Onewest Bank, FSB v. Ruth, CV 2012-07-4287

CourtCourt of Common Pleas of Ohio
Writing for the CourtCHRISTINE CROCE, JUDGE
PartiesONEWEST BANK, FSB, Plaintiff/Counterclaim Defendant v. PAMELA RUTH, et al., Defendants v. MANLEY DEAS & KOCHALSKI, LLC, Counterclaim Defendant
Docket NumberCV 2012-07-4287
Decision Date06 February 2014

ONEWEST BANK, FSB, Plaintiff/Counterclaim Defendant

PAMELA RUTH, et al., Defendants

MANLEY DEAS & KOCHALSKI, LLC, Counterclaim Defendant

No. CV 2012-07-4287

Court of Common Pleas of Ohio, Summit

February 6, 2014



This matter came before the Court on three separate Motions -- Plaintiff's Motion for Summary Judgment; Plaintiff's Partial Motion to Dismiss; and Counterclaim Defendant Manley Deas Kochalski LLC's Motion for Judgment on the Pleadings. The Court has been advised, having reviewed the Motions, response and reply briefs, the pleadings, affidavits, exhibits, and applicable law. Upon due consideration, the Court finds Plaintiff's Motion for Summary Judgment not well taken, Plaintiff's Motion to Dismiss well taken in part/not well taken in part, and Counterclaim Defendant's Motion for Judgment on the Pleadings well taken in part/not well taken in part.


On September 9, 2009, Plaintiff Onewest Bank c/o Washington Mutual Bank (Onewest) filed its Complaint of Foreclosure against the Defendants Michael Ruth and Pamela Ruth alleging that they defaulted in their payments on a promissory note with Accubanc Mortgage Corporation. Plaintiff alleged that both the Note and Mortgage were entered into and recorded on or about December 15, 2007. In connection with the Note, Plaintiff alleged that the amount of $78, 436.52 was due and owing from February 1, 2009 to present. Defendant Pamela Ruth filed her Answer to the Complaint denying said allegations and asserting numerous affirmative defenses.[1]

After numerous procedural motions were filed and ruled upon, Plaintiff Amended its Complaint on May 24, 2010, asserting for the first time, that Washington Mutual Bank and Ms. Ruth had entered into a Loan Modification Agreement in which the principal balance of the Note had increased to $82, 098.90, that Ms. Ruth had defaulted on the payments on the Loan Modification Agreement, and that $78, 296.37 (the same amount alleged in the original Complaint) remains due, but now due and owing from March 1, 2009 to present.

Ms. Ruth filed her answer to the Amended Complaint on July 22, 2010, and for the first time, asserted counterclaims under the FDCPA, 15 USC 1692e and 1692f alleging that the Plaintiff made willful misrepresentations as to the amount and nature of the debt it claims in the Amended Complaint and to the existence, nature, and content of the Loan Modification Agreement. Ruth alleged that Plaintiff acquired the debt claimed in this case after it was already in default, and as such, the above misrepresentations fall within the FDCPA. Plaintiff filed a reply to the Counterclaim denying said allegations and asserting numerous affirmative defenses. On December 15, 2010, this Court granted Plaintiff's Motion for Civ. R. 41(A)(2) notice of dismissal of its Amended Complaint without prejudice. On February 25, 2011, this Court set a trial management order on Ms. Ruth's counterclaims. From early summer through the early fall of 2011, numerous dispositive motions and motions to compel discovery were filed. Ultimately, the Court granted Defendant's Motion to Compel and Motion for Sanctions. The Court determined, as an appropriate sanction, that the Plaintiff was a debt collector as defined in the FDCPA, 15 USC 1692. The Court thereafter ruled on the pending Motions for Summary Judgment - denying both sides Motions.[2] On the eve of trial (January, 28, 2013), the parties settled this matter. On February 4, 2013, this Court marked the matter " settled and dismissed." On March 19, 2013, Defendant Ruth filed her notice of dismissal of her counterclaims with prejudice.


On July 25, 2012 (while the 2009 case remained pending on Ms. Ruth's counterclaims), Plaintiff Onewest Bank c/o Washington Mutual Bank re-filed its Complaint of Foreclosure against the Defendants Pamela Ruth and unknown spouse of Pamela Ruth. In the new Complaint, Plaintiff asserts that Pamela Ruth and Michael Ruth (deceased) executed a promissory note on the subject property; that a valid Mortgage on the subject property was filed on December 15, 1997; that Plaintiff has standing to bring this foreclosure action; that the Note and Mortgage were modified; that the Note and Mortgage, as modified by the Loan Modification Agreement, are in default; and that the amount of $78, 296.37 at the rate of 8.5% per annum remains due and owing from March 1, 2009 to present, plus late charges and other expenses.

Service of the Complaint was not perfected on the Defendants until December 3, 2012. Defendant Ruth thereafter filed a notice of leave to plead and stipulated leave to plead. After the Court denied Defendant's Motion for Definite Statement, Defendant Ruth filed her answer, counterclaims, and joinder of additional counterclaimant Manley Deas & Kochalski (MDK) on April 10, 2013. Ruth asserts claims against Plaintiff and MDK under the Fair Debt Collection Practices Act (FDCPA), 15 USC 1692e and 1692f; deceptive, unfair or unconscionable acts under the Ohio Consumer Sales Practices Act (OCSPA) and RC 1345.02/1345.03; fraud; abuse of process; and civil conspiracy. Ruth has also filed for class certification. A pretrial and mediation have taken place. The Court has stayed Plaintiff's request for class certification pending ruling on the above Motions.


Plaintiff has filed its Motion for Summary Judgment on all of Defendant Ruth's counterclaims on the basis of the doctrine of res judicata - that Ms. Ruth has already litigated her claims to a final judgment on the merits in the prior 2009 case. Plaintiff states that Ruth's current counterclaims arise out of the same transaction or occurrence as the previous litigation -- namely, Onewest's assertion of its rights under the Note and Mortgage through foreclosure; and that these claims were specifically litigated in the previous action and/or could have been litigated in the previous action because they are based on the same factual allegations as Ruth's previous counterclaim. As such, Plaintiff asserts that the doctrine of res judicata applies to all of Ruth's current counterclaims herein.

Ruth counters that the current counterclaims are based on actions taken by Plaintiff and MDK in the current action filed on July 25, 2012, and not actions taken by Plaintiff in the 2009 case. Ruth points to the language in the current counterclaim that specifically states:

30. Actions taken by OneWest and its agents against Ruth, that are the subject of this counterclaim, were taken after July 23, 2010
89. A prior case (Court of Common Pleas, Summit County, Ohio, Case No. 2009-09-682) filed against Ms. Ruth by OneWest is expressly excluded from the class definitions above.

Ruth argues that she could not have brought or asserted claims in the 2009 case because they had not yet occurred. Furthermore, Ruth points to the language of the settlement agreement itself, and e-mails exchanged between the parties negotiating the terms of the settlement, that show that the parties only settled issues relating to the 2009 case and nothing else.[3]

Summary Judgment, Civ. R. 56, is a procedural device designed to terminate litigation and to avoid a formal trial where there are no genuine issues of material fact to be tried and the moving party is entitled to judgment as a matter of law. The Court must follow the standard set forth in Civ. R. 56, which specifically provides that before Summary Judgment may be granted, " it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for Summary Judgment is made, that conclusion is adverse to that party." Temple v Wean United, Inc . (1977), 50 Ohio St. 2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 273. See also, Norris v Ohio Std. Oil Co ., (1982), 70 Ohio St. 2d 1, 24 O.O.3d 1, 433 N.E.2d 615. The moving party has the burden of showing that there is no genuine issue of material fact as to the critical issue. The opposing party has a duty to submit affidavits or other materials permitted by Civil Rule 56 to show that a genuine issue for trial exists. See Harless v Willis Day Warehousing Co . (1978), 54 Ohio St. 2d 64, 8 O.O.3d 73, 375 N.E.2d 46.

In Cook v. Criminger , 9th Dist. No. 22313, 2005 Ohio 1949, P18, the Ninth District addressed the doctrine of res judicata:

[A] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp . (1995), 73 Ohio St.3d 379, 1995 Ohio 331, 653 N.E.2d 226, syllabus. In addition, Ohio law has long recognized that " 'an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit.'" Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178, quoting Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69, 25 Ohio B. 89, 494 N.E.2d 1387. The doctrine serves the valid policy of ultimately ending any given litigation and ensuring that no party will be " 'vexed twice for the same cause.'" Green v. Akron (Oct. 1, 1997), 9th Dist. Nos. 18284/18294, quoting La Barbera v. Batsch (1967), 10 Ohio St. 2d 106, 113, 227 N.E.2d 55.

Civ.R. 13(A) governs compulsory counterclaims. That rule provides, in pertinent part:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does

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