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PHH Mortgage Corp. v. Barker

Court of Appeals of Ohio, Third District, Van Wert

December 23, 2019

PHH MORTGAGE CORPORATION, PLAINTIFF-APPELLEE,
v.
DENISE L. BARKER, ET AL., DEFENDANTS-APPELLANTS.

          Appeal from Van Wert County Common Pleas Court Trial Court No. CV-15-07-112

         Judgment Affirmed

          George R. Smith, Jr. for Appellants

          Rick D. DeBlasis and William P. Leaman for Appellee

          OPINION

          ZIMMERMAN, P.J.

         {¶1} Defendant-appellants, Denise L. Barker and Robert D. Barker, Jr. ("Barkers"), appeal the December 31, 2018 judgment entry of the Van Wert County Court of Common Pleas granting summary judgment in favor of PHH Mortgage Corporation ("PHH") as to the Barkers' counterclaims for breach of contract, declaratory judgment relief, and wrongful foreclosure and the January 29, 2019 judgment entry of the Van Wert County Court of Common Pleas granting foreclosure in favor of the PHH. For the reasons that follow, we affirm.

         {¶2} This case stems from PHH's third foreclosure complaint in rem filed against the Barkers.[1] (Doc. No. 3). PHH had previously filed foreclosure complaints against the Barkers in 2007 and 2011. (Id.).

         {¶3} Relevant to this appeal, PHH filed its third foreclosure complaint against the Barkers on July 30, 2015. (Doc. No. 3). On September 25, 2015, the Barker's filed their answer and counterclaims against PHH for breach of contract, declaratory-judgment relief, tortious infliction of emotional distress, and wrongful foreclosure.[2] (Doc. No. 16). PHH filed an answer to the Barkers' counterclaims on November 23, 2015 and an amended answer on December 11, 2015. (Doc. Nos. 20, 22). Mediation was ordered on May 5, 2016 and concluded with the parties unable to reach a settlement. (Doc. Nos. 25, 32). Thereafter, the Barkers requested leave to file an amended answer and counterclaim, and leave was granted. (Doc. Nos. 38, 40, 41). PHH then filed an amended answer to the Barkers' amended counterclaim. (Doc. No. 43).

         {¶4} On March 31, 2017, PHH filed a motion for summary judgment. (Doc. No. 54). (See also Doc. No. 55). The Barkers also filed a motion for summary judgment together with their memorandum in opposition to PHH's motion for summary judgment on April 26, 2017. (Doc. No. 56).

         {¶5} Ultimately, on December 31, 2018, the trial court issued judgment in favor of PHH as to a decree in foreclosure (in rem only) and dismissed the Barkers' counterclaims with prejudice. (Doc. No. 73). The trial court issued its judgment entry and decree in foreclosure on January 29, 2019. (JE, Doc. No. 76).

         {¶6} The Barkers filed their notice of appeal on February 20, 2019 and raise seven assignments of error for our review. (Doc. No. 79). We will begin by addressing the Barkers' first, second, third, fourth and fifth assignments of error together, followed by their sixth assignment of error, and then their seventh assignment of error.

Assignment of Error No. I
The trial court erred in granting summary judgment to plaintiff [PHH] and in denying defendants' [Barkers'] summary judgment on their claim for breach of duty of good faith and fair dealing and breach of contract by impermissibly weighing the evidence, failing to accord the Barkers the benefit of all reasonable inferences permissibly derived from the pleadings and evidence of record and failing to construe the evidence most strongly in their favor as it was undisputed that plaintiff [PHH] refused to provide a valid reinstatement quote or an address where payments would be accepted and thus unlawfully impeded or prevented defendants' [Barkers'] performance of their obligations under contract and violated the court order reinstating the loan.
Assignment of Error No. II
The trial court erred in granting summary judgment to plaintiff [PHH] and in denying defendants' [Barkers'] motion for summary judgment as the notice of default included sums to which plaintiff [PHH] was not legally entitled, failed to comply with a prior order of the court and PHH failed to mail a notice of default prior to filing this action.
Assignment of Error No. III
The trial court erred in granting summary judgment to plaintiff [PHH] as it was undisputed plaintiff [PHH] failed to mitigate damages by refusing to provide an address where payments would be accepted or providing a reinstatement quote.
Assignment of Error No. IV
The trial court erred in denying defendants [Barkers] [sic] partial summary judgment on their counterclaim for wrongful foreclosure. Where, as here, a lender files successive foreclosure actions in violation of a court judgment and refuses to provide borrowers an opportunity to perform their obligations under the court judgment and contract in an effort to coerce the borrowers into paying illegal sums under the constant threat of losing their home, its acts in bad faith and the lender may be held to answer for this tortious conduct in damages.
Assignment of Error No. V
The trial court erred in denying defendants' [Barkers'] summary judgment on their counterclaim for declaratory judgment relief as the bad faith conduct of a lender in performance of its contractual and legal obligations entitles borrowers to a declaration that the note and mortgage are void as a matter of law.

         {¶7} In their first-five assignments of error, the Barkers argue that the trial court erred by granting summary judgment in favor of PHH because PHH breached its mortgage contract with them. In their second and third assignments of error, the Barkers assert that the trial court improperly granted summary judgment in favor of PHH because PHH assessed them for late charges and expenses incurred in prior unsuccessful litigation; that PHH failed to provide the Barkers with an accurate reinstatement quote prior to notice of intent to foreclose; and because PHH failed to mitigate its damages. In their fourth and fifth assignments of error, the Barkers assert that the trial court should have granted summary judgment on their wrongful-foreclosure and declaratory-judgment counterclaims. [3]

         Standard of Review

         {¶8} Generally, we review a decision to grant summary judgment de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). "De novo review is independent and without deference to the trial court's determination." ISHA, Inc. v. Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S. Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist). Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and the conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

         {¶9} However, "'"[t]o properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due."'" U.S. Bank N.A. v. Jones, 3d Dist. Allen No. 1-16-15, 2016-Ohio-7168, ¶ 17, quoting HSBC Mtge. Servs., Inc. v. Watson, 3d Dist. Paulding No. 11-14-03, 2015-Ohio-221, ¶ 24, quoting Wright-Patt Credit Union, Inc. v. Byington, 6th Dist. Erie No. E-12-002, 2013-Ohio-3963, ¶ 10.

         {¶10} "The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact." Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). "In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument." Id., citing Dresher at 292. "The nonmoving party must then rebut with specific facts showing the existence of a genuine ...


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