[Cite as Bank of New York Mellon v. Casey, 2013-Ohio-4686.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE BANK OF NEW YORK : JUDGES:
MELLON FKA THE BANK OF : Hon. William B. Hoffman, P.J.
NEW YORK, AS TRUSTEE FOR THE : Hon. Sheila G. Farmer, J.
CERTIFICATEHOLDERS OF THE : Hon. Patricia A. Delaney, J.
CWABS INC., BACKED :
CERTIFICATES, SERIES 2006-24 :
:
Plaintiff-Appellee :
:
-vs- :
:
WILLIAM J. CASEY AKA : Case No. 13-CA-26
WILLIAM JOSEPH CASEY, ET AL. :
:
Defendants-Appellees :
:
RICHARD L. WOLFE AND :
HELEN E. WOLFE :
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2012 CV 00723
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
EDWARD H. CAHILL RICHARD L. WOLFE
P.O. Box 165028 HELEN E. WOLFE
Columbus, OH 43216-5028 955 Rock Mill Road, NW
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-26 2
Farmer, J.
{¶1} On July 20, 2010, appellee, The Bank of New York Mellon fka The Bank of
New York, as Trustee for the Certificateholders of the Cwabs Inc., Asset-Backed
Certificates, Series 2006-24, filed a declaratory judgment action against William Joseph
Casey, the Starkey Family Revocable Living Trust, and appellants, Richard and Helen
Wolfe, seeking the rights and obligations of the parties regarding real estate located at
955 Rock Mill Road in Lancaster, Ohio (Case No. 10 CV 877). On December 21, 2010,
the trial court declared that title to the property was vested with Mr. Casey and appellee
was the assignee of the unrecorded MERS/Countrywide mortgage and was entitled to
enforce the mortgage. The trial court also declared appellants did not have a legal or
equitable interest in the property.
{¶2} On March 7, 2011, Mr. Casey executed a Quit Claim Deed to appellants
which was recorded on March 17, 2011. On March 30, 2011, appellants filed a Civ.R.
60(B) motion for relief from judgment since they now held title to the property. By order
filed May 23, 2011, the trial court denied the motion. This court affirmed the trial court's
decision. The Bank of New York Mellon v. William Joseph Carey, et al., 5th Dist.
Fairfield No. 2011 CA 31, 2011-Ohio-6887.
{¶3} On July 5, 2012, appellee filed a complaint in foreclosure against
appellants and others for failure to pay on a note secured by a mortgage (Case No.
2012 CV 00723). On December 11, 2012, appellee filed a motion for summary
judgment. By memorandum of decision filed January 30, 2013, the trial court granted
the motion. A judgment entry and decree in foreclosure was filed on February 7, 2013.
Fairfield County, Case No. 13-CA-26 3
{¶4} Appellants filed an appeal and this matter is now before this court for
consideration. Appellants set forth three issues for review which we will accept as
assignments of error:
I
{¶5} "WHETHER THE TRIAL COURT ERRED OR ABUSED ITS DISCRETION
IN RULING THAT THE WOLFES WERE NOT BON FIDE PURCHASERS GIVEN THE
RECORD AND ATTESTATIONS OF APPELLEE."
II
{¶6} "WHETHER THE COURT ERRED OR ABUSED ITS DISCRETION IN
GRANTING SUMMARY JUDGMENT TO APPELLEE AS AGAINST APPELLANTS
CLAIM BASED ON THE VALIDITY OF AN UNRECORDED DOCUMENT
PURPORTING TO BE A MORTGAGE THAT FAILS TO MEET THE REQUIREMENTS
OF A MORTGAGE PURSUANT TO COMMON LAW AND OHIO PRECEDENTS."
III
{¶7} "WHETHER THE COURT OF COMMON PLEAS ERRED OR ABUSED
DISCRETION IN FINDING THAT THE APPELLEE HAD STANDING TO BRING THIS
ACTION BECAUSE THE MERS MORTGAGE WAS NOT PROPERLY RECORDED."
{¶8} Appellants challenge the trial court's granting of summary judgment to
appellee. Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any
Fairfield County, Case No. 13-CA-26 4
material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is
made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,
628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50
Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
{¶9} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35 (1987).
I
{¶10} Appellants claim they are bona fide purchasers in good faith, as they paid
consideration for the property and therefore took the land free from unrecorded liens.
We disagree.
{¶11} On March 7, 2011, William Joseph Casey executed a Quit Claim Deed of
the subject property to appellants which was recorded on March 17, 2011. See,
Exhibits 16 and 17 attached to Appellant's Amendment to Wolfe's Summon's Answer
filed August 7, 2012. Also attached to this pleading as Exhibit 13 is a General Warranty
Deed of the property from Dan E. Starkey and Toni D. Starkey, Trustees of the Starkey
Family Revocable Living Trust to Best Choice Homes, Inc. dated April 21, 2005 and
recorded on April 26, 2005.
Fairfield County, Case No. 13-CA-26 5
{¶12} Appellants were parties to the 2010 declaratory judgment action related to
appellee's unrecorded mortgage. Appellants appeared and defended by filing an
answer on August 12, 2010. On December 21, 2010, the trial court declared that title to
the property was vested with Mr. Casey and appellee was the assignee of the
unrecorded MERS/Countrywide mortgage and was entitled to enforce the mortgage.
The trial court also declared appellants did not have a legal or equitable interest in the
property. This judgment was final and never appealed. In lieu of an appeal, appellants
filed a Civ.R. 60(B) motion for relief from judgment requesting equitable relief. The
motion was denied and this court affirmed the decision in The Bank of New York Mellon
v. William Joseph Casey, et al., 5th Dist. Fairfield No. 2011 CA 31, 2011-Ohio-6887, ¶
54-56, specifically addressing the validity of appellants' title to the property as follows:
Appellants further attempt to argue that their acquisition of a quit-
claim deed from William Joseph Casey subsequent to the final decision in
this case somehow creates a meritorious defense under Civ.R. 60(B). We
disagree. In Ohio, the doctrine of lis pendens is codified under R.C.
2703.26, which provides:
"When a complaint is filed, the action is pending so as to charge
third persons with notice of its pendency. While pending, no interest can
be acquired by third persons in the subject of the action, as against the
plaintiff's title."
Here, as stated by the trial court, Appellants acquired their interest
in the subject property from William Casey after Appellee's interest had
been determined by the Judgment Entry filed on December 21, 2010 but
Fairfield County, Case No. 13-CA-26 6
before the Sheriff's Sale of the property took place. Thus, Appellants took
only the interest that William Casey had in the property. Further, the quit-
claim deed acquired by Appellants from William Casey gave them Casey's
interest in the property which was subject to the Judgment Entry filed on
December 21, 2010.
{¶13} Because appellants' claim of title is based on the March 7, 2011 Quit
Claim Deed from Mr. Casey, appellants were not bona fide purchasers as they took title
during the pendency of the declaratory judgment action to which they were a party.
This court's opinion explained the doctrine of lis pendens and the bar to pursuing the
bona fide purchaser claim.
{¶14} Assignment of Error I is denied.
II, III
{¶15} Appellants argue the unrecorded mortgage failed to meet statutory
requirements and appellee lacked standing to pursue the foreclosure action. All of
appellants' arguments center around the claim that the mortgage was unrecorded. As
we noted in Assignment of Error I, the validity of the mortgage was fully litigated
between the parties in the 2010 declaratory judgment action. Appellants sought to
invalidate the declaratory judgment action via a Civ.R. 60(B) motion for relief from
judgment which was denied by final judgment entry filed December 21, 2010, attached
to appellee's brief as Exhibit A:
This Court further finds that the Bank of New York Mellon fka the
Bank of New York, as Trustee for the Certificate Holders CWABS, Inc.,
Fairfield County, Case No. 13-CA-26 7
Asset Backed Certificates, Series 2006-24, is the assignee of the
MERS/Countrywide mortgage and is the owner of and entitled to enforce
said mortgage.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that
Bank of New York Mellon has an equitable lien by virtue of a mortgage
dated October 26, 2006 from William Joseph Casey to
MERS/Countrywide Home Loans, Inc. in the principal amount of
$186,400, on the property described above.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
Defendants Richard L. Wolfe and Helen E. Wolfe have no legal or
equitable interest in the property described above.
{¶16} Res judicata is defined as "[a] valid, final judgment rendered upon the
merits bars all subsequent actions based upon any claim arising out of the transaction
or occurrence that was the subject matter of the previous action." Grava v. Parkman
Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus. "The doctrine of res judicata
involves both claim preclusion (historically called estoppel by judgment in Ohio) and
issue preclusion (traditionally known as collateral estoppel)." Id. at 381. Claim
preclusion "prevents a party from litigating a cause of action after a prior court has
rendered a final judgment on the merits of that cause as to that party." Krahn v. Kinney,
43 Ohio St.3d 103, 107 (1989), citing Norwood v. McDonald, 142 Ohio St. 299 (1943),
paragraph one of the syllabus. Issue preclusion "precludes the relitigation of an issue
that has been 'actually and necessarily litigated and determined in a prior action.' "
Fairfield County, Case No. 13-CA-26 8
Krahn, at 107, quoting Goodson v. McDonough Power Equipment, Inc., 2 Ohio St.3d
193, 195 (1983).
{¶17} Appellants' present attack on the mortgage attempts to set themselves out
as bona fide purchasers. However, under the doctrine of lis pendens, they are not.
{¶18} Appellants also argue appellee lacked standing to bring the foreclosure
action because appellee purchased the mortgage from MERS. Appellee is the current
holder of the note and mortgage as declared in the 2010 declaratory judgment action
and its physical possession of the documents.
{¶19} R.C. 1303.32 governs holder in due course. Subsection (A) states the
following:
(A) Subject to division (C) of this section and division (D) of section
1303.05 of the Revised Code, "holder in due course" means the holder of
an instrument if both of the following apply:
(1) The instrument when issued or negotiated to the holder does
not bear evidence of forgery or alteration that is so apparent, or is not
otherwise so irregular or incomplete as to call into question its authenticity;
(2) The holder took the instrument under all of the following
circumstances:
(a) For value;
(b) In good faith;
(c) Without notice that the instrument is overdue or has been
dishonored or that there is an uncured default with respect to payment of
another instrument issued as part of the same series;
Fairfield County, Case No. 13-CA-26 9
(d) Without notice that the instrument contains an unauthorized
signature or has been altered;
(e) Without notice of any claim to the instrument as described in
section 1303.36 of the Revised Code;
(f) Without notice that any party has a defense or claim in
recoupment described in division (A) of section 1303.35 of the Revised
Code.
{¶20} Upon review, we find appellee had standing to pursue the foreclosure
action and appellants are not bona fide purchasers as against the equitable mortgage of
appellee.
{¶21} Assignment of Errors II and III are denied.
{¶22} The judgment of the Court of Common Pleas of Fairfield County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. Patricia A. Delaney
SGF/sg 103
[Cite as Bank of New York Mellon v. Casey, 2013-Ohio-4686.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE BANK OF NEW YORK MELLON :
FKA THE BANK OF NEW YORK, AS :
TRUSTEE FOR THE CERTIFICATE- :
HOLDERS OF THE CWABS INC., :
BACKED CERTIFICATES, :
SERIES 2006-24 :
:
Plaintiff-Appellee :
-vs- :
:
WILLIAM J. CASEY AKA :
WILLIAM JOSEPH CASEY, ET AL. : JUDGMENT ENTRY
:
Defendants-Appellees :
:
RICHARD L. WOLFE AND :
HELEN E. WOLFE :
:
Defendants-Appellants : CASE NO. 13-CA-26
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed. Costs to
appellants.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. Patricia A. Delaney