Hughes v. Deutsche Bank Natl. Trust Co.Hughes v. Deutsche Bank Natl. Trust Co.
CARR, Presiding Judge.
{¶1} Appellants, Steven and Ann Hughes, appeal the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} On June 13, 2014, Deutsche Bank Nat’l Trust Co. (“Deutsсhe Bank”) filed a foreclosure action against Steven and Ann Hughes (“the Homeowners”) in the Summit County Court of Common Pleas. The action concerned the property located at 491 Wyoga Lake Blvd., Stow, Ohio. After the passage of several months, the Homeowners filed a pro se motion for leave to plead by September 12, 2014. Significantly, the Homeowners did not file an answer by that date. On September 23, 2014, Deutsche Bank filed a motion for default judgment on the basis that the Homeowners had failed to file a responsivе pleading. Later that same day, the Homeowners, through counsel, filed a motion to dismiss on the basis that Deutsche Bank’s claims were barred pursuant to the double dismissal rule under
{¶3} On January 5, 2015, the Homeowners filed a combined motion to set aside the default judgment pursuant to
{¶4} The trial court later issued a nunc pro tunc entry that amended its October 2, 2014 entry in rеgard to the amount due under the promissory note in accordance with the first count in the complaint. While the case was subsequently stayed for a brief period of time duе to bankruptcy proceedings, the trial court issued an order vacating the stay on October 28, 2015.
{¶5} Almost a year later, on October 25, 2016, the Homeowners filed a motion to sеt aside the decree of foreclosure on the basis that it was void due to Deutsche Bank’s failure to comply with federal law. In the alternative, the Homeowners moved the trial court to vacate the judgment pursuant to
{¶6} The Homeowners filed a timely notice of appeal to this Court. On appeal, the Homeowners raise one аssignment of error.
II.
ASSIGNMENT OF ERROR
THE RECORD IS CLEAR AND CONVINCING THAT THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS BY DENYING THE CIVIL RULE 60(B) MOTION TO SET ASIDE DECREE OF FORECLOSURE AS THE APPELLEE FAILED TO PROVE THE JURISDICTIONAL REQUIREMENT THAT ALL CONDITIONS PRECEDENT MANDATED BY THE NATIONAL HOUSING ACT OF 1934 (
12 U.S.C. 1701 ET SEQ. ) AND42 U.S.C. 3534(A) .
{¶8} “The decision to grant or deny a motion to vacate pursuant to
{¶9}
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to movе for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been sаtisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have рrospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more thаn one year after the judgment, order or proceeding was entered or taken.
{¶10} To prevail on a
(1) the party has a meritoriоus defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in
Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, wherе the grounds of relief areCiv.R. 60(B)(1) , (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.
{¶11} “The requirements of
{¶12} Prior to addressing the merits of a motion for relief from judgment, the trial court must determine if the motion is properly before the court. Thompson v. Summit Pain Specialists, Inc., 9th Dist. Summit Nos. 27635, 27638, 2016-Ohio-7030, ¶ 16. It is well-settled that a motion for relief from judgment under
DISCUSSION
{¶13} The Homeowners raise two arguments in support of their position that the trial court erred by denying their motion to vacate. Initially, the Homeowners contend that the underlying judgment in this case is void because Deutsche Bank failed to comply with several conditions precedent prior to initiating the foreclosure action. Specifically, the Homeowners argue that because Deutsche Bank failed to conform with regulations set forth by the U.S. Department of Housing and Urban Developmеnt (“H.U.D.”), the trial court was without subject matter jurisdiction to enter judgment in this case. In the alternative, the Homeowners maintain
{¶14} The Homeowners’ jurisdictional аrgument is without merit. “A motion for relief from a void judgment is often used by a defendant who did not timely appeal the default judgment but wishes to have that judgment declared void later without resorting to the requirements of
{¶15} The Homeowners’
{¶16} The assignment of error is overruled.
III.
{¶17} The Homeowners’ assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellants.
DONNA J. CARR
FOR THE COURT
TEODOSIO, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
STEVEN AND ANN HUGHES, pro se, Appellants.
KIMBERLY SMITH RIVERA, Attorney at Law, for Appellee.