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G v U.S. Bank 2 w

G v U.S. Bank 2 w

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Published by: DinSFLA on May 11, 2011
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05/11/2011

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[Cite as
U.S. Bank, N.A. v. Gullotta
, 2011-Ohio-2235.]
 
COURT OF APPEALSSTARK COUNTY, OHIOFIFTH APPELLATE DISTRICTU.S. BANK, N.A., AS TRUSTEEPlaintiff-Appellee-vs-GIUSEPPE GULLOTTA, ET AL.Defendant-AppellantJUDGES:Hon. W. Scott Gwin, P.J.Hon. William B. Hoffman, J.Hon. Patricia A. Delaney, J.Case No. 2010CA00181O P I N I O NCHARACTER OF PROCEEDING: Appeal from the Stark County Court ofCommon Pleas, Case No. 2009CV02397JUDGMENT: Reversed and RemandedDATE OF JUDGMENT ENTRY: May 9, 2011APPEARANCES:For Plaintiff-Appellee For Defendant-AppellantSCOTT A. KING TIMOTHY D. MCKINZIETERRY W. POSEY, JR. KERRY G. FULTONThompson Hine LLP McKinzie and Associates2000 Courthouse Plaza, N.E. 529 White Pond DriveP.O. Box 8801 Adron, Ohio 44320-1123Dayton, Ohio 45404-8801
www.StopForeclosureFraud.com
 
Stark County, Case No. 2010CA00181 2
Hoffman, J.
{¶1}
Defendant-appellant Giuseppe Gullotta appeals the June 11, 2011Judgment Entry of the Stark County Court of Common Pleas entering summary judgment in favor of Plaintiff-appellee U.S. Bank, N.A.STATEMENT OF THE FACTS AND CASE
{¶2}
On June 18, 2003, Appellant executed an adjustable rate note (“Note”) inthe amount of $164,900.00 payable to MILA, Inc. The same day, to secure payment ofthe Note, Appellant executed a mortgage (“Mortgage”) granting MILA a security interestin the property located at 218 Bonnett Street, S.W., North Canton, Ohio 44720. MILAsubsequently assigned the Note and Mortgage to U.S. Bank.
{¶3}
Appellant failed to make payments when due, and defaulted under theterms of the Note and Mortgage. On November 1, 2003, U.S. Bank declared thepromissory note in default, accelerating payment due. On April 9, 2004, U.S. Bank fileda complaint against Appellant seeking judgment for the full balance of $164,390.91 dueon the Note, plus interest at the rate of 7.35 percent per annum from and afterNovember 1, 2003, and foreclosure of the Mortgage and a sheriff’s sale of the property(“First Lawsuit”). On June 8, 2004, U.S. Bank voluntarily dismissed the First Lawsuit inits entirety pursuant to Civil Rule 41(A).
{¶4}
Appellant did not make any payments after June 8, 2004. Accordingly,U.S. Bank filed a second complaint against Appellant on September 9, 2004, seeking judgment for the full balance of $164,390.91, plus interest at the rate of 7.35 percent perannum from and after December 1, 2003, and foreclosure of the Mortgage and a
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Stark County, Case No. 2010CA00181 3sheriff’s sale of the property (“Second Lawsuit”). On March 15, 2005, U.S. Bankdismissed the Second Lawsuit in its entirety pursuant to Civil Rule 41(A).
{¶5}
Appellant again did not make payments after March 15, 2005, orotherwise cure the default. On October 26, 2005, U.S. Bank filed a third complaintagainst Appellant seeking judgment for the full balance of $164,390.91, plus interest atthe rate of 7.35 percent per annum from and after November 1, 2003, and foreclosure ofthe Mortgage and a sheriff’s sale of the property (“Third Lawsuit”).
{¶6}
Appellant moved for summary judgment arguing the third foreclosureaction was barred by the doctrine of res judicata pursuant to Civil Rule 41(A), as thesecond dismissal constituted an adjudication on the merits. The trial court deniedAppellant’s motion for summary judgment, and entered summary judgment in favor ofU.S. Bank.
{¶7}
On appeal, this Court affirmed the trial court’s holding finding res judicatadid not bar U.S. Bank’s third foreclosure action as the complaint in the third foreclosureaction complaint covered different dates of default and months not litigated in the firsttwo complaints.
U.S. National Bank Assn. v. Gullotta 
(April 30, 2007) Stark App. No.2006CA00145.
{¶8}
The Ohio Supreme Court later reversed the judgment of this Court,holding res judicata barred U.S. Bank’s third foreclosure complaint.
U.S. National Bank Assn. v. Gullotta 
, 120 Ohio St. 3d 399, 2008-Ohio-6268. The Court held each missedpayment under the Note and Mortgage did not give rise to a new claim, and the CivilRule 41(A) two dismissal rule applied. Id.
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