CitiMortgage, Inc. v. Nyamusevya , 2023 Ohio 1583 ( 2023 )

[Cite as CitiMortgage, Inc. v. Nyamusevya, 2023-Ohio-1583.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
CitiMortgage, Inc., :
Plaintiff-Appellee : Nos. 22AP-464
&
v. : 22AP-514
(C.P.C. No. 10CV-13480)
Leonard Nyamusevya et al., :
(ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 11, 2023
On brief: Leonard Nyamusevya, pro se. Argued: Leonard
Nyamusevya.
On brief: Blank Rome, LLP, Robert L. Dawson, and John R.
Wirthlin, for appellee. Argued: Robert L. Dawson.
APPEALS from the Franklin County Court of Common Pleas
PER CURIAM
{¶ 1} Defendant-appellant, Leonard Nyamusevya, appeals two entries confirming
sale, and ordering distribution of sale proceeds and deed from the Franklin County Court
of Common Pleas dated July 6 and August 1, 2022. For the reasons herein, we affirm the
trial court’s judgments.
I. Procedural History
{¶ 2} Nyamusevya appeals the entries confirming the sale of a residential property
stemming from a foreclosure proceeding that began over a decade ago. On September 14,
2010, plaintiff-appellee, CitiMortgage, Inc. (“CitiMortgage”), filed a complaint in
foreclosure against Nyamusevya. On November 15, 2018, the Franklin County Court of
Common Pleas entered a judgment and decree of foreclosure against Nyamusevya, which
was later affirmed by this court. CitiMortgage, Inc. v. Nyamusevya, 10th Dist. No. 18AP-
Nos. 22AP-464 & 22AP-514 2
949, 2020-Ohio-5024. On May 1, 2019, while the appeal of the foreclosure judgment was
pending, Nyamusevya filed for bankruptcy. The bankruptcy court later issued a discharge
of his personal liabilities but did not discharge CitiMortgage’s mortgage lien on
Nyamusevya’s property. In re Nyamusevya, 644 B.R. 375 (Bankr.S.D.Ohio 2022).
{¶ 3} Nyamusevya filed a complaint for writs of mandamus and prohibition to
undo the foreclosure action judgment on April 5, 2019, but this court dismissed his
complaint. State ex rel. Nyamusevya v. Hawkins, 10th Dist. No. 19AP-199, 2020-Ohio-
2690, aff’d, 165 Ohio St.3d 22, 2021-Ohio-1122. CitiMortgage’s foreclosure action was
reactivated on February 5, 2020, and trial court granted CitiMortgage’s motion for an order
of sale of the property on April 14, 2022.
{¶ 4} On June 10, 2022, the property was sold at a sheriff’s sale. The Franklin
County Court of Common Pleas issued an Entry Confirming the Sale and Ordering
Distribution of Sale Proceeds and Deed on July 6, 2022. On August 1, 2022 the trial court
reissued the entry with a correction to the purchaser’s name. Nyamusevya appeals both
entries.
{¶ 5} In his appeal to this court, Nyamusevya presents five assignments of error.
Nyamusevya’s assignments of error are as follows:
(1) The lower Court lacked the jurisdiction to enforce the not in
rem 11/15/2018, Foreclosure Judgment; and lacked the
jurisdiction to enter the July 6, 2022 and the August 01, 2022,
Confirmation of Sale that were automatically void ab initio
under 11 U.S.C. § 524(a)(1) and prohibited under 11 U.S.C. §
524(a)(2); and lacked the jurisdiction to act as an appellate
Court of the Bankruptcy Court, as it vacated the mandate under
§ 524 and § 727.
(2) The lower trial Court was barred to exceed its jurisdiction, in
order to unlawfully deprive and confiscate the Appellant’s paid
off real property by extinguishing and vacating existing law and
Courts’ precedents, not limited to rejecting in McClung v.
McClung, 10th Dist. Franklin No. 03AP-156, 2004-Ohio-240,
and O.R.C. §2329.191(B)(7) and Local Rule 96.
(3) The statutory voidness and statutory injunction created by §
524(a) operated to strip the lower trial Court of the subject
matter jurisdiction. After no in rem Foreclosure Judgment was
entered; hence, the lower trial Court was barred to unlawfully
enforce the not in rem Foreclosure Judgment that was
Nos. 22AP-464 & 22AP-514 3
automatically voided as the time obtained under 11 U.S. §
524(a)(1).
(4) The Appellant’s pending Motions are unopposed by Appellee,
not limited to the June 27, 2022, Motion for Fees and Cost
(record on appeal # 849) and the August 11, 2022 Motion to
Hold the lower trial Court’s judgments Orders as void ab initio
(record on appeal # 873), and are deemed granted; hence, this
Court of Appeal is charged to grant the unopposed relief
sought.
(5) After the Appellant paid off his real property and after the
Bankruptcy’s Orders of Discharge were entered; hence, the
lower Court was barred to “abolish” the Bankruptcy law and
Codes and Rules; and to “abolish” the U.S. Congress’s act and
intention; and to “abolish” the Bankruptcy process and relief
and Orders and the Bankruptcy Court’s judicial authority.
(Emphasis sic.)
II. Legal Analysis
{¶ 6} Confirmation of judicial foreclosure sales in Ohio is governed by R.C.
2329.31, which provides that, if the common pleas court finds that the sale was made in
conformity with R.C. Chapter 2329, the court will direct distribution of the proceeds and
order that the purchaser receive the deed for the subject property. “ ‘Whether a judicial sale
should be confirmed or set aside is within the sound discretion of the trial court.’ ” Ohio
Sav.Bank v. Ambrose, 56 Ohio St.3d 53, 55 (1990), quoting Michigan Mtge. Corp. v.
Oakley, 68 Ohio App.2d 83 (12th Dist.1980). A court of appeals will reverse a confirmation
of sale by the trial court only when the trial court has abused its discretion. Id. “An abuse of
discretion connotes more than an error of judgment; it implies a decision that is arbitrary
or capricious, one that is without a reasonable basis or clearly wrong.” Betz v. Penske Truck
Leasing Co., L.P., 10th Dist. No. 11AP-982, 2012-Ohio-3472 at ¶ 44, citing Pembaur v. Leis,
1 Ohio St.3d 89 (1982); In re Ghali, 83 Ohio App.3d 460, 466 (10th Dist.1992). The public
policy of Ohio is to promote the finality of judicial sales and lend some certainty to the
judicial process of foreclosure. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-
Ohio-1984, ¶ 23.
{¶ 7} We now turn to Nyamusevya’s assignments of error, which we consider
together. While Nyamusevya has filed a timely appeal from the entries confirming the
Nos. 22AP-464 & 22AP-514 4
sheriff’s sale and ordering distribution of the sale proceeds and deed, his assignments of
error improperly attack the underlying foreclosure judgment rather than the entries
currently before this court.
{¶ 8} Ohio law allows for appeals of two judgments in foreclosure proceedings—
the order of foreclosure and the confirmation of sale. Roznowski at ¶ 39. Regarding the
former, “[t]he order of foreclosure determines the extent of each lienholder’s interest, sets
forth the priority of the liens, and determines the other rights and responsibilities of each
party in the action.” Id. at ¶ 39. In an appeal from an order of foreclosure, “the parties may
challenge the court’s decision to grant the decree of foreclosure,” but “[o]nce the order of
foreclosure is final and the appeals process has been completed, all rights and
responsibilities of the parties have been determined and can no longer be challenged.” Id.
{¶ 9} In contrast, an appeal of the confirmation of sale process is limited in scope
to ensure compliance with R.C. Chapter 2329. Roznowski is instructive in highlighting the
differences between an appeal of a foreclosure judgment and a confirmation of sale:
on appeal of the order confirming the sale, the parties may
challenge the confirmation of the sale itself, including
computation of the final total owed by the mortgagor, accrued
interest, and actual amounts advanced by the mortgagee for
inspections, appraisals, property protection, and maintenance.
The issues appealed from confirmation are wholly distinct from
the issues appealed from the order of foreclosure. In other
words, if the parties appeal the confirmation proceedings, they
do not get a second bite of the apple, but a first bite of a different
fruit.
Id. at ¶ 40.
{¶ 10} Here, Nyamusevya has exhausted the appeals process on the foreclosure
judgment. He may not resurrect his failed arguments with respect to the foreclosure
judgment in his appeal from the confirmation of sale. Nyamusevya repeatedly argues that
CitiMortgage’s mortgage lien did not survive but was discharged in the bankruptcy
proceeding. We note that the Sixth Circuit Court of Appeals found otherwise.
“[Nyasumevya]’s discharge precludes CitiMortgage from collecting its debt directly from
the Debtor himself (in personam) but does not prevent CitiMortgage from liquidating the
Debtor’s Property to satisfy the debt (in rem).” (Emphasis sic.) Nyamusevya v.
Nos. 22AP-464 & 22AP-514 5
CitiMortgage, Inc., No. 19-8027, 2021 Bankr. LEXIS 174, *15 (B.A.P. 6th Cir. Jan. 20,
2021).
{¶ 11} Since Nyamusevya does not offer arguments that challenge the entries
confirming sale, we find no abuse of discretion warranting a reversal of the entries. Having
found no abuse of discretion by the trial court, we overrule Nyamusevya’s assignments of
error, which all pertain to the underlying foreclosure judgment.
III. Conclusion
{¶ 12} We overrrule Nyamusevya’s five assignments of error and affirm the
judgment of the Franklin County Court of Common Pleas.
Judgments affirmed.
DORRIAN, BOGGS, and LELAND, JJ. concur.