JPMorgan Chase Bank v. Clark , 2017 Ohio 7765 ( 2017 )

[Cite as JPMorgan Chase Bank v. Clark, 2017-Ohio-7765.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JPMORGAN CHASE BANK )
)
PLAINTIFF-APPELLEE )
) CASE NO. 16 MA 0080
VS. )
) OPINION
DANIEL CLARK, et al. )
)
DEFENDANTS-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 2012 CV 01518
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee Attorney Matthew Richardson
P.O. Box 165028
Columbus, Ohio 43216-5028
Attorney Harry Cappel
312 Walnut Street, Suite 1800
Cincinnati, Ohio 45202-4060
Attorney Kara Czanik
7759 University Drive, Suite A
West Chester, Ohio 45069
For Defendant-Appellant Attorney John Zomoida
Town One Square
40 South Main Street
Poland, Ohio 44514
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: September 21, 2017
[Cite as JPMorgan Chase Bank v. Clark, 2017-Ohio-7765.]
DeGENARO, J.
{¶1} Defendant-Appellant, Daniel Clark, appeals the trial court's judgments
denying his motion to vacate the sheriff's sale and confirming the subsequent sheriff's
sale. As Clark’s arguments are meritless, the judgment of the trial court is affirmed.
{¶2} In 2012, JP Morgan Chase initiated a foreclosure action against Clark.
After Clark filed an answer, Chase filed a motion for summary judgment which was
granted by the trial court in 2013. Clark did not appeal this judgment. Chase assigned
the mortgage to Christiana Trust, a Division of Wilmington Savings Fund, on June 11,
2014.
{¶3} Subsequent to the foreclosure judgment being entered, Clark filed for
bankruptcy protection, which automatically stayed further proceedings in the trial
court. After bankruptcy proceedings were concluded, the automatic stay was lifted in
2014. As loss mitigation was unsuccessful, Christiana Trust filed the praecipe for
order of sale on September 8, 2015, and a sheriff's sale was set for March 29, 2016.
{¶4} On March 28, 2016, Clark filed a motion to cancel the sheriff's sale.
Within his motion Clark acknowledged that the trial court issued a final judgment
entry in favor of Chase against him in 2013. Yet he argues that the trial court record
does not contain a motion substituting Christiana Trust for Chase as plaintiff, but
presents no argument how this is erroneous beyond making the statement that this
violates Civ.R. 17(A) and Civ.R. 25(C). Clark also argues that his attorney did not
receive notice of the sheriff's sale in compliance with the local rule. Christiana Trust
and Chase both opposed the motion, which was denied by the trial court. The
property was ultimately sold at the sheriff's sale on March 29, 2016.
{¶5} On April 13, 2016, Clark filed a motion to vacate the sheriff's sale,
which the trial court overruled. On June 1, 2016, the trial court filed a judgment entry
confirming the sale and ordering distribution of the proceeds.
{¶6} In his sole assignment of error, Clark asserts:
The trial court erred by denying the Motion to Vacate Sheriff's Sale of
Defendant-Appellant, Daniel Clark, and by confirming the sale of his
residence by the Mahoning County Sheriff.
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{¶7} Civ.R. 60(B) provides the exclusive remedy for vacating judgments and
balances the need for judgments to be final and the need for courts to vacate their
orders to further justice and fairness. Mount Olive Baptist Church v. Pipkin Paints and
Home Imp. Center, Inc., 64 Ohio App. 2d 285, 287, 413 N.E.2d 850 (8th Dist.1979).
The standard of review to evaluate the trial court's decision to grant or deny a Civ.R.
60(B) motion is abuse of discretion. Preferred Capital, Inc. v. Rock N Horse, Inc., 9th
Dist. No. 21703, 2004–Ohio–2122, ¶ 9. "An abuse of discretion means the trial
court's decision is unreasonable based upon the record; that the appellate court may
have reached a different result is not enough to warrant reversal." Smith v. Smith, 7th
Dist. No. 14 CA 0901, 2016-Ohio-3223, ¶ 13.
{¶8} "To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate that: (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 are Civ.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.,
Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146, 351 N.E.2d 113 (1976), paragraph
two of the syllabus. If the movant fails to satisfy any of the above elements, the court
shall deny relief. Argo Plastic Products Co. v. Cleveland, 15 Ohio St. 3d 389, 391, 474
N.E.2d 328 (1984), citing GTE, at 151.
{¶9} As Civ.R. 60(B) is the exclusive means by which to vacate a judgment,
we review Clark’s motion through that lens. He argued that the sale of his house
should have been vacated because the Christiana Trust was not the real party in
interest and that he did not receive notice of the sheriff sale in accordance with the
local rules. However, Clark neither refers to Civ.R 60(B) in his motion nor presents
any discussion of its elements. Moreover, the foreclosure action was fully prosecuted
and reduced to judgment before it was assigned by Chase to Christiana Trust; thus
Civ.R. 17(A) and Civ.R. 25(C) have no bearing on this case. As Clark did not meet
any of the requirements of Civ.R. 60(B), the trial court did not abuse its discretion in
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denying his motion to vacate the sheriff's sale.
{¶10} Turning to his second argument, Clark asserts Christiana Trust did not
comply with the Loc.R. 13(D) because he received the notice of the sale eight days,
and not two weeks, before the sale. He does not assert that the sale did not comport
with the provisions in R.C. 2329.01 through .61. Chase counters that compliance with
the local rule is not a basis for reversal where the borrower received notice under
R.C. 2329.26.
{¶11} The decision whether to confirm a judicial sale is left to the sound
discretion of the trial court. Natl. Union Fire Ins. Co. v. Hall, 2d Dist. No. 19331,
2003–Ohio–462, ¶ 12, and reversable only if the trial court has abused its discretion.
Smith. In confirming a sheriff's sale, a trial court must determine whether the sale
was conducted in accordance with R.C. 2329.01 through R.C. 2329.61. See R.C.
2329.31.
[A]ll parties to the action or their counsel of record, whether they have
appeared in the action or not, shall be served with a copy of the sheriff sale
advertisement no later than two weeks prior to a sale scheduled thereon,
and shall also be served with a copy of the confirmation of sale or dismissal
entry.
Mahoning County Loc.R. 13(D).
{¶12} R.C. 2329.26(A)(1)(a) provides in pertinent part:
(1)(a) Except as otherwise provided in division (A)(1)(b) of this section, the
judgment creditor who seeks the sale of the lands and tenements or the
judgment creditor's attorney does both of the following:
(i) Causes a written notice to be served in accordance with divisions
(A) and (B) of Civil Rule 5 upon the judgment debtor and upon each
other party to the action in which the judgment giving rise to the
execution was rendered. Such notice shall include the date, time, and
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place of the sale if the sale is to be held at a physical location or the
start date and web site address of the sale if the sale is to be held
online. Such notice shall also include the provisional second sale
date described in division (B) of section 2329.52 of the Revised
Code, if applicable.
(ii) At least seven calendar days prior to the date of the sale, files with
the clerk of the court that rendered the judgment giving rise to the
execution a copy of the written notice described in division (A)(1)(a)(i)
of this section with proof of service endorsed on the copy in the form
described in division (B) of Civil Rule 5.
{¶13} Clark suggests that the violation of the local rule violated his due
process rights. Chase cites this Court's recent decision in Home Fed. S. & L. Assn.
of Niles v. Keck, 2016-Ohio-651, 59 N.E.3d 706 (7th Dist.). Noting that the trial
court's enforcement of local rules and decision on a motion to vacate lies within its
discretion, we affirmed the trial court, holding: "Although compliance with local rules
is expected of an attorney, violation of a local rule does not per se mandate relief
from judgment." Id., ¶ 34.
{¶14} Christiana Trust complied with the notice requirements contained in
R.C. 2329.26, which Clark does not contest. He solely argues compliance with the
local rule would have given him six days more notice. As stated in Keck, compliance
with the local rules does not mandate the relief Clark requests of this Court. Further,
enforcement of the local rules lies within the discretion of the trial court, and we
cannot say the trial court abused its discretion.
{¶15} In sum, the trial court did not err in denying Clark’s motion to vacate as
he did not meet the requirements to show that he was entitled to the relief he sought.
Further, the trial court did not err in issuing a confirmation of sale as the date Clark
received notice of the sheriff sale complied with R.C. 2329.26; it was not an abuse of
discretion by the trial court to not mandate compliance with Local R. 13(D).
Accordingly, Clark's sole assignment of error is meritless, and the judgment of the
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trial court is affirmed.
Donofrio, J., concurs.
Robb, P. J., concurs.