Ninth District Appellate Opinions from Medina & Lorain Counties Released on 4/17-4/24/2013

The Court of Appeals for the Ninth Appellate District released 11 opinions from April 17 through April 24, 2013. One decision was for a Medina County appeal; three were for Lorain County appeals; and seven were for Summit County appeals. 

The Medina County decision was released on April 17, 2013. The case citation is Lexington Ridge Homeowners' Assn. v. Schlueter, 2013-Ohio-1601.  The  appeal involved a sale of a condominium unit by a home-owners' association and a mortgage that was held by Chase Home Finance LLC and Chase Bank USA, N.A. (Chase). The Association brought the foreclosure action to collect past due fees. The Association gave notice to Chase of the foreclosure since the judicial title report listed Chase as having a mortgage on the property. Chase did not make an appearance in the action. The Common Pleas Court signed a default judgment entry declaring that Chase had no interest in the property. Prior to the judgment entry being filed the case had been pending for almost two years. 

The decree of foreclosure was issued on July 7, 2010. On July 12, 2010, Chase filed a motion for leave to file an answer instanter. The Common Pleas Court denied that motion. Chase then filed an appeal to the Ninth Appellate District. Chase presented two assignments of error. 

The first assignment of error was that the decree of foreclosure exceeded the relief that was sought in the complaint and therefore failed to comply with Civ. R. 54(C). The second assignment of error was that the decree of foreclosure and judgment entry was against the manifest weight of the evidence. The Court of Appeals rejected both assignments of error and affirmed the trial court's judgment. 

The three Lorain County decisions were all issued on April 22, 2013. The decisions are as follows:

Spradlin v. Elyria, 2013-Ohio-1602 reversed a decision of the Lorain County Court of Common Pleas grating a Civ. R. 12 (B) (6) motion to dismiss for failure to state a claim. The case involved the death of a young boy who fell from steps overlooking a waterfall in a park in Elyria. Elyria filed the motion alleging that it was immune from liability because it was a governmental entity performing a governmental function. 

The Court of Appeals noted that in deciding a Civ. R. 12(B)(6) motion, a trial court has to assume that all of the factual allegations in the complaint are true. The Court of Appeals stated that the trial court apparently considered matters outside of the pleadings. Since this is not permitted, unless the trial court converts the motion to dismiss into a motion for summary judgment, the appellate court reversed and remanded the case for further proceedings. 

In re Adoption of A.H., 2013-Ohio-1600 affirmed a decision of the Lorain County Probate Court allowing the adoption of a child by the child's paternal grandparents. The paternal grandparents had raised the child since the child was less than a year old. R.C. 3107.07(A) provides that a parent’s consent to adoption is not required if it is alleged in the adoption petition and the court finds by clear and convincing evidence that: "the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor 
in the home of the petitioner."

Because R.C. 3107.07(A) is written in the disjunctive, either a failure to 
communicate or a failure to provide support for the one-year time period is sufficient to obviate the need for a parent’s consent. In this particular case the Probate Court made the finding that the mother, who was objecting to the adoption, had failed to provide more than de minimis contact. The mother argued on appeal that the appellate court should apply an abuse of discretion standard of review. The appellate court rejected that argument and held that in order to reverse the Probate Court's decision, the Court of Appeals would have to find that the Probate Court decision was against the manifest weight of the evidence. The Court of Appeals held that it could not make such a finding and affirmed the decision. 

BankUnited v. Klug, 2013-Ohio-1599 was an appeal by a bank from a decree of foreclosure that held that a woman's dower interest was one-third of the value of the property and that it was superior to the bank's mortgage. The Court of Appeals reversed on the first assignment of error and concluded that its decision on the first assignment of error meant that the second assignment of error was not ripe for adjudication. 

In its assignment of error the bank argued that application of the principles of equitable mortgage and equitable subrogation required the trial court to find that the bank's lien was superior to any dower interest. The Court of Appeals, however, found that the bank failed to show that there was an an absence of a factual issue, and  therefore the trial court was right to deny its motion for summary judgment. 

The Court of Appeals, however, then reviewed the trial court's granting of the woman's motion for summary judgment, It held that granting that motion was improper for the reason that she too had not shown an absent of a factual issue. Therefore the case was remanded back to the trial court for further proceedings. 

Foreclosure Chart for Judge Kimbler's Courtroom

The chart below shows the number of foreclosure actions assigned to my docket for 2008, 2009, and the first six months of 2010. As you can see, during the first six months of 2010 there has been fewer foreclosures assigned to my docket than during 2009 with the exception of March. This decline could reflect a slowly improving economy, the success of the Federal government's program to have lenders rewrite mortgages, or some combination of the two. The chart was prepared by my Administrative Assistant Linda Gerberich. Click on the chart to get a bigger view.

Record Number of Foreclosures Assigned to Judge Kimbler's Courtroom in March, 2010

Linda Gerberich, administrative assistant to Judge James L. Kimbler, reports that there were 65 new foreclosure actions assigned to Judge Kimbler's docket in March, 2010. According to Ms. Gerberich this is a monthly record for new foreclosure filings assigned to Judge Kimbler. Ms. Gerberich examined the monthly reports filed with the Ohio Supreme Court for the last five years. The new cases filed Combined with the four cases that were reactivated in March means that there were 69 foreclosure cases assigned to Judge Kimbler's docket in March.

Ohio foreclosure filings set new record in 2009, top 89,000

Cuyahoga County Again Ranks First in Rate, Non-Urban Counties Lead in Growth Rates

Sixty-four of Ohio’s 88 counties saw an increase in foreclosure filings last year, and in 34 counties, filings grew by double-digit rates. While urban counties continue to lead the state in foreclosure filings, smaller and less urban counties are experiencing larger growth rates.

A new report released today by Policy Matters Ohio analyzes foreclosure filings and other housing trends in Ohio and its counties. Statewide, foreclosure filings continued to grow in 2009 with 89,053 new foreclosure filings, a 3.8 percent increase since 2008. Compared to ten years ago, when Ohio had 31,229 new foreclosures, this is a 185 percent increase. The latest numbers indicate that there was one foreclosure filing for every 56 housing units in the state last year.

The gain in filings is particularly crippling to the state, coming after years of increased filings and the broadest foreclosure prevention attempts to date, according to the study. Statewide, filings have more than quintupled since 1995.The study reviews federal efforts such as the HAMP program to curb foreclosures, finding dismal results. Nearly one-third of Ohio mortgage holders are “under water”, owing more than their houses are worth, and one in every six homeowners is either delinquent or in foreclosure.

“The number of foreclosures in the state remains at crisis levels and all signs point to more growth,” said David Rothstein, Policy Matters researcher and author of the report.

Cuyahoga County led the state once again in foreclosure filings per person, followed this year by Lucas, Clinton, and Highland counties. Morgan County led the state in foreclosure-filing growth between 2008 and 2009, with a 129 percent increase. Seven of the top ten counties in foreclosure-filing growth – each of which saw at least a 26 percent increase last year – were in the Northwest and Appalachian regions of the state.

Foreclosure filings continue to be most heavily concentrated in the state’s urban counties, accounting for 61 percent of filings. However, non-urban counties continue to experience large foreclosure growth

rates. The report chronicles that counties with populations less than 200,000 had higher foreclosure growth rates than the state average. For instance, the 60 counties with a population of below 100,000 saw overall foreclosure filing growth rate of 8.78 percent, up from 3.3 percent the previous year.

"It is up to Ohio," said Rothstein. “Federal efforts are falling short and the state has the ability to help homeowners and stabilize communities.”

The report recommends that the Ohio legislature pass reasonable reforms to encourage real loan modifications and reduce the foreclosure filing rate. These include regulating loan servicers, funding housing counselors, increasing tenant notifications and protections during foreclosure, and preventing foreclosure rescue scams.

Foreclosures Continue to Go Up in Medina County

In the first quarter of 2007 233 civil cases were assigned to Judge Kimbler's docket. Of those 233, 110 or 47% were foreclosures. In March foreclosures assigned to Judge Kimbler's docket were 54% of the total civil cases assigned. In January foreclosures assigned to Judge Kimbler's docket were 48% of the cases assigned. In February foreclosures accounted for 40% of the cases assigned to Judge Kimbler's docket.

Foreclosure Problems

With the increasing number of foreclosures on the Medina County Common Pleas Court's docket, there has been an increasing number of requests for default judgment. Usually these requests are granted but increasingly we are running into problems with the named plaintiff having an interest in the property.

This is what happens: a financial institution files a foreclosure action and with the action files a preliminary judicial title report. That report shows all the parties who have an interest in the property. Often the financial institution that filed the foreclosure action is not listed on the preliminary judicial title report. We don't know why the plaintiff is bringing the action. We assume that it is because there was an assignment of the mortgage and promissory note, but we don't know that from the preliminary judicial title report or from the pleadings.

When that happens, we deny the motion for default judgment and order the plaintiff to provide proof within 60 days of their interest in the mortgaged premises. It would be far better from our perspective if that information was provided to the Court when the complaint is filed.