Smith v. Bank of Am.

[Cite as Smith v. Bank of Am., 2013-Ohio-4321.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

RONALD SMITH, ET AL., )
)
PLAINTIFFS-APPELLANTS, )
) CASE NO. 11-MA-169
V. )
) OPINION
BANK OF AMERICA, ET AL., )
)
DEFENDANTS-APPELLEES. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 09CV1620

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiffs-Appellants Attorney Bruce M. Broyles
5815 Market Street
Suite 2
Boardman, Ohio 44512

For Defendants-Appellees Attorney Anne Marie Sferra
Attorney Nelson M. Reid
Attorney Justin W. Ristau
100 South Third Street
Columbus, Ohio 43215-4291

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

Dated: September 24, 2013
[Cite as Smith v. Bank of Am., 2013-Ohio-4321.]
DONOFRIO, J.

{¶1} Plaintiffs-appellants Ronald and Nancy Smith (appellants) appeal the
decision of the Mahoning County Common Pleas Court dismissing their amended
complaint against defendants-appellees Bank of America, N.A., as Successor in
interest to LaSalle Bank National Association as Trustee for certificate Holders of
Bear Stearns Asset-Backed Securities LLC Asset-Back Certificate Series 2004-HES
(appellee Bank of America), JP Morgan Chase Bank as Successor in interest to Bear
Stearns Residential Mortgage Corporation (appellee Chase), and Encore Credit
Corporation (appellee Encore)1. Appellants’ amended complaint contained claims for
declaratory relief, injunctive relief, fraudulent misrepresentation, unjust enrichment,
civil conspiracy, and violations of Ohio’s RICO statute. The case concerns the
refinancing of the appellants’ home mortgage and related transactions.
{¶2} Since this case was disposed of below on a motion to dismiss, the only
matters that can be considered are the allegations contained in appellants’ amended
complaint. As such, we will refer to the various paragraphs of the amended complaint
by number. (¶ __.) According to the amended complaint filed on September 10, 2010,
faced with mounting debt and decreased income, appellants sought to refinance the
mortgages on their home (1625 Gully Top Lane, Canfield, OH 44406) in early 2004 in
order to extract equity from their home for the purpose of paying those debts. (¶ 8.)
Appellants sought a fixed-rate loan with the lowest interest rate for which they would
qualify and a monthly payment plan that fit their budget. (¶ 8.) In January 2004, non-
party Motion Financial, an agent of appellee Encore, offered appellants what they
believed to be a fixed-rate mortgage loan for $528,500.00 and prepared for them a
Uniform Residential Loan Application over the phone for them to sign later. (¶ 9.) The
application indicated that appellants had a combined debt-to-income (DTI) ratio of
27% with base pay and quarterly bonus income listed on separate lines. (¶ 9.)
According to appellants, Motion Financial provided them with a disclosure statement

1. While the lower court docket reflects that appellee Encore was successfully served with appellants’
amended complaint and other trial court filings and judgment entries entered in this case, it never filed
a response or otherwise made an appearance. Also, it has not made an appearance in these
appellate proceedings and has not filed an appellate brief.
 -2-

concerning a fixed-rate loan, but did not provide them with a disclosure statement for
an adjustable-rate loan or other available loan options. (¶ 11.)
{¶3} In February 2004, Motion Financial informed appellants that the original
fixed-rate loan they had qualified for would not provide a sufficient loan-to-value ratio
so that appellants could extract equity in the form of cash from their home. (¶ 12.)
Motion Financial informed them that the only loan for which they would qualify and
allow them to extract equity would be an adjustable-rate loan requiring an appraised
value of their home of $630,000.00. (¶ 12.) Statewide Appraisal, enlisted by Motion
Financial, appraised the appellants’ home at $570,000.00, an amount insufficient to
fund the cash-out program. (¶¶ 14-15.) Statewide then performed a second appraisal
which resulted in an appraised value of $630,000.00, which enabled appellants to
qualify for the cash-out program under the adjustable-rate loan. (¶ 17.)
{¶4} Closing for the refinance loan took place in March 2004. On the day of
closing, appellants alleged that Motion and appellee Encore presented to them a
second loan application that changed their income information so that both base pay
and bonus income were both listed as base pay. (¶ 20.) According to appellants, this
resulted in their debt-to-income ratio falling within federal guidelines for loan
approval. (¶ 21.) Appellants ultimately ended up in a sub-prime adjustable-rate
mortgage program with a 2-year fixed rate and an adjustable rate every 6 months
thereafter which they alleged was predatory and destined for default. (¶ 24.)
{¶5} Appellee Encore contemporaneously assigned the note and mortgage
to LaSalle Bank National Association (LaSalle). Appellants defaulted on October 13,
2005, and LaSalle commenced foreclosure proceedings. LaSalle Bank Natl. Assn. v.
Smith, Mahoning C.P. No. 05CV3869. LaSalle obtained an order and decree of
foreclosure on January 12, 2007. Four years later, appellants filed separate motions
for reconsideration and relief from judgment, both of which the trial court denied.
They appealed those judgment entries to this court and this court affirmed. LaSalle
Bank Natl. Assn. v. Smith, 7th Dist. No. 11 MA 85, 2012-Ohio-4040.
 -3-

{¶6} On June 17, 2008, appellants filed an action in federal court asserting
state and federal claims against Motion Financial, appellee Encore, and Bear Sterns
Residential Mortgage Corporation (BSRMC). Smith v. Encore Credit Corp., N.D.Ohio
No. 4:08CV1462. The federal court dismissed the federal claims with prejudice and
dismissed the state claims without prejudice. Smith v. Encore Credit Corp., 623
F.Supp.2d 910 (N.D.Ohio 2008).
{¶7} Appellants then initiated this action on May 1, 2009. On September 10,
2010, they filed their amended complaint naming as defendants: appellee Bank of
America; appellee Chase; appellee Encore; and John Does 1 – 10. In their amended
complaint, appellants set forth claims for declaratory relief, injunctive relief, fraudulent
misrepresentation, unjust enrichment, civil conspiracy, and violations of Ohio’s
Pattern of Corrupt Activity Act (Ohio’s version of the Federal Anti-Racketeering Act –
Ohio RICO or OPCA).
{¶8} The appellants’ declaratory relief and injunctive relief claims related
specifically to the foreclosure action initiated by LaSalle in LaSalle Bank Natl. Assn.
v. Smith, Mahoning C.P. No. 05CV3869. Appellants wanted the trial court to set aside
the foreclosure decree in the foreclosure case, arguing that LaSalle never possessed
a full and unencumbered legal interest in the note and mortgage and, therefore, was
not the real party in interest to initiate foreclosure proceedings. Appellants also
argued that LaSalle falsely and fraudulently declared default since their obligation
under the note was reduced or extinguished by LaSalle’s resale of the note or the
payment of insurance benefits on the risk of default. For injunctive relief, appellants
sought to have the court stay any further proceedings in the foreclosure action.
{¶9} The appellants’ fraudulent misrepresentation claim related to their
allegation that defendants-appellees perpetrated a scheme to defraud them by
knowingly and intentionally concealing material information concerning the loan such
as disclosures required under federal statutes and regulations, and misrepresented
other information material to the loan.
 -4-

{¶10} Appellants alleged that defendants-appellees performed a “bait and
switch,” leaving them with a “predatory” adjustable-rate loan that unjustly enriched
defendants-appellees. They also alleged that defendants-appellees’ actions
constituted a civil conspiracy and violated Ohio’s RICO Act.
{¶11} Appellee Bank of America and appellee Chase filed motions to dismiss
pursuant to Civ.R. 12(B)(1) and (6). Appellee Bank of America argued that the trial
court lacked jurisdiction over appellants’ declaratory and injunctive relief claims
because of the jurisdictional priority rule. Under that rule, appellee Bank of America
argued that the court that handled the foreclosure action had jurisdiction over the
property in question first and, therefore, retained jurisdiction over it to the exclusion of
courts of concurrent jurisdiction. Appellee Bank of America also argued that
appellants’ claim for declaratory relief was barred by the doctrine of collateral
estoppel since it was already declared the real party in interest and that appellants
were in default in the foreclosure action. Appellee Bank of America argued that all of
appellants’ claims were barred by the doctrine of res judicata, opining that each of
those claims should have been brought as counterclaims in the foreclosure action.
Lastly, appellee Bank of America argued that appellants’ fraudulent
misrepresentation, unjust enrichment, civil conspiracy, RICO claims should be
dismissed on the merits for failure to state a claim upon which relief could be granted.
As it pertained to appellants’ claims of fraudulent misrepresentation, unjust
enrichment, civil conspiracy, appellee Bank of America pointed out that it did not
become a holder of the note and mortgage until after closing. As for appellants’ RICO
claim, appellee Bank of America argued that appellants failed to allege a pattern of
corrupt activity.
{¶12} In its motion, appellee Chase argued that appellants’ declaratory and
injunctive relief claims should be dismissed as to it because appellee Bank of
America, not appellee Chase, was the holder of the loan. Appellee Chase’s motion
echoed appellee Bank of America’s motion with respect to the remaining claims.
 -5-

{¶13} On May 31, 2011, the magistrate granted appellee Bank of America’s
motion to dismiss. The magistrate concluded that the court lacked jurisdiction over
appellants’ declaratory and injunctive relief claims because of the jurisdictional
priority rule. The magistrate also found that declaratory relief was barred by the
doctrine of collateral estoppel. Because of the related foreclosure action, the
magistrate found that any claims against appellee Bank of America were barred by
the doctrine of res judicata. The magistrate found that appellants’ fraud and civil
conspiracy claims were time-barred. In addition, the magistrate concluded that
appellants’ fraudulent misrepresentation, unjust enrichment, and civil conspiracy
claims failed on their merits because they did not relate to conduct by appellee Bank
of America. The magistrate found no merit to appellants’ RICO claims against
appellee Bank of America for similar reasons. The magistrate’s decision did not
address Chase’s motion to dismiss, granting only appellee Bank of America’s motion.
However, the magistrate nevertheless separately noted that it was dismissing
appellants’ amended complaint on the merits, with prejudice to re-filing.
{¶14} On June 10, 2011, appellants filed purported objections to the
magistrate’s decision. Appellee Bank of America filed a memorandum in opposition.
Appellants then filed a memorandum in support of and supplement to their
objections. Appellee Bank of America filed a memorandum in opposition to that as
well.
{¶15} On August 31, 2011, the trial court overruled appellants’ objections and
adopted the magistrate’s decision as its own. This appeal followed.
{¶16} Appellants raise two assignments of error in this appeal. However,
appellees Bank of America and Chase, who have filed a jointed responsive brief,
initially take issue with appellants’ ability to raise any assignments of error due to the
alleged inadequacy of their objections to the magistrate’s decision.
{¶17} Appellees Bank of America and Chase argue that appellants have not
preserved their appellate rights because they failed to state specific objections to the
magistrate’s May 31, 2011 decision. Civ.R. 53(D)(3)(b)(ii) requires that objections to
 -6-

a magistrate’s decision be specific and state with particularity the grounds of
objection. Additionally, “[e]xcept for a claim of plain error, a party shall not assign as
error on appeal the court's adoption of any factual finding or legal conclusion * * *
unless the party has objected to that finding or conclusion as required by Civ.R.
53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv). Courts have held that general objections do not
meet Civ.R. 53’s standard. See Thrower v. Akron, 9th Dist. No. 21518, 2003-Ohio-
5361; Rush v. Schlagetter, 4th Dist. No. 96CA2215, 1997 WL 193169 (Apr. 15,
1997).
{¶18} A review of appellants’ objections in this case reveals that they were
stated with sufficient particularity. Each of the five objections took issue with each of
the five specific legal conclusions reached by the magistrate. While they were brief
and not supported with any further argument or case law citations, they were
nonetheless specific and stated with particularity the grounds for objection. The
cases in which a party’s objections were found not specific enough are cases in
which the objecting party merely states that they are objecting to factual
determinations and/or legal conclusions reached by a magistrate. See, e.g., Rogers
v. Rogers, 9th Dist. No. 18280, 1997 WL 795820 (Dec. 17, 1997) (holding that the
statement “Plaintiff wish [sic] to object to the Findings of Fact of the Magistrate, as
well as errors of law” does not meet the specificity standard of Civ.R. 53(E)(3)(b)).
{¶19} Turning to appellants’ assignments of error, their first assignment of
error states:

The trial court erred in dismissing the amended complaint
against Encore Credit Corporation and JP Morgan Chase Bank as
Successor in interest to Bear Stearns Residential Mortgage Corporation
with prejudice.

{¶20} The magistrate’s decision and the trial court’s subsequent adoption of
that decision references only appellee Bank of America’s motion to dismiss. Yet the
 -7-

trial court proceeded to dismiss appellants’ amended complaint on the basis of that
motion alone, without reference to the other named party defendants.
{¶21} Appellants argue that the trial court erred in dismissing its amended
complaint in its entirety without addressing or analyzing their claims as they related to
appellee Encore and appellee Chase. In response, appellees Bank of America and
Chase argue that since appellants did not raise this issue in their initial objections,
their belated attempt to raise it in their supplemental memorandum, was untimely
and, therefore, they waived the alleged error. Consequently, appellees Bank of
America and Chase contend that this issue can be reviewed only for plain error.
Appellees Bank of America and Chase argues that if the trial court’s omission of a
reference to appellee Encore and appellee Chase was error; it was harmless error
and not plain error.
{¶22} A review of the trial court’s decision in this regard does not reveal
reversible error. Appellee Chase filed its own motion to dismiss. Appellants had been
served with that motion and filed a response to it. Appellee Chase asserted
substantially similar grounds for dismissal as were asserted by appellee Bank of
America.
{¶23} If the parties are given notice and an opportunity to respond, a trial
court may dismiss a complaint on its own motion pursuant to Civ.R. 12(B)(6) for
failure to state a claim upon which relief may be granted. See State ex rel. Edwards
v. Toledo City Sch. Dist. Bd. of Edn., 72 Ohio St.3d 106, 108, 647 N.E.2d 799 (1995).
The Ohio Supreme Court has held that “[s]ua sponte dismissal of a complaint for
failure to state a claim upon which relief can be granted is appropriate if the complaint
is frivolous or the claimant obviously cannot prevail on the facts alleged in the
complaint.” State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 316, 725 N.E.2d
663 (2000).
{¶24} As indicated, appellants here were given both notice and the
opportunity to respond to appellee Chase’s motion to dismiss and did, in fact, file a
response to that motion. Given that the trial court’s reasoning and analysis applied
 -8-

similarly to both appellee Bank of America and appellee Chase and the court’s
authority to dismiss the complaint upon its own motion, the trial court’s failure to
mention appellee Chase or appellee Encore by name was nonprejudicial to
appellants and inconsequential under the circumstances of this case.
{¶25} Accordingly, appellants’ first assignment of error is without merit.
{¶26} Appellants’ second assignment of error goes to the merits of the
magistrate’s decision and the five objections they raised to the legal conclusions
reached therein. It states:

The trial court erred is dismissing the amended complaint with
prejudice.

Jurisdictional Priority
{¶27} In Count One of appellants’ amended complaint, they sought a
declaration that LaSalle was not the real party in interest in the foreclosure action and
that the note in the foreclosure action was not in default. (¶¶ 56, 57, 64.) In Count
Two, appellants sought to enjoin the sale of the property that was the subject of the
foreclosure action. (¶ 70.) Because the foreclosure action had been filed concerning
the subject property prior to the filing of this action, the magistrate concluded that the
jurisdictional priority rule precluded it from considering appellants’ claims for
declaratory and injunctive relief.
{¶28} The jurisdictional priority rule provides that, as between state courts of
concurrent jurisdiction, the authority of the court which first properly acquires
jurisdiction over a matter retains exclusive jurisdiction until the matter is completely
adjudicated. State ex rel. Shimko v. McMonagle, 92 Ohio St.3d 426, 429, 751 N.E.2d
472 (2001).
{¶29} However, in this case, because the foreclosure action and this action
were brought in the same court, appellants argue that the jurisdictional priority rule is
inapplicable, citing this court’s decision in Jarvis v. Wells Fargo Bank, 7th Dist. No. 09
CO 6, 2010-Ohio-3283. Jarvis involved mortgagors who sued the mortgagee
 -9-

asserting claims that arose in connection with a prior foreclosure action. The
foreclosure action had been filed against the mortgagors in Columbiana County
Common Pleas Court in 2007. In the foreclosure action, the mortgagors had
belatedly attempted to assert a number of compulsory counterclaims without leave of
court. The mortgagee successfully obtained foreclosure without the court expressly
addressing any of the belated counterclaims. The mortgagors appealed and this
court found that the trial court had effectively overruled the counterclaims when it
granted summary judgment to the mortgagee. During the pendency of that appeal,
the mortgagors filed a suit of their own in the Columbiana County Common Pleas
Court against the mortgagee raising the same claims that were unsuccessfully
brought as counterclaims in the earlier foreclosure action. The trial court granted
judgment to the mortgagee on the basis of res judicata and the mortgagors appealed
that decision as well. While both appeals were pending before this court at the same
time and prior to the release of this court’s opinion in the original foreclosure action,
the mortgagees sought to have the second appeal dismissed pursuant to the
jurisdictional priority rule.
{¶30} This court acknowledged the jurisdictional priority rule, but noted that
the rule “does not apply when two complaints are filed in the same court.” Id. at ¶ 16,
citing Bright v. Family Medicine Found., Inc., 10th Dist. No. 02AP-1443, 2003-Ohio-
6652, ¶ 13. Since Jarvis involved two complaints filed in the same court, this court
found that there was no jurisdictional issue that barred this court’s review of the
second case in which the mortgagors sued the mortgagee.
{¶31} Here too, both the foreclosure action and appellants’ lawsuit were filed
in the same court – the Mahoning County Common Pleas Court. Therefore, under
this court’s Jarvis decision, the magistrate erred in concluding that it lacked
jurisdiction over appellants’ claims for declaratory and injunctive relief because of the
jurisdictional priority rule. However, as will be discussed, the magistrate advanced
other valid reasons to dismiss those claims.
 - 10 -

Res Judicata
{¶32} Appellants argue that the magistrate erred in finding that their claims
were barred by the doctrine of res judicata. Appellants argue that their claims could
not be barred under that doctrine because their claims were not compulsory
counterclaims.
{¶33} “The doctrine of res judicata requires that a party to a lawsuit must
present every ground for relief in that action or be forever barred from asserting any
additional grounds.” Jarvis v. Wells Fargo Bank, 7th Dist. No. 09 CO 6, 2010-Ohio-
3283, ¶ 21, citing Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558
N.E.2d 1178 (1990). “It has long been the law of Ohio that ‘an existing final judgment
or decree between the parties to litigation is conclusive as to all claims which were or
might have been litigated in a first lawsuit.’” (Emphasis sic.) Id., citing Rogers v.
Whitehall, 25 Ohio St.3d 67, 69, 494 N.E.2d 1387 (1986).
{¶34} In Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995),
syllabus, the Ohio Supreme Court, in explaining the doctrine of res judicata, held that
“[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.” “The doctrine of res judicata applies to those who were
parties in the prior action, to those who were in privity with the litigants, and also to
those who could have joined the action and did not.” Jarvis at ¶ 22, citing Howell v.
Richardson, 45 Ohio St.3d 365, 367, 544 N.E.2d 878, (1989); Keeley & Assoc., Inc.
v. Integrity Supply, Inc., 120 Ohio App.3d 1, 4, 696 N.E.2d 618 (1997).
{¶35} “Res judicata is particularly relevant when a party fails to present
compulsory counterclaims pursuant to Civ.R. 13(A), which requires a party to raise all
counterclaims against the opposing parties.” Jarvis at ¶ 23. Civ.R. 13(A) states in
pertinent part:

A pleading shall state as a counterclaim any claim which at the
time of serving the pleading the pleader has against any opposing
party, if it arises out of the transaction or occurrence that is the subject
 - 11 -

matter of the opposing party’s claim and does not require for its
adjudication the presence of third parties of whom the court cannot
acquire jurisdiction.

{¶36} “Failure to assert a compulsory counterclaim constitutes a form of res
judicata and acts as a bar to subsequent litigation.” Jarvis at ¶ 28, citing Forney v.
Climbing Higher Ents., Inc., 158 Ohio App.3d 338, 2004-Ohio-4444, 815 N.E.2d 722,
¶ 20, citing Quintus v. McClure, 41 Ohio App.3d 402, 403-404, 536 N.E.2d 22,
(1987). “The purpose of [Civ.R. 13(A)] is to settle all related claims in one action and
thereby avoid a wasteful multiplicity of litigation on claims which arise from a single
transaction or occurrence. State ex rel. Massaro Corp. v. Franklin Cty. Court of
Common Pleas (1989), 65 Ohio App.3d 428, 430, 584 N.E.2d 756. The rule also
provides for an orderly delineation of res judicata, Cleveland v. A.J. Rose Mfg. Co.
(1993), 89 Ohio App.3d 267, 275, 624 N.E.2d 245, as failure to assert a compulsory
counterclaim will result in its being barred in any subsequent action. Quintus v.
McClure (1987), 41 Ohio App.3d 402, 404, 536 N.E.2d 22.” ATAC Corp. v. Lindsay,
8th Dist. Nos. 70293, 70294, and 70572, 1997 WL 15263, *4 (Jan. 16, 1997).
{¶37} The Ohio Supreme Court has held that “[a]ll existing claims between
opposing parties that arise out of the same transaction or occurrence must be
litigated in a single lawsuit pursuant to Civ.R. 13(A), no matter which party initiates
the action.” Rettig Enterprises, Inc. v. Koehler (1994), 68 Ohio St.3d 274, 626 N.E.2d
99, paragraph one of the syllabus.
{¶38} The Ohio Supreme Court has used the “logical relation test” to decide
whether claims, “arise out of the same transaction or occurrence,” as required by
Rule 13(A). Id. at 278, 626 N.E.2d 99. The test defines a compulsory counterclaim as
one that “is logically related to the opposing party’s claim” and would require
considerable duplication of effort by both the parties and the trial court if separate
trials were permitted. Id.
{¶39} In Counts One and Two of their amended complaint, appellants sought
a declaration that LaSalle was not the real party in interest in the foreclosure action
 - 12 -

and that the note in the foreclosure action was not in default, and an injunction
stopping the sale of the property that was the subject of the foreclosure action. In
Counts Three through Six, they sought damages for an alleged fraud leading up to
and during the closing on the loan, for alleged unjust enrichment related to the terms
and conditions of the loan, and for an alleged civil conspiracy and unlawful enterprise
between the various defendants related to the loan. Appellants’ amended complaint
reflects that their claims arose “by virtue of a mortgage loan and related inter-
temporal transactions[.]” (¶ 6.)
{¶40} Each of these claims arose in connection with the loan and is logically
related to LaSalle’s breach of the note and foreclosure of mortgage asserted in the
foreclosure action. As this court observed in Jarvis, “[a]ny claims that [mortgagors]
have that are logically related to the mortgage and foreclosure are compulsory
counterclaims to the foreclosure action.” Jarvis at ¶ 32. Consequently, appellants’
failure to assert those claims in the foreclosure action resulted in them being barred
by res judicata in this subsequent litigation.
{¶41} Accordingly, appellants’ second assignment of error is without merit.
While the magistrate’s application of the jurisdictional priority rule to appellants’
claims for declaratory and injunctive relief was in error, the error was harmless. The
magistrate’s additional reliance on the doctrine of res judicata as a bar to appellants’
claims in the present action served as a sufficient basis to justify dismissal of those
claims.
{¶42} The judgment of the trial court is affirmed.

Waite, J., concurs.

DeGenaro, P.J., concurs.