Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Perry

United States Bankruptcy Appellate Panel of the Sixth Circuit

May 8, 2019

In re: Vodrick Lee Perry; Marcy Lynn Perry, Debtors.
v.
The Bank of New York Mellon, Defendant-Appellee. Susan L. Rhiel, Trustee, Plaintiff-Appellant,

          Appeal 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.

         ON BRIEF:

          Kristin Radwanick, Susan L. Rhiel, Jeffrey M. Levinson, LEVINSON LLP, Cleveland, Ohio, for Appellant.

          Amelia A. Bower, PLUNKETT COONEY, Columbus, Ohio, for Appellee.

          Before: DALES, HARRISON and OPPERMAN, Bankruptcy Appellate Panel Judges.

          OPINION

          SCOTT W. DALES, BANKRUPTCY APPELLATE PANEL JUDGE.

         This 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.

         The 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[1] and Judgment Order finding the property fully encumbered by the mortgage. The trustee appealed from this ruling.

         During 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.

         ISSUES ON APPEAL

         The 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?

         JURISDICTION

         The 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.

         For 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.