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Wells Fargo Bank, N.A. v. Lundeen

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 9, 2020

WELLS FARGO BANK, N.A., Plaintiff-Appellee,
v.
CYNTHIA LUNDEEN, ET AL., Defendants-Appellants.

          Civil Appeal from the Cuyahoga County Court of Common Pleas No. CV-16-856890

         JUDGMENT: AFFIRMED

          Thompson Hine, L.L.P., Scott A. King, Richard A. Freshwater, Terry W. Posey, Jr., Todd Seaman, and Caitlin R. Thomas, for appellee.

          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.

         I. Procedural Background

         {¶ 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, 2018.

         {¶ 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 therefore, ...


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