[Cite as Mann v. Resolution T Co., L.L.C., 2015-Ohio-3266.]




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

DENNIS RAY MANN, et al.                               :
                                                      :
        Plaintiffs-Appellants                         :       C.A. CASE NO. 2015-CA-11
                                                      :
v.                                                    :       T.C. NO. 13-471
                                                      :
RESOLUTION T COMPANY, LLC                             :       (Civil Appeal from
                                                      :        Common Pleas Court)
        Defendant-Appellee                            :
                                                      :

                                              ...........

                                              OPINION

                Rendered on the ___14th___ day of ____August____, 2015.

                                              ...........

STEPHEN E. KLEIN, Atty. Reg. No. 0014351, 240 Bohanan Drive, Vandalia, Ohio 45377
     Attorney for Plaintiffs-Appellants

DANIEL A. DeMARCO, Atty. Reg. No. 0038290 and PHILLIP G. ECKENRODE, Atty.
Reg. No. 0084187, 65 East State Street, Suite 1400, Columbus, Ohio 43215
      Attorney for Defendant-Appellee

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

FROELICH, P.J.

        {¶ 1} Dennis and Karen Mann appeal from a judgment of the Miami County Court

of Common Pleas, which granted summary judgment to Resolution T Co., LLC, on the

Manns’ slander of title and bad faith claims. For the following reasons, the trial court’s

judgment will be reversed and the matter will be remanded for further proceedings.

                             I. Background and Procedural History
                                                                                        -2-
      {¶ 2} This case was previously before this court in Mann v. Resolution T Co., LLC,

2d Dist. Miami No. 2014-CA-5, 2014-Ohio-2451 (“Mann I”), and a thorough procedural

history was provided therein. We highlight the pertinent parts here.

      {¶ 3} In April 2003, Dennis Mann executed a cognovit note in the amount of

$65,000 for a loan provided by Fifth Third Bank. To secure the note, Dennis and Karen

Mann executed a mortgage on two tracts of land. In 2009, the note and mortgage were

assigned to Resolution. On July 12, 2011, Resolution obtained a monetary judgment

against the Manns on the cognovit note in the amount of $56,394.44, plus interest and

costs. (Miami C.P. No. 11-469.) Resolution filed judgment liens on the two mortgaged

parcels, as well as on an adjacent 130-acre parcel of real estate owned by the Manns.

      {¶ 4} Resolution subsequently brought a foreclosure action against the Manns,

seeking to satisfy the monetary judgment by foreclosing on the two parcels of the property

for which Resolution had mortgage and judgment liens. (Miami C.P. No. 12-465) The

foreclosure action did not involve the adjacent 130-acre parcel.

      {¶ 5} On December 12, 2012, the trial court in the foreclosure action filed a

judgment entry and decree of foreclosure and ordered the property (the two parcels) to be

sold. The judgment entry ordered the proceeds of the sale to be distributed in the

following order: (1) to the Miami County Treasurer, (2) to Resolution, in an amount up to

and including the note balance, and (3) the balance to be held by the clerk of courts

pending further order of the court. The court further ordered: “[T]here may be due to

Plaintiff additional sums advanced by it under the terms of the Loan Documents to pay

real estate taxes, insurance premiums, property protection, and attorneys’ fees, which

sums are to be determined by further Order, and paid as a ‘Third’ priority as provided
                                                                                      -3-
hereinabove.”

      {¶ 6} Prior to a sheriff’s sale, the Manns contracted with Kenneth Hattan, a

licensed real estate broker, to find a buyer for the two foreclosed properties.       By

February 15, 2013, Hattan had obtained a buyer who was willing to pay $100,000 for the

parcels and to grant the Manns access across the foreclosed properties to the Manns’

additional 130-acre parcel.

      {¶ 7} On February 26, 2013, the Manns’ attorney told Hattan that the sheriff’s sale

had been postponed until April 17, 2013, and that the buyer’s identity had been disclosed

to the trial attorney for Resolution. Hattan then contacted the attorney for Resolution,

who on March 28 provided a pay-off amount for principal and interest of $68,809.05

through April 5, 2013 (the anticipated closing date), plus an additional $16,247.36 for

attorney fees and expenses/costs. The total amount needed to pay off Resolution was

$85,056.41. The letter from Resolution’s attorney stated, “Once we are in receipt of the

funds, we will take steps to dismiss the foreclosure action and release the mortgage and

judgment liens.”

      {¶ 8} By April 5, Resolution had increased its payoff demand to $91,314.90,

which included an increase of $6,528.49 allegedly owed for attorney fees.        Due to

Resolution’s increased demand, the sale was closed in escrow on April 5, 2013, and

Hattan negotiated an agreement in which Resolution accepted $88,000 for its claim,

which included $19,190.95 in funds above the amount owed for the note balance. The

Manns received none of the $100,000 paid for the property.

      {¶ 9} As of result of the payment, Resolution released its mortgage and judgment

liens on the two parcels that were the subject of the foreclosure action. However,
                                                                                           -4-
Resolution did not release its judgment lien on the Manns’ additional 130-acre parcel.

       {¶ 10} In May 2013, the Manns filed a motion (which is not in the record) in Case

No. 11-469, the cognovit note action, seeking leave to file a supplemental pleading; the

record does not identify the nature of the pleading. The trial court denied the motion,

noting that it had already entered a final appealable order. The court further indicated

that it had not awarded attorney fees and that it was unaware of the foreclosure action.

       {¶ 11} Resolution contacted the Manns, offering to forgive the additional

$3,314.90 ($91,314.90 - $88,000 = $3,314.90) that it claimed was owed on the note, to

provide a satisfaction of judgment, and to release the existing judgment lien on the

130-acre parcel in exchange for a release of claims by the Manns. On June 24, 2013,

the Manns’ attorney sent Resolution’s attorney a letter rejecting Resolution’s proposal.

       {¶ 12} On September 6, 2013, the Manns filed this action, seeking a declaratory

judgment that Resolution’s judgment has been paid in full and that the judgment lien is

released of record. They also brought claims for slander of title, abuse of process,

“money had and received,” and unjust enrichment. The Manns sought compensatory

damages of $19,190.95, plus statutory interest, and for the abuse of process claim,

additional compensatory damages, punitive damages of $10,000, and attorney fees.

       {¶ 13} On September 9, 2013, the court in the cognovit note case, upon the

Manns’ motion, ordered that the judgment lien (on the 130-acre parcel) be released. The

court stated, “The judgment lien in this case only secures the principal, interest and costs

from this case. Since the amount received by the Plaintiff at the closing on April 5, 2013,

as reflected in the exhibits attached to the Defendant’s motion, far exceeded the principal,

interests and costs rendered in this case, and reflected in the judgment lien, the
                                                                                         -5-
Defendants are entitled to have the judgment lien released.”

       {¶ 14} In November 2013, the Manns moved for summary judgment in this case,

and Resolution filed a cross-motion for summary judgment. On January 29, 2014, the

trial court overruled the Manns’ motion and granted Resolution’s cross-motion.

       {¶ 15} In granting summary judgment to Resolution, the trial court noted that the

declaratory judgment action (Count One) was moot, because the judgment lien from

Case No. 11-469 was removed on September 9, 2013. Regarding the slander of title

claim (Count Two), the trial court concluded that there was no proof of special damages or

bad faith, because Resolution’s judgment lien was never “false.” The trial court further

stated that the assessment of attorney fees should have been addressed in the

foreclosure action. The trial court granted summary judgment on Count Three, abuse of

process, reasoning that the foreclosure action was not instituted for an improper purpose

and that the trial court in the foreclosure action had ordered that Resolution was entitled

to attorney fees. Finally, on the equitable claims raised in Counts Four and Five, the trial

court determined that the evidence did not support the Manns’ claims.            The court

commented that “[p]roblematic from this Court’s perspective is the position the Manns

take by filing tort or equity claims instead of pursuing appeals.” The trial court concluded

that, under either waiver or res judicata, the equitable claims were barred.

       {¶ 16} The Manns appealed the trial court’s summary judgment ruling.             We

affirmed the grant of summary judgment to Resolution on Counts 4 and 5, agreeing with

the trial court that “claims relating to attorney fees paid to Resolution are barred by res

judicata.” The Manns did not raise assignments of error related to Counts One and

Three. As for the slander of title claim, we disagreed with the trial court’s conclusion
                                                                                       -6-
regarding the falsity of the lien. We stated:

              * * * Although the lien may have been accurate when it was filed, it

      became false once the debt was paid and Resolution refused to remove the

      lien.   One could also conclude that Resolution acted with reckless

      disregard of the falsity.    In this regard, we note the statement from

      Resolution’s attorney that Resolution would take steps to release the lien

      once it had been paid. Resolution not only failed to do so for five months, it

      also demanded a release of claims by the Manns as a condition of releasing

      the lien, when the debt underlying the lien had already been fully paid. In

      addition, Resolution released the lien only after the Manns filed the action

      for slander of title. These actions arguably were done in bad faith, which

      has been defined as “‘that which imports a dishonest purpose and implies

      wrongdoing or some motive of self-interest.’” Bad faith has also been

      defined as importing “‘a dishonest purpose, moral obliquity, conscious

      wrongdoing, breach of a known duty through some ulterior motive or ill will

      partaking of the nature of fraud. It also embraces actual intent to mislead or

      deceive another.’”

              With respect to the measure of damages for slander of title, we have

      indicated that “in a proper case, a party could recover the attorney fees

      incurred in removing a cloud on title as ‘special damages,’ and could also

      recover attorney fees for prosecuting a slander of title action. The latter

      fees would not be included in ‘special damages’ but would arise from a

      finding of bad faith.”
                                                                                          -7-
              After reviewing the record, we conclude that genuine issues of

       material fact exist regarding the slander of title claim, and whether

       Resolution acted in bad faith. The trial court, therefore, erred in rendering

       summary judgment on Resolution’s behalf on this point.

(Citations omitted.) Mann I, 2d Dist. Miami No. 2014-CA-5, 2014-Ohio-2451, at ¶ 39-41.

We remanded to the trial court for further proceedings.

       {¶ 17} On January 5, 2015, upon remand, the Manns moved for summary

judgment on the issue of liability pertaining to their slander of title claim. The Manns

asserted that our (court of appeals) opinion “conclusively determined” that the lien had

become false when it was not promptly released, and that conclusion was supported by

the September 9, 2013 order in the cognovit note case releasing the judgment lien. The

Manns further argued that the evidence established, as a matter of law, that Resolution

acted with malice or reckless disregard during the five months that it refused to release

the lien. Finally, they claimed that they ought to be reimbursed for their additional legal

fees incurred in this litigation because Resolution acted in bad faith by refusing to release

the lien.

       {¶ 18} Resolution opposed the motion for summary judgment and filed a

cross-motion for summary judgment. It stated that the Manns knew that if Resolution

agreed to accept a reduced payoff in exchange for cancelling the sheriff’s sale,

Resolution would not be made whole and that Resolution would only release the liens on

the foreclosed property. Resolution further stated that, when the sale closed, Resolution

applied the proceeds to attorney fees first, and thus the Manns continued to owe $3,000

on their obligation secured by the judgment lien. Resolution thus argued that the lien
                                                                                        -8-
was not false, because its decision “to leave the lien in place was consistent with the

accounting of indebtedness agreed to by Plaintiffs in the loan documents.” Resolution

claimed that its action also did not amount to malicious conduct or bad faith. Finally,

Resolution argued that the Manns’ claims were barred by waiver by estoppel, based on

the fact that the Manns knew that Resolution was going to leave the judgment lien in place

following the closing and payment of $88,000.

       {¶ 19} In their reply brief, the Manns emphasized that the law of the case doctrine

and res judicata required judgment, as a matter of law, in their favor.

       {¶ 20} On March 11, 2015, the trial court granted Resolution’s motion for

summary judgment and overruled the Manns’ motion. Initially, the trial court found that,

based on law of the case, there was a publication of a slanderous statement disparaging

the Manns’ title and that the statement was false.

       {¶ 21} The trial court further concluded, however, that the evidence established

that the Manns “consummated the sale knowing that [Resolution] intended to concede a

partial release of the lien” and that “the judgment lien was to remain in place until the

entire balance of the judgment was paid.” The trial court emphasized that “at the point of

sale, neither party knew or understood that the judgment lien would ultimately be found to

be false by the Court of Appeals.” The court further noted that the promissory note

detailed the method of calculation for the amount due and owing under the loan; the court

found that Resolution’s “refusal to remove the lien was not malicious but consistent with

the accounting for indebtedness under the loan documents.”           Thus, the trial court

concluded that no genuine issue of fact existed and that the Manns had failed to provide

any evidence that Resolution acted with malice or reckless disregard as to the falsity of
                                                                                             -9-
the lien. Finally, the trial court concluded, as a matter of law, that Resolution’s failure to

appeal an adverse ruling (the September 9, 2013 order releasing the judgment lien) and

its engaging in settlement negotiations did not amount to bad faith.

       {¶ 22} The Manns’ appeal from the trial court’s judgment.

                             II. Slander of Title and Bad Faith

       {¶ 23} The Manns raise two assignments of error on appeal, namely that the trial

court erred in granting Resolution’s motion for summary judgment and that the trial court

erred in denying the Manns’ motion for partial summary judgment on liability.

       {¶ 24} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) reasonable minds, after construing the evidence most strongly in

favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor

Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving

party carries the initial burden of affirmatively demonstrating that no genuine issue of

material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526

N.E.2d 798 (1988).      To this end, the movant must be able to point to evidentiary

materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). Those

materials include “the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, filed

in the action.” Id. at 293; Civ.R. 56(C).

       {¶ 25} Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
                                                                                          -10-
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits

or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a

genuine issue of material fact for trial. Id. Throughout, the evidence must be construed

in favor of the nonmoving party. Id.

       {¶ 26} We review the trial court’s ruling on a motion for summary judgment de

novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.

“De novo review means that this court uses the same standard that the trial court should

have used, and we examine the evidence to determine whether as a matter of law no

genuine issues exist for trial.” Brewer v. Cleveland City Schools Bd. of Edn., 122 Ohio

App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co.,

Inc., 64 Ohio St.2d 116, 119-20, 413 N.E.2d 1187 (1980). Therefore, the trial court’s

decision is not granted deference by the reviewing appellate court. Powell v. Rion,

2012-Ohio-2665, 972 N.E.2d 159, ¶ 6 (2d Dist.).

       {¶ 27} “An individual may be held liable for slander of title when he ‘falsely and

maliciously defames the property of another, causing him special damage.’” Jones v.

Davenport, 2d Dist. Montgomery No. 18162, 2001 WL 62513, *3 (Jan. 26, 2001), quoting

Builder Services, Inc. v. Habitat Condominium Owner’s Assn., 2d Dist. Montgomery No.

17247, 1999 WL 22606 (Jan. 22, 1999). In order to prevail on a slander of title claim, a

plaintiff must establish (1) there was a publication of a slanderous statement disparaging

the plaintiff’s title; (2) the statement was false; (3) the statement was made with malice or

reckless disregard of its falsity; and (4) the statement caused actual or special damages.

Mann I, 2d Dist. Miami No. 2014-CA-5, 2014-Ohio-2451, at ¶ 38, citing Green v. Lemarr,

139 Ohio App.3d 414, 430-31, 744 N.E.2d 212 (2d Dist.2000).
                                                                                         -11-
       {¶ 28} With respect to the trial court’s grant of summary judgment to Resolution,

the Manns argue that Resolution’s summary judgment motion was identical to the motion

it previously filed, which was granted by the trial court and reversed on appeal. The

Manns state that the trial court disregarded the law of the case when it again granted

Resolution’s motion and that Resolution’s positions are barred by res judicata.

       {¶ 29} The law-of-the-case doctrine “provides that the decision of a reviewing

court in a case remains the law of that case on the legal questions involved for all

subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.

Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). This doctrine “is considered to be a

rule of practice rather than a binding rule of substantive law and will not be applied so as

to achieve unjust results.” Id. “However, the rule is necessary to ensure consistency of

results in a case, to avoid endless litigation by settling the issues, and to preserve the

structure of superior and inferior courts as designed by the Ohio Constitution.” Id. The

Supreme Court of Ohio has stressed that:

       In pursuit of these goals, the doctrine functions to compel trial courts to

       follow the mandates of reviewing courts.       Thus, where at a rehearing

       following remand a trial court is confronted with substantially the same facts

       and issues as were involved in the prior appeal, the court is bound to adhere

       to the appellate court’s determination of the applicable law. Moreover, the

       trial court is without authority to extend or vary the mandate given.

(Citations omitted.) Nolan at 3-4.

       {¶ 30} The trial court did not disregard the law of the case in reaching its summary

judgment decision. The trial court recognized that this court ruled in the prior appeal
                                                                                            -12-
(Mann I) that, “[a]lthough the lien may have been accurate when it was filed, it became

false once the debt was paid and Resolution refused to remove the lien.” Based on our

ruling, the trial court found that the issue of falsity had been established in the Manns’

favor. Mann I, 2d Dist. Miami No. 2014-CA-5, 2014-Ohio-2451, at ¶ 39.

       {¶ 31} However, we did not determine, as a matter of law, that the false statement

was made with malice or reckless disregard of its falsity or that Resolution had acted in

bad faith. To the contrary, we stated that “one could also conclude that Resolution acted

with reckless disregard of the falsity,” and we found that genuine issues of material fact

existed. Accordingly, the law of the case doctrine did not require judgment in the Manns’

favor on their slander of title claim.

       {¶ 32} Nor is judgment in the Manns’ favor required by the doctrine of res judicata.

“Res judicata is a doctrine of judicial preclusion. It states that ‘[a] valid, final judgment

rendered upon the merits bars all subsequent actions based upon any claim arising out of

the transaction or occurrence that was the subject matter of the previous action.’”

(Emphasis sic.) Lamar Outdoor Advertising v. Dayton Bd. of Zoning Appeals, 2d Dist.

Montgomery No. 18902, 2002 WL 1349600, *2 (June 21, 2002), quoting Grava v.

Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), paragraph one of the syllabus;

Springfield Venture, L.L.C. v. U.S. Bank, N.A., 2015-Ohio-1983, 33 N.E.3d 85, ¶ 23 (2d

Dist.). As we recently stated in Springfield Venture,

       We have stressed that “[w]e are particularly persuaded by the supreme

       court’s pronouncements that ‘an existing final judgment or decree between

       the parties to litigation is conclusive as to all claims which were or might

       have been litigated in the first lawsuit’ and that ‘[t]he doctrine of res judicata
                                                                                             -13-
        requires a plaintiff to present every ground for relief in the first action, or be

        forever barred from asserting it.’”         McCory v. Clements, 2d Dist.

        Montgomery No. 19043, 2002 WL 857721, *3 (Apr. 26, 2002), quoting

        Grava at 382, 653 N.E.2d 226. Accord SunTrust Bank v. Wagshul, 2d Dist.

        No. 25567, 2013-Ohio-3931, ¶ 8.

Springfield Venture at ¶ 24.

        {¶ 33} The Manns argue that Resolution is bound by judgments that the judgment

lien on the 130-acre parcel became false upon the closing of the sale on the other two

parcels.    Both the trial court in the cognovit note action and this appellate court

concluded that Resolution was required to release the judgment lien after receiving the

$88,000 payment. However, the issue remaining for summary judgment is whether

Resolution acted with malice or reckless disregard of the falsity of the lien when it failed to

promptly release the judgment lien on the additional parcel. That issue has not been

decided by any court, and res judicata does require judgment in the Manns’ favor.

        {¶ 34} Upon review of the record, we find that genuine issues of material fact

remain as to whether Resolution’s failure to release the entire judgment lien along with

the mortgage lien constituted malice or a reckless disregard of the falsity of the judgment

lien.

        {¶ 35} Roger Kendrick, President of Resolution, stated in his affidavit that, when

Resolution initiates litigation “to collect on a debt secured by loan documents which

provide for payment of attorney fees and costs incurred in collection, monies received

from those collection efforts are first applied to attorneys’ fees and costs, and then to

interest and principal.” Consistent with that statement, Kendrick further stated that the
                                                                                           -14-
$88,000 paid by the Manns out of the closing funds was first applied to attorneys’ fees that

were outstanding; the result was that $3,314.90 remained due and owing on the debt,

together with attorneys’ fees and costs which continued to accrue. Kendrick indicated

that, in an effort to bring finality to the dispute, Resolution offered to release the judgment

lien and forgive the remaining indebtedness in exchange for a release of claims by the

Manns.

       {¶ 36} The cognovit note, attached to Resolution’s January 2015 cross-motion for

summary judgment as Exhibit B, provided that “Borrower shall pay all costs of collection

incurred by Lender, including its attorney fees, if this Note is referred to an attorney for

collection, whether or not payment is obtained before entry of judgment, which costs and

fees are Obligations secured by the Collateral.” In addition, the trial court’s judgment in

the foreclosure action provided that Resolution was entitled to attorney fees and costs

incurred as part of the foreclosure action.

       {¶ 37} Finally, Resolution provided email communications, in which counsel for

Resolution informed Hattan that the required payoff amount was $91,314 in order to

release the entire judgment lien. In an email dated April 8, 2013, counsel wrote, “[I]f you

can confirm that all of the $89,593 is available for payment to Resolution T, we can

provide a revised payoff to that effect, with a partial release of lien to be signed (i.e., any

deficiency will still be secured by a lien on other real property).” (Emphasis added.)

Construing Resolution’s evidence in Resolution’s favor (as is required when considering

the Manns’ motion for summary judgment), a reasonable factfinder could conclude that

Resolution did not act with malice or reckless disregard to the falsity of the judgment lien.

       {¶ 38} However, there is additional evidence that could suggest that Resolution
                                                                                        -15-
was reckless or acted with malice when it failed to promptly release the entire judgment.

Resolution relies on the language of the cognovit note to support its entitlement to

attorney fees incurred in its collection efforts, but the judgment entered in the cognovit

note case did not provide for the payment of attorney fees. (See Exhibit B to the Manns’

January 2015 motion for summary judgment.) Since the enforcement action on the

cognovit note resulted in a judgment, it is arguable that Resolution acted recklessly in

relying on the terms of the cognovit note, rather than the judgment entry, in determining

how to apply the proceeds from the sale of the foreclosed property, and that Resolution

acted recklessly when it applied the proceeds first to attorney fees, given that the

judgment entry did not award attorney fees to it.

      {¶ 39} In addition, while the judgment in the foreclosure action did provide for

attorney fees, the trial court expressly held that any money received from the sale of the

foreclosed property would first be used to pay the county treasurer and then applied to the

note balance (i.e., principal and interest); the remainder was to be held in escrow by the

court clerk. As quoted above, the judgment entry expressly stated that “there may be

due to Plaintiff additional sums advanced by it under the terms of the Loan Documents to

pay real estate taxes, insurance premiums, property protection, and attorneys’ fees,

which sums are to be determined by further Order, and paid as a ‘Third’ priority as

provided hereinabove.”

      {¶ 40} Resolution did not have any judgment entry establishing the amount of

attorney fees owed by the Manns, nor did it have any judgment entry which allowed

Resolution to apply payments received by the Manns to attorney fees and costs prior to

the principal and interest owed on the cognovit note. Although the sale of the foreclosed
                                                                                         -16-
property occurred as a result of a private sale, rather than a sheriff’s sale, Resolution

arguably acted recklessly in applying the proceeds from the sale in a manner contrary to

the terms of the judgment entry in the foreclosure action, absent agreement from the

Manns and/or the trial court.1

       {¶ 41} Finally, as we stated in Mann I, Resolution failed to release the lien once it

had been paid, and it did not do so for five months, when the trial court in the cognovit

note case ordered the judgment lien released. Resolution also demanded a release of

claims by the Manns as a condition of releasing the lien. Although these facts do not

establish bad faith on Resolution’s part, as a matter of law, we find that when the evidence

is construed in the Manns’ favor, genuine issues of material fact exist.

       {¶ 42} The trial court’s judgment granting summary judgment to Resolution is

reversed, and the matter will be remanded for further proceedings.

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

FAIN, J. and WELBUM, J., concur.

Copies mailed to:

Stephen E. Klein
Daniel A. DeMarco
Phillip G. Eckenrode
Hon. Jeannine N. Pratt




1
  As we commented in Mann I, the order of dismissal in the foreclosure case is not part of
the record. Mann I at ¶ 24. However, we note, generally, that once a judgment and
decree of foreclosure is entered by a trial court, a lender cannot voluntarily dismiss its
action, pursuant to Civ.R. 41(A)(1)(a). See Countrywide Home Loans Serv. v. Nichpor,
136 Ohio St.3d 55, 2013-Ohio-2083, 990 N.E.2d 565.
