Preview
ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Wednesday, March 10, 2010 5:33:09 PM
CASE NUMBER: 2007 CV 09571 Docket ID: 14869985
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
COURT OF COMMON PLEAS
MONTGOMERY COUNTY, OHIO
U.S. Bank, N.A., as Trustee for the Structured Case No. 2007 CV 9571
Asset Securities Corporation Mortgage Loan
Trust, 2006- NC1, Judge Connie S. Price
Plaintiff,
PLAINTIFF’S OBJECTION TO
-vs- MAGISTRATE’S DECISION FILED
FEBRUARY 10, 2010
Wesley A. Quinn, et al.,
Defendants.
The plaintiff herein, U.S. Bank, N.A., as Trustee for the Structured Asset
Securities Corporation Mortgage Loan Trust, 2006- NC1 (“Plaintiff”), by and through
undersigned counsel, does hereby Object to the Magistrate’s Decision entered February
10, 2010, pursuant to Civ.R. 53. Plaintiff incorporates herein the Memorandum of Law
which follows.
Respectfully submitted,
LSR # 200725626
/S/ Deanna C. Stoutenborough
Deanna C. Stoutenborough (# 0069761)
Rick D. DeBlasis, Esq. (# 0012992)
Craig A. Thomas, Esq. (#0037667)
LERNER, SAMPSON & ROTHFUSS
Attorney for Plaintiff
120 E. Fourth St., 8th Floor
Cincinnati, OH 45202
Ph.: (513) 412-6093
The Magistrate erred in finding that Defendants, Wesley A. Quinn and Marion L
Quinn (“the Quinns”), have shown that they are entitled to relief under any of the
grounds stated in Civ.R. 60(B)(1) through (5). The Magistrate erroneously found that
the Quinns demonstrated “excusable neglect”. The Quinns’ Motion to Vacate Default
Judgment does not raise excusable neglect as a ground for the requested relief. Rather,
the Quinns allege they believed “they had no defense to the action[; t]he Quinns,
therefore, believed that an answer would be futile and unnecessary”. See, Defendants’
Memorandum in Support of Motion to Vacate Default Judgment, page 8. While the Quinns
assert that they “focused on trying to cure the default through negotiation with the
servicer”, the Quinns do not assert that such negotiations were the reason they believed
an answer was unnecessary. Id.
Furthermore, nowhere in their Memorandum in Support of Defendants’ Motion
to Vacate Default Judgment or in the supporting affidavit from Wesley Quinn do the
Quinns make any representation as to when they were supposedly engaging in
2
negotiations with Plaintiff’s servicer. The Magistrate presumed that negotiations were
ongoing contemporaneously with the time when the Quinns’ answer was due and
before the Entry of Default Judgment. Yet, there was no evidence before this Court at
the time the Magistrate rendered his Decision from which to know what the time frame
was when negotiations may have been ongoing with the Quinns.
The Magistrate stated: “the Magistrate understands how its parallel continued
negotiation with unsophisticated borrowers would reasonably lead such borrows to
conclude that filing an answer to the complaint was unnecessary”. (“Emphasis added).
Magistrate’s Decision, page 1. This statement is wholly unsupported by the record
before the Court. It is improper for the Magistrate to presume facts not in evidence.
The Magistrate’s finding of excusable neglect is based upon the Magistrate’s speculation
and objective assessment of what might be a reasonable response if this speculation
proved true.
In reality, though, the Quinns stated that they did not file an answer because
they believed they had no defense to Plaintiff’s foreclosure complaint, and therefore
filing an Answer would be futile and unnecessary. The Quinns made a knowing and
voluntary decision not to appear and defend this foreclosure action because they
believed they had no legitimate defense to the action. Such does not constitute
excusable neglect or mistake sufficient to justify setting aside a final order of this Court.
3
The Supreme Court of Ohio has "defined 'excusable neglect' in the negative and
[has] stated that the inaction of a defendant is not 'excusable neglect' if it can be labeled
as a 'complete disregard for the judicial system.'" Kay v. Marc Glassman, Inc. (1996), 76
Ohio.St.3d 18, 20, quoting GTE Automatic Electric v. ARC Industries, 47 Ohio St.2d at 153.
The Quinns acknowledge they received the Summons and Complaint, which instructs
them of their right to appear and defend this action by filing an Answer within 28 days
and that failure to do so will result in judgment being taken against them. In response,
the Quinns chose to forego consulting legal counsel; they determined that they had no
defense to the action and that they would, instead, try to cure the default; and they
made the decision not to appear or defend the action.
The fact that the Quinns are “unsophisticated” or that they were not represented
by counsel, does not convert their voluntary choice to forego defense of this action into
excusable neglect under Civ.R. 60(B). See, CB Group, Inc. v. Starboard Hospitality, L.L.C.
(December 17, 2009), 2009-Ohio-6652, ¶19 - ¶20. As pro se litigants, the Quinns are held
to the same rules and standards as those litigants who retain legal counsel to represent
them in an action. Lawson v. Levering (Sept. 1, 2009), 2009-Ohio-4491, ¶ 17; State Farm
Mut. Auto Ins. Co. v. Peller (1989), 63 Ohio App.3d 357, 361. See also, Ragan v. Akron
Police Dept. (Jan. 19, 1994), 1994 Ohio App. LEXIS 137, at *7, wherein the Ninth District
Court of Appeals stated:
Acting pro se is neither excusable neglect nor any other reason justifying
relief from judgment. A party has a right to represent himself, but if he
4
does so, he is subject to the same rules and procedures as litigants with
counsel. If the fact that a party chose not to be represented by counsel and
was unsuccessful in pursuing his rights entitled that party to relief from
judgment, every judgment adverse to a pro se litigant could be vacated to
permit a second attempt, this time with counsel. Such a circumstance
would be unjust to the adverse party.
If the Magistrate’s Decision is permitted to stand as is, mortgagors who are
properly served with a foreclosure complaint will simply chose to not appear and
defend the action, allow default judgment to be taken against them, then –either with or
without counsel- file a Motion to Vacate Default Judgment if they are unable to reach an
agreement with the servicer for a loss mitigation workout. Meanwhile, lenders and
servicers of defaulted loans that are the subject of mortgage foreclosure actions in Ohio
courts will refuse to engage in negotiations with borrowers after a default judgment has
been entered, for fear that the default judgment will be set aside later on upon the mere
assertion by the mortgagor that they believed answering the foreclosure complaint was
unnecessary. This result is antithetical to fostering confidence in the finality of legal
judgments.
Based upon the foregoing, this Court must refuse to adopt only that portion of
the Magistrate’s Decision which finds that the Quinns have demonstrated excusable
neglect.
Respectfully submitted,
5
/S/ Deanna C. Stoutenborough
Deanna C. Stoutenborough (# 0069761)
Rick D. DeBlasis, Esq. (# 0012992)
Craig A. Thomas, Esq. (#0037667)
LERNER, SAMPSON & ROTHFUSS
Attorney for Plaintiff
120 E. Fourth St., 8th Floor
Cincinnati, OH 45202
Ph.: (513) 412-6093
Fx.: (513) 362-3592
Deanna.stoutenborough@lsrlaw.com
CERTIFICATE OF SERVICE
I hereby certify that, on March 10, 2010, I electronically filed the foregoing with
the Clerk of the Court using the electronic filing system and have requested the Clerk
to send notification of such filing, via the ECF system, to the following:
Craig A. Thomas, Esq.
P.O. Box 5480
Cincinnati, OH 45201
Co-counsel for Plaintiff
Randall J. Smith, Esq.
Miami Valley Fair Housing Center, Inc.
21-23 E. Babbitt Street
Dayton, OH 45405
Counsel for Defendants, Wesley and Marion Quinn
Collette S. Carr, Esq.
301 West Third Street
5th Floor
Dayton, OH 45402
Counsel for Defendant, Montgomery County Treasurer
6
I hereby further certify that a true and correct copy of the foregoing Motion for
Extension of Time to Object to Magistrate’s Decision was sent via ordinary U.S. mail,
postage prepaid, to the following on the 11th day of March, 2010:
Chase Home Finance
3415 Vision Drive
Columbus, OH 43219
/S/ Deanna C. Stoutenborough
7
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Wednesday, March 10, 2010 5:33:09 PM CASE NUMBER: 2007 CV 09571 Docket ID: 14869985 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO COURT OF COMMON PLEAS MONTGOMERY COUNTY, OHIO U.S. Bank, N.A., as Trustee for the Structured Case No. 2007 CV 9571 Asset Securities Corporation Mortgage Loan Trust, 2006- NC1, Judge Connie S. Price Plaintiff, PLAINTIFF’S OBJECTION TO -vs- MAGISTRATE’S DECISION FILED FEBRUARY 10, 2010 Wesley A. Quinn, et al., Defendants. The plaintiff herein, U.S. Bank, N.A., as Trustee for the Structured Asset Securities Corporation Mortgage Loan Trust, 2006- NC1 (“Plaintiff”), by and through undersigned counsel, does hereby Object to the Magistrate’s Decision entered February 10, 2010, pursuant to Civ.R. 53. Plaintiff incorporates herein the Memorandum of Law which follows. Respectfully submitted, LSR # 200725626 /S/ Deanna C. Stoutenborough Deanna C. Stoutenborough (# 0069761) Rick D. DeBlasis, Esq. (# 0012992) Craig A. Thomas, Esq. (#0037667) LERNER, SAMPSON & ROTHFUSS Attorney for Plaintiff 120 E. Fourth St., 8th Floor Cincinnati, OH 45202 Ph.: (513) 412-6093 The Magistrate erred in finding that Defendants, Wesley A. Quinn and Marion L Quinn (“the Quinns”), have shown that they are entitled to relief under any of the grounds stated in Civ.R. 60(B)(1) through (5). The Magistrate erroneously found that the Quinns demonstrated “excusable neglect”. The Quinns’ Motion to Vacate Default Judgment does not raise excusable neglect as a ground for the requested relief. Rather, the Quinns allege they believed “they had no defense to the action[; t]he Quinns, therefore, believed that an answer would be futile and unnecessary”. See, Defendants’ Memorandum in Support of Motion to Vacate Default Judgment, page 8. While the Quinns assert that they “focused on trying to cure the default through negotiation with the servicer”, the Quinns do not assert that such negotiations were the reason they believed an answer was unnecessary. Id. Furthermore, nowhere in their Memorandum in Support of Defendants’ Motion to Vacate Default Judgment or in the supporting affidavit from Wesley Quinn do the Quinns make any representation as to when they were supposedly engaging in 2 negotiations with Plaintiff’s servicer. The Magistrate presumed that negotiations were ongoing contemporaneously with the time when the Quinns’ answer was due and before the Entry of Default Judgment. Yet, there was no evidence before this Court at the time the Magistrate rendered his Decision from which to know what the time frame was when negotiations may have been ongoing with the Quinns. The Magistrate stated: “the Magistrate understands how its parallel continued negotiation with unsophisticated borrowers would reasonably lead such borrows to conclude that filing an answer to the complaint was unnecessary”. (“Emphasis added). Magistrate’s Decision, page 1. This statement is wholly unsupported by the record before the Court. It is improper for the Magistrate to presume facts not in evidence. The Magistrate’s finding of excusable neglect is based upon the Magistrate’s speculation and objective assessment of what might be a reasonable response if this speculation proved true. In reality, though, the Quinns stated that they did not file an answer because they believed they had no defense to Plaintiff’s foreclosure complaint, and therefore filing an Answer would be futile and unnecessary. The Quinns made a knowing and voluntary decision not to appear and defend this foreclosure action because they believed they had no legitimate defense to the action. Such does not constitute excusable neglect or mistake sufficient to justify setting aside a final order of this Court. 3 The Supreme Court of Ohio has "defined 'excusable neglect' in the negative and [has] stated that the inaction of a defendant is not 'excusable neglect' if it can be labeled as a 'complete disregard for the judicial system.'" Kay v. Marc Glassman, Inc. (1996), 76 Ohio.St.3d 18, 20, quoting GTE Automatic Electric v. ARC Industries, 47 Ohio St.2d at 153. The Quinns acknowledge they received the Summons and Complaint, which instructs them of their right to appear and defend this action by filing an Answer within 28 days and that failure to do so will result in judgment being taken against them. In response, the Quinns chose to forego consulting legal counsel; they determined that they had no defense to the action and that they would, instead, try to cure the default; and they made the decision not to appear or defend the action. The fact that the Quinns are “unsophisticated” or that they were not represented by counsel, does not convert their voluntary choice to forego defense of this action into excusable neglect under Civ.R. 60(B). See, CB Group, Inc. v. Starboard Hospitality, L.L.C. (December 17, 2009), 2009-Ohio-6652, ¶19 - ¶20. As pro se litigants, the Quinns are held to the same rules and standards as those litigants who retain legal counsel to represent them in an action. Lawson v. Levering (Sept. 1, 2009), 2009-Ohio-4491, ¶ 17; State Farm Mut. Auto Ins. Co. v. Peller (1989), 63 Ohio App.3d 357, 361. See also, Ragan v. Akron Police Dept. (Jan. 19, 1994), 1994 Ohio App. LEXIS 137, at *7, wherein the Ninth District Court of Appeals stated: Acting pro se is neither excusable neglect nor any other reason justifying relief from judgment. A party has a right to represent himself, but if he 4 does so, he is subject to the same rules and procedures as litigants with counsel. If the fact that a party chose not to be represented by counsel and was unsuccessful in pursuing his rights entitled that party to relief from judgment, every judgment adverse to a pro se litigant could be vacated to permit a second attempt, this time with counsel. Such a circumstance would be unjust to the adverse party. If the Magistrate’s Decision is permitted to stand as is, mortgagors who are properly served with a foreclosure complaint will simply chose to not appear and defend the action, allow default judgment to be taken against them, then –either with or without counsel- file a Motion to Vacate Default Judgment if they are unable to reach an agreement with the servicer for a loss mitigation workout. Meanwhile, lenders and servicers of defaulted loans that are the subject of mortgage foreclosure actions in Ohio courts will refuse to engage in negotiations with borrowers after a default judgment has been entered, for fear that the default judgment will be set aside later on upon the mere assertion by the mortgagor that they believed answering the foreclosure complaint was unnecessary. This result is antithetical to fostering confidence in the finality of legal judgments. Based upon the foregoing, this Court must refuse to adopt only that portion of the Magistrate’s Decision which finds that the Quinns have demonstrated excusable neglect. Respectfully submitted, 5 /S/ Deanna C. Stoutenborough Deanna C. Stoutenborough (# 0069761) Rick D. DeBlasis, Esq. (# 0012992) Craig A. Thomas, Esq. (#0037667) LERNER, SAMPSON & ROTHFUSS Attorney for Plaintiff 120 E. Fourth St., 8th Floor Cincinnati, OH 45202 Ph.: (513) 412-6093 Fx.: (513) 362-3592 Deanna.stoutenborough@lsrlaw.com CERTIFICATE OF SERVICE I hereby certify that, on March 10, 2010, I electronically filed the foregoing with the Clerk of the Court using the electronic filing system and have requested the Clerk to send notification of such filing, via the ECF system, to the following: Craig A. Thomas, Esq. P.O. Box 5480 Cincinnati, OH 45201 Co-counsel for Plaintiff Randall J. Smith, Esq. Miami Valley Fair Housing Center, Inc. 21-23 E. Babbitt Street Dayton, OH 45405 Counsel for Defendants, Wesley and Marion Quinn Collette S. Carr, Esq. 301 West Third Street 5th Floor Dayton, OH 45402 Counsel for Defendant, Montgomery County Treasurer 6 I hereby further certify that a true and correct copy of the foregoing Motion for Extension of Time to Object to Magistrate’s Decision was sent via ordinary U.S. mail, postage prepaid, to the following on the 11th day of March, 2010: Chase Home Finance 3415 Vision Drive Columbus, OH 43219 /S/ Deanna C. Stoutenborough 7