CitiMortgage, Inc. v. Fishel
2012 Ohio 4117
Ohio Ct. App.2012Background
- CitiMortgage, Inc. holds the note, modification agreement, and mortgage on the Fishel property; CitiMortgage is successor by merger to ABN AMRO Mortgage Group Inc.
- Foreclosure filed Apr 20, 2009; default judgment entered Aug 11, 2009 in CitiMortgage's favor; no appeal of the default judgment.
- Appellants failed to plead or respond; CitiMortgage moved for default judgment on Jun 5, 2009; hearing notice mailed Jun 26, 2009.
- Appellants filed Civ.R. 60(B) motion to vacate on Feb 4, 2011, arguing CitiMortgage lacked standing and the judgment was void; the motion was denied as untimely.
- Trial court reasoned lack of standing does not render a valid judgment void; Civ.R. 60(B) requirements apply; eighteen-month delay in filing supports denial.
- Court affirmed the dismissal of the Civ.R. 60(B) motion and upheld the judgment as not void.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CitiMortgage had standing to sue on the foreclosure | Fishel: CitiMortgage lacked standing to pursue foreclosure | CitiMortgage: standing present via note and mortgage assignment | Standing argument fails to render judgment void; Civ.R. 60(B) requirements apply |
| Whether the Civ.R. 60(B) motion to vacate was timely | Fishel: timely relief under 60(B) | CitiMortgage: motion untimely; no excusable delay | Motion untimely; trial court did not abuse discretion in denying |
Key Cases Cited
- Carter-Jones Lumber Co. v. Willard, 6th Dist. No. L-06-1096, 2006-Ohio-6629 ((2006)) (void-judgment distinction and jurisdictional issues not applicable to Civ.R. 60(B) timing)
- Westmoreland v. Valley Homes Corp., 42 Ohio St.2d 291, 328 N.E.2d 406 ((1975)) (inherent authority to vacate void judgments; standing not jurisdictional)
- CompuServe, Inc. v. Trionfo, 91 Ohio App.3d 157, 631 N.E.2d 1120 ((10th Dist.1993)) (Fraud-like claims may be raised under 60(B)(3) (timing analyzed))
- Washington Mut. Bank, F.A. v. Wallace, 2011-Ohio-4174 ((12th Dist. 2011)) (standing challenges do not void judgments; Civ.R. 60(B) applies)
- Larson v. Umoh, 33 Ohio App.3d 14, 514 N.E.2d 145 ((8th Dist.1986)) (72-day delay can render 60(B) motion untimely)