[Cite as BAC Home Loans Servicing, LP v. Willison, 2012-Ohio-2898.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




BAC HOME LOANS SERVICING, LP                                 JUDGES:
                                                             Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                                   Hon. Sheila G. Farmer, J.
                                                             Hon. Julie A. Edwards, J.
-vs-

MARK F. WILLISON, ET AL.                                     Case No. 11CA125

        Defendants-Appellants                                OPINION




CHARACTER OF PROCEEDING:                                     Appeal from the Court of Common
                                                             Pleas, Case No. 2010CV1079



JUDGMENT:                                                    Affirmed




DATE OF JUDGMENT:                                            June 26, 2012




APPEARANCES:

For Plaintiff-Appellee                                       For Defendants-Appellants

PATRICIA K. BLOCK                                            THOMAS L. MASON
120 East Fourth Street                                       P.O. Box 345
Suite 800                                                    153 West Main Street
Cincinnati, OH 45202                                         Ashland, OH 44805-0345
Richland County, Case No. 11CA125                                                     2

Farmer, J.

      {¶1}   On August 19, 2010, appellee, BAC Home Loans Servicing, LP, filed a

complaint in foreclosure against appellants, Mark Willison and Linda Tucker, for failure

to pay on an outstanding note and mortgage. Appellants filed a purported answer on

August 31, 2010. They did not dispute any of the claims in the complaint and were

attempting to work out a loan modification. After the loan modification fell through,

appellee filed a motion for judgment on the pleadings on August 5, 2011. By order filed

November 28, 2011, the trial court granted the motion.

      {¶2}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶3}   "THE    TRIAL    COURT     COMMITTED        PREJUDICIAL      ERROR     BY

GRANTING THE PLAINTIFF-APPELLEE JUDGMENT ON THE PLEADINGS WHERE

THE DEFENDANTS'-APPELLANTS' ANSWER WAS MADE ON A FORM SUPPLIED

BY THE TRIAL COURT WHICH DID NOT CONFORM TO OHIO RULE OF CIVIL

PROCEDURE 8 AND WHICH, DUE TO ITS FORM, MADE THE APPELLANTS

UNDULY SUSCEPTIBLE TO JUDGMENT ON THE PLEADINGS."

                                           II

      {¶4}   "THE PLAINTIFF-APPELLEE IS NOT THE REAL PARTY IN INTEREST

ENTITLED TO FORECLOSURE."

                                           I

      {¶5}   Appellants claim the trial court erred in granting appellee's motion for

judgment on the pleadings under Civ.R. 12(C) because the "paper" they filed was not a
Richland County, Case No. 11CA125                                                       3


pleading as it was made on a form supplied by the trial court which failed to conform to

Civ.R. 8. We disagree.

      {¶6}   Civ.R. 12(C) states, "[a]fter the pleadings are closed but within such time

as not to delay the trial, any party may move for judgment on the pleadings."

      {¶7}   As stated by this court in Estate of Heath v. Grange Mutual Casualty

Company, Delaware App. No. 02CAE05023, 2002-Ohio-5494, ¶8-9:

      {¶8}   "The standard of review of the grant of a Motion for Judgment on the

Pleadings is the same as the standard of review for a Civ. R. 12(B)(6) Motion. As the

reviewing court, our review of a dismissal of a complaint based upon a judgment on the

pleadings requires us to independently review the complaint and determine if the

dismissal was appropriate.    Rich v. Erie County Department of Human Resources

(1995), 106 Ohio App.3d 88, 91, 665 N.E.2d 278. Judgment on the pleadings may be

granted where no material factual issue exists. However, it is axiomatic that a motion

for judgment on the pleadings is restricted solely to the allegations contained in those

pleadings. Flanagan v. Williams (1993), 87 Ohio App.3d 768, 623 N.E.2d 185. See,

also, Nelson v. Pleasant (1991), 73 Ohio App.3d 479, 481, 597 N.E.2d 1137; Barilatz v.

Luke (Dec. 7, 1995), Cuyahoga App. No. 68304, unreported, 1995 WL 723294.

      {¶9}   "A reviewing court need not defer to the trial court's decision in such

cases. Id. A Motion for a Judgment on the Pleadings, pursuant to Civ. R. 12(C),

presents only questions of law. Peterson v. Teodosia (1973), 34 Ohio St.2d 161, 165-

166, 297 N.E.2d 113. The determination of a motion under Civ. R. 12(C) is restricted

solely to the allegations in the pleadings and the nonmoving party is entitled to have all
Richland County, Case No. 11CA125                                                       4


material allegations in the complaint, with all reasonable inferences to be drawn

therefrom, construed in her favor. Id."

       {¶10} Civ.R. 8 governs general rules of pleading. Subsections (B) through (F)

state the following:

       {¶11} "(B) Defenses; form of denials

       {¶12} "A party shall state in short and plain terms the party's defenses to each

claim asserted and shall admit or deny the averments upon which the adverse party

relies. If the party is without knowledge or information sufficient to form a belief as to

the truth of an averment, the party shall so state and this has the effect of a denial.

Denials shall fairly meet the substance of the averments denied.        When a pleader

intends in good faith to deny only a part or a qualification of an averment, the pleader

shall specify so much of it as is true and material and shall deny the remainder. Unless

the pleader intends in good faith to controvert all the averments of the preceding

pleading, the pleader may make the denials as specific denials or designated

averments or paragraphs, or the pleader may generally deny all the averments except

the designated averments or paragraphs as the pleader expressly admits; but, when the

pleader does intend to controvert all its averments, including averments of the grounds

upon which the court's jurisdiction depends, the pleader may do so by general denial

subject to the obligations set forth in Civ. R. 11.

       {¶13} "(C) Affirmative defenses

       {¶14} "In pleading to a preceding pleading, a party shall set forth affirmatively

accord and satisfaction, arbitration and award, assumption of risk, contributory

negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, want of
Richland County, Case No. 11CA125                                                        5


consideration for a negotiable instrument, fraud, illegality, injury by fellow servant,

laches, license, payment, release, res judicata, statute of frauds, statute of limitations,

waiver, and any other matter constituting an avoidance or affirmative defense. When a

party has mistakenly designated a defense as a counterclaim or a counterclaim as a

defense, the court, if justice so requires, shall treat the pleading as if there had been a

proper designation.

       {¶15} "(D) Effect of failure to deny

       {¶16} "Averments in a pleading to which a responsive pleading is required, other

than those as to the amount of damage, are admitted when not denied in the responsive

pleading.   Averments in a pleading to which no responsive pleading is required or

permitted shall be taken as denied or avoided.

       {¶17} "(E) Pleading to be concise and direct; consistency

       {¶18} "(1) Each averment of a pleading shall be simple, concise, and direct. No

technical forms of pleading or motions are required.

       {¶19} "(2) A party may set forth two or more statements of a claim or defense

alternately or hypothetically, either in one count or defense or in separate counts or

defenses. When two or more statements are made in the alternative and one of them if

made independently would be sufficient, the pleading is not made insufficient by the

insufficiency of one or more of the alternative statements. A party may also state as

many separate claims or defenses as he has regardless of consistency and whether

based on legal or equitable grounds.      All statements shall be made subject to the

obligations set forth in Rule 11.

       {¶20} "(F) Construction of pleadings
Richland County, Case No. 11CA125                                                     6


      {¶21} "All pleadings shall be so construed as to do substantial justice."

      {¶22} The "paper" appellants filed on August 31, 2010 was made on a form

provided to defendants in foreclosure actions. It is captioned "Answer in Mortgage

Foreclosure Case." Appellants argue their answer to Question No. 8 should not be

construed as an admission to the facts set forth in the foreclosure complaint:

      {¶23} "8. Do you dispute any of the statements made in the complaint? No.

      {¶24} "If you do dispute the statements in the complaint, state the reasons you

dispute them. Attach an additional sheet if you don't have enough room to write below:

(You may want to seek the help of an attorney in answering this question).

      {¶25} "Currently in modification plan for reduced payment. Called BAC on 8-24-

10 & the advised loan is assigned to underwriter & could take up to 45 days before we

have an answer, advised us to call back at least every other week, and also advised us

to hold on to ½ payments that we were sending until we have answer."

      {¶26} Appellants now argue they were not properly informed by the supplied

form that they could have had defenses to the action, in particular, a real party in

interest defense under Civ.R. 17. We disagree and note the form contains a caution

that advice of counsel may be necessary to answer the complaint.             The "paper"

complies with the mandates of Civ.R. 8 and is in fact an "answer," although it does

include issues unrelated to what a proper answer may include. We are loath to criticize

a trial court that goes the extra mile in assisting defendants subject to foreclosure by

providing a form for answer to avoid unnecessary costs, delays, and default.

      {¶27} Once the trial court reviewed the answer, it referred the case to

conciliation and stayed the case:
Richland County, Case No. 11CA125                                                     7


       {¶28} "It is hereby ORDERED that this case is referred to the Richland County

Mortgage Conciliation Program.***

       {¶29} "***

       {¶30} "A referral of a case to the Mortgage Conciliation Program shall constitute

a stay of all proceedings. The court will hold in abeyance ruling on any and all motions

dispositive in nature until the court is satisfied that the terms and conditions of the

Mortgage Conciliation Program have been fully met."             Referral to Conciliation

(Foreclosure) filed September 10, 2010.

       {¶31} Some five months later, the trial court removed the case from conciliation,

finding the following:

       {¶32} "Defendants have complied with the requirements of the Richland County

Mortgage Conciliation Program; however, they do not qualify for any home retention

workout option at this time.

       {¶33} "Plaintiff is entitled to pursue judgment and any future efforts for loss

mitigation may be implemented after judgment. Therefore, this case is hereby removed

from the Richland County Mortgage Conciliation Program and returned to the court's

regular litigation track." Judgment Entry filed February 15, 2011.

       {¶34} On August 5, 2011, appellee filed a motion for judgment on the pleadings

under Civ.R. 12(C). In response, appellants filed a memorandum on September 16,

2011, raising the defenses of failing to properly assign the mortgage to appellee and

appellee was not the real party in interest. No objections were raised to Counts 3 and 4

of the complaint: reformation of the mortgage's omission of the legal description of the

subject property and the marital status of the parties.
Richland County, Case No. 11CA125                                                           8


       {¶35} Based upon the purposes of notice pleading, we find the "answer" filed

conforms to Civ.R. 8 and the trial court did not err in interpreting the statements therein

as an admission of default. We note the trial court addressed the issue of the real party

in interest in its November 28, 2011 order even though the issue was omitted as a

defense in the answer.

       {¶36} Assignment of Error I is denied.

                                              II

       {¶37} Appellants claim the trial court erred in finding appellee was the real party

in interest and the assignment filed along with the complaint was valid. We disagree.

       {¶38} The original note in this case was given to America's Wholesale Lender, a

New York corporation with a California address. The mortgage was given to Mortgage

Electronic Registration Systems, Inc. (hereinafter "MERS"), a Delaware corporation with

a Michigan address.         Thereafter, MERS assigned the mortgage in Texas to

Countrywide Home Loans, Inc. which is located in Texas. Countrywide in turn assigned

the mortgage to appellee.

       {¶39} During oral argument, appellants raised the issue of whether Counts 3 and

4 of the complaint (reformation of the mortgage) were resolved by the trial court's

December 22, 2011 finding and decree in foreclosure and reformation of mortgage. We

note the trial court addressed the issue in the decree as follows:

       {¶40} "The Court finds that as the result of a mistake by the plaintiff's

predecessor, the mortgage executed by the primary defendants and delivered by them

to plaintiff's predecessor in interest did not include the legal description included with the

mortgage; and plaintiff is further entitled to an order of this Court decreeing the property
Richland County, Case No. 11CA125                                                           9


as described in Exhibit 'A' attached hereto be sold by the sheriff of this county at

sheriff's sale.

       {¶41} "The Court finds that as the result of a scrivener's error and mutual

mistake of fact between the parties thereto, the granting clause and the

acknowledgment clause in the mortgage executed by the primary defendants and

delivered by them to plaintiff, does not contain the marital status of the mortgagors.

Plaintiff is entitled to have the subject mortgage be reformed to reflect that Mark F.

Willison, unmarried and Linda Tucker, unmarried."

       {¶42} In its November 28, 2011 order, the trial court addressed the issue of the

mortgage assignment as follows:

       {¶43} "The court finds that the Mortgage and Promissory Note were properly

assigned and transferred to BAC Home Loans Servicing, LP fka Countrywide Home

Loans Servicing LP, the Plaintiff in this action, and therefore Plaintiff is the real party in

interest pursuant to Ohio R. Civ. P. 17."

       {¶44} As noted by the trial court, the assignment to appellee was made prior to

the filing of the foreclosure complaint and was attached to the complaint. Also attached

as Exhibits A and B were the mortgage and note which evidenced that appellee had

physical possession of the documents.

       {¶45} Despite appellants' argument that the mortgage was assigned in Texas as

opposed to Michigan where MERS was located, we find this specter does not raise

facts that properly challenge the mortgage assignment. No evidence contrary to the

trial court's conclusion was ever presented.

       {¶46} Assignment of Error II is denied.
Richland County, Case No. 11CA125                                               10


      {¶47} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Edwards, J. concur.




                                         _s/ Sheila G. Farmer______________



                                         _s/ W. Scott Gwin________________



                                         _s/ Julie A. Edwards______________

                                                      JUDGES

SGF/sg 601
[Cite as BAC Home Loans Servicing, LP v. Willison, 2012-Ohio-2898.]


                 IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT




BAC HOME LOANS SERVICING, LP                         :
                                                     :
        Plaintiff-Appellee                           :
                                                     :
-vs-                                                 :           JUDGMENT ENTRY
                                                     :
MARK F. WILLISON, ET AL.                             :
                                                     :
        Defendants-Appellants                        :           CASE NO. 11CA125




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

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellants.




                                                     _s/ Sheila G. Farmer______________



                                                     _s/ W. Scott Gwin________________



                                                     _s/ Julie A. Edwards______________

                                                                      JUDGES
