Wells Fargo Bank, N.A. v. Vickie L. Bluhm aka Vicki L. Rosin, et al.
Court of Appeals No. E-13-052
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
March 13, 2015
2015-Ohio-921
JENSEN, J.
Trial Court No. 2010 CV 452
DECISION AND JUDGMENT
Decided: March 13, 2015
* * * * *
Scott A. King and Terry W. Posey, Jr., for appellee.
Daniel L. McGookey and Kathryn M. Eyster, for appellant.
* * * * *
JENSEN, J.
{¶ 1} This is an appeal in a foreclosure action in which the Erie County Court of Common Pleas denied appellant’s motion for relief from judgment. For the reasons that follow, we affirm.
{¶ 2} This foreclosure action involves the home of appellant, Vickie L. Bluhm, located at 6106 Bogart Road West, Castalia, Ohio in Erie County. On May 3, 2004, appellant purchased the home and executed a promissory note in the amount of $93,500 in favor of Franklin American Mortgage Company. As security for the note, appellant executed a real estate mortgage against the property in favor of Mortgage Electronic Registration Systems, Inc. (“MERS“), as nominee for Franklin. The note and the mortgage were recorded with the Erie County Recorder on May 7, 2004.
{¶ 3} Appellant fell behind in her monthly payments in February of 2010.
{¶ 4} Appellee, Wells Fargo Bank, N.A., filed a complaint in foreclosure on June 10, 2010, seeking judgment on the note, in the amount of $82,204.52 together with interest at the rate of 4.5 percent per year from February 1, 2010. Appellee also sought to foreclose the mortgage. Appellee claimed that it was the holder of the note and that it had complied with all conditions precedent. A copy of the note was attached to the complaint and indicates that it was indorsed from Franklin to appellee. Also attached to the complaint was a copy of the mortgage between appellant and MERS.
{¶ 5} On June 23, 2010, MERS assigned the mortgage to appellee.
{¶ 6} On September 9, 2010, appellee moved for summary judgment, arguing that it had established a prima facie case of foreclosure and that it was entitled to judgment as a matter of law. Attached to the motion were the note, mortgage, assignment of
{¶ 7} Through her attorney, appellant opposed the motion on September 24, 2010.
{¶ 8} On February 3, 2011, the trial court entered summary judgment for appellee. The court ordered the equity of redemption foreclosed and the property sold. Appellant did not appeal the judgment.
{¶ 9} On June 14, 2011, appellee purchased the property at a sheriff’s sale.
{¶ 10} On July 29, 2011, appellant, acting through new counsel, filed a motion for relief from judgment, pursuant to
{¶ 11} Appellant raises one assignment of error for our review:
The trial court erred in granting judgment to Plaintiff.
Law and Analysis
{¶ 12}
(1) the party has a meritorious 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 where 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. GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.
If any one of the three GTE requirements is not met, the motion should be overruled. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).
{¶ 13} A trial court’s disposition of a
{¶ 14} In her sole assignment of error, appellant argues, “[t]he trial court erred in granting judgment to Plaintiff.” Appellant’s reference to, and challenge of, the original judgment in appellee’s favor is improper. Appellant did not appeal the trial court’s grant of summary judgment to appellee, and we lack jurisdiction to pass upon that ruling. Fahey Banking Co. v. Squire, 7th Dist. Mahoning No. 11MA178, 2012-Ohio-4211 (Arguments which assign error respecting the original judgment are inappropriate in an
1. Alleged Meritorious Defenses
{¶ 15} Appellant alleged the following meritorious defenses in her motion before the trial court: (1) that appellee had failed to show that it was the “owner” of the promissory note; (2) that it was not “equitable to take [appellant’s] home * * * under the circumstances“; (3) that the assignment of the mortgage was improper; (4) that appellee did not act in accordance with a consent judgment executed on April 4, 2012, between the nation’s five largest lenders, including appellee, and the federal government; and (5) that the Ohio Attorney General’s notice to appellant on October 1, 2012 advised her that she “may be entitled to receive payment under the national Mortgage Settlement.”
{¶ 16} On appeal, appellant has abandoned some of those defenses and, for the first time, raised new ones. Appellant now claims: (1) that it was not equitable to foreclose; (2) that appellee did not demonstrate that it was the “holder” of the promissory note; (3) that appellee’s affidavit filed in support of summary judgment was legally insufficient; (4) that the assignment of the mortgage from MERS to appellee was improper; (5) that appellee did not comply with the consent judgment; and (6) that appellee did not establish that it met conditions precedent prior to filing suit.
{¶ 17} The alleged meritorious defenses regarding appellee’s holdership status, the defective affidavit and its failure to comply with conditions precedent are new arguments.
{¶ 18} This leaves the following alleged defenses for our review: appellant’s equities defense, the improper assignment, and the consent judgment. A party need only allege a meritorious defense; the party need not prove that she will prevail. Rose Chevrolet, Inc., 36 Ohio St.3d at 20.
{¶ 19} First, appellant claims that, under Ohio law, “in considering the equities [in this case], foreclosure is not an appropriate remedy.” Appellant argues she “could not have been more diligent in attempting to cure her default and have her loan reinstated” but that appellee “has refused time and time again to do so.” Appellant states that she will face a greater loss if equitable relief is unfairly granted to appellee whereas appellee, as a “multibillion dollar corporation,” will suffer only slightly.
{¶ 20} We cannot say that the trial court abused its discretion in rejecting appellant’s equities defense. Appellant does not dispute that she was in default on the
{¶ 21} Next, appellant argues that the assignment of the mortgage from MERS to appellee is “invalid on its face” because, according to appellant, it was ”recorded six years before it was executed.” (Emphasis in original.) The record does not support appellant’s argument. The record discloses that appellant entered into the mortgage agreement on May 3, 2004 with MERS, that the mortgage was recorded on May 7, 2004, and six years later, on June 23, 2010, that MERS assigned the mortgage to appellee. We see no impropriety in the assignment. Moreover, that the mortgage was assigned after the filing of the complaint need not be fatal to a foreclosure action. U.S. Bank, N.A. v. McGinn, 6th Dist. Sandusky No. S-12-004, 2013-Ohio-8, ¶ 21, citing Aurora Loan Servs., LLC v. Louis, 6th Dist. Lucas No. L-10-1289, 2012-Ohio-384, ¶ 34. Appellant’s invalid assignment defense fails as matter of fact and law.
{¶ 23} For these reasons, appellant failed to demonstrate the existence of a meritorious defense if relief from judgment was granted.
2. Grounds for Relief
{¶ 24} The second element of a
{¶ 26} In support of her fraud claim, appellant states that appellee misrepresented itself as the “proper party to foreclose” which “was made falsely, as [appellee] knew it was not the owner of [the] mortgage.” Second, appellant alleges that appellant “filed a clearly invalid Assignment of Mortgage in order to establish it was the proper party to foreclose.”
{¶ 27} At best, appellant has alleged defenses related to the underlying action. That may explain why appellant identified the same facts in support of her meritorious defenses as those in support of her grounds for relief. In any event, appellant has not alleged, much less presented evidence, that appellee committed fraud in obtaining the
{¶ 28} Appellant also complains that appellee committed fraud by representing to her that “her better option was a loan modification, and that it would not foreclose.” Appellant’s claim—that appellee represented that it would not foreclose—is belied by the fact that at the time of the alleged representation, the complaint in foreclosure was pending before the trial court. Moreover, there is no evidence that any settlement negotiations between the parties prevented appellant from having a fair opportunity to present her defense(s). PNC Mortgage v. Oyortey, 5th Dist. Delaware No. 11CAE100093, 2012-Ohio-3237 (Mortgagors’ belief that they did not have to address the pending foreclosure action because they were in negotiations with mortgagee does not constitute fraud under
{¶ 29} In sum, in the absence of any evidence that the foreclosure judgment was procured by fraud, appellant has no grounds for relief under
{¶ 30} Appellant also claims protection under
Discussing the distinction between the relief from judgment available under
Civ.R. 60(B)(3) fraud, and fraud upon the court which is available underCiv.R. 60(B)(5) , the Supreme Court of Ohio noted that “in the usual case, a party must resort to a motion underCiv.R. 60(B)(3) . Where an officer of the court, e.g., an attorney, however, actively participates in defrauding the court, then the court may entertain aCiv.R. 60(B)(5) motion for relief from judgment.” Bank of Am. v. McLaughlin, 6th Dist. Erie No. E-11-057, 2012-Ohio-2341, ¶ 14, quoting Coulson v. Coulson, 5 Ohio St.3d 12, 15, 448 N.E.2d 809 (1983).
{¶ 31} Appellant does not allege any fraudulent acts by an officer of the court. Absent such evidence, appellant may not rely on
3. Timeliness
{¶ 32} The third and final element of a
{¶ 33} Whether a
{¶ 34} Here, appellant suggests that the motion is timely because judgment for appellee was entered in February of 2011 and her motion for relief was filed in July of 2011. Appellant articulates no facts to explain the six month delay in filing her motion. We are not persuaded that the six month delay was reasonable under the circumstances of this case. Absent any evidence put forth explaining the delay, we cannot say that appellant satisfied her burden that a six month delay was reasonable in this case. See Herlihy Moving and Storage, Inc. v. Nickison, 10th Dist. Franklin No. 09AP-831, 2010-Ohio-6525, ¶ 15, (“[A]n unexplained or unjustified delay in making the motion [four months] after discovering a ground for relief may put the motion beyond the pale of a reasonable time.“). See also Teneric L.L.C. v. Zilko, 8th Dist. Cuyahoga No. 91410, 2009-Ohio-1363, ¶ 18 (Trial court abused its discretion in granting relief, in part, to party who filed for relief four months after judgment where certificate of service demonstrated that party had received notice of adverse judgment.).
{¶ 35} Appellant failed to demonstrate any of the required GTE elements for a
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
James D. Jensen, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.