GMAC MORTGAGE, L.L.C. v. CALEY COLEFF, ET AL.
No. 98917
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 13, 2013
2013-Ohio-2462
BEFORE: Boyle, P.J., Rocco, J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-767202; RELEASED AND JOURNALIZED: June 13, 2013
Grace Doberdruk
Doberdruk & Harshman
4600 Prospect Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEES
For GMAC Mortgage, L.L.C.
Wayne E. Ulbrich
120 E. Fourth Street, 8th Floor
Cincinnati, Ohio 45202
Karen M. Cadieux
Joel E. Sechler
David A. Wallace
Carpenter Lipps & Leland L.L.P.
280 Plaza, Suite 1300
280 North High Street
Columbus, Ohio 43215
For Pembrooke Place, etc., et al.
Joseph J. Straka
Morscher Straka, L.L.C.
11711 Lorain Avenue
The Brighton Building, Suite 56
Cleveland, Ohio 44111
{¶1} Defendant-appellant, Caley Coleff, appeals from the trial court‘s judgment denying her
It was an abuse of discretion for the trial court to deny appellants’ [
Civ.R. ] 60(B) motion to vacate without holding a hearing.
{¶2} Finding no merit to her appeal, we affirm.
Procedural History and Factual Background
{¶3} Plaintiff-appellee, GMAC Mortgage, L.L.C. (“GMAC“), filed a complaint in foreclosure and reformation of mоrtgage and deed against Coleff1 in October 2011, alleging that it was the holder of a note, loan modification agreement, and mortgage on Coleff‘s property. It further alleged that the note was in default and that Coleff owed $143,258 on the note, plus interest and costs. GMAC sought judgment on the note, foreclosure on the property, and reformation of the mortgage and deed to reflect the proper legal description of the prоperty.
{¶4} GMAC properly served Coleff, but she did not answer or otherwise appear to defend the case.
{¶5} GMAC filed a preliminary judicial report and subsequently moved for default judgment. Despite receiving notice of thе hearing, Coleff failed to appear for it.
{¶6} On April 6, 2012, the trial court entered default judgment in favor of GMAC and issued a judgment decree in foreclosure. An order of sale was issued on May 5, 2012, and the sheriff‘s sale was set for June 18, 2012. Four dаys before the sheriff‘s sale, Coleff moved to vacate the judgment decree in foreclosure pursuant to
Civ.R. 60(B) and Standard of Review
{¶7} Under
(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 (whether heretofоre denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed оr otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and fоr reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
{¶8} To prevail on a motion for relief from judgment under
{¶9} These requirements must be shown by “operative facts” that demonstrate the movant‘s entitlement to relief. Rose Chevrolet at 21; see also Coleman v. Cleveland School Dist. Bd. of Edn., 8th Dist. Nos. 84274 and 84505, 2004-Ohio-5854, ¶ 79; Black v. Pheils, 6th Dist. No. WD-03-045, 2004-Ohio-4270. Althоugh a movant is not required to submit evidentiary material in support of the motion, a movant must do more than make bare allegations of entitlement to relief. Black at ¶ 8, citing Your Fin. Community of Ohio, Inc. v. Emerick, 123 Ohio App.3d 601, 607, 704 N.E.2d 1265 (10th Dist.1997); see also Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996). “Moreover, if the material submitted by the movant does not provide operative facts which demonstrate that relief is warranted, the court may deny the motion without conducting a hearing.” Black at ¶ 68; McBroom v. McBroom, 6th Dist. No. L-03-1027, 2003-Ohio-5198, ¶ 39.
{¶10} The trial court has discretion in deciding a motion for relief from judgment under
{¶11} The Ohio Supreme Court explained the meaning of “abuse of discretion” in AAAA Ents., Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990):
“Abusе of discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonablе, rather than decisions that are unconscionable or arbitrary.
A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.
Analysis
{¶12} In her motion to vacate the trial court‘s judgment, Coleff alleged that she had a meritorious defense to GMAC‘s complaint because (1) GMAC failed to “comply with a condition precedent to foreclosure” because it did not comply “with the face-to-face meeting requirement for FHA notes and mortgages,” (2) there was an issue as to whether GMAC was the holder of her note, and (3) her “note was not a negotiable instrument because it was not for a fixed amount since thе note required her to look at the mortgage to determine how much to pay each month.”
{¶13} Coleff‘s arguments that GMAC failed to hold a face-to-face meeting and that her note was not a negotiable instrument could have been raised in a direct appeal.2 See Fairbanks Capital Corp. v. Richards, 8th Dist. No. 86173, 2006-Ohio-102, ¶ 5, citing Kelley v. Lane, 103 Ohio St.3d 432, 2004-Ohio-5582, 816 N.E.2d 599, ¶ 3; see also Wilson v. Wilson, 8th Dist. No. 86817, 2006-Ohio-4261 (wife precluded from challenging the division of marital property on appeal from denial of
[I]n Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, the Ohio Supreme Court held that standing in a foreclosure action is a “jurisdictional requirement” and that “standing to sue is required to invoke the jurisdiction of the common pleas court.” Id. at ¶ 22, 24. Furthermore, quoting New Boston Coke Corp. v. Tyler, 32 Ohio St.3d 216, 218, 513 N.E.2d 302 (1987), the Supreme Court stated, “‘the issue of standing, inasmuch as it is jurisdictional in nature, may be raised at any time during the pendency of the proceedings.‘” Accordingly, although [the appellant] did not raise a standing issue in his earlier appeals, because standing is jurisdictional and may be raised at аny time, we address this assignment of error on its merits. See BAC Home Loans Servicing L.P. v. Komorowski, 8th Dist. No. 96631, 2012-Ohio-1341, ¶ 18 (“the issue of standing may be raised at any time during the pendency of the proceedings because it affects the court‘s jurisdiction.“); Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11 (“[J]urisdiction goes to the power of the сourt to adjudicate the merits of a case; it can never be waived and may be challenged at any time.“).
Mulby v. Poptic, 8th Dist. No. 98324, 2012-Ohio-5731, ¶ 10.3
{¶15} Here, however, there is no standing issue. GMAC established that at the time it filed the suit, it had standing to bring the foreclosure aсtion. Coleff entered into the note with Stonewater Mortgage Corporation on May 14, 2009. GMAC attached the note to the complaint. There were several endorsements on the note, from Stonewater Mortgagе Corporation to “AllyBank f/k/a GMAC Bank,” then from “AllyBank f/k/a GMAC Bank” to GMAC Mortgage, L.L.C. GMAC also attached an “Assignment of
{¶16} To the extent that Coleff argues GMAC committed fraud to establish standing beсause the documents and affidavits attached to its complaint in the present case differ from the ones GMAC attached to the complaint it filed against Coleff in a previous 2010 foreclosure case, we find this type of fraud is not the type of fraud contemplated by
{¶17} In Whiteman, the court explained:
[t]he fraud or misconduct contemplated by
Civ.R. 60(B)(3) is fraud or misconduct on the part of the adverse party in obtaining the judgment by preventing the losing party from fully and fairly presenting his defense, not fraud or misconduct which in itself would hаve amounted to a claim or defense in the case.
Id. at ¶ 20, citing PNC Bank, Natl. Assn. v. Botts, 10th Dist. No. 12AP-256, 2012-Ohio-5383. In upholding the trial court‘s denial of the defendant‘s
Whiteman essentially challenges the underlying default judgment and foreclosure based upon a claim that Deutsche falsely maintained that it was the owner and holdеr of the mortgage when it filed the foreclosure complaint. Whiteman does not claim that his failure to respond to the foreclosure complaint was the product of any fraud by Deutsche. Further, any irregularities in the assignment of mortgage could have been identified
and raised in a responsive pleading, and Whiteman cannot blame Deutsche for its inaction in failing to challenge its status as a real party in interest sooner. * * * Whiteman could have filed an appeal from the decree of foreclosure contesting Deutsche‘s standing instead of raising it in a belated Civ.R. 60(B) motion.
{¶18} This case is exactly on point with Whiteman. The type of fraud that Coleff is alleging — that GMAC somehow altered the original documеnts in this case to establish standing — did not prevent her from defending the case in any way. Rather, she is alleging the type of fraud or misconduct that would have allowed her to defend her case in the trial court had she chosen tо appear and defend.
{¶19} Thus, the trial court did not abuse its discretion when it denied Coleff‘s
{¶20} Accordingly, Coleff‘s sole assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is оrdered 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
MARY J. BOYLE, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN T. GALLAGHER, J., CONCUR