First Horizon Home Loans v. White

2011 Ohio 1982

• Court: Ohio Court of Appeals
• Decided: April 22, 2011
• Docket: 24244
• Status: Published

Opinion

[Cite as First Horizon Home Loans v. White, 2011-Ohio-1982.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

FIRST HORIZON HOME LOANS, A : DIVISION OF FIRST TENNESSEE : Appellate Case No. 24244 BANK NATIONAL ASSOCIATION : SUCCESSOR BY MERGER TO FIRST : Trial Court Case No. 2010-CV-04513 HORIZON HOME LOAN : CORPORATION : : Plaintiff-Appellee : (Civil Appeal from : (Common Pleas Court) v. : : TERESA D. WHITE, et al. : : Defendant-Appellant : : ...........

OPINION

Rendered on the 22nd day of April, 2011.

...........

ELIZABETH S. FULLER, Atty. Reg. #0081032, Lerner, Sampson & Rothfuss, LPA, 120 East Fourth Street, 8th Floor, Cincinnati, Ohio 45202 Attorney for Plaintiff-Appellee

TERESA D. WHITE, 1742 Suman Avenue, Dayton, Ohio 45403 Defendant-Appellant, pro se

.............

BROGAN, J.

{¶ 1} Teresa White appeals from the judgment of the Montgomery County Common

Pleas Court in favor of First Horizon Home Loans (hereinafter “First Horizon”). 2

{¶ 2} In June 2010, First Horizon filed a complaint in foreclosure alleging that White

had defaulted in the payment of a promissory note which she executed on March 17, 2004 in

the amount of $45,400 to First Horizon. First Horizon alleged White was in default for

non-payment as of December 1, 2009, and in accordance with the terms of the note she owed

First Horizon $41,645.63 together with interest due thereon.

{¶ 3} The complaint alleged that White was immune from personal liability on the

note by virtue of her taking bankruptcy. The plaintiff alleged in a separate count that White

executed a mortgage on the real estate located at 1742 Suman Avenue to secure the

promissory note and that it was the first lien holder upon the real estate. First Horizon named

a John Doe defendant as current spouse of White in the event she was presently married. The

plaintiff also named as defendants the State of Ohio Department of Taxation and Greenville

National Bank who allegedly had recorded judgment liens against White.

{¶ 4} In its prayer for relief, First Horizon requested that the court adjudge it as first

lien holder on the subject property, that the mortgage be foreclosed and the property sold so it

could be paid the amount due from White. The plaintiff was not seeking a personal judgment

against White for any deficiency that might result from the sale of the property.

{¶ 5} On June 28, 2010, White moved the court to extend the time for answer. She

requested 28 additional days to answer because she said she was seeking an attorney to assist

her in contesting the foreclosure. On July 1, 2010, the trial court granted White an additional

30 days to answer the complaint.

{¶ 6} On July 19, 2010, the Department of Taxation answered the complaint and

disclaimed any interest in the litigation. When neither Greenville National Bank nor White 3

answered the complaint in a timely manner, First Horizon moved on August 2, 2010 for a

default judgment. Counsel for First Horizon certified that she served White and the

Greenville Bank with the motion.

{¶ 7} On August 9, 2011, the trial court granted First Horizon’s default motion. The

court found that White was in default for failing to answer the complaint, and no service was

obtained on the alleged John Doe. The court found the allegations in the complaint to be true

and ordered that the interest of the defendants in the property be foreclosed and the real estate

sold.

{¶ 8} On September 1, 2010, White appealed the judgment entered by the trial court.

In her appellate brief, Ms. White contends the trial court’s judgment should be overturned

because the plaintiff’s complaint included a John Doe defendant alleged to be her husband.

She states that she has never married. Also, she argues that she does not owe the

Department of Taxation any money and the judgment lien mentioned in the complaint is for

Teresa A. White, not Theresa D. White. Lastly, she alleges in her brief that she entered into

an agreement on July 19, 2010 with First Horizon to begin a repayment plan for the amount in

arrears on the note. She alleges that this agreement was to have ended the foreclosure

proceedings. She included a copy of the agreement and a copy of the cashier’s check sent to

First Horizon.

{¶ 9} For its part First Horizon argues that White was not prejudiced by the naming

of a John Doe defendant and the Ohio Department of Taxation. We agree. The John Doe

defendant was named in the event White was married so that her husband’s (if she was

married) dower interest could be foreclosed in the litigation. See Huntington Nat’l Bank v. 4

Ross (1998), 130 Ohio App.3d 687. The Department of Taxation answered and disclaimed

any interest in the legal proceedings.

{¶ 10} First Horizon argues that the trial court properly granted its default motion

because the alleged Forbearance Agreement was unexecuted and was not presented to the trial

court before the default judgment was entered.

{¶ 11} We agree with appellee that we may only consider what was presented to the

trial court. It is the actions of the trial court we are reviewing. If First Horizon agreed to

forbear pursuing the foreclosure action upon receipt of a signed agreement and two-thousand

dollars from White, she may be entitled to relief under Civ.R. 60(B). If White did not answer

the complaint because of the alleged agreement, this may be excusable neglect under the Rule.

Ms. White, of course, would still have to demonstrate she has a meritorious defense to the

foreclosure action to present. Antonopoulos v. Eisner (1972), 30 Ohio App.2d 187.

{¶ 12} However, based on the record before us the appellant’s assignments of error

have no merit. The judgment of the trial court is Affirmed.

GRADY, P.J., and FROELICH, J., concur

(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Elizabeth S. Fuller Teresa D. White Hon. Gregory F. Singer 5