Chase Home Fin., L.L.C. v. Heft, CASE NO. 8-10-14
| Decision Date | 05 March 2012 |
| Docket Number | CASE NO. 8-10-14,CASE NO. 8-11-16 |
| Citation | 2012 Ohio 876 |
| Parties | CHASE HOME FINANCE, L.L.C., NKA JP MORGAN CHASE BANK, N.A., PLAINTIFF-APPELLEE, v. BRIAN L. HEFT, DEFENDANT-APPELLANT, -and- PNC BANK, ET AL, DEFENDANTS-APPELLEES. CHASE HOME FINANCE, L.L.C., NKA JP MORGAN CHASE BANK, N.A., PLAINTIFF-APPELLEE, v. BRIAN L. HEFT, DEFENDANT-APPELLANT, -and- PNC BANK, ET AL, DEFENDANTS-APPELLEES. |
| Court | Ohio Court of Appeals |
Appeals from Logan County Common Pleas Court
Judgments Affirmed
APPEARANCES:
Brian L. Heft, Appellant
Laura A. Hauser and Jason R. Harley for Appellee, JP Morgan
{¶1} Defendant-appellant, Brian L. Heft ("Heft"), pro se, appeals the Logan County Court of Common Pleas' grant of summary judgment in favor of plaintiff-appellee, Chase Home Finance, L.L.C.1 ("Chase"), on their foreclosure complaint and judgment denying his subsequent motion for relief from that judgment entry. For the reasons that follow, we affirm.
{¶2} On May 28, 2004, Heft executed a promissory note with CTX Mortgage Company, L.L.C. ("CTX") for a loan in the amount of $148,000.00 topurchase a home. . The note provided that the interest rate would be 5.5% yearly and payments would commence on July 1, 2005. (Id.). The promissory note also included a construction loan note addendum. (Id.). To secure payment of the promissory note, Heft and his wife, Bridget A. Heft ("Bridget"), executed a mortgage against the real property at 413 Highview Drive, Bellefontaine, Ohio. (Id., Ex. C).
{¶3} On December 22, 2004, Heft and Bridget executed a loan modification agreement with CTX to alter some of the terms of the note and mortgage. (Id., Ex. B). In relevant part, the modification agreement provided that the principal of the loan was $148,000.00; the interest rate would be 5.875% yearly; and that payments would commence on February 1, 2005. (Id.).
{¶4} Beginning in February 2009, Heft failed to make monthly payments under the terms of the note and mortgage. (Cottrell Aff., Doc. No. 35).
{¶5} On January 6, 2010, the mortgage was assigned to Chase. (Doc. No. 1, Ex. E). On January 15, 2010, Chase filed a complaint in foreclosure against Heft, Bridget, the Logan County Treasurer ("Treasurer"), PNC Bank successor by merger to National City Bank ("PNC"), and Capital One Bank ("Capital One") relative to the Heft's home. (Doc. No. 1).
{¶6} On February 8, 2010, Heft filed a motion to stay the proceedings. (Doc. No. 21). The trial court treated the filing as a motion for additional time toanswer or respond to the complaint and granted Heft until March 30, 2010 to move or otherwise plead. (Doc. No. 23).
{¶7} On February 19, 2010, PNC filed its answer. (Doc. No. 25). On March 5, 2010, the Treasurer filed its answer. (Doc. No. 26). On March 29, 2010, Heft filed his answer. (Doc. No. 27).
{¶8} On April 20, 2010, Chase filed a motion seeking default judgment against Bridget and Capital One. (Doc. No. 29). On that same day, Chase filed a motion for summary judgment. (Doc. No. 34). On April 23, 2010, Heft filed a motion for summary judgment and motion to dismiss the complaint. (Doc. No. 38).
{¶9} On May 12, 2010, Heft filed a memorandum in opposition to Chase's motion for summary judgment. (Doc. No. 43). On May 13, 2011, Chase filed a reply in opposition to Heft's motion for summary judgment and motion to dismiss. (Doc. No. 44). On May 21, 2010, Chase filed a reply in support of its motion for summary judgment. (Doc. No. 45).
{¶10} On June 10, 2010, the trial court issued a decision finding Chase was entitled to summary judgment and denying Heft's cross-motion for summary judgment and motion to dismiss. (Doc. No. 46). The trial court's decision instructed Chase to draft and submit a judgment entry. (Id.).
{¶11} On June 25, 2010, Heft filed a Civ.R. 60(B) motion to set aside the trial court's decision, alleging that he was denied due process of law and issues of material fact precluded summary judgment under Civ.R. 56(C). (Doc. No. 48).
{¶12} On July 7, 2010, Heft filed a motion to stay execution and waive the supersedes bond. (Doc. No. 51). On that same day, Heft also filed a notice of appeal from the trial court's decision, which was assigned case no. 8-10-08. (Doc. Nos. 51-52, 55).
{¶13} On July 14, 2010, the trial court denied Heft's motions to stay execution, waive the supersedes bond, and relief from judgment. (Doc. No. 59). On that same day, the trial court filed its judgment entry granting summary judgment and decree in foreclosure. (Doc. No. 60). In that judgment entry, the trial court also found that Bridget and Capital One were in default. (Id.)
{¶14} On July 26, 2010, this Court dismissed Heft's appeal in case no. 8-10-08 for lack of a final appealable order since the journal entry Heft appealed instructed Chase to draft and submit a judgment entry of foreclosure. (Doc. No. 65).
{¶15} On July 28, 2010, Heft filed a motion for reconsideration/clarification of the trial court's judgment. (Doc. No. 66). On July 29, 2010, Chase filed a praecipe for order of sale of the property. (Doc. No. 69).
{¶16} On August 4, 2010, Heft filed a motion to stay execution. (Doc. No. 71). On that same day, Heft also filed a notice of appeal from the trial court's July 14, 2010 2 judgment entry granting summary judgment to Chase. (Doc. No. 72). That appeal was assigned case no. 8-10-14. On August 9, 2010, Chase filed a memorandum in opposition to Heft's motion for reconsideration/clarification. (Doc. No. 75). On August 11, 2010, the trial court denied Heft's motion for reconsideration/clarification and motion to stay execution. (Doc. No. 79).
{¶17} A sheriff's sale of the property was scheduled for September 22, 2010. (Doc. No. 83). On September 20, 2010, Heft filed a notification of filing bankruptcy and emergency motion to stay. (Doc. No. 86). On September 21, 2010, the trial court filed an entry staying the proceedings pursuant to Section 362 of the United States Bankruptcy Code and cancelling the pending sheriff's sale. (Doc. No. 87).
{¶18} On July 8, 2011, Heft filed a motion to lift the stay for the purpose of ruling upon a simultaneously filed Civ.R. 60(B) motion. (Doc. Nos. 94-95). On that same day, Heft filed a motion in this Court to remand the matter to the trial court for purposes of ruling upon his Civ.R. 60(B) motion since his bankruptcy case had been dismissed.
{¶19} On July 12, 2011, the trial court denied Heft's motions, finding that it lacked jurisdiction to rule upon them since Heft had a pending appeal. (Doc. No. 96). On July 22, 2011, we vacated our previous stay order and remanded the case back to the trial court to rule upon Heft's Civ.R. 60(B) motion. (Doc. No. 98).
{¶20} On August 16, 2011, the trial court denied Heft's Civ.R. 60(B) motion. (Doc. No. 103). On September 15, 2011, Heft filed a notice of appeal from this judgment entry, which was assigned appellate case no. 8-11-16. (Doc. No. 106).
{¶21} Heft now appeals raising four assignments of error. 3 Heft raises two assignments of error (Nos. 1 & 6) regarding the trial court's denial of his Civ.R. 60(B) motion (appellate case no. 8-11-16) and two assignments of error (Nos. 2 & 3) regarding the trial court's grant of summary judgment (appellate case no. 8-10-14). We elect to address Heft's assignments of error regarding the grant of summary judgment first, combining them for discussion.
{¶22} In his second and third assignments of error, Heft argues that the trial court erred in granting Chase summary judgment since Chase lacked standing to initiate the foreclosure action when its employee, Beth Cottrell, "robo-signed"4 the assignment of mortgage. Heft further argues that Beth Cottrell's affidavit, which Chase filed in support of its summary judgment motion, may have been signed without regard for its truth. Finally, Heft argues that Cottrell appears to have represented all three parties at the time she executed the assignment of mortgage.
{¶23} We review a decision to grant summary judgment de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000). 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. Casselsv. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).
{¶24} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of fact as to an essential element of one or more of the nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once this burden has been satisfied, the non-moving party has the burden to offer specific facts, in the manner prescribed in Civ.R. 56(E), showing a genuine issue for trial. Id. at 293. "Material facts" are those "that might affect the outcome of the suit under the governing law * * *." Turner v. Turner, 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 (1993), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986); Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215, 218-219, 520 N.E.2d 198 (1988).
{¶25} "The...
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