Fifth Third Bank v. Dayton Lodge Ltd. Liab. Co.
2012 Ohio 3387
Ohio Ct. App.2012Background
- Fifth Third Bank foreclosed Dayton Lodge Hotel, securing loans totaling about $3.75 million with mortgages, rents, and guarantees.
- A receiver was appointed to take possession and operate the hotel; the receivership became effective February 8, 2008.
- An in-person auction was held; Shaja purchased the property for $1,150,000 with a $115,000 deposit in August 2008.
- The trial court confirmed the sale on February 4, 2011 after objections and delays related to maintenance and fire-code issues.
- Shaja moved to set aside the sheriff’s sale, arguing damages and nonconforming-use issues; Fifth Third opposed, citing res judicata and Civ.R. 60(B) standards.
- The trial court denied relief under Civ.R. 60(B); the court held Shaja failed to intervene before confirmation and did not prove grounds to relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(B) relief was available despite lack of pre-confirmation intervention | Shaja was precluded for not intervening timely. | Intervention after sale could still be relief under Civ.R. 60(B). | No; failure to intervene pre-confirmation precluded relief. |
| Whether the motion was properly treated as Civ.R. 60(B) relief from judgment | Motion should be treated under Civ.R. 60(B) based on judgment and sale. | Final order on sale remains reviewable only by Civ.R. 60(B) or appeal. | Correctly construed as Civ.R. 60(B) relief from judgment. |
| Whether Shaja demonstrated grounds under Civ.R. 60(B)(2)-(5) for relief | Shaja lacked due diligence and failed to show newly discovered evidence or misconduct tied to obtaining judgment. | No proof of due diligence or grounds under 60(B). | Relief denied; no grounds established. |
Key Cases Cited
- GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (Ohio 1976) (three-element Civ.R. 60(B) test requires meritorious defense, grounds, and timeliness)
- Strack v. Pelton, 70 Ohio St.3d 172 (Ohio 1994) (all three Civ.R. 60(B) elements must be met; test is strict)
- Fifth Third Bank of W. Ohio v. Thorn, 1994 WL 53833 (2d Dist. Miami No. 93-CA-19 (unpublished)) (Civ.R. 60(B)(3) addresses misconduct relating to obtaining judgment)
- Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (Ohio 1983) (Civ.R. 60(B)(5) catch-all is extraordinary, not a substitute for specifics)
- Ohio Sav. Bank v. Ambrose, 56 Ohio St.3d 53 (Ohio 1990) (foreclosure purchaser has right to intervene before confirmation)
- Mid-American National Bank v. Heiges, 6th Dist. Ott. No. 94OT025 (Ohio 1994) (pre-confirmation intervention rights for purchasers)