US Bank Trust, N.A. v. Osborne , 2021 Ohio 2898 ( 2021 )

[Cite as US Bank Trust, N.A. v. Osborne, 2021-Ohio-2898.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
US BANK TRUST, N.A. AS : Case No. 20CA3930
TRUSTEE FOR LSF10 :
MASTER PARTICIPATION :
TRUST :
:
Plaintiff-Appellee, :
: DECISION AND JUDGMENT
v. : ENTRY
:
DONALD OSBORNE, JR. ET AL., :
:
Defendants-Appellants. :
APPEARANCES:
Tyler E. Cantrell, Young & Caldwell, LLC, West Union, Ohio, for Appellants.
David T. Brady, Suzanne M. Godenswager, Austin B. Barnes, III, Mark M.
Schonhut, Jeffrey A. Panehal, Sandhu Law Group, LLC, Cleveland, Ohio, for
Appellee.
Smith, P.J.
{¶1} Donald Osborne, Jr. and Oma Osborne, “Appellants,” have appealed
two judgment entries of the Scioto County Court of Common Pleas: (1) Judgment
Entry and Order of the Court on Motion for Clarification of the Court’s June 9,
2020 Entry on Summary Judgment; and, (2) Judgment Entry and Order of the
Court on Motion for Summary Judgment as to Count Three. For the reasons which
Scioto App. No. 20CA3930 2
follow, we find we do not have jurisdiction to consider this appeal. Accordingly,
we dismiss the appeal for lack of a final appealable order.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On July 12, 2019, U.S. Bank Trust, N.A. as Trustee for LSF10 Master
Participation Trust, “Appellee,” filed a complaint in foreclosure and other
equitable relief against Appellants. Along with Appellants, Appellee named
several additional defendants: the State of Ohio Department of Taxation; the Third
Will Co., LLC; and the Scioto County Treasurer. The foreclosure complaint
alleged as follows:
FIRST COUNT
1. Plaintiff is in possession and entitled to enforce a note
executed by the Defendant, Donald W. Osborne Jr. aka
Donald W. Osborne, a copy of which is attached hereto as
Exhibit “A.” By reason of default under the terms of the
note and the mortgage securing same, plaintiff has declared
the debt evidenced by said note due, and there is due hereon
$47,611.19, together with interest at the rate of 6.000% per
year from June 1, 2014, plus court costs, advances and other
charges, as allowed by law. All conditions precedent
required under the note, mortgage and other loan documents
have been satisfied.
2. Plaintiff further states that Defendant, Donald W. Osborne,
Jr. aka Donald W. Osborne, filed a petition commencing a
case under Title 11 of the Bankruptcy Code, Chapter 7, in
the United States Court, Southern District of Ohio, Western
Division, and being Case No. 03-18518, and that Defendant
was subsequently discharged and released from the
Scioto App. No. 20CA3930 3
indebtedness due and owing Plaintiff on its promissory note
as set forth in its Complaint as defendant Donald W.
Osborne, Jr. aka Donald W. Osborne has been discharged in
bankruptcy, that no personal judgment is sought herein
against the Defendant.
SECOND COUNT
3. Plaintiff incorporates the allegation of Count One and
further states that it is the holder of a mortgage, a copy of
which is attached hereto as Exhibit “B.” The mortgage was
given to secure payment of the above-described note, and
said mortgage constitutes a valid first lien upon the real
estate described in the correct legal description which is
attached hereto as Exhibit “C.”
4. The mortgage was filed for record on September 24, 2003,
in Volume 1040, Page 170 of the county recorder’s records
and assigned to Plaintiff on November 1, 2018, and
recorded on December 12, 2018, in Volume 617, Page 738
of the Scioto County Records. The conditions of
defeasance contained therein have been broken, and
plaintiff is entitled to have said mortgage foreclosed.
5. Plaintiff says that the defendants herein may claim an
interest in the subject property described in the subject
mortgage.
6. Plaintiff states that the conditions of said Mortgage Deed
have been broken, by reason of default in payment, and that
the Mortgage Deed has therefore become absolute; Plaintiff
has fulfilled all applicable conditions precedent; and
Plaintiff is entitled to have the equity of redemption, if any,
of the Defendants named herein foreclosed, and to have the
subject real property appraised, advertised and sold, and the
proceeds arising therefrom applied to the judgment of
Plaintiff.
Scioto App. No. 20CA3930 4
THIRD COUNT
7. Plaintiff incorporates herein by reference all of the
allegations contained in the foregoing counts as though
fully rewritten, herein.
8. This claim is brought pursuant to R.C. 5721.01 et seq., and
a real controversy exists in that there is a genuine dispute, a
judgment is sought that is not merely advisory in nature or
based upon a hypothetical statement of facts, the issue
tendered is appropriate for judicial resolution because it has
an effect on a valuable property right, Plaintiff will suffer
hardship if declaratory relief is denied, and speedy relief is
in order to preserve the property rights.
9. Upon the property secured by the mortgage sits a
manufactured home (hereinafter, “Manufactured Home”).
10. According to the County Auditor, the Manufactured Home
is not taxed as part of the real property. See Auditor’s
Property Information Printout, Exhibit “D.”
11. The certificate of title to the Manufactured Home has not
been surrendered to the Clerk of Court, meaning the
Manufactured Home has not been converted to real property
in the records of the Scioto County Auditor.
12. The Manufactured Home has had the wheels removed, is
physically affixed to the ground by a cinder block base, and
it [sic] attached to city water. See Picture attached to
Exhibit “E.”
13. It was the intent of the parties to the mortgage that the
Manufactured Home be affixed to the real property secured
Scioto App. No. 20CA3930 5
by the mortgage, and Plaintiff would not have granted the
mortgage would not have been granted [sic] had the
Manufactured Home not been intended to be part of the real
property.
14. Plaintiff is entitled to a declaratory judgment ordering that
the Manufactured Home be declared affixed to the real
property and deemed a part of the real property, and that the
Manufactured Home may be sold as part of the real
property pursuant to execution on any judgment Plaintiff
may obtain in this case.
{¶3} The complaint requested judgment in favor of plaintiff in the above-
requested amount and also requested that the real estate be ordered sold according
to law. The complaint also requested that all other defendants be required to set up
their liens or interests in said real estate or be forever barred from asserting the
same. On July 15, 2019, the county treasurer filed an answer. On August 13, by
fax, and on August 15, 2019, Appellants filed their answer.
{¶4} On September 30, 2019, Appellee filed a motion for summary
judgment, asserting there were no genuine issues of material fact and Appellee was
entitled to judgment as a matter of law. Also on that date, Appellee filed a motion
for default judgment against defendant Third Will Co., LLC. On October 29, 2019,
Appellants filed a memorandum contra to the motion for summary judgment.
{¶5} Appellants asserted a genuine issue of material fact as to the specific
property subject to the mortgage. Appellants argued the original mortgage
Scioto App. No. 20CA3930 6
attached to the complaint and motion for summary judgment contained a legal
description for two parcels of land, not three. Furthermore, a mobile home located
on the property subject to the mortgage also extended slightly onto a third parcel.
However, Appellants claimed that the mobile home was not subject to the
mortgage. Appellants supported their argument by attaching their responses to
discovery submitted in a prior attempted foreclosure of the subject property which
had been dismissed.
{¶6} Appellee filed a sur-reply in support of the motion for summary
judgment. Appellee did not address Appellant’s substantive argument. Appellee
argued the evidence submitted with the memorandum contra, the discovery
responses attached from the prior foreclosure proceedings but not properly
attached to an affidavit, did not comply with Civ.R. 56(E). Therefore, Appellee
claimed entitlement to judgment as a matter of law.
{¶7} The trial court conducted a telephonic status conference. The court
subsequently ordered the parties to investigate the issue of the mobile home’s
pertinence to the foreclosure proceeding and to supplement the record within 45
days. On April 7, 2020, Appellee provided a supplemental filing. Appellants
subsequently filed a memorandum in response to plaintiff’s supplement.
Scioto App. No. 20CA3930 7
{¶8} On June 9, 2020, the trial court issued a judgment entry and order of
the court on motion for summary judgment. Specifically, the court ordered:
1. Summary judgment is granted as to the default on the
mortgage and note as to the two parcel numbers * * *.
Judgment is granted in the amount of $47,611.19 with 6.0%
interest from the date of default in June 2014.
2. Summary judgment does not apply as to the mobile home on
the parcels involved. As the mortgage never attached to the
mobile home, it is not part of these proceedings.
3. Plaintiff shall prepare such documentation required to
allow the property to proceed to foreclosure sale.
4. Costs to Defendants.
{¶9} On June 26, 2020, Appellee filed Plaintiff’s Motion for Clarification of
the Court’s June 9, 2020 Journal Entry With Regard to Count III of Plaintiff’s
Complaint and Whether Judgment Encompasses Parcel No. 23-0075.000. On
August 13, 2020, Appellee filed Plaintiff’s Motion for Nunc Pro Tunc Correction
of the Court’s June 9, 2020 Judgment Entry to Include Parcel No. 23-0075.000.
Contemporaneously, Appellee a filed Motion for Summary Judgment on Count III
of the Complaint.
{¶10} On October 6, 2020, the trial court filed the two entries currently
being appealed. In both entries, the trial court noted that Appellants had not
replied to Appellee’s motions. As to the Judgment Entry and Order of the Court
Scioto App. No. 20CA3930 8
on Motion for Clarification of the Court’s June 9, 2020 Entry on Summary
Judgment, the court granted the motion. The Court ordered as follows:
1. Summary judgment as previously granted in the June 9,
2020 Entry and Judgment as to the default on the mortgage
and note is for the two parcels described in the mortgage and
note. These two parcels are comprised of three tax ID
numbers: 23-0073.000, 23-0075.000, and 23-0076.000.
Judgment is granted in the amount of $47,611.19 with 6.0%
interest from the date of default in June 2014.
2. Plaintiff shall prepare such documentation required to allow
the property to proceed to foreclosure sale.
3. Costs to the Defendants.
{¶11} As to the Judgment Entry and Order of the Court on Motion for
Summary Judgment as to Count Three, the court ordered:
1. Summary judgment is granted as to Count Three of the
Complaint. The mobile (manufactured) home on the
property is a fixture and as such the mortgage and note as to
the two parcels with tax ID Parcel numbers 23-
0073.000(Parcel 1) 23-0075.000 and 23-0076.000 attach to
and encumber the mobile home.
2. Defendants are ordered to surrender title to the mobile
home, or have a duplicate title issued and surrendered to
Plaintiff.
3. Plaintiff shall prepare such documentation required to allow
the property to proceed to foreclosure sale.
4. Costs to the Defendants.
Scioto App. No. 20CA3930 9
{¶12} This timely appeal followed.
LEGAL ANALYSIS
{¶13} Appellants contend that genuine issues of material fact are in
contention. First, Appellants contend that Appellee does not have a lien on the
mobile home. Second, Appellants contend that it is also unclear that the mobile
home is even partially upon the mortgaged real estate. Appellants conclude
Appellee is not entitled to judgment as a matter of law.
{¶14} Appellee contends that the trial court did not err in granting summary
judgment in its favor. First, Appellee asserts that Appellants failed to present
evidence in motion practice which complies with Civ. R. 56(E). Second, Appellee
contends that Appellants have raised on appeal arguments which they failed to
raise before the trial court. As indicated above, we do not reach the merits of the
arguments raised as we have no jurisdiction to consider the appeal.
{¶15} “ ‘Appellate courts “have such jurisdiction as may be provided by law
to review and affirm, modify, or reverse judgments or final orders of the courts of
record inferior to the court of appeals within the district[.]” ’ ” Milford Banking v.
Adkins, 4th Dist. Jackson No. 19CA07, 2020-Ohio-1481, at ¶ 8, quoting Partners
for Payment Relief DE L.L.C. v. Jarvis, 4th Dist. Scioto No. 15CA3723, 2016-
Scioto App. No. 20CA3930 10
Ohio-7562, ¶ 6, quoting Ohio Constitution, Article IV, Section 3(B)(2); see R.C.
2505.03(A). If a court's order is not final and appealable, we have no jurisdiction
to review the matter and must dismiss the appeal. Jarvis, supra; Eddie v.
Saunders, 4th Dist. Gallia No. 07CA7, 2008-Ohio-4755, ¶ 11.
{¶16} An order must meet the requirements of R.C. 2505.02 to constitute a
final appealable order. See Adkins, supra at ¶ 9; Jarvis, supra, at ¶ 7, citing Chef
Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989).
Under R.C. 2505.02(B)(1), an order is a final order if it “affects a substantial right
in an action that in effect determines the action and prevents a judgment[.]” To
determine the action and prevent a judgment for the party appealing, the order “
‘must dispose of the whole merits of the cause or some separate and distinct branch
thereof and leave nothing for the determination of the court.’ ” Jarvis, supra,
quoting Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v.
Professionals Guild of Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).
{¶17} “ ‘Foreclosure actions proceed in two stages, both of which end in a
final appealable judgment: the order of foreclosure and the confirmation of sale.’ ”
Adkins, supra, at ¶ 10, quoting Farmers State Bank v. Sponaugle, 157 Ohio St. 3d
151, 2019-Ohio-2518, at ¶ 18. A judgment decree in foreclosure fully disposes of
liability if it “ ‘determines the extent of each lienholder's interest, sets forth the
Scioto App. No. 20CA3930 11
priority of the liens, and determines the other rights and responsibilities of each
party in the action.’ ” Jarvis, supra, at ¶ 8, quoting CitiMortgage, Inc. v.
Roznowski,139 Ohio St.3d 299, 2014-Ohio-1984, ¶ 39. Thus, to qualify as a final
order under R.C. 2505.02(B)(1), a foreclosure decree must account for each
lienholder's interest and delineate each lienholder's rights. Id. at ¶ 20-21; Second
Natl. Bank of Warren v. Walling, 7th Dist. No. 01-CA-62, 2002-Ohio-3852, ¶ 18
(“a judgment entry ordering a foreclosure sale is not final and appealable unless it
resolves all of the issues involved in the foreclosure, including the following:
whether an order of sale is to be issued; what other liens must be marshaled before
distribution is ordered; the priority of any such liens; and the amounts that are due
the various claimants”); See also Green Tree Servicing L.L.C. v. Columbus & Cent.
Ohio Children's Chorus Found., 10th Dist. Franklin No. 15AP-802, 2016-Ohio-
3426, ¶ 9.
{¶18} Appellants have not appealed a decree in foreclosure but have
appealed the trial court’s decisions on summary judgment. This case involves
multiple parties and claims. Appellee initially named Appellants, the State of Ohio
Department of Taxation, Third Will Co., LLC, and the Scioto County Treasurer as
defendants in the foreclosure complaint. Presently, Appellee, Appellants, and
Defendant Scioto County Treasurer are active parties.
Scioto App. No. 20CA3930 12
{¶19} The Ohio Department of Taxation also did not participate in the
underlying proceedings and has not participated in this appeal. The final judicial
report indicates the Department filed a state tax lien on December 26, 2009, in the
amount of $307.89.
{¶20} Defendant Third Will Co. LLC did not participate in the underlying
proceedings and has not participated in the appellate proceedings. Appellee filed a
motion for default judgment against the entity. As the record does not reflect the
trial court’s decision on the motion, we presume the motion to be overruled. See
Caterpillar Financial Services Corporation v. Tatman, 2019-Ohio-2110, 137
N.E.3d 512 at ¶ 26 (4th Dist.). Nevertheless, the final judicial report filed
September 30, 2019, indicates the mortgaged property herein is subject to a UCC
financing statement filed against Appellant Donald W. Osborne, Jr. on August 12,
2014, in the Scioto County Recorder’s Office. Other than this, the status of Third
Will Co. LLC’s claim cannot be gleaned from the record.
{¶21} The Scioto County Treasurer filed an answer admitting it had an
interest in the real property identified in the complaint. The Treasurer requested
that its interest in the subject property be declared a lien against the property and
that it be paid in its priority. Nothing in the trial court’s October 6, 2020 judgment
entry addresses the Scioto County Treasurer’s interest in this action.
Scioto App. No. 20CA3930 13
{¶21} If a case involves multiple parties or multiple claims, the court's order
must also meet the requirements of Civ.R. 54(B) to qualify as a final appealable
order. See Jarvis, supra, at ¶ 9; Chef Italiano Corp. at 88. Under Civ.R. 54(B),
“[w]hen more than one claim for relief is presented in an action whether as a claim,
counterclaim, cross-claim, or third-party claim, and whether arising out of the
same or separate transactions, or when multiple parties are involved, the court may
enter final judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for delay.” Absent
the mandatory language that “there is no just reason for delay,” an order that does
not dispose of all claims is subject to modification and is not final and appealable.
See Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989); See Civ.R.
54(B). The purpose of Civ.R. 54(B) is “ ‘to make a reasonable accommodation of
the policy against piecemeal appeals with the possible injustice sometimes created
by the delay of appeals[,]’ * * * as well as to insure that parties to such actions may
know when an order or decree has become final for purposes of appeal * * *.”
Pokorny v. Tilby Dev. Co., 52 Ohio St.2d 183, 186, 370 N.E.2d 738 (1977),
quoting Alexander v. Buckeye Pipeline, 49 Ohio St.2d 158, 160, 359 N.E.2d 702(1977). In this case, the appealed-from judgment entries do not utilize the Civ.R.
54(B) language indicating there is “no just reason for delay.”
Scioto App. No. 20CA3930 14
{¶22} While the appealed-from judgment entries do direct Appellee to
prepare “such documentation required to allow the property to proceed to
foreclosure sale,” the entries do not address the Scioto County Treasurer’s interest
in the matter. The entries do not address the amount of the Treasurer’s interest.
Nor do the entries address the priority of the Treasurer’s interest or the Ohio
Department of Taxation’s lien. Thus, we are without a final appealable order in
this matter and we lack jurisdiction to consider this appeal. Accordingly, we
dismiss the appeal for lack of a final appealable order.
APPEAL DISMISSED.
Scioto App. No. 20CA3930 15
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and that Appellant pay any
costs herein.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date
of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J., Concur in Judgment and Opinion.
For the Court,
_______________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.