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Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Sep 02 12:46 PM-14CV005556
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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
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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
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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