Bish Constr. v. Wickham
2013 Ohio 421
Ohio Ct. App.2013Background
- Wickhams signed a $152,983 promissory note secured by a mortgage to MERS as nominee for Full Spectrum Lending; mortgage was a valid first lien on Wickhams' property in Tiffin, Ohio and later assigned to BONY.
- Foreclosure complaint was filed by Bish Construction against Wickhams and others, including BONY on a cross-claim; Bish was dismissed from the action by a consent judgment.
- WICKHAMS entered into a Consent Judgment with BONY on January 21, 2009, granting BONY a judgment and decree on its cross-claim and agreeing not to execute for 60 days to allow a loan modification discussion.
- Wickhams filed for Chapter 7 bankruptcy on January 29, 2009; discharge on May 22, 2009 released Wickhams from personal liability.
- BONY moved to reactivate the case in August 2011; sale of the property scheduled for December 2011; Wickhams challenged via Civ.R.60(B)(5) and Civ.R.12(B)(1) with a hearing held January 4, 2012.
- Wickhams alleged BONY committed fraud (robo-signer concerns and improper transfer) and lacked standing to sue; BONY contended no meritorious defense and timeliness issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R.60(B)(5) relief for fraud upon the court was warranted. | Wickhams claimed BONY's assignment/documentation was fraudulent and 60(B)(5) should relieve judgment. | BONY argued no meritorious defense, and allegations were insufficient; fraud upon the court was not proven. | No abuse; no meritorious defense shown; 60(B)(5) not warranted. |
| Whether the motion to vacate was timely under Civ.R.60(B). | Wickhams contended late discovery and new fraud theories created timeliness. | BONY asserted timeliness and that fraud upon the court was not properly shown; motion filed well after judgment. | Motion not timely; filed 35 months after consent judgment, not within reasonable time. |
| Whether BONY had standing as real party in interest to file cross-claim and seek foreclosure. | Wickhams argued lack of assignment/note indorsement; questioned ownership and standing. | BONY showed possession of the note and mortgage and an assignment; valid real party in interest. | BONY properly real party in interest; standing supported by note and assignment. |
Key Cases Cited
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 156 (Ohio 1976) (established three-prong Civ.R.60(B) test)
- Strack v. Pelton, 70 Ohio St.3d 172 (Ohio 1994) (three-part test for relief under Civ.R.60(B))
- Caruso–Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (Ohio 1983) (Civ.R.60(B)(5) catch-all guidance; requires substantial grounds)
- Bank of New York v. Stilwell, 2012-Ohio-4123 (5th Dist. 2012) (abuse of discretion; finality and timeliness considerations)
- Blasko v. Mislik, 69 Ohio St.2d 684 (Ohio 1982) (finality; not a substitute for timely appeal)
- Eubank v. Mardoian, 2012-Ohio-1260 (9th Dist. 2012) (finality and standards in relief from judgment)
- Adomeit v. Baltimore, 39 Ohio App.2d 97 (Ohio 1974) (finality and limits on relief from judgment)
- Coulson v. Coulson, 5 Ohio St.3d 12 (Ohio 1983) (fraud under Civ.R.60(B) considerations)
- Austin v. Payne, 107 Ohio App.3d 818 (9th Dist. 1995) (distinction between types of fraud in 60(B) context)
- Fed. Home Loan Mortgage Corp. v. Schwartzwald, 134 Ohio St.3d 13 (Ohio 2012) (standing; lender must have interest at time of filing)