[Cite as BAC Home Loans Servicing, L.P. v. Booth, 2012-Ohio-487.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
BAC HOME LOANS SERVICING, L.P. JUDGES: FKA COUNTRYWIDE HOME LOANS Hon. W. Scott Gwin, P.J. SERVICING, L.P. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Plaintiff-Appellant Case No. 2011CA00161 -vs-
CARL B. BOOTH, ET AL. OPINION
Defendant-Appellees
CHARACTER OF PROCEEDING: Appeal from the Stark County Common Pleas Court, Case No. 2010CV03436
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 6, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellees
ELIZABETH S. FULLER DAVID L. DINGWELL Designated as Primary Counsel Tzangas, Plakas, Mannos & Raies, LTD Lerner, Sampson & Rothfuss 220 Market Avenue South 120 East Fourth Street, 8th Floor Eighth floor Cincinnati, Ohio 45202 Canton, Ohio 44702 Stark County, Case No. 2011CA00161 2
Hoffman, J.
(¶1) Plaintiff-appellant BAC Home Loans Servicing L.P., fka Countrywide
Home Loans Servicing L.P., appeals the June 22, 2011 Order entered by the Stark
County Court of Common Pleas in favor of Defendants-appellees Carl B. Booth and
Cynthia L. Booth.
STATEMENT OF FACTS AND THE CASE
(¶2) Appellees Carl and Cynthia Booth executed a promissory note in the
amount of $69,750.00 in favor of America’s Wholesale Lender to secure property at
9341 Oak Avenue S.E., East Sparta, Ohio. To secure the borrowed sum, Appellees
granted a first mortgage to Mortgage Electronic Registration Systems, Inc, as nominee
for America’s Wholesale Lender. The loan was later acquired by Appellant Countrywide
Home Loans Servicing, L.P., nka BAC Home Loans Servicing, L.P.
(¶3) Appellees defaulted on the mortgage, and Appellant accelerated the
amount due on the note. Appellant then filed a foreclosure action on September 20,
2010, and Appellees filed an answer on October 8, 2010. The trial court scheduled the
matter for mediation. Appellant failed to send a representative at the appointed time,
and did not make a representative available by phone as agreed upon. The trial court
then mandated a dispositive motion deadline of April 28, 2011, and scheduled a non-
jury trial for June 13, 2011. The assignment notice was sent via facsimile to Appellant’s
counsel.
(¶4) On June 13, 2011, Appellant’s counsel moved the trial court for a
continuance of the scheduled trial date, which the trial court denied. Stark County, Case No. 2011CA00161 3
(¶5) On June 13, 2011, Appellees' counsel moved the trial court to dismiss the
complaint with prejudice.
(¶6) On June 22, 2011, the trial court ordered dismissal of the complaint with
prejudice. The same day, June 22, 2011, Appellant filed a notice of dismissal with the
trial court voluntarily dismissing the case without prejudice. The trial court’s order of
dismissal is filed prior to Appellant’s notice of dismissal in the trial court docket.
(¶7) On July 21, 2011, Appellant moved the trial court to vacate the dismissal
with prejudice pursuant to Civil Rule 60(B).
(¶8) Prior to the trial court’s ruling on Appellant’s 60(B) motion, Appellant filed a
notice of appeal with this Court, assigning as error:
(¶9) “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT DID NOT RECEIVE
SUFFICIENT NOTICE OF THE TRIAL COURT’S INTENTION TO DISMISS THE CASE
WITH PREJUDICE.
(¶10) “II. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT’S CONDUCT DID NOT
NECESSITATE SUCH A HARSH SANCTION.
(¶11) “III. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT WAS WITHIN ITS RIGHTS
TO VOLUNTARILY DISMISS ITS COMPLAINT WITHOUT PREJUDICE SINCE THE
JUNE 13, 2011 TRIAL NEVER COMMENCED.
(¶12) “IV. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE THE DISMISSAL UNJUSTLY ENRICHED Stark County, Case No. 2011CA00161 4
APPELLEES WHO WERE PREVIOUSLY DISCHARGED OF THE UNDERLYING
DEBT IN A CHAPTER 7 BANKRUPTCY.”
I, II, and III.
(¶13) Appellant’s first, second and third assignments of error raise common and
interrelated issues; therefore we will address the arguments together.
(¶14) The standard of review of an involuntary dismissal issued by the trial court
with prejudice is an abuse of discretion. Nelson v. Alpha Enterprises, Inc., 2003-Ohio-
5422. Civil Rule 41(B) states,
(¶15) “(B) Involuntary dismissal: effect thereof
(¶16) “(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply
with these rules or any court order, the court upon motion of a defendant or on its own
motion may, after notice to the plaintiff's counsel, dismiss an action or claim.
(¶17) “(2) Dismissal; non-jury action. After the plaintiff, in an action tried by the
court without a jury, has completed the presentation of the plaintiff's evidence, the
defendant, without waiving the right to offer evidence in the event the motion is not
granted, may move for a dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. The court as trier of fact may then determine them
and render judgment against the plaintiff or may decline to render any judgment until the
close of all the evidence. If the court renders judgment on the merits against the plaintiff,
the court shall make findings as provided in Civ. R. 52 if requested to do so by any
party.
(¶18) “(3) Adjudication on the merits; exception. A dismissal under division (B) of
this rule and any dismissal not provided for in this rule, except as provided in division Stark County, Case No. 2011CA00161 5
(B)(4) of this rule, operates as an adjudication upon the merits unless the court, in its
order for dismissal, otherwise specifies.”
(¶19) Appellant argues the trial court did not afford them notice of the trial
court’s intent to dismiss the case with prejudice, and Appellant was unable to appear at
the scheduled trial on June 13, 2011.
(¶20) Upon review of the record, the March 24, 2011 Report of Mediation
indicates the case should be returned to the docket due to the failure of Appellant to be
available at mediation either in person or by phone as previously agreed upon. Further,
Appellant moved the trial court for a continuance of the trial date asserting:
(¶21) “Bank of America and BAC Home Loans Servicing, LP (together “BAC”)
has established a process to insure that reasonable efforts to avoid foreclosure
sale/judgment have been exhausted before proceeding to sale/judgment. These efforts
have not yet been completed in connection with this loan and plaintiff therefore requests
that the trial be postponed for 120 days to allow these efforts to conclude. Plaintiff
notes that the case is under the 1 year guideline as same was filed September of 2010.”
(¶22) The June 13, 2011 transcript of the proceedings before the trial court
indicates the trial court called the matter for trial and Appellees were present in the
courtroom with counsel. The trial court reviewed the record and Appellees’ counsel
made a brief statement as to the proceedings to date and Appellant’s failure to
prosecute and act in good faith. The trial court overruled Appellant’s motion for a
continuance, and dismissed Appellant’s complaint because counsel for Appellant failed
to appear for the scheduled trial. Stark County, Case No.
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[Cite as BAC Home Loans Servicing, L.P. v. Booth, 2012-Ohio-487.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
BAC HOME LOANS SERVICING, L.P. JUDGES: FKA COUNTRYWIDE HOME LOANS Hon. W. Scott Gwin, P.J. SERVICING, L.P. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Plaintiff-Appellant Case No. 2011CA00161 -vs-
CARL B. BOOTH, ET AL. OPINION
Defendant-Appellees
CHARACTER OF PROCEEDING: Appeal from the Stark County Common Pleas Court, Case No. 2010CV03436
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 6, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellees
ELIZABETH S. FULLER DAVID L. DINGWELL Designated as Primary Counsel Tzangas, Plakas, Mannos & Raies, LTD Lerner, Sampson & Rothfuss 220 Market Avenue South 120 East Fourth Street, 8th Floor Eighth floor Cincinnati, Ohio 45202 Canton, Ohio 44702 Stark County, Case No. 2011CA00161 2
Hoffman, J.
(¶1) Plaintiff-appellant BAC Home Loans Servicing L.P., fka Countrywide
Home Loans Servicing L.P., appeals the June 22, 2011 Order entered by the Stark
County Court of Common Pleas in favor of Defendants-appellees Carl B. Booth and
Cynthia L. Booth.
STATEMENT OF FACTS AND THE CASE
(¶2) Appellees Carl and Cynthia Booth executed a promissory note in the
amount of $69,750.00 in favor of America’s Wholesale Lender to secure property at
9341 Oak Avenue S.E., East Sparta, Ohio. To secure the borrowed sum, Appellees
granted a first mortgage to Mortgage Electronic Registration Systems, Inc, as nominee
for America’s Wholesale Lender. The loan was later acquired by Appellant Countrywide
Home Loans Servicing, L.P., nka BAC Home Loans Servicing, L.P.
(¶3) Appellees defaulted on the mortgage, and Appellant accelerated the
amount due on the note. Appellant then filed a foreclosure action on September 20,
2010, and Appellees filed an answer on October 8, 2010. The trial court scheduled the
matter for mediation. Appellant failed to send a representative at the appointed time,
and did not make a representative available by phone as agreed upon. The trial court
then mandated a dispositive motion deadline of April 28, 2011, and scheduled a non-
jury trial for June 13, 2011. The assignment notice was sent via facsimile to Appellant’s
counsel.
(¶4) On June 13, 2011, Appellant’s counsel moved the trial court for a
continuance of the scheduled trial date, which the trial court denied. Stark County, Case No. 2011CA00161 3
(¶5) On June 13, 2011, Appellees' counsel moved the trial court to dismiss the
complaint with prejudice.
(¶6) On June 22, 2011, the trial court ordered dismissal of the complaint with
prejudice. The same day, June 22, 2011, Appellant filed a notice of dismissal with the
trial court voluntarily dismissing the case without prejudice. The trial court’s order of
dismissal is filed prior to Appellant’s notice of dismissal in the trial court docket.
(¶7) On July 21, 2011, Appellant moved the trial court to vacate the dismissal
with prejudice pursuant to Civil Rule 60(B).
(¶8) Prior to the trial court’s ruling on Appellant’s 60(B) motion, Appellant filed a
notice of appeal with this Court, assigning as error:
(¶9) “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT DID NOT RECEIVE
SUFFICIENT NOTICE OF THE TRIAL COURT’S INTENTION TO DISMISS THE CASE
WITH PREJUDICE.
(¶10) “II. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT’S CONDUCT DID NOT
NECESSITATE SUCH A HARSH SANCTION.
(¶11) “III. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT WAS WITHIN ITS RIGHTS
TO VOLUNTARILY DISMISS ITS COMPLAINT WITHOUT PREJUDICE SINCE THE
JUNE 13, 2011 TRIAL NEVER COMMENCED.
(¶12) “IV. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE THE DISMISSAL UNJUSTLY ENRICHED Stark County, Case No. 2011CA00161 4
APPELLEES WHO WERE PREVIOUSLY DISCHARGED OF THE UNDERLYING
DEBT IN A CHAPTER 7 BANKRUPTCY.”
I, II, and III.
(¶13) Appellant’s first, second and third assignments of error raise common and
interrelated issues; therefore we will address the arguments together.
(¶14) The standard of review of an involuntary dismissal issued by the trial court
with prejudice is an abuse of discretion. Nelson v. Alpha Enterprises, Inc., 2003-Ohio-
5422. Civil Rule 41(B) states,
(¶15) “(B) Involuntary dismissal: effect thereof
(¶16) “(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply
with these rules or any court order, the court upon motion of a defendant or on its own
motion may, after notice to the plaintiff's counsel, dismiss an action or claim.
(¶17) “(2) Dismissal; non-jury action. After the plaintiff, in an action tried by the
court without a jury, has completed the presentation of the plaintiff's evidence, the
defendant, without waiving the right to offer evidence in the event the motion is not
granted, may move for a dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. The court as trier of fact may then determine them
and render judgment against the plaintiff or may decline to render any judgment until the
close of all the evidence. If the court renders judgment on the merits against the plaintiff,
the court shall make findings as provided in Civ. R. 52 if requested to do so by any
party.
(¶18) “(3) Adjudication on the merits; exception. A dismissal under division (B) of
this rule and any dismissal not provided for in this rule, except as provided in division Stark County, Case No. 2011CA00161 5
(B)(4) of this rule, operates as an adjudication upon the merits unless the court, in its
order for dismissal, otherwise specifies.”
(¶19) Appellant argues the trial court did not afford them notice of the trial
court’s intent to dismiss the case with prejudice, and Appellant was unable to appear at
the scheduled trial on June 13, 2011.
(¶20) Upon review of the record, the March 24, 2011 Report of Mediation
indicates the case should be returned to the docket due to the failure of Appellant to be
available at mediation either in person or by phone as previously agreed upon. Further,
Appellant moved the trial court for a continuance of the trial date asserting:
(¶21) “Bank of America and BAC Home Loans Servicing, LP (together “BAC”)
has established a process to insure that reasonable efforts to avoid foreclosure
sale/judgment have been exhausted before proceeding to sale/judgment. These efforts
have not yet been completed in connection with this loan and plaintiff therefore requests
that the trial be postponed for 120 days to allow these efforts to conclude. Plaintiff
notes that the case is under the 1 year guideline as same was filed September of 2010.”
(¶22) The June 13, 2011 transcript of the proceedings before the trial court
indicates the trial court called the matter for trial and Appellees were present in the
courtroom with counsel. The trial court reviewed the record and Appellees’ counsel
made a brief statement as to the proceedings to date and Appellant’s failure to
prosecute and act in good faith. The trial court overruled Appellant’s motion for a
continuance, and dismissed Appellant’s complaint because counsel for Appellant failed
to appear for the scheduled trial. Stark County, Case No. 2011CA00161 6
(¶23) Appellant received notice the case had been set for trial, effectively putting
them on notice if they failed to appear for trial, the case may be dismissed for lack of
prosecution. The record reflects Appellant had notice of the trial date, and throughout
the proceedings had failed to actively participate. We find the trial court did not abuse
its discretion in dismissing Appellant’s complaint with prejudice due to Appellant’s failure
to appear at the scheduled trial. We find failure to appear for a scheduled trial different
from case law addressing dismissals for want of prosecution for failing to abide by
interlocutory court orders or discovery related disputes.
(¶24) Our review of the trial court docket indicates the trial court’s order of
dismissal was filed prior to Appellant’s notice of voluntary dismissal without prejudice in
the record.
(¶25) The first, second and third assignments of error are overruled.
IV.
(¶26) Appellant’s fourth assignment of error asserts Appellees were unjustly
enriched by the trial court’s judgment as the underlying debt was previously discharged
in a Chapter 7 bankruptcy.
(¶27) Appellant’s complaint states at Count I:
(¶28) “Plaintiff further says that the defendants, Carl B. Booth and Cynthia L.
Booth, are immune from personal liability on said note by virtue of Bankruptcy Case No.
08-64367, United States Bankruptcy Court, Northern District of Ohio, Eastern Division.”
(¶29) We find Appellant’s complaint does not set forth a claim for unjust
enrichment. Stark County, Case No. 2011CA00161 7
(¶30) Upon review of the record, while the trial court’s dismissal of Appellant’s
complaint with prejudice may well appear to present a windfall for Appellees, Appellant’s
failure to appear at trial cannot be circumvented by now claiming unjust enrichment.
Appellant’s own actions lead to the trial court’s dismissal of the complaint with prejudice,
and Appellant was the architect of that outcome.
(¶31) Appellant’s fourth assignment of error is overruled.
(¶32) The June 22, 2011 Order of the Stark County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin_____________________ HON. W. SCOTT GWIN
s/ John W. Wise _____________________ HON. JOHN W. WISE Stark County, Case No. 2011CA00161 8
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
BAC HOME LOANS SERVICING, L.P. : FKA COUNTRYWIDE HOME LOANS : SERVICING, L.P. : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : CARL B. BOOTH, ET AL. : : Defendant-Appellees : Case No. 2011CA00161
For the reasons stated in our accompanying Opinion, the June 22, 2011 Order of
the Stark County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ John W. Wise______________________ HON. JOHN W. WISE