Recent Cases of Interest to Real Property Lawyers as of 05/06/13:
Fifth Third Mtge. Co. v. Orebaugh, 2013-Ohio-1730
Fifth Third filed a foreclosure action against the Defendant and was granted summary judgment. The Defendant filed an appeal arguing that Fifth Third failed to join an indispensable party, Fannie Mae, the owner of the note and mortgage. However, Fifth Third is the holder of the note and mortgage and the Court found that the holder is entitled to bring the foreclosure action.
Tenney v. St. Clair, 2013-Ohio-1717
The parties in this case were divorced and the property was granted to Defendant in the divorce action, and defendant was required to provide Plaintiff equity for her interest in the property. This was never done, and Plaintiff then filed a partition action requesting that the property be sold. Appellee filed a motion for summary judgment which was granted by the trial Court entitling appellee to the partition. However, since the property was zoned for agricultural use and is currently used as a horse arena and stable, it could not be divided and would therefore need to be sold. Appellant appealed. The Appellate Court determined that Appellee was entitled to bring the foreclosure action because the divorce proceeding did not finally adjudicate the parties’ property rights as it was contingent upon Appellee’s receipt of payment for her interest in the property, for which Appellant failed to fulfill. Therefore, the partition action was appropriate.
Bank of New York Mellon v. Matthews, 2013-Ohio-1707
Appellee filed a complaint for foreclosure and filed a motion for summary judgment. Appellant filed a motion to oppose the motion for summary judgment and filed a motion to dismiss arguing that Appellee was not the holder of the note when the complaint was filed. The Court granted Appellee’s motion for summary judgment and Appellant appealed. The Appellate Court found that appellee filed suit three months after the assignment of mortgage was file-stamped and notarized and recorded. The Court found that summary judgment in this case was appropriate.
Citizens Banking Co., v. Real Am, Inc. 2013-Ohio-1710
A complaint for foreclosure and cognovits judgment was filed in this case. The Plaintiff made a request for an appointment of a receiver, which was granted by the trial court. Defendant appealed arguing that the trial Court breached a due process obligation by failing to have a hearing on the request for a receiver. However, the Court had granted several extensions of time for appellants to file a brief in opposition to the motion for receiver, but they failed to file a brief. Additionally, there is not statutory requirement for a hearing. The judgment of the trial court was affirmed.