SMS Fin. XXVI, L.L.C. v. Waxman Chabad Ctr.

Citations

• 180 N.E.3d 730
• 2021 Ohio 4174

Syllabus

Civ.R. 56(C)/summary judgment Standing Uniform Commercial Code App.R. 12(A)/mootness of remaining assignments of error R.C. 1303.38/possession of instrument R.C. 1303.31(a)/person entitled to enforce lost note allonge prejudicial error commercial guarantees Civ.R. 8(C)/affirmative defenses mortgage doctrine of equitable subrogation Civ.R. 15(A)/motion for leave to amend the complaint doctrine of res judicata. Appellees sufficiently pled their defenses and it was not error where the trial court found that appellees did not waive their affirmative defenses. Appellant's argument that the trial court erred in determining that this court had not rendered judgment in its prior case had no merit where, in a prior appeal, one assignment of error was dispositive of the remaining nine assignments of error. The remaining nine assignments of error, which challenged the court's grant of summary judgment, were moot but that finding did not overturn the trial court's judgment. In its prior case, appellant failed to show that appellant was in possession of the original notes at the time the complaint was filed. The amendment to R.C. 1308.38 does not apply retroactively. In the instant case, appellant failed to attach the proper allonges to the copy of the notes. The trial court's grant of summary judgment as to the notes was proper, and the trial court did not err in its finding that appellant was unable to enforce the notes. Appellant is unable to enforce the note and is therefore unable to enforce the obligation it secures — the mortgage. Likewise, appellant is not the party entitled to enforce the notes and therefore is not a party to the guarantees and not entitled to enforce the guarantees securing the notes. Appellant, unable to enforce the notes, is not entitled to an equitable mortgage appellant did not plead mistake. The trial court's finding that equitable subrogation does not apply was proper. Appellant filed its motion to amend the complaint more than a year after the o