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  • 14 CV 005556 document preview
  • 14 CV 005556 document preview
  • 14 CV 005556 document preview
  • 14 CV 005556 document preview
  • 14 CV 005556 document preview
  • 14 CV 005556 document preview
  • 14 CV 005556 document preview
  • 14 CV 005556 document preview
						
                                

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Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 0C039 - O97 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Wells Fargo Bank, N.A. Case No. 14 CV 005556 vs. Hernando J. Posada, et al. Plaintiff, Judge Richard S. Sheward IN FORECLOSURE Defendants. This matter is before the Court on Plaintiffs Motion for Default Judgment. The real property that is the subject of this foreclosure action (the Property") is as follows: Situated in the State of Ohio, County of Franklin and in the City of Hilliard and bounded and described as follows: Being Unit Number Four Thousand Nine Hundred Twenty-Seven (4927), in Villas at Ray's Crossing Condominium, as the same is numbered, designated, delineated and described in the Declarations and Bylaws and on the Drawings described, of record, respectively, in Instrument # 200307100211223 and Condominium Plat Book 118, Page 34, et seq.; First Amendment appearing in Instrument # 200311130363469; and Second Amendment appearing in Instrument # 200406300151816, and Condominium Plat Book 133 Page 67 through 78; and Third Amendment appearing of record in Instrument # 200502010019480, and Condominium Plat Book 144, Page 14, and 4th Amendment in Instrument # 200511090237996 and Condominium Plat Book 157, Page 10 and Supplemental Amendment in Instrument #200511090237990, recorder's office, Franklin County, Ohio. In response to the Motion for Default Judgment, the Court finds that Hernando J. Posada, Unknown Spouse (if any) of Hernando J. Posada, Lynn Posada, Unknown Spouse (if any) of Lynne Posada, Ohio Homeowner Assistance LLC and Credit Union of Ohio Inc have been served with a Summons and Complaint but are in default for failure to file an Answer or other JUDGMENT ENTRY AND DECREE E42Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 0C039 - 098 responsive pleading. As a result, with respect to such defendants, the Court hereby grants Plaintiff's Motion for Default Judgment and enters judgment in favor of Plaintiff for the relief sought by Plaintiff in its Complaint. The Court finds that Villas at Ray's Crossing Condominium Association has filed an Answer & Cross-claim claiming an interest in the Property. The Court finds that such interest is inferior and junior in priority to the mortgage held by Plaintiff. Such interest shall transfer to the proceeds of the sale of the Property, and all defendants who have filed an Answer claiming an interest in the Property shall have the right to seek payment from the proceeds of the sale of the Property. Such interest shall be released from the title to the Property upon confirmation of the sale to ensure that the buyer obtains title to the Property free and clear of all interests. The Court finds that The United States of America -Office of the Department of the Treasury has filed an Answer claiming an interest in the Property. The Court finds that such interest is inferior and junior in priority to the mortgage held by Plaintiff. Such interest shall transfer to the proceeds of the sale of the Property, and all defendants who have filed an Answer claiming an interest in the Property shall have the right to seek payment from the proceeds of the sale of the Property. Such interest shall be released from the title to the Property upon confirmation of the sale to ensure that the buyer obtains title to the Property free and clear of all interests. The Court finds that Worthington Galena LLC dba Oxford Realty has filed an Answer claiming an interest in the Property. The Court finds that such interest is inferior and junior in priority to the mortgage held by Plaintiff. Such interest shall transfer to the proceeds of the sale of the Property, and all defendants who have filed an Answer claiming an interest in the Property shall have the right to seek payment from the proceeds of the sale of the Property. Such interestFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 0C039 - 099 shall be released from the title to the Property upon confirmation of the sale to ensure that the buyer obtains title to the Property free and clear of all interests. The Court finds that Hilliard City has filed an Answer claiming an interest in the Property. The Court finds that such interest is inferior and junior in priority to the mortgage held by Plaintiff. Such interest shall transfer to the proceeds of the sale of the Property, and all defendants who have filed an Answer claiming an interest in the Property shall have the right to seek payment from the proceeds of the sale of the Property. Such interest shall be released from the title to the Property upon confirmation of the sale to ensure that the buyer obtains title to the Property free and clear of all interests. There shall be no further equity of redemption, except that with respect to any interest held by the United States, the United States shall have the right to redeem within the time period provided by 28 U.S.C. § 2410(c). The Court finds that Columbus City Division Income Tax has filed a disclaimer of interest, disclaiming all right to, interest in or title to the subject Property. As a result, this defendant is forever barred from asserting an interest in the Property. The Court further finds that Hernando J. Posada executed the promissory note referenced in the Complaint (the "Note") and therefore promised, among other things, to make monthly payments on or before the date such payments were due. The Court further finds that the sums due under the Note were accelerated in accordance with the terms of the Note and Mortgage. The Court further finds that Hernando J. Posada and Lynn Posada executed and delivered the mortgage referenced in the Complaint (the "Mortgage"), that the Mortgage secures the amounts due under the Note.0c039 py ranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 The Court finds that the Note and Mortgage are in default because payments required to be made under the Note and Mortgage have not been made. The Court further finds that the conditions of the Mortgage have broken, the break is absolute, and Plaintiff is entitled to have the equity of redemption and dower of the current title holders foreclosed. The Court finds that the original obligations of the Note and Mortgage have been modified by agreement of the parties ("Loan Modification"). The Court further finds that the total due the Plaintiff on said Note through June 17, 2014 is $222,930.17 which breaks down as follows Principal $ 215,819.13 Interest from November 1, 2013 to June 17, 2014 @ variable rate(s) $ 2,707.11 Pre-acceleration Late Charges $ 0.00 Hazard Insurance Disbursements $ 0.00 Tax Disbursements $ 3,607.84 Property Inspections/Preservation $ 0.00 PMI/MIP Insurance $ 811.02 BPO/Appraisal $ 0.00 Bankruptcy Fees/Costs $ 0.00 Escrow Balance Credit $ (0.00) Unapplied Funds Credit $ 14.93) TOTAL: $ 222,930.17 Per diem interest in the amount of $11.83 will accrue on the principal from June 17, 2014 to the next interest rate change date and accrue thereafter in accordance with the variable rate as set forth in the Note. The above costs and expenses are supported by the affidavit filed by Plaintiff contemporaneously with its Motion for Judgment and said costs and expenses are fair and appropriate. The Court further finds that there is due to Plaintiff on the Note principal in the amount of $215,819.13 plus interest of 2% per annum from November 1, 2013, adjusted as per the terms0c039 ppranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 of the Note until paid, and the above-mentioned costs and court costs. Because Plaintiff is entitled to advances through the date of confirmation, this issue is subject to further court review at a later date if the amount should change. As aresult, the Court hereby enters judgment for the amount due on the Note in favor of Plaintiff and against Hernando J. Posada. The Court finds that the Mortgage was recorded with the County Recorder and is a valid and subsisting first mortgage on the Property. The Court further finds that the parties to the Mortgage intended that it attach to the entire fee simple interest in the Property. The Mortgage is, however, junior in priority under Ohio law to the lien held by the County Treasurer to secure the payment of real estate taxes and assessments. All amounts payable under Section 323.47 of the Ohio Revised Code shall be paid from the proceeds of the sale before any distribution is made to other lien holders. Pursuant to Section 2329.192 of the Ohio Revised Code, the Court finds that State of Ohio, Department of Taxation has a lien or liens on the Property as set forth in the Preliminary and Final Judicial Reports. The Court finds that such interest is inferior and junior in priority to the mortgage held by Plaintiff. Such interest shall transfer to the proceeds of the sale of the Property, and State of Ohio, Department of Taxation shall have the right to seek payment from proceeds of the sale of the Property. The interest of State of Ohio, Department of Taxation shall be released from the title to the Property upon confirmation of sale to ensure that the buyer obtains title to the Property free and clear of all interests IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that unless the sums found to be due to Plaintiff are fully paid within three (3) days from the date of the entry of this decree, the equity of redemption of the defendant title holders in the Property shall be foreclosed0c039 p§ranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 and the Property shall be sold free of the interests of all parties to this action. In addition, an order of sale shall issue to the Sheriff of Franklin County, directing him to appraise, advertise and sell the Property according to the law and the orders of this Court and to report his proceedings to this Court. Notice of the time and place of the sale of the Property shall be given to all persons who have an interest in the Property according to the provisions of Section 2329.26 of the Ohio Revised Code. There is no just reason for delay in entering Judgment as aforesaid. IT IS SO ORDERED. Judge Richard S. Sheward Common Pleas Judge cc: Hernando J. Posada Unknown Spouse (if any) of Hernando J. Posada Lynn Posada Unknown Spouse (if any) of Lynne Posada Ohio Homeowner Assistance LLC Thomas F. Schmitt Deborah F Sanders Scott N. Schaeffer Credit Union of Ohio Inc John H. Sumner State of Ohio, Department of Taxation Cliff G. Babcock Jason S. Wagner (0090622) Direction to Clerk: Pursuant to Civ.R.58(B), you are to serve notice of this judgment and its date of entry upon the journal to all parties not in default for failure to appear within three days of the judgment's entry upon0c039 paranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 the journal, and note the service in the appearance docket. Approved: /s/ Edward H. Cahill Kyle E. Timken (0071381) Edward H. Cahill (0088985) Manley Deas Kochalski LLC P. O. Box 165028 Columbus, OH 43216-5028 Telephone: 614-222-4921 Fax: 614-220-5613 Email: ket@manleydeas.com Attorney for Plaintiff MDK File Number 14-013097 Circulating for approval Thomas F. Schmitt Attorney for Villas at Ray's Crossing Condominium Association 470 Olde Worthington Road Suite 460 Columbus, OH 43082 Fax: 614-882-3800 Email: tschmitt@kamancus.com Approval received August 5, 2014 Deborah F Sanders Attorney for The United States of America -Office of the Department of the Treasury 303 Marconi Blvd 200 Columbus, OH 43215 Fax: 614-469-5240 Circulating for approval Scott N. Schaeffer Attorney for Worthington Galena LLC dba Oxford Realty 88 West Mound Street Columbus, OH 43215 Fax: 614-469-7170 Email: Scott@ksrlegal.com0c039 pffanklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 Approval received August 4, 2014 John H. Sumner Attomey for Columbus City Division Income Tax 77 North Front Street, 4th Floor Columbus, OH 43215 Fax: 614-645-6949 Email: jhsumner@columbus.gov Circulating for approval Cliff G. Babcock Attomey for Hilliard City 30455 Solon Road Solon, OH 44139 Fax: 216-367-7750 Circulating for approval Jason S. Wagner (0090622) Attomey for Franklin County Treasurer 373 S. High St., 17th Floor Columbus, OH 43215 Fax: 614-525-3500 Email: jwagner@franklincountyohio.gov0c039 p§ranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 Franklin County Court of Common Pleas Date: 09-02-2014 Case Title: WELLS FARGO BANK NA -VS- HERNANDO J POSADA ET AL Case Number: 14CV005556 Type: JUDGMENT ORDER FOR FORECLOSURE It Is So Ordered. Judge Richard S. Sheward Electronically signed on 2014-Sep-02 page 9 of 90c039 pyrankiin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556 Court Disposition Case Number: 14CV005556 Case Style: WELLS FARGO BANK NA -VS- HERNANDO J POSADA ET AL Case Terminated: 12 - Default Final Appealable Order: Yes Motion Tie Off Information: 1. Motion CMS Document Id: 14CV0055562014-08-0599980000 Document Title: 08-05-2014-MOTION FOR DEFAULT JUDGMENT Disposition: MOTION GRANTED