. Their sole assigned error asserts:

         {¶8} "The trial court committed prejudicial error in granting Plaintiffs-Appellee's, GMAC Mortgage LLC's, motion for summary judgment."

         {¶9} Appellants originally raised two assigned errors with multiple sub-arguments. However, they withdrew their second assigned error in its entirety. Appellants also withdrew their second and fifth sub-arguments under their first assignment of error.[1] Accordingly, three issues remain for review under appellants' first assigned error.

         {¶10} Appellants argue the court erred in granting summary judgment because the summary judgment evidence shows: that appellee lacked standing to foreclose; that appellee committed a fraud upon the court by submitting altered evidence, and as such, the doctrines of judicial estoppel or unclean hands applies, and that appellee failed to honor ...


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