Wells Fargo Bank, N.A. v. Hazel
| Decision Date | 28 January 2016 |
| Docket Number | No. 15AP-93,15AP-93 |
| Citation | 2016 Ohio 305 |
| Parties | Wells Fargo Bank, N.A., Plaintiff-Appellee, v. Karin Hazel, et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
Thompson Hine, LLP, Scott A. King and Terry W. Posey, for appellee.
Karin Hazel, pro se.
APPEAL from the Franklin County Court of Common Pleas
{¶ 1} Defendants-appellants, Karin Hazel, et al. ("Hazel"), pro se appeals from a judgment of the Franklin County Court of Common Pleas sustaining plaintiff-appellee's, Wells Fargo Bank N.A. ("Wells Fargo"), objections to the magistrate's decision and denying Hazel's Civ.R. 60(B) motion for relief from judgment. For the following reasons, we affirm.
{¶ 2} The procedural history and the facts of this action were sufficiently stated in our prior case, Wells Fargo Bank N.A. v. Hazel, 10th Dist. No. 11AP-1061, 2012-Ohio-5770 ("Hazel"). In Hazel, we reversed the judgment of the trial court in adopting the magistrate's decision in favor of Hazel and remanded the case for the trial court "to consider [Wells Fargo's] objections and to determine whether [Hazel] complied with Civ.R. 9(C)."1
{¶ 3} Civ.R. 9(C) states:
In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
{¶ 4} The trial court followed our instructions and found that because Hazel's:
[G]eneral denial did not specifically controvert the plaintiffs claim that it had complied with all the conditions precedent to foreclosure it was insufficient to satisfy the Civ.R. 9(C)'s requirement that denial of a condition precedent be raised specifically and with particularity. * * * The effect of Hazel's failure to deny conditions precedent in the manner provided by Civ.R. 9(C) is that they are deemed admitted. * * * Since Hazel's answer was insufficient to put the plaintiffs compliance with the HUD regulations at issue in the case, the Court finds that she has not established that she has a meritorious defense to present if relief is granted. Accordingly, her motion for relief from judgment is not well-taken.
(Decision 4-5.)
{¶ 5} Hazel appeals, assigning the following errors:
{¶ 6} A trial court exercises its discretion when ruling on a Civ.R. 60(B) motion, and, thus, an appellate court will not disturb such a ruling on appeal absent an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987); Boddie v. Prisley, 10th Dist. No. 13AP-247, 2013-Ohio-4462, ¶ 5. We note that Hazel's assignments of error do not directly address whether or not the trial court properly considered and decided the issue of compliance with Civ. R. 9(C).
{¶ 7} Under normal circumstances, Hazel would be law of the case. As we recently stated in State v. Monroe, 10th Dist. No. 13AP-598, 2015-Ohio-844, ¶ 29:
The law of the case is a longstanding doctrine in Ohio jurisprudence. "[T]he doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels." Nolan v. Nolan, 11 Ohio St.3d 1, 3, 11 Ohio B. 1, 462 N.E.2d 410 (1984). "The doctrine is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution." State ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979).
In the present case, the court finds the dissent's arguments persuasive. However, in order to ensure consistency of results, and to avoid endless litigation, the court is inclined to follow the law of the case doctrine.
{¶ 8} Therefore, our review shows that the trial court, in light of our rationale in Hazel, followed our instructions on remand. We find that the trial court did not abuse its discretion in finding that Hazel did not comply with Civ.R. 9(C), and thereby sustaining Wells Fargo's objections to the magistrate's decision, and denying Hazel's Civ.R. 60(B) motion for relief from judgment. As such, Hazel's two assignments of error are overruled.
{¶ 9} Having overruled Hazel's two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
{¶ 10} I would reverse the decision of the trial court sustaining plaintiff-appellee Wells Fargo Bank N.A.'s ("Wells Fargo") objections to the magistrate's decision and denying defendant-appellant Karin Hazel's, pro se, Civ.R. 60(B) motion for relief from judgment. In doing so, I would overrule our prior decision in this action, Wells Fargo Bank, N.A. v. Hazel, 10th Dist. No. 11AP-1061, 2012-Ohio-5770, and remand for further proceedings consistent with this opinion.
{¶ 11} The procedural history and the facts of this action are stated in Hazel. However, I believe it is important to reiterate the facts that are relevant to this opinion. Wells Fargo filed this foreclosure action on July 6, 2010. The only documents Wells Fargo attached to the complaint were copies of the note and mortgage. Wells Fargo's complaint for foreclosure included a pleading that:
The mortgage was filed for record on March 23, 2009, in instrument No. 200903230040172, of the county recorder's records. The conditions of defeasance contained therein have been broken; plaintiff has complied with all conditions precedent; and plaintiff is entitled to have said mortgage foreclosed.
(Emphasis added.) (Complaint, ¶ 3.) Hazel answered this (like every other allegation) with, "Defendant is without information sufficient to form a belief as to the truth or accuracy of the allegations as set forth in Paragraph 3 of Plaintiff's complaint, and therefore denies same." (Answer, ¶ 3.) Though Hazel set forth affirmative defenses, none of them specifically asserted that Wells Fargo had failed to comply with any conditions precedent to foreclosure.
{¶ 12} On September 20, 2010, the trial court entered summary judgment in favor of Wells Fargo finding there were no genuine issues of material fact and that Wells Fargo was entitled to judgment as a matter of law. On October 13, 2010, Hazel filed a motion to vacate judgment pursuant to Civ.R. 60(B). In the motion to vacate, Hazel argued that Wells Fargo did not aver or provide evidence verifying any signed certified mail receipt of default and accelerations notice as required by United States Department of Housing and Urban Development ("HUD") regulations pursuant to 24 C.F.R. 201.50(b). Hazel had also previously averred that she never received a certified mail notice. The trial court referred the motion to a magistrate, who heard the matter on June 8, 2011.
{¶ 13} The magistrate, on July 11, 2011, entered a decision and entry granting Hazel's motion to set aside the judgment. The magistrate found that the motion was timely and that Hazel established excusable neglect for failing to respond to Wells Fargo's summary judgment motion. The magistrate also found that Hazel had established "a plausible meritorious defense claiming that [Wells Fargo] did not comply with" HUD regulations pursuant to 24 C.F.R. 201.50—specifically, Hazel's assertion that Wells Fargo did not serve notice of acceleration via certified mail. (Magistrate's Decision, 3.) Wells Fargo filed objections to this finding. Wells Fargo did not argue that it had complied with 24 C.F.R. 201.50. Instead, Wells Fargo argued, as it had previously argued in its memorandum contra Hazel's motion to vacate, and at the hearing before the magistrate, that because Wells Fargo had alleged in its complaint that it had complied with all conditions precedent, Hazel had waived such a meritorious defense as she did not assert it with particularity and specificity in her answer. On November 2, 2011, the trial court adopted the magistrate's decision.
{¶ 14} In this case, the contract document (the note) and the mortgage document subject the holder's rights upon default to applicable HUD regulations. The note provides under "Borrower's Failure to Pay," section "(B) Default," in relevant part, that:
If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment in full of the principal balance remaining due and all accrued interest * * * In many circumstances regulations issued by the Secretary will limit Lender's rights to require immediate payment in full in the case of payment defaults. This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, "Secretary" means the Secretary of Housing and Urban Development or his or her designee.
(Complaint, exhibit A.)
{¶ 15} The mortgage contains similar language. Under section nine, captioned "Grounds for Acceleration of Debt," the mortgage provides that, "Lender may, except as limited by regulations issued by the Secretary in the case of payment defaults, require immediate payment in full." (Complaint, exhibit B, 4.) Subsection (d) of that section, entitled "Regulations of HUD Secretary," provides that:
In many circumstances regulations issued by the Secretary will limit Lender's rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security Instrument does not...
To continue reading
Request your trial