Field v. Ocwen Loan Servicing, L.L.C. (In re Schlabach)

490 B.R. 555
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedMarch 1, 2012
DocketBankruptcy No. 10-10361; Adversary No. 10-1229
StatusPublished
Cited by6 cases

This text of 490 B.R. 555 (Field v. Ocwen Loan Servicing, L.L.C. (In re Schlabach)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Field v. Ocwen Loan Servicing, L.L.C. (In re Schlabach), 490 B.R. 555 (Ohio 2012).

Opinion

ORDER DENYING: (1) TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND (2) M & I MARSHALL & ILSLEY BANK’S CROSS-MOTION FOR SUMMARY JUDGMENT

BETH A. BUCHANAN, Bankruptcy Judge.

This case involves first and second mortgages relating to the debtors’ residence, each of which recites the correct street address for the two adjoining parcels of land making up the debtors’ residence but contains inconsistent references to the legal description and parcel numbers for the two parcels. The chapter 7 trustee seeks to avoid the first mortgage as a matter of law, pursuant to 11 U.S.C. § 544(a)(3), [558]*558based on lack of notice of the first mortgage as a result of the irregularities of the property description in the mortgage. Alternatively, the chapter 7 trustee and the second mortgage holder raise issues relating to the extent and/or validity of the first and second mortgage again based on the irregularities of the property description in the mortgages. This Court finds that the contents of the first mortgage and the record as a whole contain sufficient information that a reasonably prudent purchaser would have constructive notice that the first mortgage encumbers the entirety of the debtors’ property. Therefore, the chapter 7 trustee’s motion for summary judgment to avoid the first mortgage pursuant to 11 U.S.C. § 544(a)(3) is denied. Similarly, this Court denies summary judgment on the issue of the extent and/or validity of the first and second mortgages because the description of the property that is subject to the first and second mortgages is not ambiguous under the facts of this case.

I. Background

This matter is before this Court on Plaintiff Eileen K. Field, Trustee’s (the “Trustee ”) Motion for Summary Judgment [Docket Number 26] (the “Motion ”), Defendant Ocwen Loan Servicing’s (“Ocwen ”) Response to Motion for Summary Judgment [Docket Number 28] (the “Response”), Defendant M & I Marshall and Ilsley Bank, L.L.C.’s (“M & I”) [Docket Number 27] Response to Trustee’s Motion for Summary Judgment and Cross-Motion for Summary Judgment (the “Cross-Motion ”), and the Trustee’s Reply [Docket Number 29] (the “Reply ”).

Defendant Debtors Martin R. and Denise F. Schlabach (the “Debtors ”) own certain residential property located at 2034 Vizedom Road, Hamilton, Ohio (the “Property ”), which consists of two parcels: (1) a larger 2.04 acre parcel, being parcel number B1020-058-000-011 (“Parcel 11 ”) and (2) a smaller 0.2044 acre parcel, being parcel number B1020-588-000-012 (“Parcel 12”). The Debtors purchased Parcel 11 on June 24, 1993 and Parcel 12 on November 17, 1993. According to the Debtors’ Schedule B, Parcel 12 is a ten foot wide strip that was acquired to complete construction of the Debtors’ residence.

On December 6, 2003, the Debtors granted a mortgage in the amount of $145,000 to Ocwen (the “First Mortgage ”). The body of the First Mortgage describes the property subject to the First Mortgage with the correct street address, i.e., 2034 Vizedom Road; the attached legal description references Parcel 11 and the metes and bounds for Parcel 12. The attached legal description also repeats the correct street address.

On February 23, 2004, the Debtors granted a mortgage in the amount of $55,000 to M & I (the “Second Mortgage ”). The body of the Second Mortgage describes the property subject to the Second Mortgage with the correct street address, i.e., 2034 Vizedom Road; the body of the Second Mortgage also references Parcel 12; the attached legal description references Parcel 11 and the metes and bounds for Parcel 11. The attached legal description also repeats the correct street address.

II. Jurisdiction and Standard of Review

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the general order of reference entered in this district. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(K).

[559]*559III. Legal Analysis

A. Summary Judgment Standard

The standard for summary judgment is set forth in Rule 56(a) of the Federal Rules of Civil Procedure (the “Civil Rules ”), made applicable to this proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure. Civil Rule 56(a) provides that a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a).1 “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing a motion for summary judgment, this Court must view all inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anthony v. BTR Auto. Sealing Sys., Inc., 339 F.3d 506, 511 (6th Cir.2003).

The standards for evaluating motions for summary judgment do not change where the parties present cross-motions for summary judgment. Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991). “The fact that both parties have moved for summary judgment does not mean that the court must grant judgment as a matter of law for one side or the other; summary judgment in favor of either party is not proper if disputes remain as to material facts. Rather, the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Id. (citations omitted).

“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

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Cite This Page — Counsel Stack

Bluebook (online)
490 B.R. 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/field-v-ocwen-loan-servicing-llc-in-re-schlabach-ohsb-2012.