BANK OF AMERICA, A NATIONAL BANKING ASSOCIATION, AS SUCCESSOR IN INTEREST BY MERGER TO MERRILL LYNCH CREDIT CORPORATION, Plaintiff-Appellee, - vs - LOUIS A. TELERICO, et al., Defendants-Appellants.
CASE NO. 2013-P-0069
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2014-02-03
2014-Ohio-434
DIANE V. GRENDELL, J.
Civil Appeal from the Court of Common Pleas, Case No. 2011 CV 01105. Judgment: Appeal dismissed.
Susan J. Lax, 755 White Pond Drive, #403, Akron, OH 44320 (For Defendants-Appellants).
DIANE V. GRENDELL, J.
MEMORANDUM OPINION
{¶1} This appeal is taken from a judgment of the Portage County Court of Common Pleas, in which the trial court granted appellee, Bank of America, a National Banking Association, as Successor in Interest by Merger to Merrill Lynch Credit Corporation, judgment against appellants, Louis A. Telerico, Louis A. Telerico, Trustee of the Elaine J. Telerico Trust, and Louis A. Telerico, Trustee of the Louis A. Telerico 2007 Amended and Restated Revocable Trust Indenture.
{¶3} The July 23, 2013 entry granted appellee judgment against appellants in the amount of $2,999,985, plus interest equal to $238,492.60 as of April 15, 2013, and costs. The entry also stated that appellee is “entitled to judgment finding that its mortgage is the first and best lien on the property * * *” and that “one or more of the Defendants have a subordinate lien on the property.” Further, the last paragraph in the entry indicates that “there is no just reason for delay.” On August 22, 2013, appellants, by and through counsel of record, Susan J. Lax, filed the instant notice of appeal.
{¶4} We must determine whether the order appealed from is a final appealable order. According to
{¶5} Pursuant to
{¶6}
{¶7} “An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
{¶8} “(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
{¶9} “(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
{¶10} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶11} “(4) An order that grants or denies a provisional remedy and to which both of the following apply:
{¶12} “(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
{¶13} “(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
{¶14} “(5) An order that determines that an action may or may not be maintained as a class action;
{¶16} “(7) An order in an appropriation proceeding * * *.”
{¶17} In the case at hand, for
{¶18} In addition, it is clear that the July 23, 2013 entry does not vacate a judgment, grant a provisional remedy, deal with a class action, or determine the constitutionality of Am. Sub. S.B. 281 or Sub. S.B. 80. Thus,
{¶19} For
{¶20} This court has determined that there is no final appealable order where a judgment entry merely rules that a party had a valid lien on the property and was entitled to a future order of foreclosure. See BCGS, L.L.C. v. Raab, 11th Dist. No. 98-L-041, 1998 Ohio App. LEXIS 6584. Furthermore, other appellate courts have held that an entry “ordering a foreclosure sale is not a final and appealable order unless it
{¶21} This court has also stated that until a final decree of foreclosure has been issued, appellate courts have no jurisdiction to consider an appeal because the trial court has failed to issue a final appealable order. Mortgage Electronic Registration Systems, Inc. v. Estate of Rose, 11th Dist. No. 2004-L-120, 2005-Ohio-559.
{¶22} Here, the July 23, 2013 entry does not include any language to proceed with a foreclosure sale. At most, the trial court ruled that appellee had a valid lien on the property and was entitled to future order of foreclosure. Hence, the July 23, 2013 entry appealed from is not a final appealable order, but rather is simply prefatory to the issuance of an actual foreclosure decree ordering the sale of the property and establishing the priority of any valid liens.
{¶23} Therefore, we find that the trial court has not yet issued a final appealable order. Until a final decree of foreclosure is issued, this court is without jurisdiction to consider the merits in this matter. Furthermore, merely including
{¶24} Accordingly, this appeal is hereby dismissed, sua sponte, for lack of a final appealable order.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.