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EMC Mortgage Corp. v. Jenkins11/1/2005
ch cases, the court granted summary judgment in favor of the driver based on the two-dismissal rule. Although the state, as subrogee, was not a party to the previous actions initiated by the estate, the court held that, because the estate-subrogor's claims were barred by res judicata under the two-dismissal rule, there was an adverse final judgment binding against the state. Id. at 717.
{ } Ohio courts do not limit application of the doctrine of res judicata to cases where the parties to the later action are identical to those in the earlier action. Rather, res judicata also applies where there is privity between the parties in the two cases. Johnson's Island v. Bd. of Twp. Trustees (1982), 69 Ohio St.2d 241, 244; Grava at 381. EMC obtained its interest in the underlying note and mortgage by assignment. "An assignee 'stands in the shoes of the assignor * * * and succeeds to all the rights and remedies of the latter.' " Siebert v. Columbus & Franklin Cty. Metro. Park Dist. (Dec. 28, 2000), Franklin App. No. 00AP-583, quoting Inter Ins. Exchange v. Wagstaff (1945), 144 Ohio St. 457, 460. An assignee of an interest in a promissory note and mortgage is in privity with its assignor for purposes of res judicata. See Diversified Financial Serv., Inc. v. Wood (Sept. 26, 1996), Lawrence App. No. 96 CA 9.
{ } EMC accepted assignment of the note and mortgage after Chase had voluntarily dismissed a foreclosure action based on the note and mortgage and had refiled those claims against appellant. When Chase again voluntarily dismissed those claims, that dismissal constituted an adjudication of the claims on the merits in appellant's favor and a dismissal with prejudice. The doctrine of res judicata would bar any further attempt by Chase to recover on the note or to foreclose the mortgage. Because EMC is in privity with Chase and stands in Chase's shoes, res judicata likewise bars any attempt by EMC to recover on those claims.
{ } EMC next argues that the two-dismissal rule is inapplicable because its claims differ from the claims previously asserted by Chase. Comparison of EMC's complaint with Chase's second complaint suggests otherwise. With the exception of one additional sentence, which incorporates documents evidencing the assignment of the note and mortgage to EMC, the first two counts of EMC's complaint are identical to the claims Chase alleged in its second complaint. Likewise, EMC's prayer for relief is identical to the prayer for relief in Chase's second complaint. Like Chase, EMC asserts claims for breach of the note and foreclosure of the mortgage. Also like Chase, EMC seeks recovery of the entire principle balance because appellant has not made a single payment on the note.
{ } Despite the almost identical allegations in its complaint and Chase's prior complaint, EMC argues that its claims are based on different acts of default from Chase's prior claims. EMC claims that, because the note imposed on appellant a continuing obligation to make monthly payments, each failure to pay constituted a separate event of default, giving rise to a new cause of action. EMC's position would render the Civ.R. 41(A)(1) two-dismissal rule meaningless in the context of foreclosure actions because every successive attempt to foreclose a mortgage could be construed as a new claim. EMC cites no legal authority in support of its attempt to distinguish its claims from the claims twice previously asserted and dismissed by Chase.
{ } Although Ohio courts have been known to distinguish between claims arising from different events of default in successive foreclosure actions based on the same note and mortgage, the factual scenarios in which courts have done so are distinguishable. I
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