2013 Ohio 1180
Ohio Ct. App.2013Background
- IndyMac Bank F.S.B. filed a foreclosure complaint on February 25, 2008.
- MERS held the mortgage at filing; IndyMac obtained an assignment to itself February 26, 2008 and recorded it February 28, 2008.
- IndyMac amended the complaint March 10, 2008, attaching the mortgage assignment.
- The Boroshes contended IndyMac lacked standing at filing and that service of summons was improper.
- The court granted default judgment; sheriff’s sale occurred and sale was confirmed with writ of possession issued.
- Three years later the Boroshes moved for relief from judgment under Civ.R. 60(B); the trial court and appellate court denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did IndyMac have standing when filing the foreclosure complaint? | IndyMac possessed the mortgage after assignment and cured any defect via amended complaint. | Boroshes argued lack of standing at filing renders judgment void. | IndyMac cured standing by filing amended complaint with assignment. |
| Whether relief from default judgment was proper under Civ.R. 60(B) and timeliness? | N/A | Motion filed after more than three years; untimely and improper substitute for appeal. | Motion untimely; court did not abuse discretion in denying relief. |
| Whether service of summons and due process issues barred relief? | N/A | Boroshes claimed lack of personal service and counsel withdrawal affected due process. | Records show notice and defense opportunity; Civ.R. 60(B) relief not warranted. |
Key Cases Cited
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 1 (Ohio 2012) (standing at filing; substitution by amendment cures defect)
- GTE Automatic Elec. v. ARC Indus., 47 Ohio St.2d 146 (Ohio 1976) (Civ.R. 60(B) timeliness and relief standards)
- Svoboda v. Brunswick, 6 Ohio St.3d 348 (Ohio 1983) (reasonable time for Civ.R. 60(B) motion; discretionary denial)