WELLS FARGO BANK, N.A. v. VIRGIL H. COLLINS, ET AL.
No. 109555
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
February 25, 2021
[Cite as Wells Fargo Bank, N.A. v. Collins, 2021-Ohio-508.]
MARY EILEEN KILBANE, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-904354 JUDGMENT: AFFIRMED
Reimer Law Co. and Michael L. Wiery, for appellee.
Virgil H. Collins, pro se.
MARY EILEEN KILBANE, J.:
{¶ 1} Pro se defendant-appellant, Virgil Collins (“Collins“), appeals from the trial court‘s denial of his
{¶ 2} On September 25, 2018, Wells Fargo filed a complaint for foreclosure against Collins, any unknown spouse of Collins, his wife Ruth Collins (“Ruth“), any unknown spouse of Ruth, New Century Mortgage Corporation (“NCMC“), and New Century Liquidating Trust as successor-in-interest to NCMC. Wells Fargo alleged that it was the holder of and entitled to enforce a promissory note because defendants were in default of the note and mortgage. The complaint alleged that $126,719.39 plus interest was due and unpaid.
{¶ 3} This case concerns a residential mortgage and corresponding note for a single-family home located at 4932 Nan Drive, Richmond Heights, Ohio. On June 2, 2006, Collins and Ruth executed an adjustable rate note in the amount of $152,000 and a corresponding mortgage as security for the note.
{¶ 4} On November 7, 2018, Collins filed a motion for leave to file an answer instanter, which the trial court granted.1
{¶ 5} On January 15, 2019, Wells Fargo filed a motion for summary judgment against Collins and a motion for default judgment against the other defendants. On March 26, 2019, the trial court granted the motion for default judgment against Ruth, any unknown spouses, NCMC, and New Century Liquidating Trust and held the motion for summary judgment in abeyance.
{¶ 7} On November 25, 2019, the trial court granted Wells Fargo‘s motion for summary judgment. On December 11, 2019, the court issued a magistrate‘s decision with findings of fact and conclusions of law. Collins did not file objections to the magistrate‘s decision, but on December 20, 2019, he filed a “motion for stay to seek resolution with plaintiff.” Wells Fargo filed an objection to this motion on December 23, 2019. On December 30, 2019, the trial court denied Collins‘s motion for a stay.
{¶ 8} On January 7, 2020, the trial court entered an order adopting the magistrate‘s decision and a decree of foreclosure. Collins did not appeal from this order. On January 14, 2020, Collins filed a motion for a settlement conference. On January 16, 2020, a praecipe for an order of sale was issued, and on January 17, 2020, an order of sale was issued to the sheriff.
{¶ 10} On February 2, 2020, Collins filed a “combined motion to vacate judgment, for relief from judgment, leave to amend answer and to submit counterclaim” pursuant to
{¶ 11} On February 20, 2020, the trial court granted Collins‘s motion for a settlement conference and scheduled a telephone settlement conference for February 27, 2020.
{¶ 12} On February 24, 2020, Collins filed an expedited motion to stay the foreclosure sale in the trial court. On February 25, 2020, the trial court denied Collins‘s
{¶ 13} On March 2, 2020, Wells Fargo filed a brief in opposition to Collins‘s expedited motion to stay. The same day, the order of sale was returned and the
{¶ 14} On March 11, 2020, Collins filed a second pro se motion to stay with this court. On March 12, 2020, this court granted the motion upon the condition that Collins post a supersedeas bond in the amount of $23,984, representing “the amount of the judgment, plus interest, minus the amount of the appraised value of the property ($150,000) as set forth by the appellee in its motion opposing the confirmation of sale filed in the trial court.”
{¶ 15} On May 26, 2020, Collins filed a motion for a 60-day extension to post the supersedeas bond. On June 8, 2020, this court denied the motion as moot because the Cuyahoga County Court of Common Pleas issued an administrate order staying sheriff sales and confirmations of sale until July 31, 2020, in response to COVID-19. On July 28, 2020, Collins filed a second motion for a 60-day extension. This court granted the motion and imposed a new deadline of October 1, 2020.
{¶ 16} On September 28, 2020, Collins filed a “motion for an emergency injunction to prevent confirmation of sale and request for supersedeas bond.” In this motion, Collins argued that the federal moratorium on foreclosures and
{¶ 17} On October 9, 2020, this court issued the following journal entry:
Motion by appellant, pro se, to withdraw emergency injunction motion, leave to amend request to an extension per the national foreclosure moratorium is granted in part. The motion to withdraw the injunction that was filed on September 28, 2020 is granted. The federal moratorium does not apply to the appellant‘s mortgage. However, due to the financial difficulties caused by COVID-19, the time to file the supersedeas bond is extended to December 31, 2020. The appeal has been fully briefed and is to be set at the earliest feasible date. Notice issued.
On December 21, 2020, Collins filed an emergency motion for an extension or suspension of the supersedeas bond requirement. On December 29, 2020, Wells Fargo filed a brief in opposition. On December 30, 2020, this court granted Collins an extension until February 15, 2021, or the date upon which this opinion is released. On February 11, 2021, Collins filed another emergency motion for an extension of
{¶ 18} This appeal follows. Collins presents five assignments of error.
Assignments of Error
- The magistrate erred by naming all four of the defendants in the default judgment.
- The magistrate erred by ignoring Collins‘s claims of mortgage fraud, high interest rates, multiple loan attachments, and that the original loan mortgagor was named as a co-defendant.
- The magistrate abused its discretion by failing to consider
Civ.R. 62(h) andCiv.R. 54(b) . - The magistrate erred and abused its discretion by not staying the foreclosure pursuant to
Civ.R. 60(B) . - The magistrate erred by failing to include Collins‘s name in the default judgment.
Legal Analysis
{¶ 19} We reiterate that Collins appealed only from the trial court‘s denial of his
{¶ 20} Collins‘s fourth assignment of error is the only one in which he directly challenges the trial court‘s denial of his
Magistrate [erred] and abused her discretion in her decision not to stay judgment per 60(B) due to the following complications suffered by Appellant‘s counsel: Appellant‘s counsel missed a deadline for submitting his complaints, and counterclaims due to a sudden illness, and complications in the office. Had the Magistrate properly [reviewed] the case, based on the multiple parties [involved], she would have detected some potential complexities in the case that might need further review to determine the equity and liabilities in the case before the court. It would have clearly [revealed] the issues concerning subject matter jurisdiction.
{¶ 21} A reviewing court will not disturb a trial court‘s decision regarding a
{¶ 22} In support of this assignment of error, Collins argues that he was fraudulently induced to enter into the mortgage. Specifically, Collins asserts that NCMC, who originated the mortgage loan, falsely led him to believe that he was receiving a VA loan. Collins appears to be using this argument to satisfy the first element of his
{¶ 23} Further, Collins was required to demonstrate that he was entitled to one of the following grounds for relief 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 heretofore 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 or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from judgment.
Because the
{¶ 24} Collins had asked for and received multiple extensions to file an amended answer and counterclaim. In its August 15, 2019 journal entry granting Collins‘s most recent request for an extension until September 13, 2019, the trial court noted that no further extensions would be granted. While Collins‘s
{¶ 25} Moreover, it is well established that
Collins‘s Remaining Assignments of Error
{¶ 26} In Collins‘s first assignment of error, he attempts to challenge the March 26, 2019 default judgment entered against Ruth, NCMC, and New Century Liquidating Trust. Specifically, Collins argues that this constituted error because it somehow precluded him from bringing counterclaims against NCMC. We reiterate that Collins did not appeal from the default judgment, and therefore arguments relating to that judgment are not properly before us. Even if this argument were properly before us, however, it has no merit.
{¶ 27} None of the defendants against whom the court granted Wells Fargo‘s motion for default judgment filed an answer in the underlying case. Therefore, default judgment was appropriate pursuant to
A court may stay the enforcement of a final judgment entered under Rule 54(b) until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered.
{¶ 28}
{¶ 29} Collins‘s second assignment of error argues that the magistrate erred by failing to address Collins‘s claims of mortgage fraud and failing to address the federal question of truth in lending practices. An appellant‘s brief must cite to the
{¶ 30} In Collins‘s third assignment of error, he argues that the trial court abused its discretion by failing to “consider the precautions suggested in Civil R. 62(h) and Civil R. 54(b)” concerning multiple parties when considering a stay request. Not only does Collins make misguided citations similar to those in his first assignment of error, he also fails to articulate exactly which decision of the trial court was an abuse of discretion. Collins filed numerous motions to stay in the trial court. We can only infer that he is attempting to challenge the trial court‘s denial of one of these. These denials are not the subject of this appeal, however, and therefore these arguments are not properly before us. We decline to address Collins‘s third assignment of error.
{¶ 31} Finally, Collins‘s fifth assignment of error states, verbatim:
The magistrate [erred] when she failed to include the Appellant‘s name in her Default Judgment. The magistrate issued her default judgment decision on December 11, 2019. On January 7, 2020, the Judgment Entry adopting the Magistrate‘s Decision was filed. On January 28, 2020, the Appellant, pro se, filed a Motion for Objection to Magistrate‘s Default Judgment Decision against Defendant. The Magistrate failed to include the Appellant‘s name in her default judgment which [led] the Appellant to assume that the trial court was not including him in the default judgment because of his efforts to present his claims and
counterclaims to the court. By the time he realized that he also was included in the default judgment, and filed his objection to the decision, it was too late and his request was denied.
The statements in this assignment of error demonstrate a misunderstanding of the events that occurred in the trial court. As we stated above, the court appropriately entered default judgment against all defendants except Collins because no other defendant filed an answer in this case.
{¶ 32} The December 11, 2019 decision Collins refers to was the magistrate‘s foreclosure decision. Collins did not object to this decision. Collins filed a motion for stay on December 30, 2019, which was denied. The trial court entered an order adopting the magistrate‘s decision and decree of foreclosure on January 7, 2020. Collins did not appeal this decision. Instead, he filed an untimely pro se motion to object to the magistrate‘s decision. His counsel filed a
{¶ 33} To the extent that Collins has attempted to use this appeal to collaterally attack the decree of foreclosure, the attempt was misguided. For the sake of clarity, however, we note that even if Collins had properly appealed the decree of foreclosure, we have found nothing in the record that would have supported such an appeal.
{¶ 35} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., and LISA B. FORBES, J., CONCUR