U.S. Bank Natl. Assn. v. Spicer
2011 Ohio 3128
Ohio Ct. App.2011Background
- Spicer executed a $212,000 promissory note to Intervale for a Marion, Ohio residence; MERS was Intervale’s nominee and Decision One serviced the loan; mortgage recorded December 1, 2006.
- Servicing transferred to Select Portfolio Servicing (SPS) in 2007; SPS was the entity receiving payments after March 1, 2007.
- In 2008, MERS assigned the mortgage to U.S. Bank National Association, as trustee for the Home Equity Asset Trust 2007-3; assignment recorded in Marion County.
- U.S. Bank filed foreclosure on September 25, 2008; Spicer was served October 21, 2008 and default judgment followed January 5, 2009 with a foreclosure decree issued January 12, 2009.
- Between 2009 and 2010, the trial court granted multiple motions to withdraw or re-schedule Sheriff’s Sale due to forbearance and loss-mitigation agreements; Spicer filed a Civ.R. 60(B) motion to vacate in October 2010, the first formal appearance in the case.
- The trial court ultimately denied relief under Civ.R. 60(B) and held Spicer waived defenses (including real-party-in-interest) and did not prove grounds for relief; the court’s decision was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Civ.R. 60(B) motion | Spicer filed late; 60(B) motion must be timely. | April 2009 letter functioned as stay request; later supplements invoked 60(B)(5) within reasonable time. | Motion filed after a long delay; not timely under 60(B) and not within reasonable time for 60(B)(5). |
| Real party in interest/standing | U.S. Bank is proper real party in interest; no timely challenge. | Spicer argued U.S. Bank lacked standing and Intervale lacked authority to foreclose. | Waived defense for real-party-in-interest due to failure to raise timely; no abuse of discretion in denying 60(B) relief. |
| Fraud upon the court under Civ.R. 60(B)(5) | No fraud shown by Bank or SPS. | There was fraud or robo-signing by servicers as grounds for relief. | Not proven; 60(B)(5) not applicable; more appropriate under 60(B)(3) but time-barred. |
Key Cases Cited
- In re Whitman, 81 Ohio St.3d 239 (1998) (elements of Civ.R. 60(B) relief must be met and timeliness matters)
- Strack v. Pelton, 70 Ohio St.3d 172 (1994) (Civ.R. 60(B) relief; catch-all 60(B)(5) requires reasonable time)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard on 60(B) relief)
- Shealy v. Campbell, 20 Ohio St.3d 23 (1985) (real party in interest rule protects defendant's defenses and finality of judgment)
- Coulson v. Coulson, 5 Ohio St.3d 12 (1983) (fraud upon the court requires substantiated misconduct of officers of the court)
- Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983) (Civ.R. 60(B) not to be used to circumvent other specific grounds)
- First Union Natl. Bank v. Hufford, 146 Ohio App.3d 673 (2001) (waiver and timeliness considerations for standing defenses)