U.S. Bank National Association v. Viola et al

Filing 92

Opinion & Order signed by Judge James S. Gwin on 11/27/17. The Court, for the reasons set forth in this order, grants defendant Viola's motion to stay, so long as he posts a supersedeas bond of at least $130,000 within 14 days of th e date of this order. The Court denies Viola's motion to compel. The Court orders Viola to produce documents establishing damages on his default judgment within 21 days of the date of this order. (Related Docs. 87 , 88 , and 89 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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U.S. BANK NATIONAL ASSOCIATION, :
:
Plaintiff,
:
:
v.
:
:
ANTHONY L. VIOLA, et al.,
:
:
Defendants.
:
:
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CASE NO. 1:16-CV-969

OPINION & ORDER
[Resolving Docs. No. 87, 88, 89]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this foreclosure action, Defendant Anthony Viola seeks to stay the foreclosure sale of
the property at the center of this litigation until he is awarded damages from his crossclaim
against two defaulted Defendants.1 He also seeks to compel Cuyahoga County and the United
States to provide him with information about his restitution order from his criminal conviction.2
Finally, he seeks to schedule an evidentiary hearing to determine damages resulting from his
default judgment against Defendants Chase Bank USA, N.A. (“Chase”) and Citibank (South
Dakota) (“Citibank”).3
For the following reasons, the Court conditionally GRANTS Viola’s motion to stay,
DENIES Viola’s motion to compel, and ORDERS Viola to produce documentation supporting a
claim for damages within 21 days of the date of this order.

Doc. 88. Plaintiff U.S. Bank National Association (“U.S. Bank”) opposes. Doc. 90.
Doc. 89.
3
Doc. 87.
1
2

Case No. 1:16-cv-969
Gwin, J.
I. Discussion
A. Motion to Stay Foreclosure Sale
Viola moves the Court to stay the foreclosure sale of the property located at 3048
Meadowbrook Boulevard, Cleveland Heights, Ohio 44118. He seeks to stay this sale until the
close of proceedings determining damages resulting from the default judgment on his claim of
common law contribution against Defendants Chase and Citibank. Viola argues that the damages
he will receive from the default judgment against Defendants Chase and Citibank will be
sufficient to satisfy all of Plaintiff’s claims against him, thereby allowing him to redeem the
mortgage.4
Under Ohio law, a court may stay the execution of a judgment during the pendency of a
motion attacking that judgment, or when a judgment as to one claim or party occurs during
litigation involving multiple claims or multiple parties.5
A court must ensure the security of the adverse party’s interest in a judgment when its
opponent seeks a stay.6 Plaintiff U.S. Bank argues that for the purposes of securing its interest in
the judgment, the Court should treat Viola’s motion for a stay as akin to one seeking a stay
pending appeal. In that instance, Ohio law would require Viola to post a supersedeas bond as a
condition of the stay.7 The Court agrees that a supersedeas bond is necessary to protect U.S.
Bank’s interest in its judgment.
Under Ohio Revised Code § 2505.09, a sufficient supersedeas bond provides sureties
amounting to “the cumulative total for all claims covered by the final order, judgment, or decree

4

See Ohio Rev. Code § 2329.33.
See Ohio Civ. R. 62(A), (E).
6
See id.
7
Ohio Rev. Code § 2505.09 (West 2002).
5

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Case No. 1:16-cv-969
Gwin, J.
and interest involved.”8 Here, the minimum acceptable amount Viola may post for the bond is
$130,000.9
Before this action is stayed, Viola must first provide a supersedeas bond comporting with
the requirements in Ohio Revised Code § 2505.14. He shall make the bond payable to Plaintiff
U.S. Bank, and the bond “shall be subject to the condition that [Viola] shall abide and perform
the order, judgment, or decree of the [Court] and pay all money, costs, and damages which may
be required of or awarded against him upon the final determination of” the claims in this
litigation.10
The Court will GRANT Viola’s motion to stay the foreclosure sale, so long as he posts a
supersedeas bond in the amount of $130,000 within fourteen days of the date of this order. The
stay of the foreclosure sale will not take effect until the day that Viola posts the bond.
B. Viola’s Motion to Compel
Viola asks the Court to compel Cuyahoga County and the United States to provide
additional documentation regarding the restitution order from his criminal conviction. Viola has
previously sought this and other similar information in a previous motion to compel.
The Court DENIES Viola’s motion to compel for the reasons provided in the Court’s
previous order on this issue.11

8

Id.
This amount is the Court’s best estimate of a definite sum that would protect Plaintiff’s interest in the
judgment. The calculation of this amount includes: $61,435.62 in principal owed, $10,665.59 in interest,
$46,613.14 in advances for hazard insurance and property taxes, and continuing interest of $6.10 per day.
Doc. 90 at 4.
10
Ohio Rev. Code § 2505.14.
11
See Doc. 75.
9

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Case No. 1:16-cv-969
Gwin, J.
C. Viola’s Motion for an Evidentiary Hearing on Damages
Finally, Viola asks the Court to schedule a hearing to determine the damages stemming
from Defendants Chase and Citibank’s default on his crossclaim.
When a party is in default, the well-pleaded factual allegations in a complaint regarding
liability against that party are taken as true, but allegations regarding damages are not.12 The
party seeking damages bears the burden of establishing the damages amount.13
Regardless of whether a party is in default, the Court must “ensure that there is a
legitimate basis for any award of damages that it enters.”14 The Court must only award damages
that are supported by adequate record evidence.15 Although a court may hold an evidentiary
hearing to determine damages, there is no rule requiring it to do so.16
The Court declines to hold an evidentiary hearing at this time. Instead, Viola must
present documentation to the Court that establishes the amount of damages that he has suffered
as a result of his claim of common law contribution against Defendants Chase and Citibank. If
the evidence he presents reveals the need for a hearing, the Court will reconsider its current
decision.
The Court ORDERS Viola to present documents, along with any other facts or argument,
relevant to calculating damages, within 21 days of the date of this order.

12

See Zinganything, LLC v. Tmart UK Limited, 2016 WL 362359, *6 (N.D. Ohio Jan. 29, 2016).
See Flynn v. People’s Choice Home Loans, Inc., 440 F. App’x 452, 456-57 (6th Cir. 2011) (citing
Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995)).
14
Id. at *7 (citing Hitachi Med. Sys. v. Lubbock Open MRI, No. 5:09CV847, 2010 WL 5129311, at *2
(N.D. Ohio Dec. 10, 2010)).
15
Id.
16
See Fed. R. Civ. P. 55(b); see also Zinganything, 2016 WL 362359, at *6.
13

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Case No. 1:16-cv-969
Gwin, J.
II. CONCLUSION
For the preceding reasons, the Court GRANTS Viola’s motion to stay, so long as he
posts a supersedeas bond of at least $130,000 within 14 days of the date of this order.
The Court DENIES Viola’s motion to compel. The Court ORDERS Viola to produce
documents establishing damages on his default judgment within 21 days of the date of this order.

IT IS SO ORDERED.

Dated: November 27, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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