143539682
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`143539682
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`IN THE COURT OF COMMON PLEAS
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`CUYAHOGA COUNTY, OHIO
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`DATA MORTGAGE INC., DBA ESSEX
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`: Case No.: CV-22-968446
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`I i
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` JUDGE: DANIEL GAUL
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`I
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`MORTGAGE.
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`Plaintiff
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`Magistrate: Jim L. Jackson
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`II i
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` Parcel: 144-02-091
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`vs.
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`TIQUISHA W. WATKINS, ET AL.
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`Defendants
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`MAGISTRATE’S DECISION
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`This cause was submitted to the Magistrate and heard upon the Complaint, Motion for
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`Summary Judgment and Motion for Default Judgment of the Plaintiff, the separate Answers of the
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`Defendants, Tiquisha W. Watkins, United States of America, Department of Housing and Urban
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`Development, and Cuyahoga County Treasurer, and the evidence.
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`The Magistrate finds that the Plaintiff is the owner of the Note based upon Allonges which
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`were attached as exhibits to the Complaint filed in this matter, and Plaintiff is the owner of the
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`Mortgage based upon an assignment which was attached as an exhibit to the Complaint filed herein.
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`The Magistrate finds that all necessary parties have been properly served with summons,
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`according to law and are properly before the Court, and that the Defendants, John Doe, name
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`unknown, spouse of Tiquisha W. Watkins, Mortgage Electronic Registration Systems, Inc., as
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`nominee for CrossCountry Mortgage, Inc., Property Improvement Specialists, Inc., and John J. Urban,
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`are in default of Answer or other pleading and thereby confess the allegations of the Complaint to be
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`true. Plaintiffs Motion for Default Judgment is granted.
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`After viewing the evidence in a light most favorable to the non-moving party, the Magistrate
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`finds there is no genuine issue as to any material fact and that reasonable minds can come to but one
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`conclusion, and that is that the Plaintiff is entitled to a Judgment and Decree in Foreclosure as a matter
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`of law. Plaintiff’s Motion for Summary Judgment is hereby granted.
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`The Magistrate further finds that there is due to the Cuyahoga County Treasurer, taxes,
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`accrued taxes, assessments and penalties on the premises described herein, including: (1) taxes,
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`assessments, interest and penalties, the lien for which attaches before: the date of sale but that are not
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`yet determined, assessed and levied for the year that includes the date of sale, apportioned pro rata to
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`the part of that year that precedes the date of sale, and (2) all other taxes, assessments, penalties, and
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`interest which attached for a prior tax year but have not been paid on or before the date of the judicial
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`sale. The exact amount of said taxes, accrued taxes, assessments, and penalties are unascertainable
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`at this time, but will be determined at the time of sale of said premises for which amount the Cuyahoga
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`County Treasurer has a good and valid lien.
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`The Magistrate finds on the evidence adduced that there is due to the Plaintiff on the
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`promissory note set forth in the First Count of the Complaint in the sum of $149,429.96 with interest
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`thereon at the rate of4.5000% per annum from December 1,2020 for which sum judgment is hereby
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`rendered in favor of the Plaintiff and against the Defendant, Tiquisha W. Watkins.
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`The Magistrate further finds that in order to secure the payment of the promissory note
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`aforesaid, the defendant, Tiquisha W. Watkins, single woman, executed and delivered to Mortgage
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`Electronic Registration Systems, Inc., as nominee for CrossCountry Mortgage, LLC, a certain
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`mortgage deed as in the Second Count of the said Complaint described, thereby conveying to it the
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`following described premises:
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`(SEE EXHIBIT ‘A’ ATTACHED HERETO AND MADE A PART HEREOF)
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`PREMISES COMMONLY KNOWN AS:
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`3146 Ashwood Road
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`Cleveland, OH 44120
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`PERMANENT PARCEL NUMBER:
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`144-02-091
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`That said Mortgage was duly filed for record with the Recorder of Cuyahoga County on
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`October 15,2019, and was by him thereafter recorded in Instrument Number 201910150748, of this
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`County Record’s Office, and thereby became and is a valid first mortgage lien upon said premises,
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`subject only to the lien of the Treasurer, for taxes; that said mortgage deed was assigned to this
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`Plaintiff; that said conditions in the mortgage have been broken, and the same has become absolute,
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`and the Plaintiff is entitled to have the equity of redemption of all defendants named in this action in
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`and to said premises foreclosed.
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`The Magistrate finds that as the result of a scrivener's error and mutual mistake of fact between
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`the parties thereto, the mortgage executed by the defendant, Tiquisha W. Watkins, and delivered by
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`her to Plaintiff s predecessor contained an incorrect legal description. The parties intended to describe
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`the property described as Exhibit "A" attached hereto.
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`The Magistrate finds that because this mistake was the result of a scrivener's error and mutual
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`mistake of fact between the parties to said document, the above-described mortgage shall be reformed
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`to match the attached Exhibit "A" and the property shall be sold in accordance with Section §2329 of
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`the Ohio Revised Code.
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`The Magistrate further finds that that a deed was issued on October 15, 2019 to Tiquisha
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`W. Watkins, and was filed for record on October 15,2019 in Instrument Number 2013910150747,
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`of the Cuyahoga County Recorder’s Records, and that this deed conveyed title to the subject
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`property, more commonly known as 3146 Ashwood Road, Cleveland, Ohio 44120.
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`The Magistrate further finds that the deed has an incorrect legal description, in the words
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`“The Van Swerigen County’s Subdivision” should read “The Van Sweringen Company’s
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`Subdivision”.
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`The Magistrate further finds that Plaintiff is granted a declaratory judgment from this Court
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`that at the time of execution of said deed, Property Improvement Specialists, Inc. intended to
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`convey the property described herein and any interest in the property described herein held by
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`Property Improvement Specialists, Inc. is encumbered by the mortgage held by Plaintiff.
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`The Magistrate further states that a deed was issued on May 2, 2019 to Property
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`Improvement Specialists, Inc., and was filed for record on May 3, 2019 in Instrument Number
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`201905030855, of the Cuyahoga County Recorder’s Records, and that this deed conveyed title to
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`the subject property, more commonly known as 3146 Ashwood Road, Cleveland, Ohio 44120.
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`The Magistrate further finds that the deed has an incorrect legal description, in the words
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`“The Van Swerigen County’s Subdivision” should read “The Van Sweringen Company’s
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`Subdivision”.
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`The Magistrate further finds that Plaintiff is granted a declaratory judgment from this Court
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`that at the time of execution of said deed, John J. Urban, Guardian of the Estate of Edward Fields, Jr.
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`intended to convey the property described herein and any interest in the property described herein
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`held by John J. Urban, Guardian of the Estate of Edward Fields, Jr. is encumbered by the mortgage
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`held by Plaintiff.
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`The Magistrate further finds that an Affidavit of Surviving Spouse or Joint Survivor was
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`issued on August 15, 2018 to Edward Fields, Jr., and was filed for record on August 16, 2018 in
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`Instrument Number 201808160504, of the Cuyahoga County Recorder’s Records, and that this
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`affidavit conveyed title to the subject property, more commonly known as 3146 Ashwood Road,
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`Cleveland, Ohio 44120.
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`The Magistrate further finds that the affidavit has an incorrect legal description, in the words
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`“The Van Swerigen County’s Subdivision” should read “The Van Sweringen Company’s
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`Subdivision”.
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`The Magistrate further finds that Plaintiff is granted a declaratory judgment from this Court
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`that at the time of execution of said affidavit, Edward Fields, Jr. intended to convey the property
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`described herein and any interest in the property described herein held by Edward Fields, Jr. is
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`encumbered by the mortgage held by Plaintiff.
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`The Magistrate finds that Plaintiff has standing to bring this case. While finding no just
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`reason for delay in entering judgment for the Plaintiff, the Magistrate finds that there may be due
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`to Plaintiff sums advanced by it under the terms of the Note and Mortgage to pay real estate taxes,
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`hazard insurance premiums and protection of the property described herein, the total amount of
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`which is undetermined at the present time, but which amount will be ascertainable at the time of
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`the judicial sale, which amount may be added to the first mortgage lien of Plaintiff. The Magistrate
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`reserves for further order a determination of the exact, if any, amount due Plaintiff for said
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`advances. Because the United States of America holds a lien on the real estate, the United States
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`of America shall have the right to redeem as provided by Title 28, Section 2410(c), United States
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`Code.
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`The Magistrate finds that the defendant, United States of America, Department of Housing
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`and Urban Development, claims some rights, titles, interests or liens upon the premises described
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`herein, as set forth in its pleading filed herein, but that any rights, titles, interests or liens that it/they
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`may have are inferior and subsequent to the lien of the Plaintiff.
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`The Magistrate makes no findings as to the rights, titles, interests or liens of said
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`defendant/s as set forth in its/their pleading filed herein, except to note that such rights, titles,
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`interests or liens of the above named defendant/s are hereby ordered transferred to the proceeds
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`derived from the sale of said premises, after the payment of the costs of the within action, taxes
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`due and payable and the amount hereinabove found due the Plaintiff, and the same are hereby
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`ordered continued until further order of the Court.
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`IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that unless the sums
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`hereinabove found due, together with the costs of this action, be fully paid within three (3) days
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`from the date of the Court’s adoption of the Magistrate’s Decision, the equity of redemption and
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`dower of all defendants named in this action in and to said premises shall be foreclosed, and said
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`premises may be sold, and that an Order of Sale shall be issued to the Sheriff of Cuyahoga County,
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`directing him to appraise and advertise in a paper of general circulation within the County, and
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`sell said real estate as upon execution and according to law, free and clear of the interest of all
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`parties to this action. If the court authorizes a private selling officer to sell the real estate, then the
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`sale must proceed in accordance with R.C. §2329.152.
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`If this is a residential property and the property remains unsold after the first auction, then
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`a second auction shall be held and the property shall be sold to the highest bidder without regard
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`to the minimum bid requirement in §2329.20 of the Revised Code. This auction shall be held no
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`earlier than seven days and no later than thirty days after the first auction.
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`If there is a bidder at the second or subsequent sales, the judgment creditor and the first
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`lien holder have the right to redeem the property within fourteen days of the sale, by paying the
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`purchase price to the Clerk of Court. Upon timely payment, the Court will proceed as described in
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`R.C. §2329.31 with the redeeming party considered the successful purchaser at sale.
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`IT IS FURTHER ORDERED that in the event an Order of Sale is returned by the selling
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`officer unexecuted, subsequent orders of sale shall issue in accordance with the appraisal
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`instructions written in the filed Praecipe for those sales.
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`And coming now to distribute the proceeds of said sale, it is ordered that the Sheriff or
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`private selling officer out of the funds in his hands pay:
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`FIRST:
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`The Costs herein, including the sum of $1,000.00 payable to the Plaintiff
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`for the Judicial Reports and premium which are hereby taxed as costs.
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`SECOND:
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`IF THE PLAINTIFF IS THE PURCHASER AND HAS ELECTED TO
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`FORGO THE PAYMENT FROM THE SALE PROCEEDS OF
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`CERTAIN TAXES AS PROVIDED IN R.C. §323.47(B):
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`To the Treasurer of Cuyahoga County, Ohio, taxes, accrued taxes,
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`assessments, and penalties on the premises hereinafter described, as shown
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`on the County Treasurer’s tax duplicate;
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`OTHERWISE:
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`To the Treasurer of Cuyahoga County, Ohio, taxes, assessments, interest,
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`and penalties, the lien for which attaches before the date of sale but that
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`are not yet determined, assessed and levied for the year that includes the
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`date of sale, apportioned pro rata to the part of that year that precedes the
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`date of sale, and all other taxes, assessments, penalties, and interest which
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`attached for a prior tax year but have not been paid on or before the date
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`of sale.
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`THIRD:
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`To the Plaintiff, the sum of $149,429.96 with interest thereon at the rate of
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`4.5000% per annum from December 1,2020.
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`FOURTH:
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`The balance, if any, to be held by the Clerk, pending further order of this
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`Court.
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`In the event the Plaintiff is the successful bidder at the sale, the amount of the deposits
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`made herein by the Plaintiff and the cost of the Judicial Reports in the sum of $1,000.00 shall be
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`deducted from the total amount of Court costs otherwise due and payable herein.
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`IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there may be due
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`to Plaintiff additional sums advanced under the terms of the Note and Mortgage to pay real estate
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`taxes, hazard insurance premiums, and property protection, which sums are to be determined
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`upon further Order.
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`IT IS FURTHER ORDERED that, upon the confirmation of sale made herein, a minute
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`of these proceedings be entered upon the Cuyahoga County Records involved in this action to
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`reflect that they are released as liens against the subject premises.
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`IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, after said sale has
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`been completed, a deed will be conveyed to the purchaser and that a Writ of Possession of said
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`property be issued.
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`IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, if a successful sale
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`occurs, the parties are ordered to file any motions for reimbursement of advances pursuant to
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`R.C. §5301.233 within 21 days from the sale. A party may move the court to extend this deadline
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`for good cause shown. No party will be granted reimbursement for advances if such a motion is
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`not filed before this deadline. Within 7 days from the filing of a motion for reimbursement, a
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`party may file a brief in opposition. Hie court will then make a careful examination of the sale
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`pursuant to the applicable statutes. If, however, this case does not involve advances or no
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`mortgagee intends to seek advances, a party may file a notice to this effect within seven days of
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`the sale. Where such notice is filed, no party filing such notice will be granted reimbursement
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`for advances and the Court will make a careful examination of the sale pursuant to the applicable
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`statutes upon the return of the order of sale. A party may redeem before confirmation of the sale.
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`Nothing in this order prevents the Court from staying the confirmation of sale to permit a property
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`owner additional time to redeem.
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`RECORD IS HEREBY ORDERED
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`NOTICE OF OPPORTUNITY TO OBJECT
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`A party shall not assign as error on appeal the Court’s adoption of any factual finding or
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`legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law
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`under Civ. R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual
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`finding or legal conclusion as required by Civ. R. 53(D)(3)(b).
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`Exhibit “A”
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`LEGAL DESCRIPTION
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`Situated in the City of Cleveland, County of Cuyahoga, and State of Ohio, and
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`known as being Sublot No. 169 in the Ashwood Subdivision of part of the Van
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`Sweringen Company's Subdivision No. 12, of part of Original One Hundred Acre
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`Lot Nos. 430 and 438, and part of Original Warrensville Township Lot No. 31, as
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`shown by the recorded Plat in Volume 68 of Maps, Page 32 of Cuyahoga County
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`Records, and having a frontage of 45 feet on the Southwesterly side of Ashwood
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`Road, S.E., and extending back of equal width 130 feet deep, as appears by said Plat,
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`be the same more or less, but subject to all legal highways.
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`Parcel Number: 144-02-091
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`Property Address: 3146 Ashwood Road, Cleveland, OH 44120
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`Prior Deed Reference: Instrument Number 201910150747
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing was served on all parties and/or counsel of
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`record by regular U.S. mail, postage prepaid, this
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`day of
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`, 20
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`.
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`Robert H. Young, Esq.
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`Mark N. Dierks, Esq.
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`Benjamin M. Rodriguez, Esq.
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`Lori R. Leach, Esq.
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`BROCK & SCOTT, PLLC
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`Attorneys for Plaintiff
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`2001 NW 64th Street, #130
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`Fort Lauderdale, FL 33309
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`Tiquisha W. Watkins
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`3146 Ashwood Road
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`Cleveland, OH 44120
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`John Doe, name unknown, spouse of Tiquisha W. Watkins
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`3146 Ashwood Road
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`Cleveland, OH 44120
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`Mortgage Electronic Registration Systems, Inc., as nominee for CrossCountry Mortgage, Inc.
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`c/o CT Corporation System, Statutory Agent
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`4400 Easton Commons Way, Suite 125
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`Columbus, OH 43219
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`Sara E. DeCaro, Esq.
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`400 United States Court House
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`801 West Superior Avenue
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`Cleveland, OH 44113
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`Attorney for United States of America, Department of Housing and Urban Development
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`Edmund Tallos, Esq.
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`Courthouse Square,
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`310 West Lakeside Avenue, Suite 300
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`Cleveland, OH 44113
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`Attorney for Cuyahoga County Treasurer
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`Property Improvement Specialists, Inc.
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`c/o Adam Metz, Statutory Agent
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`10663 Angela Drive
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`Kirtland, OH 44094
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`John J. Urban
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`Guardian of Edward Fields, Jr.
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`11221 Pearl Road Suite 5
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`Strongsville, OH 44136
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`COPIES MAILED BY CLERK:
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