GMAC Mortgage, L.L.C. v. Herring

937 N.E.2d 1077, 189 Ohio App. 3d 200
CourtOhio Court of Appeals
DecidedAugust 6, 2010
DocketNo. 23694
StatusPublished
Cited by32 cases

This text of 937 N.E.2d 1077 (GMAC Mortgage, L.L.C. v. Herring) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
GMAC Mortgage, L.L.C. v. Herring, 937 N.E.2d 1077, 189 Ohio App. 3d 200 (Ohio Ct. App. 2010).

Opinion

Froelich, Judge.

{¶ 1} Dante Herring appeals from a judgment of the Montgomery County Court of Common Pleas, which denied his motion for relief from judgment, pursuant to Civ.R. 60(B). For the following reasons, the trial court’s judgment is affirmed.

I

{¶ 2} On May 26, 2006, Dante and Melissa Herring purchased the property located at 5859 Woodstone Drive in Dayton, Ohio, from Warren and Veronica Kendricks. To finance the purchase, the Herrings executed two notes: an adjustable-rate note to New Century Mortgage Corporation (“New Century”) in [204]*204the amount of $111,120 and a promissory installment note to the Kendrickses for $27,780. The Herrings also executed two mortgages — one to New Century and the other to the Kendrickses — to secure repayment of the notes.

{¶ 3} On March 20, 2007, GMAC Mortgage filed a complaint in foreclosure with reformation against the Herrings, the Kendrickses, and the Montgomery County Treasurer. GMAC alleged that it was the holder of a note and a mortgage on the property located at 5859 Woodstone Drive, that the note was in default, and that it was due $111,114.21, plus interest at the rate of 10.6 percent, plus late charges, advances for taxes and insurance, and other expenditures. GMAC requested judgment on the note, foreclosure of the property, and reformation of the mortgage to reflect the proper legal description of the property.

{¶ 4} GMAC’s complaint indicated that copies of the note and the mortgage were attached to the complaint. Exhibit A to the complaint was the adjustable-rate note executed by Melissa and Dante Herring, dated May 26, 2006, in favor of New Century for $111,120. However, Exhibit B to the complaint was the mortgage executed by the Herrings to the Kendrickses, not the mortgage to New Century. GMAC did not file an amended complaint to substitute the correct mortgage.

{¶ 5} On March 20, 2007, GMAC filed its first preliminary judicial report. The report reflected the existence of both mortgages, and both mortgages were attached to the report, along with other documents.

{¶ 6} In April 2007, the Kendrickses filed an answer to GMAC’s complaint and brought cross-claims against the Herrings based on the Herrings’ having defaulted on the promissory installment note and the accompanying mortgage. The Kendrickses alleged that they were the holders of a note and a mortgage executed by the Herrings on May 26, 2007, that the Herrings had defaulted, and that there was due and owing the sum of $26,651, with interest at the rate of seven percent from January 1, 2007. The Kendrickses requested judgment on the note and the mortgage and that the legal description on the mortgage deed be reformed to the proper legal description. The Kendrickses attached the promissory installment note and the mortgage securing repayment of that note to their pleading.

{¶ 7} The Herrings moved for an extension of time to respond to the claims, and GMAC moved for a default judgment. The court granted the Herrings until May 14, 2007, to file an answer to the complaint. On May 3, 2007, the trial court entered a default judgment against the Herrings and in favor of GMAC; however, on May 14, 2007, the court sua sponte vacated the default judgment due to the extension previously granted to the Herrings. The court notified all parties (including the Herrings) that it would consider the motion for default [205]*205judgment to be ripe on May 15, 2007, if no response were received from the Herrings.

{¶ 8} The Herrings did not file an answer, and on May 21, 2007, the trial court granted GMAC’s motion for default judgment. The court incorporated the May 3, 2007 default judgment into its decision.

{¶ 9} The Kendrickses subsequently moved for a default judgment on their cross-claims; the trial court also granted that motion and entered judgment in favor of the Kendrickses on their cross-claims.

{¶ 10} On several occasions, a sheriffs sale was scheduled, but the sale was later cancelled or vacated due to various procedural issues, including alleged lack of service to the Herrings’ new counsel and alleged lack of notice of the judgment in favor of GMAC in accordance with Civ.R. 58(B).

{¶ 11} On June 27, 2008, the trial court filed an amended judgment entry in favor of GMAC and the Kendrickses; that amended judgment entry was refiled on July 16, 2008. With respect to GMAC, the amended judgment entry found that $111,114.21, plus interest, late charges, advances, costs, and expenses, was due to GMAC on the promissory note “set forth in the First Count of the Complaint.” The trial court further found as follows:

{¶ 12} “[I]n order to secure the payment of the promissory note aforesaid, the Defendants, Melissa Herring and Dante Herring, wife and husband, executed and delivered to New Century Mortgage Corporation the mortgage deed set forth in the Second Count of said Complaint, thereby conveying the following described premises: * * *. The Court finds that said mortgage was duly filed with the Montgomery County Recorder on June 6, 2006 and recorded as Instrument No. 06-0512601 of the Mortgage Records of said County and thereby became and is a valid mortgage lien upon said premises, subject only to the lien of the Treasurer for taxes; that said mortgage deed was assigned to the Plaintiff; that said conditions in the mortgage deed have been broken and the same has become absolute and that Plaintiff is entitled to have the equity of redemption and dower of all Defendants in and to said premises foreclosed.” (Footnote added.)

{¶ 13} A sheriffs sale was scheduled for June 5, 2009. On the day before the scheduled sale, Dante Herring (“Herring”), pro se, filed a motion for relief from the amended judgment, pursuant to Civ.R. 60(B)(3), and to stay the sheriffs sale. He claimed that GMAC committed a fraud against the court in that “(1) there is evidence that the Plaintiff was not the real party in interest at the time the Amended Judgment was entered, because the Mortgage and Note had been sold to Kondaur Capital Corporation before the entry of the Amended Judgment; (2) [206]*206there is evidence that the assignment of the Mortgage to the Plaintiff was fraudulently manufactured; and (3) Plaintiff was not entitled to judgment, because it failed to attach to the Complaint documentation required by Civil Rule 10(D).” Herring attached a copy of a corporate assignment of mortgage from New Century to GMAC with a California all-purpose acknowledgment by the notary public, a notice of assignment of servicing rights from Kondaur Capital Corporation to the Herrings, and correspondence to the Herrings from a Kondaur Capital asset manager regarding the Herrings’ mortgage and note.

{¶ 14} The trial court stayed the sale of the Herrings’ property. On July 24, 2009, GMAC moved for an order substituting Kondaur Capital as the plaintiff. GMAC attached a copy of the assignment of the Herrings’ note and mortgage, which was executed on July 16, 2009. The court ordered the requested substitution.

{¶ 15} Kondaur subsequently opposed Herring’s Civ.R. 60(B) motion, arguing that the Herrings had failed to establish their entitlement to relief under Civ.R. 60(B), that GMAC was the real party in interest when the complaint was filed, that it (Kondaur) is now the real party in interest, and that the complaint complied with Civ.R. 10(D).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Estate of Reck
2023 Ohio 4206 (Ohio Court of Appeals, 2023)
Planchak v. Ladd
2023 Ohio 1836 (Ohio Court of Appeals, 2023)
Pond v. Pond
2022 Ohio 3561 (Ohio Court of Appeals, 2022)
Sullivan v. Sullivan
2021 Ohio 1117 (Ohio Court of Appeals, 2021)
Younomics Private Student Loan Trust v. McKinley
2020 Ohio 3989 (Ohio Court of Appeals, 2020)
Nationstar Mortgage, L.L.C. v. Abston
2019 Ohio 3003 (Ohio Court of Appeals, 2019)
John W. Judge Co. v. USA Freight, L.L.C.
2018 Ohio 2658 (Ohio Court of Appeals, 2018)
Harold J. Pohl, Inc. v. Cotterman
2018 Ohio 2660 (Ohio Court of Appeals, 2018)
Summers v. Lancia Nursing Homes, Inc.
2016 Ohio 7935 (Ohio Court of Appeals, 2016)
Barton. v. Barton
2016 Ohio 5264 (Ohio Court of Appeals, 2016)
Honda Fed. Credit Union v. Shutway
2016 Ohio 4982 (Ohio Court of Appeals, 2016)
Bissell v. Bissell
2016 Ohio 3086 (Ohio Court of Appeals, 2016)
Bank of New York Mellon v. Ackerman
2016 Ohio 960 (Ohio Court of Appeals, 2016)
Wells Fargo Bank, N.A. v. Hazel
2016 Ohio 305 (Ohio Court of Appeals, 2016)
Wells Fargo Bank, N.A. v. Myers
2015 Ohio 4212 (Ohio Court of Appeals, 2015)
Tochtenhagen v. Tochtenhagen
2014 Ohio 5380 (Ohio Court of Appeals, 2014)
Bank of America v. Friedman
2014 Ohio 5034 (Ohio Court of Appeals, 2014)
State v. Alexander
2014 Ohio 4859 (Ohio Court of Appeals, 2014)
Bank of Am., N.A. v. Kuchta (Slip Opinion)
2014 Ohio 4275 (Ohio Supreme Court, 2014)
JPMorgan Chase Bank, Natl. Assn. v. Rhodes
2014 Ohio 2706 (Ohio Court of Appeals, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
937 N.E.2d 1077, 189 Ohio App. 3d 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gmac-mortgage-llc-v-herring-ohioctapp-2010.