[Cite as Chase Home Fin., L.L.C. v. Keys, 2016-Ohio-17.]



                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102045



                       CHASE HOME FINANCE, L.L.C.
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                    MICHELLE KEYS, INDIVIDUALLY,
                           ETC., ET AL.,
                                                           DEFENDANTS-APPELLANTS




                                           JUDGMENT:
                                            VACATED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-10-737885

             BEFORE:          Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.

             RELEASED AND JOURNALIZED:                          January 7, 2016
ATTORNEYS FOR APPELLANTS

David A. Schaeffer
Danielle G. Garson
McCarthy Lebit Crystal & Liffman Company
101 West Prospect Avenue
1800 Midland Building
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEE

Bill L. Purtell
Cynthia Fischer
Lerner, Sampson & Rothfuss
120 E. 4th Street
Suite 800
Cincinnati, Ohio 45202

Stacy L. Hart
Susan E. Mandryk
Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, Ohio 45201
PATRICIA ANN BLACKMON, J.:

       {¶1} Defendant-appellants      Michelle    Keys    (Keys),   individually   and   as

administrator of the estate of Dolores Thomas (Thomas), et al., appeal the trial court’s

denial of Keys’s motion to enforce a settlement agreement against plaintiff-appellee

Chase Home Finance, L.L.C. (Chase). Keys assigns two errors for our review, which

will be addressed together.

       I. The trial court erred as a matter of law when it denied Mr. and Ms.
       Keys’s motion to enforce the settlement agreement.

       II. The trial court abused its discretion when it ignored the unrebutted
       evidence and denied Mr. and Ms. Keys’s motion to enforce the settlement
       agreement.

       {¶2} Having reviewed the record and pertinent law, we vacate the trial court’s

ruling for lack of jurisdiction. The apposite facts follow.

                              Facts and Procedural History

       {¶3} The dispute between the parties to this case began in 2008, when Chase

filed two foreclosure actions on two residential properties owned by Thomas. In 2009,

the parties entered a forbearance agreement. In 2010, Thomas passed away, and title to

the properties was transferred to Keys. Chase subsequently pursued foreclosure of the

properties against Keys.

       {¶4} The issue before this court specifically concerns another forbearance

agreement that Chase and Keys entered into in June 2011. Keys agreed to make five

monthly payments of $385 each, and Chase agreed to postpone foreclosure proceedings
on one of the properties at issue located in Cleveland Heights. As a result of this

forbearance agreement, and per the trial court’s standing case management directive,

Chase’s claims against Keys were dismissed without prejudice on July 14, 2011, and

Keys dismissed her counterclaim against Chase without prejudice on July 26, 2011.

       {¶5} On April 22, 2013, Keys filed a motion to enforce the settlement agreement,

arguing that Chase refused to honor an alleged oral modification to the forbearance

agreement. Specifically, Keys argued that immediately after the terms of the forbearance

agreement were memorialized in writing, counsel for the parties had a conversation near

the 10th floor elevators of the Justice Center (the Elevator Conversation), in which

counsel for Chase “expressed to both defense counsel that if Mrs. Keys made the five

forbearance payments in a timely manner, that * * * the lender would agree to execute a

Loan Modification and/or Assumption.”

       {¶6} The court denied Keys’s motion to enforce the settlement agreement on

jurisdictional grounds on April 24, 2013. Keys appealed, and this court found that the

trial court retained jurisdiction, reversed the trial court’s ruling, and remanded the case to

hold “an evidentiary hearing to determine if an enforceable settlement exists.” Chase

Home Finance, L.L.C. v. Keys, 8th Dist. Cuyahoga No. 99920, 2014-Ohio-2639, (Keys I).

 On remand, the trial court held an evidentiary hearing, and on September 19, 2014, the

court denied Keys’s motion to enforce settlement agreement, finding that Keys failed to

show, by a preponderance of the evidence, that the Elevator Conversation was an
enforceable modification to the forbearance agreement.      It is from this order that Keys

appeals.

                                   Standard of Review

       {¶7} We address Keys’s allegations of error together under a mixed standard of

review. Compare Continental W. Condo. Unit Owners Assn v. Howard E. Ferguson,

Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996) (when the issue regarding a motion

to enforce settlement agreement “is a question of contract law, Ohio appellate courts must

determine whether the trial court’s order is based on an erroneous standard or

misconstruction of the law”) with Tabbaa v. Koglman, 8th Dist. Cuyahoga No. 84539,

2005-Ohio-1498, ¶ 15 (“[b]ecause the instant case involves factual determinations by the

trial court as to the parties’ intent surrounding a settlement agreement, * * * the

applicable standard of review is an abuse of discretion * * *”).

                         Whether the Oral Modification to the
                        Forbearance Agreement Is Enforceable

       {¶8} A settlement agreement falls within the purview of contract law and

requires an offer, acceptance, consideration, and a meeting of the minds to be binding.

Prime Properties, Ltd. Partnership v. Badah Ents., 8th Dist. Cuyahoga No. 99827,

2014-Ohio-206.       “[A]n oral settlement agreement may be enforceable if there is

sufficient particularity to form a binding contract. Terms of an oral contract may be

determined from ‘words, deeds, acts, and silence of the parties.’” Id. at ¶ 8, quoting

Kostelnik v. Helper, 96 Ohio St.3d 1, 3, 2002-Ohio-2985, 770 N.E.2d 58.
       {¶9} A forbearance agreement is “a separate and distinct contract from the original

mortgage [and] is, therefore, no different than other settlement agreements.”            First

Horizon Home Loans v. Mohsen Fanous, 8th Dist. Cuyahoga No. 95924,

2011-Ohio-4237, ¶ 9. A forbearance is “a delay in enforcing * * * debts, rights of action,

rights, privileges, claims or obligations.” (Citation omitted.) HomEq Servicing Corp. v.

Schwamberger, 4th Dist. Scioto No. 07CA3146, 2008-Ohio-2478, ¶ 19. Forbearance

means “[r]efraining from doing something that one has a legal right to do.” Black’s Law

Dictionary 644 (6th Ed.1990).

       {¶10} The forbearance agreement in the instant case states that Chase would

postpone foreclosure proceedings if Keys made five monthly payments of $385 from

August 1 through December 1, 2011. Other than postponing foreclosure proceedings,

Chase retained its legal rights and remedies to pursue a foreclosure action against Keys.

The forbearance agreement at issue expressly states, in pertinent part, as follows:

       The payments required in this Agreement to postpone foreclosure
       proceedings may not be sufficient to satisfy the regular monthly payments
       required by the loan documents. Therefore it is likely that the loan will still
       be in default after [Keys] makes all payments required by this Agreement. *
       * * [Keys] acknowledges that this Agreement may not cure the default. * *
       * Except as provided in this Agreement, the terms of the original note,
       mortgage/deed of trust and other loan documents remain in full
       force and effect. * * * This Agreement cannot be amended without the
       written consent of both parties.

       {¶11} Despite agreeing to these terms, Keys argues that the Elevator Conversation

is an enforceable modification to the forbearance agreement, which Chase allegedly

breached by pursuing foreclosure. It is undisputed that the Elevator Conversation was
not memorialized in writing and that its terms are inconsistent with the terms of the

written agreement.

       {¶12} The parties raise and argue various legal theories in favor of and against

enforcement of the Elevator Conversation as an oral modification to the prior written

forbearance agreement. These theories include statute of frauds, partial performance,

promissory estoppel, unclean hands, unrebutted testimony, sufficiency of the evidence,

implied or apparent authority, and ratification. Because we find that the trial court

lacked jurisdiction to enforce the settlement agreement, we need not address those issues.

       {¶13} Although in Keys I we remanded this case to the trial court for an

evidentiary hearing on the enforceability of the forbearance agreement, the Ohio Supreme

Court subsequently clarified “whether, and if so, how, a trial court may retain jurisdiction

after a dismissal for purposes of enforcing a settlement agreement” in Infinite Sec.

Solutions, L.L.C. v. Karam Properties II, 143 Ohio St.3d 346, 2015-Ohio-1101, 37

N.E.3d 1211, ¶ 22. Infinite Solutions holds that a “trial court has jurisdiction to enforce a

settlement agreement after a case has been dismissed only if the dismissal entry

incorporated the terms of the agreement or expressly stated that the court retained

jurisdiction to enforce the agreement.” Id. at ¶ 34.

       {¶14} The dismissal entries at issue in the instant case do not incorporate the terms

of the settlement agreement nor do they expressly retain jurisdiction to enforce the

agreement.    The July 14, 2011 journal entry dismissing Chase’s claims states in its

entirety as follows: “On July 8, 2011, Plaintiff notified the court of a forbearance plan.
Pursuant to the court’s standing case management directive, the case is dismissed without

prejudice at plaintiff’s costs. Final.” Keys’s July 25, 2011 notice of dismissal of her

counterclaim states as follows: “Now comes Defendant Michelle Keys, Individually and

as Administratrix of the Estate of Dolores Thomas, by and through her counsel, and

pursuant to Civil Rule 41(A) hereby dismisses her Counterclaim against Plaintiff, without

prejudice, and with the right to re-file.”

        {¶15} Infinite Solutions was decided on March 25, 2015, which is after the notice

of appeal was filed in the case at hand. Therefore Keys I, which determined that “the

trial court retained jurisdiction to hear Keys’s motion to enforce the settlement

agreement,” as well as the trial court’s September 19, 2014 ruling on remand, were based

on the law in this district prior to Infinite Solutions. Keys I relied on the notion of

“conditional dismissals” as explained in Berger v. Riddle, 8th Dist. Cuyahoga Nos. 66195

and 66200 (Aug. 18, 1984). However, in Infinite Solutions at ¶ 34, the Ohio Supreme

Court    overruled    Berger    and    held   that   “we   disavow   reliance   upon   the

conditional/unconditional dichotomy to determine whether a trial court has jurisdiction to

enforce a settlement agreement following dismissal.”

        {¶16} Therefore, we must apply Infinite Solutions and find that the court lacked

jurisdiction over the settlement agreement in the instant case. When a court lacks subject

matter jurisdiction, its judgment is void ab initio, and a void judgment may be challenged

at any time. See generally Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806

N.E.2d 992. See also OTT Equip. Servs. v. Summit Auto. Equip., 9th Dist. Summit No.
27534, 2015-Ohio-4263, ¶ 16 (finding that Infinite Solutions rendered the trial court’s

September 5, 2014 ruling on a motion to enforce settlement agreement void).

      {¶17} Accordingly, we vacate the judgment of the trial court for lack of

jurisdiction, and render both of Keys’s assigned errors moot.

      It is ordered that appellee and appellant share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas

Court to carry this judgment into execution.



      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

EILEEN T. GALLAGHER , P.J., and
MELODY J. STEWART, J., CONCUR


KEY WORDS: Court lacked jurisdiction over motion to enforce settlement agreement,
because dismissal entries did not incorporate terms of the agreement nor did they
expressly retain jurisdiction to enforce the agreement.
