2014 Ohio 2859
Ohio Ct. App.2014Background
- Lehner executed a note for $484,000 to Citimortgage on Nov 1, 2010, secured by a mortgage on 6760 Riverstyx Rd., Medina County, Ohio.
- Mortgage was assigned to Citimortgage on Mar 21, 2011 (recorded Apr 5, 2011) via MERS, as nominee for Citimortgage.
- Citimortgage filed a foreclosure action on Mar 30, 2011; amended complaint added Coltz as a defendant; alleged all conditions precedent were satisfied, including notice of acceleration.
- Acceleration notice letter was not attached to the complaint; Lehner answered pro se denying all conditions precedent were met; mediation occurred but failed.
- Courts granted Citimortgage's summary judgment and issued a foreclosure decree on Nov 1, 2011; Lehner later sought to extend time and to return to mediation, which the court denied and granted to Mediation instead.
- Lehner filed Civ.R. 60(B) motion to vacate; Citimortgage relied on an affidavit including the January 3, 2011 acceleration letter; trial court denied the motion on Nov 19, 2012; Lehner appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(B) relief was proper when acceleration notice was not clearly proven. | Lehner argues Citimortgage failed to show a condition precedent was satisfied; denial without hearing was error. | Citimortgage contends acceleration notice was proven via affidavit and timely response to summary judgment was lacking; no error in denial. | Assignment of error overruled; Civ.R. 60(B) relief denied. |
| Whether the trial court erred by relying on the affidavit not made on personal knowledge. | Lehner contends Gerry Cady's affidavit was not based on personal knowledge. | Citimortgage argues the affidavit was properly used in support of the motion. | Assignment of error overruled; affidavit properly considered. |
Key Cases Cited
- Mortgage Electronic Registration Sys., Inc. v. Green Tree Servicing, LLC, 9th Dist. Summit No. 23723 (2007-Ohio-6295) (final foreclosure decree resolves all issues; final appealable order)
- Kowalski v. Smith, 2012-Ohio-2974 (9th Dist. Wayne) (abuse of discretion standard for Civ.R. 60(B))
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard definition)
- Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619 (1993) (Civ.R. 60(B) requires timely appeal as prerequisite)
- Ward v. Hengle, 134 Ohio App.3d 347 (1999) (Civ.R. 60(B) relief cannot substitute for timely appeal)
- Key v. Mitchell, 81 Ohio St.3d 89 (1998) (Civ.R. 60(B) relief not substitute for direct appeal)
- Jizco Ents., Inc. v. Hehmeyer, 2010-Ohio-349 (9th Dist. Summit) (Civ.R. 60(B) motion must be based on timely issues)