Beneficial Mtge. of Ohio v. Jacobs

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[Cite as Beneficial Mtge. of Ohio v. Jacobs, 2002-Ohio-3162.] IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO BENEFICIAL MORTGAGE OF OHIO Plaintiff-Appellee vs. : : : C.A. CASE NO. 01CA0080 T.C. CASE NO. 99-CV-0220 DANIEL W. JACOBS, et al. : Defendants-Appellants (Civil Appeal from Court of Common Pleas) : . . . . . . . . . O P I N I O N Rendered on the 21st day of June, 2002. . . . . . . . . . Stephen D. Miles, 18 W. Monument Avenue, Dayton, Ohio 45402, Atty. Reg. No. 0003716 Attorney for Plaintiff-Appellee Larry N. Morgan, 302 Fremont Avenue, Springfield, Ohio 45505 Defendant-Appellant, Pro Se . . . . . . . . . GRADY, J. {¶1} Defendant, Larry N. Morgan, appeals from a summary judgment rendered by the court of common pleas in favor of Plaintiff, Beneficial Mortgage of Ohio ( Beneficial ), on its complaint in foreclosure. {¶2} The real property involved in the foreclosure action is located at 302 Fremont Street, in Springfield, Ohio. On August 22, 1994, the owners, Daniel and Sarah Jacobs, executed a mortgage deed for the property in favor 2 of Beneficial to secure a note in the amount of $26,460. {¶3} The Jacobs subsequently sold the property Roberta G. Honaker, executing a deed in her favor. to Honaker took the property subject to Beneficial s note and mortgage, which were not extinguished. Honaker subsequently died. Her surviving spouse, Defendant Morgan, acquired an interest in the property by operation of dower. {¶4} Daniel bankruptcy and and Beneficial. Sarah were Jacobs discharged Beneficial then filed from a petition their proceeded to in debt to enforce its interests under the mortgage by filing a foreclosure action. One of the defendants in the action is Larry Morgan. {¶5} Morgan filed pleadings responsive to Beneficial s complaint in foreclosure. summary judgment. Beneficial filed a motion for Morgan opposed the motion. granted Beneficial s motion after a hearing. The court Morgan filed a timely notice of appeal. FIRST ASSIGNMENT OF ERROR {¶6} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY AWARDING SUMMARY JUDGMENT TO APPELLEE. {¶7} Morgan argues that the trial court erred when it granted summary judgment to Beneficial on its complaint in foreclosure because the complaint did not attach the underlying promissory note alleged to be in default. {¶8} Civ.R. 10(D) states: {¶9} When any claim or defense is founded on an 3 account or other written instrument, a copy thereof must be attached to the pleading. If not so attached, the reason for the omission must be stated in the pleading. {¶10} The rule requires copies of the mortgage deeds and notes to be attached to complaints in foreclosure. Slife v. Kundtz Properties, Inc. (1974), 40 Ohio App.2d 179; Quallich v. Paugh & Farmer, Inc. (June 29, 1979), Cuyahoga App. No. 38787, unreported. {¶11} Beneficial s complaint in foreclosure attached copies of the note and mortgage that Daniel and Sarah Jacobs had signed. It did not attach copies of documents portraying Morgan s dower interest, which is an interest Beneficial sought to foreclose. However, Morgan asserted the existence of his dower interest in an Answer that he filed on April 22, 1999. failure of Beneficial That admission rendered moot any to comply with Civ.R. 19(D) with respect to its claim against Morgan s dower interest. {¶12} The first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR {¶13} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY AWARDING SUMMARY JUDGMENT TO APPELLEE. {¶14} Summary judgment may not be granted where a genuine issue of material fact remains for determination. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Morgan determination. argues that such an issue remained for The issue, according to Morgan, arises from an allegation Sarah Jacobs simple. in are Beneficial s owners of complaint the that subject Daniel property in 4 and fee In fact, they conveyed their interest to Roberta Honaker, Morgan s deceased spouse, in 1996. {¶15} The factual issue arising from Morgan s allegation is immaterial to Beneficial s claim against him. Indeed, Beneficial s complaint alleges only that Daniel Jacobs and Sarah Jacobs each may claim an interest and lien against said premises by reason of being a previous owner . . . Morgan s argument thus lacks even the factual basis on which it is purported. {¶16} The second assignment of error is overruled. THIRD ASSIGNMENT OF ERROR {¶17} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY AWARDING SUMMARY JUDGMENT TO APPELLEE AND DENIED APPELLANT HIS DUE PROCESS OF LAW AND EQUAL PROTECTION OF LAW. {¶18} Morgan relies on R.C. 2329.66, which provides for certain properties that a person domiciled in Ohio may hold exempt from execution, garnishment, attachment, or sale to satisfy a judgment or order. Morgan references us to Exhibit C, but contrary to App.R. 16(A)(7), he doesn t cite to where in the record that exhibit may be found. {¶19} We surmise that Morgan refers to a copy of the order discharging the Jacobs in bankruptcy, which is marked Exhibit C and attached to the trial court s summary 5 However, that discharge is personal to Daniel and judgment. Sarah Jacobs, and was entered after they had conveyed their interests to Morgan s spouse. It creates no right in Morgan, including any right to due process of which he may not be deprived. {¶20} The third assignment of error is overruled. FOURTH ASSIGNMENT OF ERROR {¶21} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY AWARDING SUMMARY JUDGMENT TO APPELLEE AND DENIED APPELLATE (SIC) HIS DUE PROCESS OF LAW AND EQUAL PROTECTION OF LAW. {¶22} Morgan argues that the foreclosure of his dower interest by summary judgment without due process of law. him of property. deprives him of property He is correct that it deprives However, he is not denied due process of law thereby. {¶23} Summary Judgment is permitted by Civ.R. 56. Morgan had full notice of Beneficial s request for that relief as well as an opportunity to be heard on the request and the issues involved. components of due process. Those are the fundamental New York Cent.R.Co. V. Public Utilities Commission of Ohio (1952), 157 Ohio St. 257. process is not deprived to a litigant simply because judgment is entered against him. {¶24} The fourth assignment of error is overruled. Conclusion Due a {¶25} Having presented, we overruled will affirm the the appeal was taken. BROGAN, J. and FAIN, J., concur. Copies mailed to: Stephen D. Miles, Esq. Larry N. Morgan Hon. Richard O Neill assignments judgment from of 6 error which this

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