United States Bankruptcy Appellate Panel of the Sixth Circuit
In re: Vodrick Lee Perry; Marcy Lynn Perry, Debtors.
The Bank of New York Mellon, Defendant-Appellee. Susan L. Rhiel, Trustee, Plaintiff-Appellant,
from the United States Bankruptcy Court for the Southern
District of Ohio at Columbus. No. 14-56316; Adv. No.
14-02312-Charles M. Caldwell, Judge.
Kristin Radwanick, Susan L. Rhiel, Jeffrey M. Levinson,
LEVINSON LLP, Cleveland, Ohio, for Appellant.
A. Bower, PLUNKETT COONEY, Columbus, Ohio, for Appellee.
Before: DALES, HARRISON and OPPERMAN, Bankruptcy Appellate
W. DALES, BANKRUPTCY APPELLATE PANEL JUDGE.
appeal concerns a Complaint for Declaratory Judgment filed by
chapter 7 trustee Susan Rhiel (the "Appellant")
seeking a determination that a refinanced mortgage only
encumbers the interest of the person specifically defined
within the body of the mortgage as a
"Borrower/Mortgagor." The bankruptcy court
considered whether the co-debtor wife's signature and
initials on a mortgage instrument that listed her as a
"Borrower" in the signature block resulted in
pledging to the lender her interest as a joint tenant with
rights of survivorship, when the mortgage did not
specifically name her as a "Borrower" within the
text of document other than in the signature block.
bankruptcy court regarded the mortgage as ambiguous under
these circumstances, concluding that extrinsic evidence was
necessary to determine the parties' intent and respective
rights in the property. After a trial, the court entered a
Memorandum Opinion and Order and Judgment Order finding the
property fully encumbered by the mortgage. The trustee
appealed from this ruling.
the appeal, the Panel certified two unsettled state law
questions to the Ohio Supreme Court and held the appeal in
abeyance pending the high court's answer. Because the
Ohio Supreme Court has now answered the certified questions,
and the parties have offered supplemental argument in light
of the answers, the appeal is now ready for decision.
Appellant frames the issues on appeal as follows:
1.Did the Bankruptcy Court err in allowing parole [sic]
evidence at trial regarding Debtor Marcy Lynn Perry's
intent when signing the First Mortgage held by the Appellee
The Bank of New York Mellon where the First Mortgage was
unambiguous on its face?
2.Did the Bankruptcy Court err in determining that the
Property is fully encumbered by the First Mortgage held by
the Appellee The Bank of New York Mellon, including the
interest of Marcy Lynn Perry where Marcy Lynn Perry is not
defined as a "Borrower" in the First Mortgage?
Panel has jurisdiction to decide this timely-filed appeal
because the United States District Court for the Southern
District of Ohio has authorized appeals to this Panel, and
neither party has timely elected to have the district court
hear this appeal. 28 U.S.C. § 158(b)(6), (c)(1). Under
28 U.S.C. § 158(a)(1), a bankruptcy court's final
order in an adversary proceeding may be appealed as of right.
purposes of appeal, an order is final if it "ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment." Midland Asphalt Corp.
v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494
(1989) (citation omitted). The underlying adversary
proceeding - the "judicial unit" -- was completely
resolved on the merits after trial, making the bankruptcy
court's order final and appealable. Ritzen Grp., Inc.
v. Jackson Masonry, LLC (In re Jackson Masonry,