IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO …

IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO

DEUTSCHE BANK NATIONAL ) Case No: CV 2016-03-1477 TRUST COMPANY as Trustee for ) GSAA Home Equity Trust 2006-15 ) JUDGE: JOY MALEK OLDFIELD Asset Backed Certificates Series 2006-15 ) ) Plaintiff, ) v. )

) DEFENDANTS ) JAMES AND MICHELE KALISTA’S

JAMES KALISTA, et al., ) NOTICE OF APPEAL ) Defendants. )

Now come the Defendants, James and Michele Kalista, by and through counsel, and

hereby give notice of appeal to the Ninth District Court of Appeals, Summit County, Ohio, from

the Judgment Entry denying their Motion to Cancel Sale dated November 30, 2021, the

Judgment Entry/Decree of Foreclosure dated September 28, 2017, and the ORDER dated

September 27, 2017.

Respectfully submitted,

/s/ William C. Behrens William C. Behrens (0093031) Law Office of William C. Behrens 9512 Catalpa Circle Mentor, OH 44060 216-323-4567 ph 440-299-6575 fax [email protected]

Attorneys for Defendants

CV-2016-03-1477 NNOP12/30/2021 11:56:43 AMOLDFIELD, JOY M of 25

Sandra Kurt, Summit County Clerk of Courts

CA-30210 NOAP12/30/2021 11:56:43 AMAppeals, Court of Page 1 of 25


CERTIFICATE OF SERVICE

I hereby certify that on December 30, 2021, a copy of the foregoing was submitted electronically to the Court. Notice of this filing will be served via regular U.S. Mail to his, her or its respective address as indicated below:

Deutsche Bank National Trust Company Robert Hoose/Ashley Mueller Clunk Hoose 495 Wolf Ledges Parkway, Akron, OH 44311 Atty for Plaintiff Mortgage Electronic Registration Systems, Inc. Robert Hoose/Laura Infante Clunk Hoose 495 Wolf Ledges Parkway Akron, OH 44311 Atty for Defendant MERS Willowbrook Master Association, Inc. James Vitale 100 7th Avenue Suite 150 Chardon, OH 44024. Chrissy Dunn Dutton Blank Rome, LLP 1700 PNC Center 201 East Fifth Street Cincinnati, OH 45202 Co-Counsel for Deutsche Bank National Trust Company

/s/ William C. Behrens William C. Behrens (0093031)





IN THE COURT OF COMMON PLEAS

COUNTY OF SUMMIT

DEUTSCHE BANK NATIONAL TRUST COMPANY

Plaintiff -vs-

JAMES KALISTA, et al.

Defendant

) ) ) ) ) ) ) )

CASE NO.: CV-2016-03-1477

JUDGE JOY MALEK OLDFIELD

ORDER

- - - This matter is before the court on Defendants James and Michelle

Kalista’s Motion to Cancel Sale. Plaintiff responded in opposition.

After consideration, the court DENIES Defendants’ Motion to Cancel

Sale.

IT IS SO ORDERED.


CC: ATTORNEY ROBERT R. HOOSE

ATTORNEY MARC E. DANN ATTORNEY WILLIAM C. BEHRENS ATTORNEY LAURA C. INFANTE ATTORNEY RICHARD J. SYKORA ATTORNEY BRIDEY MATHENEY ATTORNEY JAMES P. VITALE

MTA

CV-2016-03-1477 ORD-ORDE11/30/2021 08:36:08 AMOLDFIELD, JOY M Page 1 of 1






IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT

DEUTSCHE BANK NATIONAL TRUST COMPANY Plaintiff -vs- JAMES KALISTA, et al. Defendant

) ) ) ) ) ) ) )

CASE NO.: CV-2016-03-1477 JUDGE JOY MALEK OLDFIELD ORDER

- - -

This matter comes before the Court on the cross motions for summary

judgment filed by Plaintiff Deutsche Bank National Trust Company, as

Trustee for GSAA Home Equity Trust 2006-15, Asset-Backed Certificates,

Series 2006-15 (“Deutsche Bank”) and Defendants James and Michele Kalista

(“the Kalistas”). Both parties filed response and reply briefs.

Background and Procedural History

This is a residential foreclosure case. Deutsche Bank filed its Complaint

on March 18, 2016, seeking $335,081.02 plus interest at the rate of 7% per

year from April 1, 2008 from the alleged default of a note and mortgage for a

home located at 4300 Morely Drive, Aurora, Ohio. James Kalista is the only

party that signed the note at issue, although both James and Michelle Kalista

signed the mortgage. Because James Kalista discharged the personal

obligation on the note through bankruptcy, Deutsche Bank does not seek a

deficiency judgment.

James and Michelle Kalista filed an Answer and Counterclaim asserting

the defense of statute of limitations. Further, they allege the mortgage is a

CV-2016-03-1477 ORD-ORDE 09/27/2017 15:30:46 PM OLDFIELD, JOY M Page 1 of 12






cloud on the title to their real estate, and they are entitled to a judgment

removing the mortgage as an encumbrance upon the title.1

This is not the first foreclosure case against James and Michelle Kalista

regarding the note, mortgage, and property at issue in this case. On October

17, 2008, Litton Loan Servicing LP, as Servicer for GSAA Home Equity Trust

2006-15, filed a Complaint in foreclosure against the Kalistas seeking

$335,081.02 plus interest at the rate of 7% per year from April 1, 2008. In

that case, the Court issued a final judgment entry on March 12, 2014

dismissing the case without prejudice, for lack of standing. Deutsche Bank

then waited over two years before filing another foreclosure.

Findings of Fact

The following facts are not in dispute. James Kalista (“Kalista”) executed

a note with Irwin Mortgage Corporation on June 5, 2006 for $341,312.00 with

an interest rate of 7%. A mortgage for the property located at 4300 Morely

Drive, Aurora, Ohio secured the note. A representative of Irwin Mortgage

Corporation endorsed the note in blank the same day. From July 1, 2008

until September 1, 2011, Litton Loan Servicing LP (“Litton”) serviced the loan.

The last payment the Kalistas made on the loan was on or around April 1,

2008. Ocwen Loan Servicing, LLC (“Ocwen”), is currently servicing the loan

and has been since September 1, 2011.

1 In their Answer, James and Michelle Kalista denied that Deutsche Bank is entitled to enforce the note and asserted as affirmative defenses (1) real party in interest and (2) standing. However, the parties have since stipulated to facts that render these affirmative defenses moot, namely (1) that Deutsche Bank has been in possession of the note since at least January 15, 2016, prior to the date of filing of this case, and (2) the note is endorsed in blank.







On August 4, 2008, Litton sent the Kalistas a “Notice of Default and

Intent to Accelerate.” The letter states that the loan “is in default for failure to

pay amounts due.” It states, “If you have not cured the default within forty

five (45) days of this notice, Litton will accelerate the maturity date of the Note

and declare all outstanding amounts under the note immediately due and

payable.”

On October 17, 2008, Litton filed a Complaint in foreclosure against the

Kalistas. In the Complaint Litton stated, “Plaintiff exercised its option to

accelerate the entire amount due under the Note, and the full indebtedness is

immediately due and payable.” On May 4, 2009, Litton sent the Kalistas

another “Notice of Default and Intent to Accelerate.” On August 15, 2011,

Litton and/or Ocwen sent the Kalistas a notice of servicing transfer indicating

that, effective September 1, 2011, Ocwen was assuming servicing of the loan.

On March 12, 2014, the Court issued an order dismissing the case without

prejudice.

On August 11, 2015, Ocwen sent the Kalistas another “Notice of Default

and Intent to Accelerate.” On March 18, 2016, Deutsche Bank filed this case.

Summary Judgment Standard

Rule 56(C) of the Ohio Rules of Civil Procedure provides:

A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.

See also Dresher v. Burt, 75 Ohio St. 3d 280, 293, 1996-Ohio-107, 662 N.E.2d

264.







It is the moving party that “bears the initial responsibility of informing

the court of the basis for the motion and identifying those portions of the

record which support his or her claim.” Vahilla v. Hall, 77 Ohio St.3d 421,

430, 1997-Ohio-259, 674 N.E.2d 1164. However, if this initial burden is met,

the non-moving party has a reciprocal burden to respond, by affidavit or as

otherwise provided in the rule, in an effort to demonstrate a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St. 3d 280, 293, 1996-Ohio-107, 662

N.E.2d 264. Any doubts must be resolved in favor of the nonmoving party.

Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12, 13 Ohio App. 3d 7, 13

Ohio B. 8, 467 N.E.2d 137 (6th Dist. 1983).

Deutsche Bank argues that James Kalista admits that he signed the

note and mortgage, and admits that he has not made a payment since April 1,

2008. It argues that the note and mortgage are in default, that it has complied

with all conditions precedent, and that it is entitled to foreclose on the home.

Statute of Limitations Affirmative Defense

James and Michelle Kalista assert that the statute of limitations on

Deutsche Bank’s claim began to run in 2008 and expired prior to the filing of

this Complaint. Their argument is based on R.C. 1303.16(A), which states:

“Except as provided in division (E) of this section, an action to enforce the

obligation of a party to pay a note payable at a definite time shall be brought

within six years after the due date or dates stated in the note or, if a due date

is accelerated, within six years after the accelerated due date.” The Eighth

District Court of Appeals recently recognized that R.C. 1303.16(A) applies in a

foreclosure action to enforce a note. Bank of N.Y. Mellon v. Walker, 8th Dist.

Cuyahoga No. 104430, 2017-Ohio-535, ¶9.







Deutsche Bank does not dispute that R.C. 1303.16(A) applies to

enforcement of a note. Furthermore, it does not dispute that it, or its

predecessor in interest, accelerated the loan. Rather, it argues that the loan

was “deaccelerated.” Deutsche Bank argues that that loan was

“deaccelerated” in the following ways: (1) when the Court dismissed the 2008

foreclosure on March 12, 2014; (2) when the parties engaged in loss

mitigation efforts; and (3) when it sent out the notice of default on August 11,

2015.

The Court finds that reinstate is the preferred term to “deaccelerate.”

See, e.g., U.S. Bank Natl. Assn. v. Gullotta, 120 Ohio St.3d 399, 899 N.E.2d

987, 2008-Ohio-6268, ¶19; see also Beneficial Ohio, Inc. v. Parish, 4th Dist.

Ross No. 11CA3210, 2012-Ohio-1146, ¶20. "’Reinstate’ means ‘[t]o reinstall;

to reestablish; to place again in a former state, condition, or office; to restore

to a state or position from which the object or person had been removed.’”

Beneficial Ohio, Inc., 2012-Ohio-1146, ¶20.

Paragraph 19 of the mortgage addresses reinstatement. It states that

the conditions under which the borrower may reinstate the loan

are that the Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default or any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys’ fees, property inspection and valuation fees, and other fees incurred for the purpose of protecting Lender’s interest in the Property and rights under this Security Instrument; and (d) takes such action as Lender may reasonably require to assure that Lender’s interest in the Property and rights under this Security Agreement, and Borrower’s obligation to pay the sums secured by this Security Instrument, shall continue unchanged.

It is undisputed that none of these conditions occurred.







Although Ohio courts have not addressed the issue of reinstatement

within the context of the state of limitations, the Court finds U.S. Bank Natl.

Assn. v. Gullotta instructive. In Gullotta, the Ohio Supreme Court discussed

how an acceleration clause applies within the context of the double dismissal

provision of Civ.R. 41(A)(1). 2008-Ohio-6268. The Court held that after a

lender had exercised its right to accelerate a loan, each subsequent missed

payment did not create a new cause of action, provided the agreement had not

changed or the parties had not reinstated the loan. Gullotta, 2008-Ohio-6268,

¶33. In finding that the double dismissal rule applied to bar a third action,

the Court looked to the following: (1) the complaint arose from the lender’s

original default, when the entire principal became due; (2) the lender did not

make a single payment after the debt was first declared due; (3) no terms of

the note had changed; and (4) the plaintiff asked for the same amount of

principal in each of its complaints. Id. at ¶36.

The Gullotta Court also discussed the meaning and purpose of an

acceleration clause, stating:

By agreeing to an acceleration clause, the parties in this case have avoided the operation of the general rule that nonpayment on an installment loan does not constitute a breach of the entire contract. In a contract with an acceleration clause, a breach constitutes a breach of the entire contract. Once Gullotta defaulted and U.S. Bank invoked the acceleration clause of the note, the contract became indivisible. The obligations to pay each installment merged into one obligation to pay the entire balance on the note.

Gullotta, 2008-Ohio-6268, ¶31.

It is undisputed that Deutsche Bank’s Complaint arises from the

Kalistas’ original default in 2008, that no payment has been made or accepted

since the debt was first declared due, that no terms of the note or mortgage







have changed, and that the amount of principal sought is the same in this

case as in the 2008 case. It is also undisputed that Litton, the servicer of the

loan in 2008, invoked the acceleration clause in 2008. Therefore, applying the

guidance of the Ohio Supreme Court, the lender accelerated the loan in 2008

and the parties have never reinstated the loan.

Deutsche Bank cites to Boren v. United States Nat'l Bank Ass'n, 807

F.3d 99 (5th Cir. Tex. 2015), a Fifth Circuit case applying Texas law. The

Boren Court noted that “Texas' intermediate appellate courts are in agreement

that the holder of a note may unilaterally abandon acceleration after its

exercise, so long as the borrower neither objects to abandonment nor has

detrimentally relied on the acceleration.” Id at 105. Deutsche Bank cites to no

Ohio court for the proposition that Ohio has adopted this position. The Court

finds that adopting this position would be inconsistent with the guidance from

the Ohio Supreme Court in Gullotta, 2008-Ohio-6268, and therefore declines

to do so.

Deutsche Bank also cites to the recent Florida Supreme Court case of

Bartram v. U.S. Bank N.A., 41 Fla. L. Weekly s493 (2016). Bartram states that

“each subsequent default accruing after the dismissal of an earlier foreclosure

action creates a new cause of action, regardless of whether that dismissal was

entered with or without prejudice.” Id. at *12. The Court finds this statement

inconsistent with the holding in Gullotta, 2008-Ohio-6268.

Based on the above, the Court finds that Deutsche Bank, or its

predecessors in interest, accelerated the note in 2008. The parties did not

reinstate the loan. Therefore, the six-year statute of limitations contained in

R.C. 1303.16(A) bars Deutsche Bank from enforcing the note. Under R.C.







2305.19(A), the savings statute, Deutsche Bank could have timely filed its

Complaint within one year of date the Court dismissed the first case.

However, it failed to do so.

Deutsche Bank’s Cause of Action to Enforce the Mortgage

Deutsche Bank’s second cause of action seeks foreclosure based on the

mortgage. It argues that because it seeks an in rem foreclosure, the statute of

limitations with respect to the note is irrelevant. In support, it relies on

Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-Ohio-4603,

which states, “An action at law on a promissory note to collect a mortgage

debt is separate and distinct from an action in equity to enforce the mortgage

lien on the property.” Paragraph one of the syllabus. Holden dealt with

standing, and holds that when bankruptcy has discharged the underlying

note, “the holder of the mortgage has standing to foreclose on the property

and to collect the deficiency on the note from the foreclosure sale of the

property.” Id. at paragraph two of the syllabus.

Holden recognized the longstanding principle in Ohio that “upon a

mortgagor's default, the mortgagee may elect among three separate and

independent remedies to collect the debt secured by a mortgage.” Id. at ¶21.

First, the “mortgagee may seek a personal judgment against the mortgagor to

recover the amount due on the promissory note, without resort to the

mortgaged property.” Id. at ¶22. Second, a mortgagee may “bring an action to

enforce the mortgage, which ‘is for the exclusive benefit of the mortgagee and

those claiming under him.’” Id. at ¶23, quoting Phelps' Lessee v. Butler, 2

OHIO 224, 226 (1826). “[T]he mortgagee may bring an action in ejectment to

take possession of the mortgaged property, receive the income from it, and







apply the proceeds to the debt, restoring the property to the mortgagor when

the debt is satisfied.” Holden, 2016-Ohio-4603, ¶23. Third, “based on the

property interest created by the mortgagor's default on the mortgage, the

mortgagee may bring a foreclosure action to cut off the mortgagor's right of

redemption, determine the existence and extent of the mortgage lien, and

have the mortgaged property sold for its satisfaction.” Deutsche Bank seeks

this remedy.

In Bank of N.Y. Mellon v. Walker, 8th Dist. Cuyahoga No. 104430, 2017-

Ohio-535, the Eighth District held that even if the six-year statute of

limitations of R.C. 1303.16 prevents a plaintiff from enforcing a note, a

separate cause of action exists under the mortgage. Id. at ¶19. Furthermore,

the Eighth District recognized that R.C. 2305.06, the statute of limitations for

written contracts, applies to mortgages. Although R.C. 2305.06, as amended

in 2012, provides for an eight year statute of limitations, when a cause of

action accrued prior to the effective date of the amendment, the prior fifteen

year statute of limitations applies (or eight years from the 2012 effective date,

whichever occurs first). See 2012 Sub.S.B. No. 224; see also Walker, 2017-

Ohio-535, ¶19.

The Eighth District constructed Holden as overruling the previously

“well settled proposition” that “when a debt that is secured by a mortgage is

barred by the statute of limitations, the mortgage securing the debt is also

barred.” Walker, 2017-Ohio-535, ¶21, quoting Barnets, Inc. v. Johnson, 12th

Dist. Preble No. CA2004-02-005, 2005-Ohio-682, ¶19. It is important to note

that the previously “well settled proposition” was derived from the fact that

prior to 1994, the same statute of limitations applied to notes and mortgages.







See Kerr v. Lydecker, 51 Ohio St. 240, 254-55, 37 N.E. 267 (1894) (“when a

note is secured by mortgage, the statute of limitations as to both is the

same”); see also R.C. 1303.16 (effective August 19, 1994). Prior to 1994, a

fifteen-year statute of limitations applied to both. See Ryan v. Zaffiro, 111

Ohio App. 463, 468, 166 N.E.2d 246, 83 Ohio L. Abs. 193, 15 Ohio Op. 2d

144 (1st Dist. Hamilton 1960).

Ohio law has always recognized that even when the statute of

limitations bars a plaintiff from enforcing a note or bringing a foreclosure

action to enforce a mortgage, the mortgagee may still bring an action in

ejectment under the longer statute of limitations. See Bradfield v. Hale, 67

Ohio St. 316, 65 N.E. 1008, paragraph two of the syllabus (1902) (“If his

action is in ejectment, the statutory bar of fifteen years, as provided in Section

4980, Revised Statutes, does not apply. The bar in such case is twenty-one

years as provided in Section 4977, Revised Statutes.”); see also Barnets, Inc.,

2005-Ohio-682, ¶20 (“when a mortgagee is barred from bringing an action on

the debt secured by the mortgage, there remains in the mortgagee his legal

title in the mortgaged premises and, thus, his right to maintain an action in

ejectment.”)

Furthermore, the Ohio Supreme Court recognized long ago that “the bar

of the note, or other instrument secured by mortgage, does not necessarily

bar an action on the mortgage.” Kerr v. Lydecker, 51 Ohio St. 240, 253, 37

N.E. 267 (1894), citing Fisher's Ex'r v. Mossman, 11 Ohio St. 42, 45 (1860)

(“But does it follow that because an action on the notes secured by the

mortgage is barred by the statute, that therefore the remedy in equity on the

mortgage is also lost? We think not.”). Therefore, while there has been some







confusion on this issue, Holden and Walker are consistent with long-standing

Ohio law.

As in Walker, Deutsche Bank’s second cause of action seeks foreclosure

of the mortgage. See ¶¶4-5 of Plaintiff’s Complaint. The Court finds that, as in

Walker, the longer statute of limitations of R.C. 2305.06 applies to

enforcement of the mortgage. As the cause of action occurred prior to the

effective date of the 2012 amendment to R.C. 2305.06, Deutsche Bank has

until September 28, 2020 (eight years after the effective date) to enforce its

claim with respect to the mortgage. See Sub.S.B. No. 224. Therefore, its claim

to foreclosure on the mortgage is timely.

Conclusion

The Court finds that there are no genuine issues of material fact and

that reasonable minds can come to but one conclusion. Deutsche Bank’s

Complaint on the note is time barred pursuant to R.C. 1303.16(A). However,

the Complaint on the mortgage is not time barred. James and Michele Kalista

have breached the mortgage by failing to make payment as agreed in

paragraph one, Deutsche Bank has accelerated the mortgage pursuant to

paragraph twenty-two, and the Kalistas have not cured the default. The Court

has weighed the equities and finds that foreclosure is the appropriate remedy.

On Count One of the Complaint, the Kalistas’ motion for summary

judgment is hereby GRANTED and Deutsche Bank’s motion for summary

judgment is hereby DENIED.

On Count Two, Deutsche Bank’s motion for summary judgment is

hereby GRANTED and the Kalistas’ motion for summary judgment is hereby

DENIED.







On the Kalistas’ Counterclaim, Deutsche Bank’s motion for summary

judgment is hereby GRANTED and the Kalistas’ motion for summary

judgment is hereby DENIED

IT IS SO ORDERED.


CC: ATTORNEY CHARLES V. GASIOR

ATTORNEY ASHLEY E. MUELLER ATTORNEY LAURA C. INFANTE ATTORNEY MICHAEL J. LUBES ATTORNEY RICHARD J. SYKORA ATTORNEY JAMES P. VITALE

PEZ







15-12459

IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO

Deutsche Bank National Trust Company, as Trustee for GSAA Home Equity Trust 2006-15, Asset-Backed Certificates, Series 2006-15 Plaintiff -vs-

CASE NO. CV-2016-03-1477 JUDGE JOY MALEK OLDFIELD

James Kalista, et al. Defendant(s)

FINAL JUDGMENT ENTRY and DECREE IN FORECLOSURE

This matter comes before the Court on Plaintiff’s Complaint in foreclosure, the Court’s

Order granting Summary Judgment in favor of Plaintiff and against Defendants James and

Michele Kalista on Count Two of the Complaint, Defendant Willowbrook Master Association,

Inc.’s Answer, Defendant Mortgage Electronic Registration Systems, Inc. as nominee for Irwin

Mortgage Corporation’s Answer, and the evidence.

The Court finds that all necessary parties have been served with summons according to

law and are properly before the Court.

The Court finds that there is due the Treasurer of Summit County, taxes, accrued taxes,

assessments and penalties on the premises described herein, as shown on the County Treasurer's

tax duplicate, the exact amount being unascertainable at the present time, but which amount will

be ascertainable at the time of sale; which is a valid and subsisting first lien thereon for that

amount so owing as of the day of the confirmation of sale.

The Court finds on the evidence adduced that there is due Plaintiff on Count Two of the

Complaint the sum of $335,081.02, plus interest thereon at the rate of 7% per annum from April

1, 2008; plus all late charges due under the Mortgage, all advances made for the payment of real

CV-2016-03-1477 ORD-DECR 09/28/2017 09:45:45 AM OLDFIELD, JOY M Page 1 of 10






estate taxes and assessments and insurance premiums, and all costs and expenses incurred for the

enforcement of the Mortgage, except to the extent the payment of one or more specific such

items is prohibited by Ohio law, for which sum judgment is hereby rendered in favor of Plaintiff.

The Court finds that the Defendant, James Kalista, filed a Chapter 7 Bankruptcy case in

the U.S. Bankruptcy Court, Northern District of Ohio, Eastern Division, under Case Number 09-

50526 and that Plaintiff is not pursuing a personal money judgment against said Defendant.

The Court finds that in order to secure the payment of the promissory note aforesaid, the

Defendants, James Kalista and Michele Kalista, Husband and Wife, executed and delivered to

Mortgage Electronic Registration Systems, Inc. as nominee for Irwin Mortgage Corporation, a

mortgage deed as set forth in the Second Count of said Complaint thereby conveying to it the

following described premises:

SEE LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT “A ” Said premises also known as 4300 Morley Drive, Aurora, OH 44202 PPN: 6601349

The Court finds that said mortgage was duly filed with the Summit County Recorder on

June 5, 2006 and recorded in Instrument No 55330169 of the Mortgage Records of said County

and thereby became and is a valid first mortgage lien upon said premises, subject only to the lien

of the Treasurer for taxes; that said mortgage deed was assigned to the Plaintiff; Assignment from

Mortgage Electronic Registration Systems, Inc. as nominee for Irwin Mortgage Corporation to

Litton Loan Servicing LP, as Servicer for GSAA Home Equity Trust 2006-15, Recorded on October

7, 2008 in Instrument No 55576370 of Summit County, Ohio Records, and attached hereto as

Exhibit “B”, Corrective Assignment from Mortgage Electronic Registration Systems, Inc., as

nominee for Irwin Mortgage Corporation, its successors and assigns to Deutsche Bank National







Trust Company, as Trustee for GSAA Home Equity Trust 2006-15, Asset-Backed Certificates,

Series 2006-15, Recorded on February 18, 2016 in Instrument No 56191006 of Summit County,

Ohio Records, and attached hereto as Exhibit “C”, that said conditions in the mortgage deed have

been broken and the same has become absolute and that Plaintiff is entitled to have the equity of

redemption and dower of all Defendants in and to said premises foreclosed.

The Court finds that Plaintiff has and will from time to time advance sums for taxes,

insurance and property protection. Plaintiff has the first and best lien for these amounts in

addition to the amount set forth above. The Court makes no finding as to the amounts of the

advances and continues same until the confirmation of sale.

The Court finds that the Defendants, Willowbrook Master Association, Inc. and Mortgage

Electronic Registration Systems, Inc. as nominee for Irwin Mortgage Corporation, claim some

right, title, interest or lien upon the premises described herein, as set forth in its Answer filed

herein, but that any right, title, interest, claim or lien said Defendants may have is inferior and

subsequent to the lien of Plaintiff.

The Court further finds that as of the time of the filing of the Complaint herein on the

18th day of March, 2016, and pursuant to O.R.C. § 2703.26, the present action was pending so as

to charge third persons with notice of its pendency. From that time and date, no interest can be

acquired by third persons in the property which is the subject of this action, as against the

Plaintiff’s title.

The Court further finds that there is no just reason for delay in entering judgment herein.

ORDER

It is therefore ORDERED, ADJUDGED AND DECREED that unless the sums found

due herein, together with the costs of this action be fully paid within three (3) days from the date







of the entry of this decree, the equity of redemption and dower of all Defendants in and to said

premises shall be foreclosed and that Plaintiff may cause an order of sale to be issued to the

Sheriff of Summit County, directing him to appraise, advertise in a paper of general circulation

within the County and sell said premises as upon execution and according to law free and clear

of the interest of all parties to this action.

It is further ordered that the Sheriff, upon confirmation of sale, shall pay from the

proceeds thereof the following:

FIRST: To the Clerk of Courts the costs of this action, including the fees of the

appraisers. SECOND: To the Summit County Treasurer, real estate taxes, assessments, interest

and penalties due and payable on said premises. THIRD: To the Plaintiff, the sum of $335,081.02 plus interest thereon at the rate of

7% per annum from April 1, 2008, together with all late charges due under the Mortgage, any deferred non interest/interest bearing amount(s), all advances made for the payment of real estate taxes and assessments and insurance premiums, and all costs and expenses incurred for the enforcement of the Mortgage, except to the extent the payment of one or more specific such items is prohibited by Ohio law.

FOURTH: To the Defendant, Mortgage Electronic Registration Systems, Inc., as

nominee for Irwin Mortgage Corporation. FIFTH: To the Defendant, Willowbrook Master Association, Inc. SIXTH: The balance, if any, to be deposited with the clerk pending further order of

the Court. TO THE CLERK:

PURSUANT TO CIVIL RULE 58(B), THE CLERK IS DIRECTED TO SERVE UPON

THE PARTIES A NOTICE OF THE FILING OF THIS JUDGMENT ENTRY AND OF THE

DATE OF ENTRY UPON THE JOURNAL.

RECORD IS HEREBY ORDERED.








CC: ATTORNEY CHARLES GASIOR ATTORNEY ASHLEY MUELLER ATTORNEY MICHAEL LUBES ATTORNEY RICHARD SYKORA ATTORNEY JAMES VITALE APPROVED BY: CLUNK, PAISLEY, HOOSE CO., L.P.A. _/s/ Ashley E. Mueller______________ Ashley E. Mueller #0084931 Jason A. Whitacre #0077330 Attorneys for Plaintiff 4500 Courthouse Blvd., Suite 400 Stow, OH 44224 (330) 436-0300 - telephone (330) 436-0301 - facsimile [email protected] Sent for approval on 3/15/2017 – no response Michael J. Lubes #0077672 Attorney for Defendants, James Kalista and Michele Kalista Received approval via email on 3/15/2017 James Paul Vitale #0080873 Attorney for Defendant, Willowbrook Master Association, Inc. Approved 3/17/2017________________ Laura C. Infante #0082050 Attorney for Defendant Mortgage Electronic Registration Systems, Inc., as nominee for Irwin Mortgage Corporation







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