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EMC Mortgage Corp. v. Jenkins11/1/2005
n Aames Capital Corp. v. Wells (Apr. 3, 2002), Summit App. No. 20703, a mortgagee argued that the doctrine of res judicata barred a second foreclosure action on the same underlying note and mortgage. In the first foreclosure action against Wells, the court entered judgment against Aames and required Aames to reinstate the underlying note and mortgage. Aames filed the second foreclosure action after Wells failed to make required payments on the reinstated note and mortgage. The Ninth District Court of Appeals rejected Wells' res judicata defense, finding that the claims in the second action differed from those asserted in the first action. Likewise, in Midfed Sav. Bank v. Martin (July 13, 1992), Butler App. No. CA91-12-202, the Twelfth District Court of Appeals rejected a mortgagee's argument that the doctrine of res judicata barred a second foreclosure action. In that case, the defendant-mortgagee brought her loan current before execution of the judgment entered in the first foreclosure action. The plaintiff filed the second foreclosure action after the defendant-mortgagee again became delinquent on her loan. The court noted that the judgment entry in the first action explicitly stated that the claim related only to the delinquency that had arisen up to the date of judgment. The court thus found that the later delinquency was "entirely distinct" from the first delinquency. Id.
{ } Relying on Wells and Martin, the First District Court of Appeals held that a Civ.R. 41(A)(1) dismissal by the assignee of a note and mortgage is not a second dismissal where the assignor had previously dismissed a foreclosure action voluntarily. See Homecomings Financial Network, Inc. v. Oliver, Hamilton App. No. C-020325, 2003-Ohio-2668, at . However, like in Wells and Martin, the court was able to differentiate the claims asserted in the second action from those asserted previously. In Oliver, the First District noted that the assignee's claims differed from the assignor's previously asserted claims because the assignee's claims involved different rates of interest and different amounts of principal owed. Id. In the case presently before us, no such differences distinguish EMC's claims from Chase's previously dismissed claims.
{ } Appellant has not made the first payment on the note. Thus, appellant has continually remained in default since his first missed payment and throughout the three foreclosure actions commenced against him. At no time has appellant cured his default or had his loan reinstated. All three foreclosure complaints have sought judgment for the entire amount of principle due under the note, with accrued interest, late charges, advances for taxes and insurance, and costs. Unlike the scenarios in Wells and Martin, neither of the previous foreclosure actions against appellant dealt exclusively with previous amounts due. Rather, in each of the three cases against appellant, the plaintiff has sought the same relief. Oliver does not stand for the broad proposition that each missed payment under a promissory note and mortgage yields a new claim, such that any successive actions on the same note and mortgage involve different claims and are, thus, exempt from the two-dismissal rule.
{ } EMC also argues that its claims differ from those asserted by Chase because its complaint contains a claim for unjust enrichment, which Chase did not plead. The addition of an unjust enrichment claim does not save EMC's complaint from application of res judicata. In order for res judicata to bar a subsequent action, the claims asserted therein need not be identical to the claims asserted in the prior action. Rather, " valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim a
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