2015 Ohio 209
Ohio Ct. App.2015Background
- In 2007 Gibson took out a mortgage and note originally involving Taylor, Bean & Whitaker and MERS as nominee.
- Bank of America filed a foreclosure complaint in June 2012, alleging it was the present holder of the note and mortgage and attaching the note, mortgage, assignments, and merger documents.
- Gibson pled lack of standing in her answer but did not oppose Bank of America’s summary judgment motion on the standing evidence and did not appeal the May 2013 judgment of foreclosure.
- A Sheriff’s sale was scheduled for January 2014; ten days before the sale Gibson filed a post-judgment motion to set aside the foreclosure, arguing Bank lacked standing (assignments improper and loan was securitized) and sought relief under Civ.R. 60(B).
- The trial court held an evidentiary hearing, excluded Gibson’s proposed expert on securitization, received no other contrary evidence, and denied the motion to set aside.
- The Eleventh District affirmed, holding Gibson was barred from relitigating standing post-judgment because the issue could and should have been raised on appeal and Civ.R. 60(B) is not a substitute for appeal absent fraud or other misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of standing can be raised in a post-judgment motion to vacate/60(B) after failing to appeal | Bank: standing was properly established in the complaint and summary judgment filings; post-judgment challenge is barred | Gibson: Bank never properly acquired note/mortgage (assignments/statutory defects and securitization) so judgment is void and 60(B) relief warranted | Held: No — res judicata bars raising standing in a post-judgment motion when it could have been litigated on appeal; Civ.R. 60(B) is not a substitute for appeal absent fraud/misconduct |
| Whether summary judgment / foreclosure was proper based on Bank’s documentary evidence | Bank: attached note, mortgage, assignments, and VP affidavit sufficient to establish standing and entitlement to summary judgment | Gibson: claimed standing defect but did not contest the summary-judgment evidence or submit contrary evidence | Held: Summary judgment was proper because Gibson failed to create a factual dispute or appeal the judgment |
Key Cases Cited
- Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (recognizing standing challenge must be raised during the foreclosure proceeding)
- Harris v. Anderson, 109 Ohio St.3d 101 (2006) (Civ.R. 60(B) cannot substitute for an appeal; res judicata applies to 60(B) motion)
- New Boston Coke Corp. v. Tyler, 32 Ohio St.3d 216 (challenge to rights of parties must be raised during the underlying action)
- Ackermann v. United States, 340 U.S. 193 (1950) (60(b) relief not available to undo a party's choice not to appeal)
- Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) (Civ.R. 60(B)-type relief addresses extraordinary injustices such as fraud)