Court of Appeals of Ohio, Eleventh District, Trumbull
GMAC MORTGAGE, LLC, f.k.a. GMAC MORTGAGE CORPORATION d.b.a. DITECH.COM, Plaintiff-Appellee,
RICHARD M. GIULIANO, et al., Defendants-Appellants.
Turner Bautista and Melany K. Fontanazza, McGlinchey
Stafford, PLLC, (For Plaintiff-Appellee).
D. Zuzolo, Zuzolo Law Office, LLC, (For
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2010 CV 1658.
R. WRIGHT, P.J.
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.
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.
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
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.
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
In July 2011, the trial court granted appellee's motion
for summary judgment, dismissed appellants' counterclaim
with prejudice, and issued the decree in foreclosure.
Appellants filed the present appeal, which was stayed pending
their bankruptcy proceedings. Their sole assigned error
"The trial court committed prejudicial error in granting
Plaintiffs-Appellee's, GMAC Mortgage LLC's, motion
for summary judgment."
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. Accordingly, three issues remain for
review under appellants' first assigned error.
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 ...