BANK OF AMERICA, N.A. v. PETER B. FRIEDMAN, ET AL.
No. 100625
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 13, 2014
2014-Ohio-5034
BEFORE: E.T. Gallagher, J., Keough, P.J., and McCormack, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-12-789849. RELEASED AND JOURNALIZED: November 13, 2014
Eugene I. Selker
Selker & Associates, Ltd.
34305 Solon Road
100 Franklin‘s Row
Solon, Ohio 44139
ATTORNEYS FOR APPELLEE
Richard J. Feuerman
Eric T. Deighton
James L. Sassano
Carlisle, McNellie, Rini, Kramer & Ulrich, Co., L.P.A.
24755 Chagrin Blvd., Suite 200
Cleveland, Ohio 44122
{¶1} Defendants-appellants, Peter B. Friedman and Marina Corleto, (“appellants“), appeal from the trial court‘s judgment denying their
{¶2} In 2007, appellants secured a mortgage through Quicken Loans for $191,000. Appellants admit that they began to default on their mortgage payments sometime around December 2011. In February 2012, the mortgage was sold, transferred, and assigned to Bank of America, which was the successor by merger to BAC Home Loans Servicing, L.P. (formerly known as Countrywide Home Loan Servicing, L.P.).
{¶3} In August 2012, plaintiff-appellee, Bank of America, filed a foreclosure action against appellants. Copies of both the original note and mortgage agreement, as well as the mortgage assignment, were attached to the complaint. Appellants were properly served with the complaint in September 2012, but failed to answer.
{¶4} In October 2012, Bank of America filed a motion for default judgment. Appellants were properly served with the motion and subsequent notice of the default hearing, scheduled in November 2012, but failed to reply or to appear at the hearing. In November 2012, a judgment of foreclosure was granted in favor of Bank of America for the balance of the mortgage by default. No objections to the magistrate‘s decision were filed, and in December 2012, the trial court adopted the magistrate‘s decision in its entirety.
{¶5} In February 2013, appellants filed a
Civ.R. 60(B) and Standing
{¶6} In their first assignment of error, appellants argue Bank of America lacked standing to pursue foreclosure at the time the complaint was filed. In their second assignment of error, appellants argue the trial court erred in denying their
{¶7} Appellants argued in their
{¶8} This court has reviewed appeals of
{¶9} The Ohio Supreme Court answered the question in the negative, holding “that lack of standing cannot support a
{¶10} In the instant case, appellants argue the trial court erred in denying their
{¶11} Furthermore, the court in Kuchta reiterated that allegations of fraud related to standing in a foreclosure case are not the type of fraud contemplated by
We agree with the widely held view, expressed by the Tenth District in [PNC Bank, N.A. v. Botts, 10th Dist. Franklin No. 12AP-256, 2012-Ohio-5383], that the fraud, misrepresentation, or other misconduct contemplated by
Civ.R. 60(B)(3) refers to deceit or other unconscionable conduct committed by a party to obtain a judgment and does not refer to conduct that would have been a defense to or claim in the case itself. Botts at ¶ 15; GMAC Mortg., L.L.C. v. Herring, 189 Ohio App.3d 200, 2010-Ohio-3650, 937 N.E.2d 1077, ¶ 31 (2d Dist.); First Merit Bank, N.A. v. Crouse, 9th Dist. Lorain No. 06CA008946, 2007-Ohio-2440, ¶ 32; Wells Fargo Fin. Leasing, Inc. v. Gilliland, 4th Dist. Scioto No. 03CA2916, 2004-Ohio-1755, ¶ 19; Tower Mgt. Co. v. Barnes, 8th Dist. Cuyahoga No. 51030, 1986 Ohio App. LEXIS 7788, 1986 WL 8623, *3.
Kuchta at ¶ 13. Bank of America‘s alleged fraud in no way prohibited appellants from appearing and presenting a full defense. Accordingly, appellants were not entitled to relief from judgment based on these allegations.
{¶12} Finally, although the judgment of foreclosure was entered as a result of Bank of America‘s motion for default, appellants could have raised the issue of fraud and standing at the trial level or on direct appeal. Whereas the Kuchtas answered and appeared in their case, appellants certainly could have raised the issue of standing had they done the same.
{¶14} Accordingly, both assignments of error are overruled.
{¶15} Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and TIM McCORMACK, J., CONCUR