Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas No.
Thompson Hine, L.L.P., Scott A. King, Richard A. Freshwater,
Terry W. Posey, Jr., Todd Seaman, and Caitlin R. Thomas, for
Cynthia Lundeen, pro se.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE
1} In this foreclosure action, defendant-appellant,
Cynthia Lundeen ("Lundeen"), appeals from the trial
court's judgment that adopted a magistrate's decision
and granted plaintiff-appellee, Wells Fargo Bank, NA.
("Wells Fargo"), a judgment on a note and a decree
of foreclosure. Finding no merit to the appeal, we affirm.
2} On January 8, 2016, Wells Fargo filed a
foreclosure complaint against Lundeen, seeking the balance
due on a promissory note and to foreclose on a mortgage. On
August 12, 2016, Wells Fargo filed a third amended complaint.
Count 1 of the third amended complaint alleged that Wells
Fargo was due the principal amount of $364, 579.25 under the
note, plus interest, late charges, and other costs and
expenses, and Count 2 asserted that Wells Fargo was entitled
to foreclose on the mortgage in light of Lundeen's
default on the note.
3} Copies of the note and mortgage were attached as
Exhibits A and B to the third amended complaint. The note,
which was executed by Lundeen and payable to World Savings
Bank, FSB, bore an endorsement stating that the note was
payable to Wells Fargo as the successor by merger to Wachovia
Mortgage FSB, which was formerly known as World Savings Bank.
The mortgage was also executed by Lundeen in favor of World
Savings Bank. Attached to the third amended complaint were
copies of the merger documents between World Savings Bank,
Wachovia, and Wells Fargo.
4} On November 22, 2016, the clerk of courts sent a
summons and the third amended complaint to Lundeen by
certified mail. The summons and third amended complaint were
returned to the court unclaimed. On January 18, 2017, the
clerk sent a summons and the third amended complaint to
Lundeen by regular mail; the clerk endorsed the summons with
an answer date of February 15, 2017.
5} On February 14, 2017, Lundeen filed a motion for
an extension of time to respond to the third amended
complaint, and the trial court granted the motion. On March
10, 2017, Lundeen requested additional time to respond to the
third amended complaint; the court granted Lundeen until May
1, 2017, to answer. On that day, however, the case was
referred to the court's mediation program, and all motion
practice was stayed pending the mediation. The case did not
settle and was returned to the trial court for further
proceedings on September 26, 2017.
6} Lundeen never filed an answer to the third
amended complaint. However, on November 27, 2017, she filed a
Civ.R. 12(B)(6) motion to dismiss the case. In her motion,
Lundeen argued that Wells Fargo did not have standing to
bring the foreclosure action because she had signed the note
and mortgage with World Savings Bank, and Wells Fargo had not
alleged in the third amended complaint that it was a
successor to the note and mortgage by merger or a name
change. Lundeen made no argument regarding insufficiency of
service. The trial court denied the motion on January 8,
7} In the meantime, on December 27, 2017, Wells
Fargo filed a motion for summary judgment. Lundeen filed a
brief in opposition to the motion on January 26, 2018.
Although Lundeen argued that Wells Fargo was not entitled to
summary judgment for various reasons, she made no argument
that she was never served with the third amended complaint.
8} On February 14, 2018, the magistrate issued a
decision granting summary judgment in favor of Wells Fargo.
On February 22, 2018, Lundeen filed a motion for findings of
fact and conclusions of law with respect to the
magistrate's decision, but she never filed any objections
to the decision. On April 8, 2018, the court denied
Lundeen's request for findings of fact and conclusions of
law, ruling that the magistrate's decision contained
fully elaborated findings of fact and conclusions of law and