Preview
29 oa (epitome
NON gusas COURT OF MONTGOMERY
4 CIVIL DIVISION
rr cae
USS. Bank N.A. ag, Tiusté CASENO. 2007-CV-9571
Plaintiff ‘ ot :
Ve JUDGE Jeffrey E. Froelich
~ DEFENDANTS’ RESPONSE TO
Wesley A. Quinn, et al, PLAINTIFE’S MEMORANDUM
CONTRA
Defendants.
Now come the Defendants, Wesley A. Quinn and Marion L. Quinn (‘‘the Quinns”), by
and through their legal counsel, in response to Plaintiff’s Memorandum Contra and respectfully
request that this Court vacate the Default Judgment and Decree in Foreclosure entered February
11, 2008, and its Order of Sale entered October 6, 2008, pursuant to Ohio Rules of Civil
Procedure 55(B) and 60(B)(1),(3)&(5). In support, the Quinns state the following:
STATEMENT OF FACTS
1. On February 28, 2006, New Century Mortgage Corporation (“New Century”)
executed a Mortgage and Note to the Quinns.
2. On November 14, 2007, Plaintiff filed a Complaint in Foreclosure based on the
Quinns’ Mortgage and Note with New Century Mortgage.
3. On January 17, 2008, New Century attempted to execute an assignment of the
Mortgage to the Plaintiff.
4. On January 31, 2008, Plaintiff filed for Default Judgment.
5. On February 1, 2008, the Mortgage assignment was recorded.ne
Page |2
6. On February 11, 2008, this Court issued the Final and Appealable Judgment and
Decree in Foreclosure.
7. On October 2, 2008, Praecipe for Order of Sale was filed.
8. On October 6, 2008, Order of Sale was filed and the Sheriff Order of Sale was issued.
9 At the end of October, 2008, the Quinns contacted the Miami Valley Fair Housing
Center for help.
10. On December 18, 2008, a Motion and Memorandum in Support for Relief from
Default Judgment and Order of Sale was filed.
11. On January 28, 2009, Plaintiffs Memorandum Contra Defendants’ Motion to Vacate
Judgment and Decree in Foreclosure and Order of Sale was filed.
12. In the Memorandum Contra, Plaintiff argued that the Quinns have not proven that
they are entitled to relief under Civil Rule 60(B), because it is clear that the Plaintiff
was the real party in interest when the above action was filed.
13. On January 30, 2009, the Sheriff's Sale was scheduled for February 27, 2009.
14. On February 4, 2009, the Quinns filed a Motion to Stay the Sheriff's Sale.
ARGUMENT
In foreclosure actions, the real party in interest is the current holder of the note and
mortgage at the time the foreclosure action is filed. Everhome Mortgage Company v. Rowland,
Slip Op. No. 1282 (10" Dist. Ohio App. March 20, 2008); Wells Fargo Bank v. Byrd, 178 Ohio
App.3d 285 (Ohio App. 1 Dist. 2008);Avelo Mortgage v. Chasteen, Case No. 2008CV3518
{Montgomery County, Ohio C.P. November 18, 2008). The Plaintiff has proven neither.Defendants’ Response
Osc 7834
The Plaintiff merely argues without evidence that it must have acquired the Quinn Note
and Mortgage in accordance to the guidelines of the Trust, because that is what was required.
There is no evidence, however, that the Plaintiff acquired the Quinn Note and Mortgage in
compliance with the Trust. In fact, all the evidence presented suggests the opposite.
The evidence is the assignment of the Mortgage. The Mortgage was not assigned to the
Plaintiff until January 17, 2008, and was not recorded until February 1, 2008. This is after the
Plaintiff filed the foreclosure action and after the Trust cut-off date. In foreclosure cases, the
assignment of the mortgage is the determining factor regarding whether the Plaintiff is the real
party in interest. Wells Fargo Bank v. Byrd, supra; Avelo Mortgage v. Chasteen, supra. (dismissal
proper, because untimely assignment of mortgage did not cure lack of standing at the time the
foreclosure complaint was filed).
The timing of the assignment of the mortgage is important, because an action in
foreclosure is one for relief other than money. National City Bank v. Abdalla, 131 Ohio App.3d
204, 210 (1999). A foreclosure action is an equitable action based upon the breach of the
mortgage agreement. Fifth Third Bank v. Hopkins, 177 Ohio App.3d 114, 119 (2008). A
mortgage is a conveyance of land and is given to secure payment of the note. Kernohan v.
Manss, 53 Ohio St. 118, 126, 131 (1895).
In general, the mortgage follows that note. Kernohan v. Manss, 53 Ohio St. at 131-132.
But in a foreclosure action, suit on the note debt is not foreclosed by the disposition of a previous
foreclosure, because the note remains independent of the mortgage and is a separate, enforceable
contract. Fifth Third Bank v. Hopkins, supra. Therefore, in determining standing in a
foreclosure action, the initial focus is on the mortgage. See: Wells Fargo Bank v. Byrd, supra.
and Avelo Mortgage v. Chasteen, supra. In Wells Fargo Bank and Avelo Mortgage, it was heldDefendants’ Response
on
that an assignment of the mortgage that takes place after the action is commenced does not cure a
plaintiffs lack of standing. Wells Fargo at 291 and Avelo Mortgage at 5-6. The Wells Fargo
Court stated:
“We hold that in a foreclosure action, a bank that was not the mortgagee when
suit was filed cannot cure its lack of standing by subsequently obtaining interest
in the mortgage.” /d.
The Plaintiff argues that it does not matter that the assignment and recording of the Quinn
Mortgage occurred after the filing of the foreclosure action, because its interest commenced
when it purchased the loan. In Avelo Mortgage, a division of this Court specifically rejected this
argument. Jd. at 2-6. The Avelo Mortgage Court stated, “While Avelo indicated in its motion
that it purchased the loan prior to that date, it provided no evidence to support that contention.”
Id. at 6. As in Avelo Mortgage, the Plaintiff provided no evidence to support its contention.
Therefore, the late assignment of the mortgage alone would have required the above foreclosure
action to be dismissed. J/d.; Wells Fargo, supra.
In such a circumstance, it would neither achieve fairness nor justice to permit the Quinns
to lose their home to an entity that had no right to file a foreclosure action in the first place. The
purpose of Civil Rule 60(B) is to prevent unfairness and to promote justice. See: State v.
Whatley, Slip Op. No. 24231 (9" Dist. Ohio App. November 26, 2008)(granting 60(B) relief
because, “[a]lthough [Defendant] failed to remedy the trial court’s error through a timely filed
direct appeal, ‘[w]e would achieve neither fairness nor justice by permitting [his] void sentence
to stand’.”\(citation omitted).
Civil Rule 60(B)(1) &(5) allows this Court to provide relief from judgment based on
mistake, inadvertence, surprise or excusable neglect or any other reason justifying relief. It
clearly would be a mistake for this Court to allow this foreclosure action to proceed when theDefendants’ Response
O8-CV.7534
Page [5
foreclosing party does not even have standing. Moreover, relief is justified when it would
prevent the loss of a home to an entity that has not right to it. Furthermore, Civil Rule 60(B)(3)
provides for this Court to relieve a party from judgment when there was misconduct on the part
of the adverse party. The Plaintiff violated federal law when it attempted to collect a debt that it
did not own. FDCPA, 15U.S.C.§1692e(10) and misrepresented to this Court that it owned both
the note and mortgage as of the filing of this action. Therefore, the Quinns are entitled to relief
under Civil Rule 60(B).
WHEREFORE, Mr. and Ms. Quinn request that this Court grant relief from final
judgment and dismiss the above case.
Respectfully submitted,
21-23 E. Babbitt Street
Dayton, Ohio 45405
Phone: (937) 660-8015
Fax: (937) 223-6279Defendants’ Response
08-CV-7534
Page 16
CERTIFICATE OF SERVICE
I certify that I mailed a copy of this motion by ordinary U.S. Mail on this 4 4 day of
2009 to the following parties:
CRAIG A. THOMAS
DEANNA C. STOUTENBOROUGH
RICK D. DEBLASIS
ATTORNEYS FOR PLAINTIFF
LERNER, SAMPSON & ROTHFUSS
P.O. BOX 5480
CINCINNATI, OH 45201-5480
COLETTE S. CARR
MONTGOMERY COUNTY TREASURER
451 W. THIRD STREET
DAYTON, OH 45422-1475
CHASE HOME FINANCE LLC
10790 RANCHO BERNARDO ROAD
SAN DIEGO, CA 92127
Preview
29 oa (epitome NON gusas COURT OF MONTGOMERY 4 CIVIL DIVISION rr cae USS. Bank N.A. ag, Tiusté CASENO. 2007-CV-9571 Plaintiff ‘ ot : Ve JUDGE Jeffrey E. Froelich ~ DEFENDANTS’ RESPONSE TO Wesley A. Quinn, et al, PLAINTIFE’S MEMORANDUM CONTRA Defendants. Now come the Defendants, Wesley A. Quinn and Marion L. Quinn (‘‘the Quinns”), by and through their legal counsel, in response to Plaintiff’s Memorandum Contra and respectfully request that this Court vacate the Default Judgment and Decree in Foreclosure entered February 11, 2008, and its Order of Sale entered October 6, 2008, pursuant to Ohio Rules of Civil Procedure 55(B) and 60(B)(1),(3)&(5). In support, the Quinns state the following: STATEMENT OF FACTS 1. On February 28, 2006, New Century Mortgage Corporation (“New Century”) executed a Mortgage and Note to the Quinns. 2. On November 14, 2007, Plaintiff filed a Complaint in Foreclosure based on the Quinns’ Mortgage and Note with New Century Mortgage. 3. On January 17, 2008, New Century attempted to execute an assignment of the Mortgage to the Plaintiff. 4. On January 31, 2008, Plaintiff filed for Default Judgment. 5. On February 1, 2008, the Mortgage assignment was recorded.ne Page |2 6. On February 11, 2008, this Court issued the Final and Appealable Judgment and Decree in Foreclosure. 7. On October 2, 2008, Praecipe for Order of Sale was filed. 8. On October 6, 2008, Order of Sale was filed and the Sheriff Order of Sale was issued. 9 At the end of October, 2008, the Quinns contacted the Miami Valley Fair Housing Center for help. 10. On December 18, 2008, a Motion and Memorandum in Support for Relief from Default Judgment and Order of Sale was filed. 11. On January 28, 2009, Plaintiffs Memorandum Contra Defendants’ Motion to Vacate Judgment and Decree in Foreclosure and Order of Sale was filed. 12. In the Memorandum Contra, Plaintiff argued that the Quinns have not proven that they are entitled to relief under Civil Rule 60(B), because it is clear that the Plaintiff was the real party in interest when the above action was filed. 13. On January 30, 2009, the Sheriff's Sale was scheduled for February 27, 2009. 14. On February 4, 2009, the Quinns filed a Motion to Stay the Sheriff's Sale. ARGUMENT In foreclosure actions, the real party in interest is the current holder of the note and mortgage at the time the foreclosure action is filed. Everhome Mortgage Company v. Rowland, Slip Op. No. 1282 (10" Dist. Ohio App. March 20, 2008); Wells Fargo Bank v. Byrd, 178 Ohio App.3d 285 (Ohio App. 1 Dist. 2008);Avelo Mortgage v. Chasteen, Case No. 2008CV3518 {Montgomery County, Ohio C.P. November 18, 2008). The Plaintiff has proven neither.Defendants’ Response Osc 7834 The Plaintiff merely argues without evidence that it must have acquired the Quinn Note and Mortgage in accordance to the guidelines of the Trust, because that is what was required. There is no evidence, however, that the Plaintiff acquired the Quinn Note and Mortgage in compliance with the Trust. In fact, all the evidence presented suggests the opposite. The evidence is the assignment of the Mortgage. The Mortgage was not assigned to the Plaintiff until January 17, 2008, and was not recorded until February 1, 2008. This is after the Plaintiff filed the foreclosure action and after the Trust cut-off date. In foreclosure cases, the assignment of the mortgage is the determining factor regarding whether the Plaintiff is the real party in interest. Wells Fargo Bank v. Byrd, supra; Avelo Mortgage v. Chasteen, supra. (dismissal proper, because untimely assignment of mortgage did not cure lack of standing at the time the foreclosure complaint was filed). The timing of the assignment of the mortgage is important, because an action in foreclosure is one for relief other than money. National City Bank v. Abdalla, 131 Ohio App.3d 204, 210 (1999). A foreclosure action is an equitable action based upon the breach of the mortgage agreement. Fifth Third Bank v. Hopkins, 177 Ohio App.3d 114, 119 (2008). A mortgage is a conveyance of land and is given to secure payment of the note. Kernohan v. Manss, 53 Ohio St. 118, 126, 131 (1895). In general, the mortgage follows that note. Kernohan v. Manss, 53 Ohio St. at 131-132. But in a foreclosure action, suit on the note debt is not foreclosed by the disposition of a previous foreclosure, because the note remains independent of the mortgage and is a separate, enforceable contract. Fifth Third Bank v. Hopkins, supra. Therefore, in determining standing in a foreclosure action, the initial focus is on the mortgage. See: Wells Fargo Bank v. Byrd, supra. and Avelo Mortgage v. Chasteen, supra. In Wells Fargo Bank and Avelo Mortgage, it was heldDefendants’ Response on that an assignment of the mortgage that takes place after the action is commenced does not cure a plaintiffs lack of standing. Wells Fargo at 291 and Avelo Mortgage at 5-6. The Wells Fargo Court stated: “We hold that in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining interest in the mortgage.” /d. The Plaintiff argues that it does not matter that the assignment and recording of the Quinn Mortgage occurred after the filing of the foreclosure action, because its interest commenced when it purchased the loan. In Avelo Mortgage, a division of this Court specifically rejected this argument. Jd. at 2-6. The Avelo Mortgage Court stated, “While Avelo indicated in its motion that it purchased the loan prior to that date, it provided no evidence to support that contention.” Id. at 6. As in Avelo Mortgage, the Plaintiff provided no evidence to support its contention. Therefore, the late assignment of the mortgage alone would have required the above foreclosure action to be dismissed. J/d.; Wells Fargo, supra. In such a circumstance, it would neither achieve fairness nor justice to permit the Quinns to lose their home to an entity that had no right to file a foreclosure action in the first place. The purpose of Civil Rule 60(B) is to prevent unfairness and to promote justice. See: State v. Whatley, Slip Op. No. 24231 (9" Dist. Ohio App. November 26, 2008)(granting 60(B) relief because, “[a]lthough [Defendant] failed to remedy the trial court’s error through a timely filed direct appeal, ‘[w]e would achieve neither fairness nor justice by permitting [his] void sentence to stand’.”\(citation omitted). Civil Rule 60(B)(1) &(5) allows this Court to provide relief from judgment based on mistake, inadvertence, surprise or excusable neglect or any other reason justifying relief. It clearly would be a mistake for this Court to allow this foreclosure action to proceed when theDefendants’ Response O8-CV.7534 Page [5 foreclosing party does not even have standing. Moreover, relief is justified when it would prevent the loss of a home to an entity that has not right to it. Furthermore, Civil Rule 60(B)(3) provides for this Court to relieve a party from judgment when there was misconduct on the part of the adverse party. The Plaintiff violated federal law when it attempted to collect a debt that it did not own. FDCPA, 15U.S.C.§1692e(10) and misrepresented to this Court that it owned both the note and mortgage as of the filing of this action. Therefore, the Quinns are entitled to relief under Civil Rule 60(B). WHEREFORE, Mr. and Ms. Quinn request that this Court grant relief from final judgment and dismiss the above case. Respectfully submitted, 21-23 E. Babbitt Street Dayton, Ohio 45405 Phone: (937) 660-8015 Fax: (937) 223-6279Defendants’ Response 08-CV-7534 Page 16 CERTIFICATE OF SERVICE I certify that I mailed a copy of this motion by ordinary U.S. Mail on this 4 4 day of 2009 to the following parties: CRAIG A. THOMAS DEANNA C. STOUTENBOROUGH RICK D. DEBLASIS ATTORNEYS FOR PLAINTIFF LERNER, SAMPSON & ROTHFUSS P.O. BOX 5480 CINCINNATI, OH 45201-5480 COLETTE S. CARR MONTGOMERY COUNTY TREASURER 451 W. THIRD STREET DAYTON, OH 45422-1475 CHASE HOME FINANCE LLC 10790 RANCHO BERNARDO ROAD SAN DIEGO, CA 92127