Bank of N.Y. Mellon v. Floyd, 110248

• Decision Date: 21 October 2021
• Docket Number: 110248
• Citation: 2021 Ohio 3736
• Parties: BANK OF NEW YORK MELLON, Plaintiff-Appellee, v. DORIS M. FLOYD, ET AL., Defendants-Appellants.
• Court: Ohio Court of Appeals

2021-Ohio-3736

BANK OF NEW YORK MELLON, Plaintiff-Appellee, v. DORIS M. FLOYD, ET AL., Defendants-Appellants.

No. 110248

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 21, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-922817

Reimer Law Co. and Mike L. Wiery, for appellee.

Willie Floyd and Doris Floyd, pro se.

JOURNAL ENTRY AND OPINION

ANITA LASTER MAYS, PRESIDING JUDGE

{¶ 1} Defendants-appellants, Doris M. Floyd and Willie Floyd (the "Floyds"), appeal from the trial court's January 21, 2021 judgment adopting the magistrate's decision and ordering a decree of foreclosure in favor of plaintiff-appellee Bank of New York Mellon ("BONYM" or the "bank"). For the reasons that follow, we affirm.

Factual and Procedural History

{¶ 2} The record demonstrates that in 2006, the Floyds executed an adjustable rate note in favor of America's Wholesale Lender in the amount of $50, 850 in order to finance the purchase of property located on Eldamere Avenue in Cleveland. Along with the execution of the note, the Floyds also executed and delivered to Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for America's Wholesale Lender, a mortgage granting it the first and best lien on the property. The mortgage was recorded in January 2006 in the Cuyahoga County Recorder's Office. The note and mortgage were subsequently transferred and assigned to BONYM that was memorialized by an assignment of mortgage recorded in October 2009 in the Cuyahoga County Recorder's Office.

{¶ 3} In December 2009, the note and mortgage were modified by a loan-modification agreement that was recorded in November 2011 in the Cuyahoga County Recorder's Office. BONYM contends that the Floyds defaulted under the note, loan-modification agreement, and mortgage by failing to make payments due for October 1, 2010, and any subsequent payments. As such, the bank issued a notice of default to the Floyds in July 2013 and again in July 2014. The default was not cured, and BONYM filed the within foreclosure proceedings in March 2015.

{¶ 4} In April 2015, the Floyds filed a motion for summary judgment that the bank opposed. In September 2015 BONYM sought leave to file an amended complaint that was unopposed and granted. In November 2015, the trial court denied the Floyds' motion for summary judgment, and the bank filed its first amended complaint.

{¶ 5} In December 2015, the Floyds filed an answer counterclaims, and a motion to dismiss the complaint. The bank opposed the Floyds' motion to dismiss, and filed its own motion to dismiss the Floyds' counterclaims. The Floyds then filed a motion for leave to file an amended answer and counterclaims with the joinder of an additional party on March 29, 2016, that BONYM opposed. In August 2016 the trial court denied the Floyds' motion to dismiss the bank's complaint, and in September 2016, the court denied the Floyds' motion to file an amended answer and counterclaims with the joinder of an additional party. Also in September 2016, the trial court granted BONYM's motion to dismiss the Floyds' first set of counterclaims.

{¶ 6} In July 2017, the bank sought leave to file a second amended complaint that the trial court granted; the bank's second amended complaint was filed in January 2018. In February 2018, the Floyds filed a motion to dismiss the second amended complaint; the motion was denied. The Floyds then filed a second amended answer and counterclaims in November 2018. The bank moved to strike or dismiss the second set of counterclaims. The Floyds filed a motion to file their second set of counterclaims out of time, and a motion for leave to reply to the bank's motion to strike or dismiss. The trial court granted the Floyds' request to file out of time, denied the bank's motion to dismiss, and denied the Floyds' motion for leave to reply as moot.

{¶ 7} BONYM then filed a renewed motion to dismiss the Floyds' second set of counterclaims; the Floyds opposed the motion. The trial court granted the bank's motion to dismiss second set of counterclaims. The Floyds filed a motion for reconsideration that the trial court denied. In May 2019, the Floyds filed their second motion for summary judgment that the bank opposed. The trial court denied the Floyds' second motion for summary judgment in August 2019.

{¶ 8} BONYM moved for summary judgment in June 2019; the Floyds opposed. In August 2019, the magistrate issued his decision granting the bank's motion for summary judgment. The Floyds filed objections to the magistrate's decision. The trial court overruled the Floyds' objections in January 2021, and issued an order adopting the magistrate's decision and decree of foreclosure in January 2021. The Floyds now appeal, raising the following six assignments of error for our review:

ASSIGNMENT OF ERROR NO. 1: The trial court erred to the prejudice of the appellants in adopting the magistrate's decision and granting the appellee's motion for summary judgment when numerous issues of fact exist as to who the real party in interest is. The trial court failed to construe the evidence most favorably toward the appellants.

ASSIGNMENT OF ERROR NO. 2: The trial court erred in denying appellants' motion for summary judgment. The appellants have established by admissible evidence that BNYM is not entitled to enforce the note and mortgage and the court erred in allowing BNYM to use manipulated documents to obtain summary judgment.

ASSIGNMENT OF ERROR NO. 3: The trial court erred by relying on the affidavit of Laura Hovis filed in support of appellee's motion for summary judgment. The trial court erred by failing to strike the affidavit as impermissible hearsay or in the alternative failing to strike Exhibits A1-A9 and sustaining appellants' motion for summary judgment.

ASSIGNMENT OF ERROR NO. 4: The trial court erred to the prejudice of the appellants in awarding [summary judgment] when BNYM failed to prove the amount of principal and interest due on the mortgage and not granting summary judgment to the appellants.

ASSIGNMENT OF ERROR NO. 5: The trial court erred in failing to consider appellants' affirmative defenses of unclean hands, and judicial estoppel. Appellants' [summary judgment] motion should have been sustained.

ASSIGNMENT OF ERROR NO. 6: The trial court erred to the prejudice of the appellants in dismissing our counterclaims.

{¶ 9} Further facts will be discussed under the assignments of error.

Law and Analysis

{¶ 10} Appellate review of an order granting summary judgment is de novo. Pursuant to Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no genuine issue of material fact; (2) they are entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party.

{¶ 11} In a foreclosure action, the plaintiff is required to prove (1) it was either the holder of the note and mortgage or a party entitled to enforce those instruments; (2) the chain of assignments and transfers; (3) the mortgagor was in default under the terms of the loan; (4) all conditions had been met; and (5) the amount due. Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 62.

BONYM's Standing

{¶ 12} In their first assignment of error, the Floyds contend that "the trial court's decision is against the manifest weight of the evidence regarding the plaintiff being holder of the note and mortgage." According to the Floyds, both BONYM and BAC Home Loan Servicing ("BAC") are purporting to be the holders of the mortgage and loan.

{¶ 13} We initially note that the Floyds cite to previous proceedings regarding the subject property. Specifically, a foreclosure case was filed in 2009 in Cuyahoga County C.P. No. CV-09-706593, and again in 2012 in Cuyahoga County C.P. No. CV-12-778979. In the 2009 case, BONYM obtained default judgment against the Floyds. The default judgment was later vacated by the bank, and the trial court dismissed the case without prejudice. The 2012 case was also dismissed without prejudice.

{¶ 14} In their motion for summary judgment, the Floyds attempted to rely on the prior proceedings; they also cite the prior proceedings now on appeal. For example, they contend that "[d]uring the same time BONYM possessed a default judgment, BAC sent three letters dated May 2010, September 2010, and February 2012, attempting to collect on the loan and threatening us with foreclosure."

{¶ 15} Generally, a trial court may not take judicial notice of prior proceedings in the court; rather, it may only take judicial notice of prior proceedings in the immediate case. D & B Immobilization Corp. v. Dues, 122 Ohio App.3d 50, 53, 701 N.E.2d 32 (8th Dist.1997). The rationale for this holding is that if a court takes notice of a prior proceeding, the appellate court cannot review whether the trial court correctly interpreted the prior case because the record of the prior case is not before the appellate court. Id.

{¶ 16} Further, a dismissal without prejudice, which was the case for both prior foreclosure cases, has the effect of placing the parties back in the position that they held prior to the commencement of the action. Zimmie v. Zimmie, 11 Ohio St.3d 94, 464 N.E.2d 142 (1984), paragraph two of the syllabus. A dismissal without prejudice has the effect of dissolving all rulings preceding the entry of dismissal. DeVille Photography, Inc. v. Bowers, 169 Ohio St. 267, 272, 159 N.E.2d 443 (1959). Therefore, the parties are permitted to litigate claims as if no previous suit had been commenced. Id.

{¶ 17} In light of the above, we disregard the Floyds' arguments relating to the 2009 and 2012 foreclosure actions.

{¶ 18} We do consider issues...