1ST FIDELITY LOAN SERVICING, LLC, Plaintiff-Appellee, - vs - ANDREW C. BELLINA aka ANDREW BELLINA, et al., Defendants-Appellants.
CASE NO. 2014-L-092
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
June 8, 2015
[Cite as 1st Fid. Loan Servicing, L.L.C. v. Bellina, 2015-Ohio-2199.]
TIMOTHY P. CANNON, P.J.
Civil Appeal from the Lake County Court of Common Pleas, Case No. 11CF 003425. Judgment: Affirmed.
David N. Patterson, 33579 Euclid Avenue, Willoughby, OH 44094-3199 (For Defendants-Appellants).
O P I N I O N
TIMOTHY P. CANNON, P.J.
{¶1} Appellants, Andrew C. Bellina and Carol A. Bellina, appeal from the judgment of the Lake County Court of Common Pleas, denying their motion for relief from judgment from the court‘s judgment of foreclosure.1 For the reasons discussed below, the trial court‘s judgment is affirmed.
{¶2} Appellee, 1st Fidelity Loan Servicing, LLC, filed a complaint for foreclosure on December 11, 2011, for property located at 4211 Harper Street in the Village of
{¶3} The attachments to the complaint illustrate that on December 6, 2001, the mortgage was filed. The mortgage was assigned from Ameriquest Mortgage Company to Mortgage Electronic Registration System, Inc. (“MERS“), as nominee for JP Morgan Chase Bank National Association (“Chase“), by virtue of an Assignment of Mortgage dated December 15, 2008. On December 2, 2011, the mortgage was assigned from MERS to appellee, prior to the complaint being filed. The promissory note, attached to the complaint, indicates the following signed notation: “Pay to the order of, without recourse, Ameriquest Mortgage Company.”
{¶4} Appellants were served with the complaint, and the matter was referred to mediation. A mediator‘s report, filed September 12, 2012, notes that the parties participated in three settlement conferences but were unable to reach a “mutually acceptable resolution.” Therefore, the mediator recommended the case proceed to its resolution.
{¶5} Appellants never filed an answer or any other responsive pleading. On September 20, 2012, appellee filed a motion for default judgment. In its certificate of service, appellee indicated that the motion for default was sent to appellants on September 19, 2012. The trial court‘s docket states, “motion for default judgment, certificate of service, filed.” The trial court did not hold a hearing on the motion. On December 11, 2012, the trial court granted the motion and awarded appellee $94,344.07, plus interest and late fees from July 26, 2010, and ordered foreclosure.
{¶6} The same day as the scheduled sheriff‘s sale, appellants filed a motion to set aside the decree of foreclosure. The trial court denied the motion. Appellants filed a timely appeal and assert the following assigned errors:
[1.] The trial court erred to the prejudice of the appellants by entering judgment in favor of the appellee and denying the motion to set aside as the appellee failed to proffer competent, credible evidence to properly and sufficiently establish standing and that it was the real party in interest.
[2.] The trial court erred to the prejudice of the appellants by granting and upholding the default judgment without providing proper, constitutional notice of hearing and opportunity to the appellant to be heard and defend the matter.
[3.] The trial court erred to the prejudice of the appellants by entering judgment in favor of the appellee and denying the motion to set aside as the appellee lacked the capacity to sue in the state of Ohio rendering the judgment void ab initio or otherwise unenforceable as a matter of law and/or equity.
{¶7} Appellants’ first two assignments of error address why they believe the trial court should have granted their motion to set aside the judgment. Because they are interrelated, we address them in a consolidated analysis. Appellants argue that default judgment should be set aside because the trial court did not afford them the notice required by
{¶8}
{¶9} Despite appellants’ failure to file an answer in the action, whether the notice set forth in
{¶10} Courts have held that, where a defendant makes an appearance in an action, but does not receive the requisite notice under
{¶11} According to the record, appellee served a copy of the motion for default upon appellants. However, the rule contemplates a hearing when a party has entered an appearance by establishing that application for default must be served “at least seven days prior to the hearing on such application.” Here, there is no indication on the docket that the trial court either scheduled a hearing on the application for default or notified appellants. Therefore, we address the trial court‘s determination that appellants failed to meet the requirements for relief under
{¶12}
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment * * * for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B) ; (3) fraud * * *; (4) the judgment has been satisfied, released or discharged * * *; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
{¶13} Thus,
{¶14} To prevail on a
{¶15} The decision of whether to grant relief under
{¶16} On appeal, appellants argue the trial court erred in denying their
{¶17} In their
{¶18} Because it is dispositive, we first address the timeliness of appellants’
{¶19} With respect to the timeliness of the motion, the trial court stated:
[T]he [appellants] filed their motion on September 17, 2013, almost nine months after the decree in foreclosure was filed on December 11, 2012. No credible reason was given by [appellants] for this delay in filing for relief from judgment. * * * In this case, the unjustified delay was nine months. Absent an adequate explanation, the court finds the same is unreasonable. The [appellants] failed to satisfy the timeliness element.
{¶20} The court also recognized that appellants’ contention that a loan modification was forthcoming as the reason for their untimely filing was contradicted by the record. Their contention regarding the loan modification was rebutted by their admission that an agreement was never sent to them and that they never made a payment pursuant to a loan modification agreement. Further, the mediator‘s report, filed September 12, 2012, specifically stated: “After said settlement conferences and related follow up, it was determined that a mutually acceptable resolution could not be reached at this time. Therefore, the mediation department recommends the case proceed to its conclusion.” (Emphasis sic.) Appellants were aware of the pending foreclosure proceeding and that default judgment was entered against them. Further, although a
{¶21} Given our standard of review, we cannot find that the trial court abused its discretion in finding appellant‘s motion untimely.
{¶22} Assuming arguendo that such motion was timely filed, appellants failed to present a meritorious defense. In their motion, appellants claimed that appellee lacked standing to bring the action; that appellee was not the real party in interest; and that the promissory note and mortgage were void.
{¶23} With respect to the lack of a meritorious defense, the trial court noted that the promissory note was endorsed in blank by an agent of Ameriquest and, thus, became bearer paper enforceable by appellee, the holder. The trial court also observed that appellee attached mortgage assignments to the complaint from Ameriquest to MERS as nominee for Chase and from MERS to appellee, dated prior to the time of the complaint. Therefore, the documentation attached to the complaint is sufficient to establish appellee was the holder of both the promissory note and mortgage when the complaint was filed. In their motion, appellants failed to present any operative facts that either refuted these claims or challenged the authenticity of either attachment.
{¶24} We further observe that it is well settled that
{¶25} In Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, the Supreme Court of Ohio addressed the propriety of raising the issue of standing in a
{¶26} After initially drawing the conclusion that a lack of jurisdiction does not constitute fraud for purposes of establishing a viable basis for relief under
[B]ecause the issue of standing could have been and in fact was raised during the foreclosure proceedings, res judicata prevents the Kuchtas from using the issue to establish entitlement to relief. Ohio‘s
Civ.R. 60(B) is substantially equivalent toFed.R.Civ.P. 60(b) , which codified the centuries-old “rule of equity to the effect that under certain circumstances, one of which is after-discovered fraud, relief will be granted against judgments” regardless of their finality. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944).Civ.R. 60(B) exists to resolve injustices that are so great that they demand a departure from the strict constraints of res judicata. Id. However, the rule does not exist to allow a party to obtain relief from his or her own choice to forgo an appeal from an adverse decision. Ackermann v. United States, 340 U.S. 193, 198 (1950).
{¶27} It is well established that a
{¶28} The Court further considered whether a challenge to standing can be asserted in a common-law motion to vacate a judgment for lack of subject matter jurisdiction. The Court recognized that the court of common pleas possesses subject matter jurisdiction over all foreclosure actions. It determined, however, that while standing is a jurisdictional requirement, “lack of standing does not affect the subject-matter jurisdiction of the court.” Id. at paragraph three of the syllabus.
{¶29} Therefore, even assuming arguendo appellee lacked standing, such a defect would not affect the trial court‘s subject matter jurisdiction. Thus, the trial court‘s judgment was not void ab initio, and appellants’ argument to the contrary is unavailing. See id. at ¶24. See also Bank of Am. v. Gibson, 11th Dist. Geauga No. 2014-G-3204, 2015-Ohio-209 (addressing substantially similar facts to those in the matter sub judice and affirming the trial court‘s denial of the defendant‘s
{¶30} Appellants had an opportunity to challenge appellee‘s standing, inter alia, during the pendency of the suit below. Appellants did not establish an injustice so great as to warrant a departure from the application of res judicata. See Kuchta, supra, at ¶15. Instead, the record simply reveals that appellants failed to file an answer to
{¶31} Appellants’ first and second assignments of error are without merit.
{¶32} Under the third assignment of error, appellants argue that appellee is not registered with the state of Ohio as either an Ohio corporation or a foreign corporation and, thus, lacks the capacity to sue. This is a new argument raised for the first time on appeal. As previously stated, it is well-settled that a party may not “change the theory of [her] case and present these new arguments for the first time on appeal.” Gutierrez, supra, at 176. Appellate courts will not find that a trial court abused its discretion in denying
{¶33} Appellants’ third assignment of error is without merit.
{¶34} Based on the opinion of this court, the judgment of the Lake County Court of Common Pleas is hereby affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.