Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bank v. Spencer

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 16, 2020

MIDFIRST BANK, Plaintiff-Appellee,
v.
GERALD A. SPENCER, ET AL., Defendants-Appellants.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-850327

         JUDGMENT: AFFIRMED

          Manley Deas Kochalski, L.L.C., and Matthew J. Richardson, for appellee.

          Law Office of Paul B. Bellamy, JD, PhD, and Paul B. Bellamy, for appellants.

          JOURNAL ENTRY AND OPINION

          RAYMOND C. HEADEN, J.

         {¶ 1} Defendants-appellants Gerald and Yohnta Spencer ("the Spencers") appeal from the trial court's order adopting the magistrate's decision granting judgment in favor of plaintiff-appellee MidFirst Bank ("MidFirst") and entering a decree of foreclosure. For the reasons that follow, we affirm.

         Procedural and Substantive History

         {¶ 2} This is a foreclosure case stemming from the Spencers defaulting on their mortgage related to the residential property located at 5216 Milo Avenue in Maple Heights, Ohio ("the property"). On October 26, 2015, MidFirst filed a complaint for foreclosure against the Spencers, alleging that it was entitled to foreclose its mortgagee interest in the property as a result of the Spencers' default on their note and mortgage. MidFirst attached copies of the note, mortgage, and assignments to its complaint. MidFirst also sought to reform the legal description of the property in the mortgage to correct a scrivener's error.

         {¶ 3} On March 13, 2001, the Spencers executed a promissory note and mortgage in the amount of $112, 610. They defaulted on the note and mortgage in August 2013. The note provided that Union National Mortgage Co. ("Union") was the Lender, and the mortgage stated that Mortgage Electronic Registration Systems, Inc. ("MERS") was acting solely as nominee of Union and Union's successors and assigns, and MERS was the mortgagee under that security instrument. On October 31, 2011, Union executed an assignment of the mortgage in favor of Citimortgage, Inc. ("Citimortgage"), and on February 2, 2012, Citimortgage further assigned the mortgage to MidFirst. The copy of the note initially attached to the complaint contained a stamped and undated indorsement in blank from Union signed by Union's assistant vice president.

         {¶ 4} On September 25, 2015, the Spencers filed a pro se answer to MidFirst's complaint. The parties engaged in mediation discussions, but the discussions were unsuccessful, and the Spencers subsequently retained counsel. On December 24, 2015, the Spencers filed an amended answer with counterclaims. The magistrate held a hearing in which counsel for MidFirst presented the Spencers and the court with the original note, which contained additional indorsements terminating in a specific indorsement to MidFirst.

         {¶ 5} On January 29, 2016, with leave of court, MidFirst filed an amended complaint and attached a copy of the note in what MidFirst described as its current state. The note contained an indorsement from Union to Principal Residential Mortgage, Inc. ("Principal"), dated March 13, 2001. The note also contained an indorsement from Principal[1] to MidFirst, executed by Paul Bognanno ("Bognanno"), Principal's president and chief executive officer.

         {¶ 6} On February 12, 2016, the Spencers filed an amended answer with counterclaims, alleging that MidFirst had violated the Fair Debt Collections Practices Act ("FDCPA"), had committed fraud, and had committed invasion of privacy by intrusion upon seclusion. On April 11, 2016, MidFirst filed a motion to dismiss the Spencers' counterclaims pursuant to Civ.R. 12(B)(6). The Spencers filed a brief in opposition to MidFirst's motion to dismiss.

         {¶ 7} On May 20, 2016, the trial court granted MidFirst's motion to dismiss in part and denied the motion in part. The trial court granted the motion with respect to the Spencers' counterclaim for fraud. The court explained its ruling as follows:

Since statements made in the complaint are intended to cause the court to act upon them, not defendants, any misrepresentations in the complaint cannot form the basis of a fraud claim, even if the defendants allege that they acted upon the statements. Castellanos v. Deutsche Bank, (July 6, 2012) U.S. Dist. Ct. S.D. Ohio No. 1:11-CV-815, 2012 U.S. Dist. LEXIS 93455. Accordingly, defendant's counterclaim for fraud fails to state a claim and is dismissed.
Since defendants allege that plaintiff is not collecting its own debt and, therefore is a debt collector, allege that the loan is a residential transaction, allege that they are consumers, and allege that, by submitting false documents with the complaint, committed an act in violation of the FDCPA, defendants state a claim for violation of the FDCPA. Wallace v. Wash. Mut. Bank, FA, (6th Cir. 2012), 683 F.3d 323, 327. Therefore, plaintiffs motion to dismiss is denied as to this claim.
A claim for invasion of privacy by intrusion of seclusion requires activities that cause outrage, mental suffering, shame or humiliation to a person of ordinary sensibilities. Housh v. Peth, (1956), 165 Ohio St. 35. If, as defendants allege, plaintiff caused the default on the loan by willfully failing to accept payments after a modification, plaintiff may have committed such an act. Accordingly, defendants state a claim for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.