BAC Home Loans Servicing, L.P. v. Loethen

[Cite as BAC Home Loans Servicing, L.P. v. Loethen, 2011-Ohio-1503.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: BAC HOME LOANS SERVICING, : Julie A. Edwards, P.J. L.P. fka COUNTRYWIDE HOME : W. Scott Gwin, J. LOANS SERVICING, L.P. : Patricia A. Delaney, J. : Plaintiff-Appellee : Case No. 10CAE070050 : -vs- : : OPINION

JEFFREY E. LOETHEN

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil Appeal from Delaware County Court of Common Pleas Case No. 09CVE121837

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: March 22, 2011 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

STACY L. HART JEFFREY E. LOETHEN, Pro Se Lerner, Sampson, & Rothfuss, LPA P.O.Box 401553 120 East Fourth Street, 8th Floor Las Vegas, NV 89140 Cincinnati, Ohio 45202

[Cite as BAC Home Loans Servicing, L.P. v. Loethen, 2011-Ohio-1503.] Edwards, P.J.

{¶1} Appellant, Jeffrey E. Loethen, appeals a summary judgment of the Delaware County Common Pleas Court on a complaint for foreclosure filed by appellee BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP.

STATEMENT OF FACTS AND CASE

{¶2} Appellee filed the instant foreclosure action against appellant on December 31, 2009, alleging that appellant was in default under a promissory note for the purchase of real property at 8951 Stonebridge Place, Powell, Ohio, and demanding enforcement of the mortgage. On January 19, 2010, appellee filed a Statement of Acceptability of the Legal Description for Transfer Purposes, as required by Delaware County Common Pleas Court Local Rule 38.02.

{¶3} Appellant filed a pro se answer on January 25, 2010. In his answer, appellant set forth the defense that Local Rule 38.02 requires the Statement of Acceptability to be filed simultaneously with the complaint.

{¶4} Appellee filed a motion for summary judgment. Appellant moved to dismiss the complaint for noncompliance with Local Rule 38.02. The motions were scheduled jointly for non-oral hearing by the trial court on June 2, 2010. The court granted appellee’s motion for summary judgment and denied appellant’s motion to dismiss on June 3, 2010. On June 23, 2010, the court issued a judgment on the complaint and decree in foreclosure. Appellant assigns a single error on appeal:

{¶5} “THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT WITHOUT ADDRESSING THE FAILURE OF THE

PLAINTIFF TO COMPLY WITH RULE 38.02 – STATEMENT OF ACCEPTABILITY OF Delaware County App. Case No. 10CAE070050 3

THE DELAWARE COUNTY LOCAL RULES OF PRACTICE OF THE COURT OF

COMMON PLEAS.”

{¶6} Local Rule 38.02 provides in pertinent part:

{¶7} “[T]he attorney for the plaintiff shall secure from the Delaware County Engineer, and file simultaneously with the complaint, a statement reflecting the acceptability, or lack thereof, of the description of the subject real estate, for transfer purposes.”

{¶8} It is undisputed in the instant case that the statement of acceptability was not filed simultaneously with the complaint, but was filed nineteen days thereafter.

{¶9} Ohio courts are permitted to enact local rules as long as such rules are not inconsistent with any rules governing practice and procedure promulgated by the Ohio Supreme Court. State ex rel. Henneke v. Davis (1986), 25 Ohio St.3d 23, 494 N.E.2d 1133.

{¶10} It is well-settled in Ohio law that the enforcement of local rules is a matter within the discretion of the court promulgating the rules. E.G. Dvorak v. Petronzio, 11th Dist. No. 2007-G-2752, 2007-Ohio-4957, ¶30; In re D.H., 8th Dist. No. 89219, 2007-Ohio-4069, ¶25.

{¶11} Appellant has not demonstrated that the court abused its discretion in overruling his motion to dismiss for appellant’s failure to file the Statement of Acceptability simultaneously with the complaint. The statement was filed January 19, 2010, a mere nineteen days after the complaint was filed, and before appellant filed an answer to the complaint. Appellant was not prejudiced in any way by the late filing of the statement of acceptability. Delaware County App. Case No. 10CAE070050 4

{¶12} The assignment of error is overruled.

{¶13} The judgment of the Delaware County Common Pleas Court is affirmed. By: Edwards, P.J. Gwin, J. and Delaney, J. concur

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JUDGES

JAE/r1130 [Cite as BAC Home Loans Servicing, L.P. v. Loethen, 2011-Ohio-1503.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

BAC HOME LOANS SERVICING, : L.P. fka COUNTRYWIDE HOME : LOANS SERVICING, L.P. : : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JEFFREY E. LOETHEN : : Defendant-Appellant : CASE NO. 10CAE070050

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 appellant.

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JUDGES