663 N.E.2d 660 | Ohio Ct. App. | 1995
The appellants, Constance L. Ellington, Charles L. Ellington and Nunhahda Foundation, Inc. ("Nunhahda"), appeal from a judgment of the Montgomery County Common Pleas Court, in which the court overruled their motion to vacate the court's confirmation of the foreclosure sale of the appellants' property and distribution of the sale proceeds. The appellants raise two assignments of error challenging the court's judgment on discretionary and due process grounds.
This case began on April 3, 1990, with appellee, Bank One of Dayton, N.A. ("bank"), filing a foreclosure complaint against the appellants.1 The bank alleged that Constance Ellington executed a mortgage note in the amount of $136,000 on July 25, 1986 in favor of the bank. In the first count of the complaint the bank claimed that Constance Ellington had failed to pay the monthly principal and *15 interest installments and owed $129,503. In the second count, the bank claimed that Constance Ellington had executed a mortgage deed in her capacity as President/Secretary of Nunhahda in order to secure the mortgage note, conveying real estate located at 7624 McLin Drive in Dayton, Ohio. Because of Constance Ellington's alleged default, the bank sought to have the mortgage foreclosed and the property sold to satisfy the unpaid balance on the note. The bank also sought recovery against Constance Ellington of the amount due it on the note.
After a trial before a referee, the referee recommended that judgment be entered in favor of the bank. Over the appellants' objections, the trial court agreed. It found the mortgage to be valid, ordered a marshalling of assets and directed that the property be sold. We affirmed the judgment of the trial court upon appeal in Bank One Dayton, N.A. v. Ellington (May 22, 1992), Montgomery App. No. 13149, unreported, 1992 WL 107828.
This appeal is concerned with the sale phase of this litigation. Beginning in December 1992, the trial court scheduled the sale of the property no fewer than six times. On the first four occasions, the property was withdrawn from sale because either Nunhahda or Charles Ellington filed petitions in federal bankruptcy court and were granted automatic stays of execution shortly before the sale dates. The bankruptcy court subsequently dismissed each petition or granted the bank's request for relief from the stay; the sale would then be rescheduled only to be met with another petition. On the fourth occasion, the bankruptcy court issued a restraining order preventing the appellants from filing any further petitions until the sale was completed.
On the fifth attempt, the property was sold to the appellee. However, the appellants moved for a reappraisal of the property. The trial court granted the motion and vacated the sale. Following reappraisal, the court scheduled the sale for the sixth time. This time, the property was sold to purchasers who are not parties to this appeal.
On July 12, 1994, the trial court confirmed the sale, finding that the transaction conformed to the law. On July 27, 1994, the appellants filed a motion to vacate the court's confirmation. They alleged that the mortgage deed was invalid, because it contained a defective acknowledgment. Furthermore, the appellants charged that pending bankruptcy actions prevented the sale. The trial court overruled the motion to vacate its confirmation. This timely appeal followed.
The appellants bring two assignments of error. Their first assignment states:
"The trial court's decision overruling appellants' motion to vacate was contrary to law and was an abuse of discretion because the mortgage was void and not subject to foreclosure under the facts of this case." *16
The appellants claim that the mortgage deed suffered from a defective acknowledgment because the acknowledgment did not separately name the mortgagor, Nunhahda Foundation, Inc. Therefore, the appellants argue that the mortgage deed was invalid under R.C.
We need not reach the merits of this proposition because we agree with the bank's procedural argument. It is important to note what judgment the appellants challenge in this appeal. The appellants assign error to the trial court's judgment overruling their request to vacate its confirmation of the sale. They do not, nor could they, again challenge the trial court's judgment of foreclosure, in which it determined the mortgage deed to be valid. We affirmed that judgment, Ellington, supra, and our decision precludes the appellants from relitigating that issue under the doctrine of res judicata. See Whitehead v. Gen. Tel.Co. (1969),
When a court is faced with confirmation of a judicial sale, the mortgage deed is not at issue. Rather, the court must determine whether the sale was conducted in accordance with the law, specifically R.C.
The appellants claim the following for their second assignment of error: *17
"The trial court erred in overruling appellants' motion to vacate [its] confirmation entry where the record clearly demonstrated that appellants were not given notice of the time and place of the foreclosure sale."
The appellants claim that their due process rights were violated because they were not given actual notice of the impending foreclosure sale.
The appellants did not raise this issue at the trial court level. "[A]n appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Williams (1977),
The judgment of the trial court is affirmed.
Judgment affirmed.
WOLFF and FAIN, JJ., concur.