Washington Mut. Bank, FA v. Green
| Decision Date | 17 March 2004 |
| Docket Number | No. 03 MA 106.,03 MA 106. |
| Parties | WASHINGTON MUTUAL BANK, F.A., Appellee, v. GREEN et al., Appellants. |
| Court | Ohio Court of Appeals |
Dennis Reimer and Dean Kanellis, for appellee.
Wayne Sarna and Northeast Ohio Legal Services, for appellants.
{¶ 1} Defendant-appellant Linda Green appeals from the judgment of the Mahoning County Common Pleas Court, which granted summary judgment on the foreclosure complaint of plaintiff-appellee Washington Mutual Bank, F.A. Appellant alleges that her motion to dismiss should have been granted or Washington Mutual's motion for summary judgment should have been denied because there was no evidence that Washington Mutual was the real party in interest on her home mortgage and the accompanying promissory note. She also alleges that the court abused its discretion in failing to grant her leave to file a third-party complaint against another bank that recently began sending her billing statements. For the following reasons, the judgment of the trial court is reversed, and this case is remanded for further proceedings.
{¶ 2} In February 2002, Washington Mutual filed a complaint in foreclosure against appellant. The complaint alleged that appellant was in default on her promissory note secured by a mortgage on her residence on Ellenwood Avenue in Youngstown. The complaint alleged a balance of $35,159.25 plus 12.25 percent interest from May 1, 2001. The promissory note and mortgage were attached to the complaint. From these documents, it is apparent that the promissory note and mortgage were issued to Check `n Go Mortgage Services on December 21, 2000.
{¶ 3} Appellant filed a motion to dismiss the complaint, alleging a lack of evidence that Washington Mutual was the real party in interest. Appellant noted that the exhibits to the complaint show Check `n Go as the mortgage holder. Washington Mutual responded that Civ.R. 8 requires only a short and plain statement of the relief sought and so its statement that it is the current owner of the note and mortgage must be taken as true.
{¶ 4} Before the court acted on the dismissal motion, the case was stayed due to appellant's pending bankruptcy. In July 2002, appellant filed a notice of discharge showing that she was discharged of personal liability on the note.
{¶ 5} Appellant then filed an answer to the complaint, again contending a lack of proof that Washington Mutual was the real party in interest. Appellant also set forth various defenses based upon allegations that the value of the property was overstated, since the county auditor had the property valued only at $9,600 and that the loan proceeds were for home improvement work that was not properly performed.
{¶ 6} In March 2003, Washington Mutual filed a motion for summary judgment. As to the bankruptcy discharge, they noted that appellant's personal liability was discharged and thus their only remedy was foreclosure on the house. They stated that because appellant defaulted on the loan, they were entitled to acceleration of the loan and foreclosure. They attached the affidavit of their vice-president. This affidavit states that the affiant had personal knowledge of the account, which was under her supervision. She stated that the account was in default and so they exercised their option to accelerate the loan. She also advised that the copies of the note and mortgage were true and accurate copies.
{¶ 7} Appellant responded by arguing that the exhibits show Check `n Go as the mortgage holder and that the affidavit does not state how or when Washington Mutual obtained the note and mortgage. Appellant attached exhibits from the county recorder's office showing an assignment of the note and mortgage to The Provident Bank (assignment in March 2001, recorded in April 2001) and to Long Beach Mortgage Company (recorded in July 2001), complaining that the recorder's office had no evidence of the assignment to Washington Mutual. Appellant concluded that there is a genuine issue of material fact as to who is the true mortgage holder. Appellant also reiterated her argument as to overstating the value of her house and the incomplete home improvement work.
{¶ 8} On April 24, 2003, appellant filed a motion for leave to file a third-party complaint against Fairbanks Capital Corporation. The motion stated that appellant's attorney recently discovered that Fairbanks was attempting to collect on the mortgage. Appellant claimed that it was necessary to join Fairbanks in order to present claims for violation of the Fair Debt Collection Act.
{¶ 9} On June 3, 2003, the trial court overruled appellant's motion to dismiss, overruled appellant's motion to file a third-party complaint as untimely, and sustained Washington Mutual's motion for summary judgment as to the foreclosure. Appellant filed timely notice of appeal.
{¶ 10} Appellant sets forth three assignments of error, which we shall address in the chronological order in which each issue arose in the trial court. Appellee failed to file a brief.
{¶ 11} Appellant's second assignment of error provides:
{¶ 12} "The trial court committed an abuse of discretion in the judgment entry dated June 3, 2003, in overruling appellant Green's motion to dismiss."
{¶ 13} Appellant filed a motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim along with Civ.R. 17(A), requiring a suit to be brought in the name of the real party in interest. Under this assignment, appellant cites cases that require a lawsuit to be brought in the name of the real party in interest. Appellant argues that the record does not show Washington Mutual's interest in the note and mortgage.
{¶ 14} First, we note that both cases cited by appellant stand for the proposition that a partner cannot sue individually for default on a contract that was entered into by the partnership. Holloway v. Wilson (Aug. 4, 2000), 2d Dist. No. 99CA76, 2000 WL 1062327; Oda v. Davis (1992), 81 Ohio App.3d 555, 611 N.E.2d 933. These specific holdings are not relevant herein, although the general statements that an action must be brought in the name of the real party in interest are obviously applicable. The cases help explain the purpose behind Civ.R. 17(A), that is, to ensure finality and avoid multiple judgments being entered against the defendant in cases where the real party in interest sues later.
{¶ 15} As appellant concedes, a motion to dismiss can be granted only if, after all the factual allegations in the complaint are presumed true and all reasonable inferences are made in the plaintiff's favor, it appears beyond doubt that the plaintiff can prove no set of facts warranting relief. Cincinnati v. Beretta USA Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, at ¶ 5 Stone v. N. Star Steel Co. (2003), 152 Ohio App.3d 29, 33, 786 N.E.2d 508. As long as a set of facts consistent with the complaint would allow plaintiff recovery, the court shall not grant a motion to dismiss. Beretta at ¶ 5.
{¶ 16} Here, Washington Mutual's complaint states that it is the owner and holder of the promissory note and mortgage. It is well established that the real party in interest in such a case is the current noteholder/mortgage holder, which, due to the possibility of assignment, could be different from the original holder. See Conrad v. Rarey (1931), 125 Ohio St. 326, 331-332, 181 N.E. 444. See, also, 1970 Staff Note to Civ.R. 17(A).
{¶ 17} Under the aforestated premises behind motions to dismiss, we must thus presume that Washington Mutual's statement is true. If this statement is presumed true, then Washington Mutual is considered to be the real party in interest for purposes of the pretrial motion to dismiss stage of the proceedings. As such, the trial court correctly refused to grant the motion to dismiss at a time before the allegations of the complaint were required to be proven. Accordingly, this assignment of error is overruled.
{¶ 18} Appellant's first assignment of error argues:
{¶ 19} "The trial court erred at law in sustaining the motion for summary judgment of appellee Washington Mutual Bank and granting summary judgment for appellee Washington Mutual Bank on the foreclosure complaint."
{¶ 20} We review the trial court's grant of summary judgment de novo. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107, 108, 652 N.E.2d 684. Pursuant to Civ.R. 56(C), summary judgment is proper if (1) no genuine issue of material fact remains to be litigated; (2) the movant is entitled to judgment as a matter of law; and (3) it appears that reasonable minds can only come to a conclusion that is adverse to the nonmovant. Welco Indus., Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 346, 617 N.E.2d 1129. A trial court should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party. Id.
{¶ 21} The movant has the initial burden of informing the trial court of the basis for its summary judgment motion by identifying the portions of the record that demonstrate the absence of a genuine issue for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The burden then shifts to the nonmovant to set forth specific facts showing that there is a genuine issue for trial in that reasonable minds could reach different conclusions. Id.
{¶ 22} Appellant states that after she complained in a motion to dismiss and an answer about the lack of proof that Washington Mutual was a real party in interest, Washington Mutual should have established that it was assigned the note and mortgage. Appellant contends that the affidavit of Washington Mutual's vice-president, which merely states that the account is under her supervision, fails to establish assignment of the mortgage and note to Washington Mutual. Ap...
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