Wednesday, Jan. 27, 2016
Caron E. Montgomery v. State of Ohio, Case no. 2012-1212
Franklin County Common Pleas Court
Deutsche Bank National Trust Company as Trustee v. Glenn E. Holden et al., Case no. 2014-0791
Ninth District Court of Appeals (Summit County)
Director, Ohio Department of Job and Family Services v. Marcus Pryor II, Case no. 2015-0770
Ninth District Court of Appeals (Summit County)
Death Penalty
Caron E. Montgomery v. State of Ohio, Case no. 2012-1212
Franklin County Common Pleas Court
A three-judge panel has sentenced Caron E. Montgomery to death for the murders in Columbus of his former girlfriend Tia Hendricks, their 2-year-old son, and Hendricks’ 10-year-old daughter. The Ohio Supreme Court is considering the appeal of his case and the death sentence.
Case Background
Family and friends of Hendricks contacted the rental office for the apartment where she lived in November 2010 because she hadn’t shown up for Thanksgiving dinner and didn’t arrive at work the next day. Columbus police officers were called, and they entered Hendricks’ apartment on the afternoon of Nov. 26. They discovered Hendricks and her two children, Tahlia and Tyron, dead from multiple stab wounds. Montgomery was found lying alive on a bed in a separate room.
Montgomery was charged with the murder of Hendricks, the aggravated murders (four counts) of the children, and domestic violence. The aggravated murder charges included various specifications, which require a greater penalty if certain facts are proven. In this case, the specifications allowed for the death penalty.
After waiving his right to a jury trial, Montgomery entered a guilty plea in May 2012 to all the counts and specifications. Evidence was then presented to the three-judge panel hearing his case. The panel found Montgomery guilty and, following a mitigation hearing, imposed a death sentence.
Montgomery’s attorneys present seven arguments in the appeal to the Supreme Court and ask that the convictions be overturned, the death sentence be set aside, or a new trial be held.
Montgomery’s Assertions
Montgomery’s attorneys make several claims in the brief to the Court:
- They argue the state didn’t offer sufficient evidence to prove the specification that Montgomery caused Tahlia’s death to avoid detection, apprehension, trial, or punishment. The state had to show that Montgomery killed Tia, the mother, first and then murdered Tahlia to escape detection, they maintain. In their view, none of the evidence demonstrated his reason for killing Tahlia or the order of the deaths. Thus, they reason, Montgomery wasn’t proven guilty beyond a reasonable doubt of the aggravated murder charge that included this specification.
- When Montgomery waived his right to a jury trial and at the time he pled guilty, the trial court judge assessed his competence in making the decisions. The judge asked whether Montgomery was under the influence of drugs, and he said he was taking prescription medications for depression. Montgomery’s attorneys assert that a medical expert should’ve evaluated Montgomery to determine any potential detrimental effects from the medication on his decisions to waive his rights, especially given that the death penalty was a possibility.
- They also believe that Montgomery’s trial lawyers didn’t effectively represent him. Specifically, they claim, his lawyers should’ve objected because a detective, rather than a medical expert, testified to the results of the autopsies; his lawyers shouldn’t have allowed Montgomery to plead guilty without some guarantee of a life, rather than a death, sentence; they didn’t “zealously advocat[e] for their client” by pursuing a question whether one of the judges was sleeping during part of the proceedings; they didn’t have their experts testify regarding Montgomery’s difficult and dysfunctional childhood, including an alleged gang rape when he was a young boy; and other issues. Taking these “deficiencies” together, Montgomery’s attorneys conclude that the outcome of the trial wasn’t reliable.
State’s Position
Attorneys from the Franklin County Prosecutor’s Office counter with these defenses:
- They contend they didn’t need to prove Montgomery caused Tahlia’s death to avoid detection, apprehension, trial, or punishment because the defendant pled guilty to the specification. Citing U.S. Supreme Court cases, they argue a guilty plea removes the question of factual guilt and the need for the prosecution to offer proof. R.C. 2945.06 and Criminal Rule 11 mandate a determination whether the accused is guilty of aggravated murder or some lesser offense, but don’t demand separate proof for any related specifications, they assert. In addition, they maintain that proving Montgomery murdered Tahlia to escape detection doesn’t hinge on the order of the deaths.
- On the question of Montgomery’s competence, they point to a 2006 Ohio Supreme Court decision (State v. Ketterer) in which the Court explained that taking prescribed medications doesn’t necessarily negate a defendant’s competency to stand trial. In the view of the state, the dialogue Montgomery and his lawyers had with the court show he was capable of understanding the proceedings and knowingly, voluntarily, and intelligently waived his right to a jury trial and made a decision to plead guilty.
- The test for ineffective assistance of counsel isn’t met in this case, the prosecutors also contend. They maintain Montgomery’s guilty plea eliminated his right to confront witnesses, so the detective’s testimony wasn’t problematic. There is no information in the record about Montgomery’s lawyers’ discussions with him about the guilty plea, their trial strategy, or his ultimate decision that supports an error on his lawyers’ part, the prosecutors note. They also argue that the trial lawyers properly raised the issue that one judge may have been sleeping but the presiding judge rejected it, that failing to have the experts testify about Montgomery’s childhood could have been a reasonable strategy, and that the other claims lack merit as well.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Caron E. Montgomery from the Ohio Public Defender’s Office: Kathryn Sandford, 614.466.5394
Representing the State of Ohio from the Franklin County Prosecutor’s Office: Steven Taylor, 614.525.3555
Is Interest in Both Promissory Note and Mortgage Required to File for Foreclosure?
Deutsche Bank National Trust Company as Trustee v. Glenn E. Holden et al., Case no. 2014-0791
Ninth District Court of Appeals (Summit County)
ISSUES:
- In order to have standing, must a party seeking to foreclose have an interest in both the mortgage and the promissory note, or just an interest in either the note or the mortgage?
- When a promissory note is discharged in bankruptcy, does a party seeking to foreclose only need to show it has an interest in the mortgage to have standing, or must it have both an interest in the note and mortgage?
BACKGROUND:
In September 2005, Glenn Holden signed a $69,300 promissory note with Novastar Mortgage to purchase a home in Akron. Holden and his wife secured repayment through a mortgage and Novastar used Mortgage Electronic Registration Systems, Inc. (MERS) as the mortgagee. MERS recorded the mortgage.
Deutsche Bank National Trust Company (DBNTC) purchased the promissory note from Novastar in November 2005. At the time, the note was indorsed in blank, meaning it didn’t indicate specifically who to pay, and DBNTC delivered it to JPMorgan Chase Bank. Chase acted as a mortgage servicer for DBNTC, and the Holdens made their first mortgage payment to Novastar and all their subsequent payments to Chase.
In 2009, the Holdens stopped making payments on the note. In September 2010, MERS assigned the Holdens’ mortgage to DBNTC. In August 2011, DBNTC filed a complaint in Summit County Common Pleas Court to establish there was an unpaid balance on the note and to foreclose on the mortgage. The complaint noted that Glen Holden’s personal liability to pay back the note was discharged when he filed for bankruptcy, and his wife wasn’t liable because she didn’t sign the note. The complaint also noted DBNTC advanced the Holdens about $4,000 for taxes and insurance payments and sought to collect the funds along with foreclosing on the home. Attached to the complaint was a stamped first page stating DBNTC was providing the court with a “true and accurate copy of the original note,” and that copy had a signature indorsing the note from Novastar to DBNTC. However, the complaint also had a copy of the note that did not have an indorsement by Novastar.
The Holdens filed a motion to dismiss the case arguing the note was payable to Novastar, and DBNTC had no standing to seek to foreclose. They also filed a counterclaim against DBNTC that included violations of the Fair Debt Collection Practices Act, the Ohio Consumers Sales Practices Act, invasion of privacy and common law fraud.
DBNTC filed for summary judgment arguing it had standing because it was in possession of the original promissory note since 2005 and it had a recorded mortgage since 2010, nearly a year before it filed the action. The trial court granted DBNTC’s motion, and the Holdens appealed to the Ninth District Court of Appeals.
The Ninth District reversed the trial court based on the discrepancy between the two notes, one signed and one blank, and the testimony of two Chase employees who speculated that the note was signed and a copy of the blank note was inadvertently attached. The Ninth District ordered further proceeding by the trial court to determine which version of the note was accurate, and ruled the DBNTC had to be in possession of both the note and the mortgage at the time if filed its complaint in order to seek foreclosure. DBNTC appealed the Ninth District’s decision, and the Supreme Court agreed to hear the case.
Interest in Mortgage Enough to File, Bank Says
Attorneys for DBNTC argue the Court has a chance to conclusively establish what it requires for standing in a foreclosure action and to clarify its 2012 Fed. Home Loan Mtge. Corp. v Schwartzwald decision. In that the decision, the Court found the company couldn’t foreclose because it had neither the mortgage nor the note at the time it filed the complaint. They observe that several appellate courts have interpreted Schwartzwald to mean that having an interest in either the note or the mortgage was enough to seek foreclosure. However, the Ninth District interprets the decision to mean that an interest in both the note and the mortgage is required at the time the case is filed.
The attorneys also contend this case presents the Court with a set of facts that no lower courts have decided – whether an interest in a note is required when the note has been distinguished in bankruptcy. They argue it wouldn’t make sense for the trial court to insist DBNTC prove it had an interest in the note because it couldn’t seek a court order to collect the debt on the note because it already had been discharged in bankruptcy. The only action it took was to foreclose on the home, and it demonstrated it had possession of the mortgage a year before it filed. They explain notes and mortgages are separate contracts and have separate remedies. An action against the note is a proceeding making the person who took the loan personally responsible for paying it back, while an action on the mortgage seeks to terminate the owner’s interest in the property, they add. Because interests in a note and mortgage can be enforced independently, then a party needs to show it has an interest in the note or the mortgage to have standing, they conclude.
“Put simply, by being the mortgagee of record, DBNTC had sufficient legal interest in this dispute to open the courthouse doors and commence this action to find out whether it would ultimately be able to foreclose,” states the brief filed by DBNTC’s attorneys.
Timing Matters in Proving Interests, Homeowners Argue
When a promissory note is secured by a mortgage, the note is the debt, and without an interest in the note, the holder of the mortgage has no injury that allows it to file a foreclosure case, attorneys for the Holdens contend. They argue that 120 years of state precedent will be overturned if a plaintiff needs to show only an interest in one. They suggest it is less common that notes and mortgage interests get severed as they are transferred over time, but it does happen. In this case, they argue the Ninth District was correct to point out there was an inconsistency in DBNTC statements filed in the trial court about the condition of the note, and whether it had an interest at the time of filing or if that interest still belong to Novastar.
They contend that DBNTC fails to understand the timing requirements, and that DBNTC had to have an interest in both the note and mortgage when it filed the case. But the first time DBNTC would have to prove in court that it had those interests was when it moved for summary judgment. The attorneys claim DBNTC tried to prove it had interest at the time it made its motion, but that date is not the date the court should consider, they argue. Instead, they contend, when DBNTC made the motion, it still had to prove it had interest in both the note and the mortgage back when it filed to foreclose. The Ninth District relied on its 2013 BAC Home Loan Serv. V. McFerren decision, they note. In that case the appellate court found it was not enough for a lender moving for summary judgment to prove at that time that they had interest in both the note and mortgage, but it had to prove it was in possession of both when it filed the complaint.
Additionally they argue that having interest only in the mortgage excludes DBNTC for enforcing the note by state statute, R.C. 1303.31. They contend if DBNTC doesn’t have an interest in the note, regardless of whether they seek to enforce the note, it can’t take the next step and foreclose. They argue DBNTC got its rights to the mortgage from MERS, which never had any interest in the note, so the rights to the mortgage doesn’t give it an interest in the note. They also suggest that the Court’s clarifying of the Schwartzwald decision wouldn’t help DBNTC in this case because the appellate court did not rule that DBNTC did not have standing to bring its case. Rather, it questioned whether it had a right to win a judgment without first proving it had right to file the complaint in the first place, they maintain.
“In order to obtain a judgment of foreclosure a plaintiff needs to demonstrate an interest in both the note and the mortgage. The Ninth District Court of Appeals correctly reversed the judgment because a material issue of fact existed for trial as to whether Appellant Deutsche Bank had possession of the original note when the complaint was filed,” the Holdens’ brief concluded.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Deutsche Bank National Trust Company: Terry Posey, Jr., 937.443.6857
Representing Glenn E. Holden et al.: Grace Doberdruk, 216.373.0539
Must Employee Name All Interested Parties in Unemployment Compensation Appeal?
Director, Ohio Department of Job and Family Services v. Marcus Pryor II, Case no. 2015-0770
Ninth District Court of Appeals (Summit County)
ISSUE:
- If a party appealing an Unemployment Compensation Review Commission decision to a common pleas court fails to name all interested parties in its notice of appeal, does the court lack jurisdiction to hear the case?
BACKGROUND:
In August 2012, Marcus Pryor II was honorably discharged from the U.S. Army and filed for unemployment benefits. Pryor was originally granted benefits, but the director of the Ohio Department of Job and Family Services (ODJFS) reversed the decision because the state requires a discharged veteran to finish at least one four-year term to be eligible, and Pryor didn’t.
Pryor noticed a typographical error in the director’s decision stating he was overpaid benefits and needed to reimburse the state $10,400. He appealed to the Unemployment Compensation Review Commission (UCRC) but the Army didn’t appear. The UCRC hearing officer upheld the director’s decision and the UCRC affirmed it.
Per the instructions provided to him in the UCRC denial, Pryor filed an appeal in Summit County Common Pleas Court, and provided a copy of the decision he was appealing along with the names of the parties to be served, including two addresses for the Army provided to him by the director. Pryor failed to name the Army as an interested party in his notice, but did ask the common pleas court clerk to serve the Army with a copy of his appeal. ODJFS moved to have the appeal dismissed arguing Pryor failed to follow the law requiring he name the Army in his notice, and the trial court agreed.
Pryor appealed to the Ninth District Court of appeals, which reversed the lower court decision finding Pryor provided enough information to have the court accept jurisdiction and hear his appeal. The Ninth District noted that its decision was in conflict with six other appellate courts and the appeals court certified a conflict between it and other courts. The Ohio Supreme Court agreed to hear the case.
ODJFS States Rule Must Be Followed
Attorneys for the department describe this case as a “simple procedural question” that asks whether a notice of appeal fails to follow a requirement of state law to name all interested parties as appellees then the notice is defective and the court never acquires jurisdiction to hear the case. The conflict between ODJFS’s position and the Ninth District is that the department believes providing the names on the notice is part of the “content of the notice” making the act of naming the parties jurisdictional and allowing a court to hear it.
The appellate court found the names at the top of the notice were informational and the body of notice describing the decision being appealed provides jurisdiction to the trial court. The department’s attorneys explain the denial letter given to Pryor included a provision titled “appeal rights,” which detailed what steps he had to take, including following R.C. 4141.282 to appeal the decision. The notice states that “appellant must name all interested parties as appellees in the notice of appeal, including the Director of the Department of Job and Family Services.” They argue prior Supreme Court decisions have required strict compliance with state statutes and that the structure of the law indicates the party-naming requirement to be jurisdictional.
The first four sections of R.C. 4141.282, parts (A) through (D), describe how to file an appeal with part (A) indicating a party has 30 days to appeal and part (B) instructing which common pleas courts the appeal can be filed in based on the location of either the employer or employee. Part (C), titled “perfecting the appeal,” states that the timely filing of the notice of appeal “shall be the only act required to perfect the appeal and vest jurisdiction,” and that the notice shall identify the decision being appealed. Part (D) includes the naming requirement. ODJFS attorneys contend that while part (C) says the notice is the only act, the information needed to follow that section comes from parts (A), (B) and (D).
“R.C. 4141.282(D) builds on part (C) by adding another content requirement,” states the brief ODJFS filed. “The language of part (D), by using the word ‘shall,’ instructs the appellant to do so; the language is not qualified or aspirational and does not leave to courts’ discretion what should be done.”
Law is Straightforward, Pryor Argues
Attorneys for Pryor point to part (C) and note that he filed his appeal within 30 days of the decision and named the decision he was appealing, making that the “only act necessary to perfect the appeal and vest jurisdiction in the court.” They cite the Ohio Supreme Court’s 1949 Zier v. Bur. Of Unemp. Comp. decision that has held for 65 years that naming the parties isn’t necessary to vest jurisdiction to hear the appeal. They also agree with the Ninth District’s conclusion that the Ohio Rules of Civil Procedure provide a way to add and remove parties to a case once the court accepts jurisdiction. They attach to the brief numerous cases where ODJFS notices to employees have the wrong addresses and even the wrong section of state law required to appeal, and argued it’s only fair to allow information to be supplemented using procedural rules.
Pryor’s attorneys also question if the Army should even be considered an “interested party” for several reasons including that the Army didn’t participate in the administrative proceedings and the dispute is between Pryor and the ODJFS regarding who pays back the unemployment benefits. Further, they suggest it would be impracticable to name the Army in a lawsuit when it is has immunity from these types of lawsuits. They also contend Pryor “substantially complied” with the law because while he didn’t name the Army as a party in the notice, he had the court send the Army a copy of his appeal.
“He timely filed the notice, he filed the notice in the proper court, he identified the decision being appealed in the notice, he named the Director as an appellee in the notice, he served the notice on all of the interested parties, and he filed an amended notice naming the Army as an appellee. If this Court finds the Naming Requirements to be jurisdictional, then there is no question Pryor nonetheless substantially complied with the jurisdictional requirements,” the brief states.
Friend-of-the- Court Brief
An amicus curiae brief supporting Pryor’s position has been submitted by Ohio Legal Services, representing the six legal aid societies, and the Ohio Poverty Law Center, which all serve low-income residents statewide. The group indicated it represents individuals in unemployment compensation appeals, but many Ohioans represent themselves pro se. The group argues the state established a specific review commission in the late 1990s to recommend streamlining the unemployment compensation appeals process to make it simpler for an unrepresented person to file an appeal, and the new law reflects the panel’s recommendations. The brief suggests the plain meaning of the law is unambiguous in stating the only act required to grant a common pleas court jurisdiction is to file within 30 days of the appeal and identify the decision being appealed. Asking any more of a person seeking an appeal would be unfair, they argue.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Ohio Department of Job and Family Services from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980
Marcus Pryor II, pro se: 513.505-3754
Representing Ohio Legal Services et al.: Kathleen McGarvey, 614.224.8374
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