[Cite as BAC Home Loans Servicing, L.P. v. Devoll, 2011-Ohio-6607.]


                                      COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                                    :      JUDGES:
BAC HOME LOANS SERVICING,                           :      W. Scott Gwin, P.J.
L.P.                                                :      John W. Wise, J.
                                                    :      Julie A. Edwards, J.
                        Plaintiff-Appellee          :
                                                    :      Case No. 11CAE080075
-vs-                                                :
                                                    :
                                                    :      OPINION
DOUGLAS DEVOLL, et al.,

                 Defendants-Appellants




CHARACTER OF PROCEEDING:                                     Civil Appeal from Delaware County
                                                             Court of Common Pleas Case No.
                                                             10CVE01559

JUDGMENT:                                                    Affirmed

DATE OF JUDGMENT ENTRY:                                      December 19, 2011

APPEARANCES:

For Plaintiff-Appellee                                       For Defendant-Appellant

AMELIA A. BOWER, ESQ.                                        STEVEN E. HILLMAN, ESQ.
300 E. Broad Street, Suite 590                               425 Metro Place North, Suite 460
Columbus, Ohio 43215`                                        Dublin, Ohio 43017
[Cite as BAC Home Loans Servicing, L.P. v. Devoll, 2011-Ohio-6607.]


Edwards, J.

        {¶1}    Appellant, Desiree Devoll, appeals a judgment of the Delaware County

Common Pleas Court entering summary judgment in favor of appellee BAC Home

Loans Services on a claim for foreclosure.

                                  STATEMENT OF FACTS AND CASE

        {¶2}    Appellant and her ex-husband, Douglas Devoll, own property located at

5802 Honors Court, in Westerville, Ohio, which they purchased in 2002. On March 10,

2005, Douglas Devoll executed a note in the amount of $244,500.00 to refinance this

property. The same day, he and appellant signed a mortgage and fixed rate rider with

Mortgage Electronic Registration Systems, Inc. (MERS) as the lender. In 2007, MERS

assigned the mortgage to Countrywide Home Loans, which then assigned the mortgage

to appellee on June 2, 2009.

        {¶3}    The Devolls were divorced on August 5, 2008. As part of the decree, they

agreed that they would both retain ownership of the property, which would be sold when

their youngest child turned eighteen. The mortgage went into default in January of

2009.

        {¶4}    Appellee filed a foreclosure action in May, 2009 (Case No. 09 CV E 05

0661). Appellant filed an answer and a counterclaim, alleging that her one-half interest

in the property was not subject to the mortgage. On August 26, 2009, the court granted

appellee a default judgment against Douglas Devoll but denied appellee’s motion for

default judgment as to appellant, setting the matter for bench trial. On December 29,

2009, the court found that appellee was not the real party in interest and did not have
Delaware County App. Case No. 11CAE080075                                                3


standing to bring the action, dismissing the case without prejudice. The court dismissed

appellant’s counterclaim without prejudice on January 14, 2010.

       {¶5}   Appellee filed the instant complaint in foreclosure on April 8, 2010.

Appellant answered and filed a counterclaim, alleging that appellee had no claim on her

one-half interest in the property.    Appellee filed a motion for extension of time to

respond to the counterclaim on May 10, 2010. Appellee was given until June 23, 2010

to reply. Appellee failed to file an answer to the counterclaim and on August 6, 2010,

appellee filed a motion to reply instanter. The trial court set the motion for a hearing on

September 13, 2010. On September 16, 2010, the court entered judgment permitting

appellee to respond to appellant’s counterclaim within 14 days and giving appellee 30

days to file a motion for summary judgment.

       {¶6}   On July 12, 2011, the court overruled appellant’s motion for default

judgment on her counterclaim and granted appellee’s motion for summary judgment. A

decree of foreclosure was entered on July 28, 2011. Appellant assigns three errors on

appeal:

       {¶7}   “I. THE TRIAL COURT ERRED WHEN APPLYING THE LAW TO THE

UNDISPUTED       MATERIAL       FACTS     AND     PLAINTIFF/APPELLEE’S         SUMMARY

JUDGMENT BECOMES INAPPROPRIATE AND MUST BE DENIED.

       {¶8}   “II. THE TRIAL COURT ERRED BY FINDING THAT RES JUDICATA

AND/OR COLLATERAL ESTOPPEL DID NOT APPLY.

       {¶9}   “III. THE TRIAL COURT ERRED IN BY (SIC) DENYING THE

DEFENDANT/APPELLANT’S MOTION FOR DEFAULT JUDGMENT AGAINST THE

PLAINTIFF-APPELLEE          AND      BY     DOING       SO      HAS      DENIED       THE
Delaware County App. Case No. 11CAE080075                                                4


DEFENDANT/APPELLANT EQUAL PROTECTION UNDER THE LAW VIOLATING

HER CONSTITUTIONAL RIGHTS.”

                                               I, II

       {¶10} In her first and second assignments of error, appellant argues that the

court erred in granting appellee’s motion for summary judgment because the instant

action is barred by res judicata and collateral estoppel.

       {¶11} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must

refer to Civ. R. 56(C) which provides in pertinent part: “Summary Judgment shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, written

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

timely filed in the action, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary judgment shall

not be rendered unless it appears from the evidence or stipulation, and only from the

evidence or stipulation, that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence or stipulation construed most

strongly in the party’s favor.”

       {¶12} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed.        The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion
Delaware County App. Case No. 11CAE080075                                                5


and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates that the moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating that there is a genuine issue of material

fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.

Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

      {¶13} Appellant argues that the dismissal of the first foreclosure action (Case

No. 09 CV E 05 0661) bars the instant action.

      {¶14} The doctrine of res judicata has two aspects: claim preclusion and issue

preclusion. Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226, 1995-Ohio-

331. Claim preclusion holds that a valid, final judgment on 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. Id. at syllabus. Issue preclusion, also

known as collateral estoppel, provides that “a fact or a point that was actually and

directly at issue in a previous action, and was passed upon and determined by a court

of competent jurisdiction, may not be drawn into question in a subsequent action

between the same parties or their privies, whether the cause of action in the two actions

be identical or different.” Ft. Frye Teachers Assn. v. State Emp. Relations Bd., 81 Ohio

St.3d 392, 395, 1998–Ohio–435. While claim preclusion precludes relitigation of the

same cause of action, issue preclusion precludes relitigation of an issue that has been
Delaware County App. Case No. 11CAE080075                                                   6

actually and necessarily litigated and determined in a prior action. Id., citing Whitehead

v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 112.

       {¶15} In Case No. CV E 05 0661, the trial court found that appellee had not

demonstrated that it was the real party in interest at the time the foreclosure was filed

and dismissed the complaint without prejudice.

       {¶16} The Ohio Supreme Court has held that a dismissal for lack of jurisdiction

on the basis that one of the parties is not the real party in interest does not bar a later

action on the grounds of res judicata:

       {¶17} “In general, the dismissal of an action because one of the parties is not a

real party in interest or does not have standing is not a dismissal on the merits for

purposes of res judicata. See, e.g., Stewart v. K & S Co., Inc. (Utah 1979), 591 P.2d

433, 434 (“the dismissal of an action because one of the parties is not the real party in

interest is not a dismissal on the merits so as to bar a subsequent action”); 18A Wright,

Miller & Cooper, Federal Practice and Procedure (2002) 189, Section 4438 (“Dismissal

on the ground that the plaintiff is not the real party in interest should not preclude a later

action by the real party in interest”); A-1 Nursing Care of Cleveland, Inc. v. Florence

Nightingale Nursing, Inc. (1994), 97 Ohio App.3d 623, 627, 647 N.E.2d 222 (dismissal

for lack of standing “terminates the action other than on the merits and affords proper

parties the opportunity to refile without fear of the effects of res judicata ”); Asher v.

Cincinnati (Dec. 23, 1999), Hamilton App. No. C-990345, 2000 WL 955617 (dismissal

for lack of standing is not on the merits for purposes of res judicata).” State ex rel.

Coles v. Granville (2007), 116 Ohio St.3d 231, 241, 877 N.E.2d 968, 977.
Delaware County App. Case No. 11CAE080075                                                  7


       {¶18} Thus, the prior dismissal did not bar the instant action on the grounds of

res judicata. Further, we find the action is not barred by collateral estoppel. Although

the question of whether appellee was the real party in interest was litigated in the prior

case between the parties, such finding was based on the position of appellee at that

specific point in time:

       {¶19} “The Plaintiff has failed to establish that it was the real party in interest at

the time it filed suit in this foreclosure action. Therefore, the Plaintiff did not have

standing to bring this action.    Accordingly, the Court hereby DENIES the Plaintiff’s

Motion for Summary Judgment and DISMISSES the Plaintiff’s complaint, without

prejudice.” Judgment Entry, December 29, 2009, Case No. 09 CV E 05 0661.

       {¶20} The trial court based this finding on the fact that the complaint was filed in

that action on May 20, 2009, while the mortgage was not assigned to appellee from

Countrywide until June 2, 2009.

       {¶21} Therefore, the issue that was litigated between the parties was whether

appellee was the real party in interest on May 20, 2009, when the first complaint was

filed, not whether appellee was the real party in interest on the date the complaint in the

instant action was filed.   Accordingly, the instant action is not barred by collateral

estoppel.

       {¶22} The first assignment of error is overruled.

                                                 III

       {¶23} Appellant argues that the court erred in allowing appellee to file a

response to her counterclaim instanter, and therefore default judgment should have

been entered in her favor on the counterclaim.
Delaware County App. Case No. 11CAE080075                                                 8


       {¶24} Civ. R. 6(B)(2) governs the court’s discretion to allow a party to file a reply

instanter:

       {¶25} “When by these rules or by a notice given thereunder or by order of court

an act is required or allowed to be done at or within a specified time, the court for cause

shown may at any time in its discretion (1) with or without motion or notice order the

period enlarged if request therefor (sic) is made before the expiration of the period

originally prescribed or as extended by a previous order, or (2) upon motion made after

the expiration of the specified period permit the act to be done where the failure to act

was the result of excusable neglect; but it may not extend the time for taking any action

under Rule 50(B), Rule 59(B), Rule 59(D), and Rule 60(B), except to the extent and

under the conditions stated in them.”

       {¶26} In the instant case, appellee stated in its August 6, 2010, motion to reply

to the counterclaim instanter that appellee was working with counsel from the title

company to investigate appellant’s claim of fraud. Appellant argues that this is not

excusable neglect.

       {¶27} On August 24, 2010, the court scheduled a hearing for September 13,

2010, on appellee’s motion to reply to appellant’s counterclaim instanter and appellant’s

motion for default judgment. In the court’s judgment allowing appellee to file the reply

instanter, the court notes that the matter came on for status conference on September

13, 2010. Appellant did not request a transcript of this hearing, and thus we do not

know what evidence or representations appellee presented to the court concerning the

issue of excusable neglect. When portions of the transcript necessary for resolution of

assigned errors are omitted from the record, the reviewing court has nothing to pass
Delaware County App. Case No. 11CAE080075                                           9


upon and thus, as to those assigned errors, must presume validity of the lower court's

proceedings and affirm. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 400

N.E.2d 384.

      {¶28} The third assignment of error is overruled.

      {¶29} The judgment of the Delaware County Common Pleas Court is affirmed.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                             JUDGES

JAE/r1025
[Cite as BAC Home Loans Servicing, L.P. v. Devoll, 2011-Ohio-6607.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


BAC HOME LOANS SERVICING, LP                         :
                                                     :
                           Plaintiff-Appellee        :
                                                     :
                                                     :
-vs-                                                 :        JUDGMENT ENTRY
                                                     :
DOUGLAS DEVOLL, et al.,                              :
                                                     :
                    Defendants-Appellants            :        CASE NO. 11CAE080075




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed

to appellants.




                                                         _________________________________


                                                         _________________________________


                                                         _________________________________

                                                                      JUDGES
