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Mae v. Hicks

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 10, 2018

FANNIE MAE PLAINTIFF-APPELLEE
v.
LYNDA HICKS DEFENDANT-APPELLANT

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-11-746293

          ATTORNEY FOR APPELLANT John Wood.

          ATTORNEYS FOR APPELLEE John E. Codrea, David B. Bokor, Matthew P. Curry, Edward M. Kochalski, Matthew J. Richardson, Justin M. Ritch, Manley, Deas & Kochalski, L.L.C.

          For JP Morgan Chase Bank, N.A. Maria A. Citeroni Stephen D. Williger Nicole K. Wilson Thompson & Hine, L.L.P. Laura Hauser, Nelson M. Reid, Anne Marie Sferra Bricker & Eckler, L.L.P.

          BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, PRESIDING JUDGE.

         {¶1} Defendant-appellant, Lynda Hicks, appeals the denial of her request for damages sustained by her property as a result of a judgment in foreclosure that was subsequently vacated. She claims the following sole assignment of error:

Where a rental is wrongfully taken in foreclosure for a period of years by a party with no interest, and the Court of Appeals orders return of the property to the rightful owner and for the trial court to conduct proceedings consistent with the appellate ruling, it was an abuse of discretion for the trial court, who wrongly ordered the foreclosure, to refuse to consider the motion for damages inflicted by the party in error upon the innocent party.

         {¶2} We find merit to the appeal and reverse the trial court's judgment.

         I. Facts and Procedural History

         {¶3} In 2011, plaintiff-appellee, Federal National Mortgage Association ("Fannie Mae"), filed a complaint in foreclosure against Hicks seeking foreclosure on a two-family home that Hicks owned as a rental property. Both parties filed motions for summary judgment. Fannie Mae conceded in its motion that the note on which its foreclosure claim was predicated was lost, but argued it was nevertheless entitled to foreclosure on Hicks's property because it was the assignee of the mortgage on the property. Hicks argued that Fannie Mae was not legally entitled to foreclosure without the missing note.

         {¶4} The trial court granted Fannie Mae's motion, denied Hicks's motion, and entered judgment in foreclosure in favor of Fannie Mae. On appeal, we concluded that the assignment of the mortgage to Fannie Mae, by itself, was insufficient to sustain an action in foreclosure and reversed the trial court's judgment. Fannie Mae v. Hicks, 8th Dist. Cuyahoga No. 102079, 2015-Ohio-1955 ("Hicks I "). However, while the appeal was pending, Hicks's property was sold in a sheriffs sale to Fannie Mae for a $110, 000 credit bid, representing the amount of the debt owed on the property. Hicks did not request a stay of the confirmation of sale, but moved for a stay of distribution of the sale proceeds pending our decision in her appeal. The trial court denied her motion. One week later, Fannie Mae was issued a deed to the property, which was recorded in June 2015.

         {¶5} Following release of this court's decision in Hicks I, Hicks filed a motion seeking restitution from Fannie Mae in the amount of $110, 000, the foreclosure price of the property. Fannie Mae opposed the motion, asking the court to instead vacate the confirmation of sale pursuant to Civ.R. 60(B) and return the property to Hicks. The trial court denied Fannie Mae's motion to vacate the confirmation of sale and ordered Fannie Mae to pay Hicks $110, 000 in restitution. This time Fannie Mae appealed the trial court's judgment.

         {¶6} In the second appeal, we determined that the trial court erred by not vacating the foreclosure sale and by ordering Fannie Mae to pay Hicks $110, 000 in restitution. Fannie Mae v. Hicks, 8th Dist. Cuyahoga No. 103804, 2016-Ohio-8484, ¶ 19 ("Hicks II "). Following release of this court's decision but before the file was returned to the trial court, Hicks filed a motion styled "Motion for Conference to Determine the Effect of Setting Aside an Order of Sale, " seeking to recover damages sustained while Fannie Mae had possession of her property. Hicks alleged that Fannie Mae failed to secure, maintain, and winterize the home, and that the property "wasted significantly from its pre-sale condition." (Motion for Conference to Determine the Effect of Setting Aside an Order of Sale at 2.) Hicks alleged, among other things, that two water heaters and a furnace were broken, tenants left the property, and a squatter was now inhabiting one of the units. Hicks also alleged that ...


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