BAC HOME LOANS SERVICING, LP v. DWAYNE R. HENDERSON, ET AL.
No. 98745
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 31, 2013
2013-Ohio-275
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-703485
Matthew T. Anderson
Timothy M. Clayton, Jr.
Brett M. Renzenbrink
Luper Neidenthal & Logan
50 West Broad Street
Suite 1200
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEES
For Dwayne R. Henderson
John Sherrod
Laura Mills
Paul Vincent
Mills, Mills, Fiely & Lucas
503 South Front Street
Suite 240
Columbus, Ohio 43215
For Centurion Capital Corp.
Centurion Capital Corp.
700 King Farm Blvd.
Rockville, Maryland 20850
For Alishea T. Henderson
Alishea T. Henderson
5188 Spencer Road
Lyndhurst, Ohio 44124
For St. Colman & Affiliates F.C.U.
St. Colman & Affiliates F.C.U.
6637 Lorain Avenue
Cleveland, Ohio 44102
For State of Ohio Department of Taxation
Collections Enforcement
150 E. Gay Street, 21st Floor
Columbus, Ohio 43215
For Unknown Tenant
Unknown Tenant
5188 Spencer Road
Lyndhurst, Ohio 44124
KATHLEEN ANN KEOUGH, J.:
I. Background
{2} In September 2009, BAC filed its complaint in foreclosure alleging that it was the ownеr of a note secured by a mortgage on property located at 5188 Spencer Road, Lyndhurst, Ohio 44124, Henderson had defaulted on the note, and BAC was entitled to foreclose on the mortgage. Henderson did not answer the complaint1 аnd BAC subsequently filed a motion for default judgment. The matter was referred to a magistrate, who issued a decision entering judgment for BAC on its motion. On April 15, 2010, the trial court issued a journal entry adopting the magistrate‘s decision. The court ordered judgment for BAC against Henderson, entered a decree of foreclosure, and ordered that BAC could proceed to sheriff‘s sale оf the property.
{3} A sale date was set for June 21, 2010, but two days prior to the sale, Henderson filed a Chapter 13 petition fоr bankruptcy. Accordingly, the sale was withdrawn and the proceedings were stayed. After Henderson‘s bankruptcy case wаs dismissed, the property was again set for sheriff‘s sale on June 11, 2012.
{5} Henderson then filed another request for mediation. On June 7, 2012, the trial court entered an order finding that the case might be suitable for mediation and staying all discovery and motion practice pending the mediator‘s final determination regarding suitability for mediation. The trial cоurt ordered that the case would be set for a pre-mediation conference by separate order, and furthеr ordered that “failure of plaintiff‘s counsel to appear will result in the 04/15/10 judgment being vacated, and dismissal of all claims without prejudice.” The court ordered the property sale to proceed but stayed confirmation of the sale pending the results of mediation.
{6} On June 12, 2012, the trial court issued a journal entry setting the pre-mediation conference for July 2, 2012 and again ordering that “failure of the plaintiff‘s counsel to appear in person at the pre-mediation conference will result in dismissal of the plaintiff‘s claims without prejudice.”
{7} BAC‘s counsel did not appear at the pre-mediation сonference. On July 3, 2012, the trial court issued a journal entry ordering that “pursuant to this court‘s order dated June 7, 2012, the judgment and decrеe of foreclosure dated 4-15-10 and the sheriff‘s sale of 6-11-12 are vacated.” The court ordered the sheriff to return the оrder of sale without execution and to mark as void any deed that had been prepared as a result of the sale. Finally, the trial court ordered that BAC‘s claims were dismissed without prejudice.
{8} BAC raises three assignments of error, all of which chаllenge the trial court‘s July 3, 2012 journal entry. In its first assignment of error, BAC argues that the trial court erred in sua sponte vacating its April 15, 2010 judgment and decree of foreclosure; in its second assignment, BAC contends that the trial court erred in sua sponte vacating the sheriff‘s sale; and in its third assignment, BAC contends that the trial court erred in sua sponte dismissing its foreclosure action. We agree with all of BAC‘s contentions.
{9} The trial court‘s April 15, 2010 judgment ordering foreclosure and sale of the property was a final, apрealable order. Sky Bank v. Mamone, 182 Ohio App.3d 323, 2009-Ohio-2265, 912 N.E.2d 668, ¶ 25 (8th Dist.), citing Smith v. Najjar, 163 Ohio App.3d 208, 2005-Ohio-4720, 837 N.E.2d 419, ¶ 10 (5th Dist.) (“An order of foreclosure and sale is a final appealаble order, * * * and the later order confirming the sale * * * is a second, separate, final appealable ordеr.“); see also Mtge. Elec. Reg. Sys., Inc. v. Harris-Gordon, 6th Dist. No. L-10-1176, 2011-Ohio-1970, ¶ 10 (both the order of foreclosure and the order confirming the sheriff‘s sale are final, appealable orders).
{10} A trial court has no authority to sua sponte vacate its own final orders. In re R.T.A., 8th Dist. No. 98498, 2012-Ohio-5080, ¶ 5, citing Dickerson v. Cleveland Metro. Hous. Auth., 8th Dist. No. 96726, 2011-Ohio-6437, ¶ 7. Since the adoption of the Civil Rules,
{11} Here, neither party filed a
{12} Henderson concedes that a court is without authority to sua spоnte vacate its final judgments but argues that the trial court had authority in this case to dismiss the foreclosure action without prejudice because the court gave notice that the matter would be dismissed if the parties failed to appeаr at the pre-mediation conference. Henderson‘s argument is without merit. Because the trial court had entered а judgment of foreclosure for BAC and ordered the property to be sold at sheriff‘s sale — a final judgment — the court was without authority to sua sponte vacate its judgment and dismiss the case. Henderson‘s remedy upon the trial court‘s order of foreсlosure and sale was to file an appeal or a
{13} BAC‘s assignments of error are therefore sustained. The trial court‘s judgment entry dated July 3, 2012 is reversed, and the matter is rеmanded to the trial court with instructions to reinstate the April 15, 2010 judgment entry.
{14} Reversed and remanded.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and PATRICIA ANN BLACKMON, J., CONCUR