People's Bank, N.A. v. Garcia ( 2018 )

[Cite as People's Bank, N.A. v. Garcia, 2018-Ohio-4365.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
PEOPLE’S BANK, N.A. : Hon. John W. Wise P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 18 CA 8
JESSICA N. GARCIA, ET AL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Guernsey County
Court of Common Pleas, Case
No.15CV420
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 25, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JONATHAN A. VELEY JESSICA N. GARCIA Pro Se
2034 Cherry Valley Road 225 Long Street
Newark, OH 43055 Cambridge, OH 43725
[Cite as People's Bank, N.A. v. Garcia, 2018-Ohio-4365.]
Gwin, J.,
{¶1} Appellant appeals the March 22, 2018 judgment entry of the Guernsey
County Court of Common Pleas confirming sale and ordering deed and distribution.
Facts & Procedural History
{¶2} On October 16, 2015, appellee People’s Bank, N.A., filed a foreclosure
complaint against appellant Jessica Garcia in regards to the property located at 225 Long
Street in Cambridge, Ohio. Appellee filed a motion for default judgment against appellant
on February 9, 2016. The trial court sent a notice to appellant that the motion for default
had been filed and scheduled a non-oral hearing on March 10, 2016. The trial court
continued the non-oral hearing to April 4, 2016 and ordered appellee to clarify the legal
description and attach the Court’s docket sheet to the final judicial report. Appellee filed
an amended final judicial report on March 31, 2016.
{¶3} On July 22, 2016, the trial court granted appellee’s motion for default
judgment against appellant and issued a foreclosure decree. The foreclosure decree
contains Rule 54(B) language that it is a final appealable order and there is no just cause
for delay. Appellant did not appeal the foreclosure decree.
{¶4} The premises at 225 Long Street was vandalized on August 28, 2016.
Appellant filed a claim through her insurance company State Farm Fire and Casualty
Company (“State Farm”).
{¶5} On February 3, 2017, appellee filed a motion for order authorizing Tim Lile
as a private selling officer to sell the real property at public auction. The trial court granted
the motion on February 6, 2017. Appellee filed a notice of sale on January 11, 2018. The
notice of sale provided the sale was set for January 31, 2018. There were no bids at the
Guernsey County, Case No. 18 CA 8 3
January 31, 2018 sale, so the private selling officer rescheduled the sale with no reserve
for February 21, 2018.
{¶6} On February 20, 2018, appellant filed a motion to vacate. Appellant stated
in her motion that there was an insurance payment from State Farm and that appellee
agreed to her proposal to accept the payment from State Farm as full payment on the
mortgage loan and any deficiency. Appellant attached a letter from Attorney Ong outlining
appellant’s proposal that appellee accept the State Farm settlement check for full
payment on the loan and deficiency.
{¶7} The property was sold on February 21, 2018.
{¶8} Appellee filed a memorandum contra to appellant’s motion to vacate on
February 22, 2018. Appellee confirmed that it did receive the check from State Farm and
also received the letter from Attorney Ong. However, appellee stated that it never
accepted appellant’s offer and that it received the check from State Farm pursuant to the
mortgagee clause in State Farm’s policy. Appellee attached Exhibit A, a letter from State
Farm to appellee, stating State Farm denied claim payment to appellant, but since
appellee complied with the mortgage clause under the policy, the claim payment was
enclosed. Appellee also attached Exhibit B, the affidavit of Jonathan Veley, (“Veley”)
attorney for appellee. Veley confirmed that the letter from Attorney Ong was an offer to
settle all claims against appellant and her mother for deficiencies owed to appellee for the
amount of appellant’s insurance claim arising out of vandalism to the property at issue.
Veley stated he spoke with Attorney Ong on April 10, 2017 and rejected the offer. The
trial court denied appellant’s motion to vacate on February 22, 2018.
Guernsey County, Case No. 18 CA 8 4
{¶9} On March 22, 2018, the trial court entered a journal entry confirming sale
and ordering deed and distribution.
{¶10} Appellant filed a notice of appeal of the March 27, 2018 journal entry of the
Guernsey County Court of Common Pleas and assigns the following as error:
{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THERE
WAS NO BREACH OF ANY CONTRACT BETWEEN THE PARTIES.
{¶12} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
PLAINTIFF DID NOT COMMIT FRAUDULENT MISREPRESENTATION.
{¶13} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT
PLAINTIFF DID NOT MAKE ANY DEFAMATORY STATEMENTS IN THE SALE OF THE
PREMISES AT ISSUE.”
I., II., III.
{¶14} Appellant’s notice of appeal was filed on March 27, 2018. Appellant
attached to her notice of appeal a copy of the trial court’s March 22, 2018 judgment entry
confirming the sale.
{¶15} There are two judgments appealable in foreclosure actions: the order of
foreclosure and the confirmation of sale. CitiMortgage v. Roznowski, 139 Ohio St. 3d 299,
2014-Ohio-1984, 11 N.E.3d 1140. Because the judgment of foreclosure was a final
appealable order, the entry overruling the motion to vacate the judgment is likewise final
and appealable. Aurora Bank F.S.B. v. Gordon, 8th Dist. Cuyahoga No. 103138, 2016-
Ohio-938, appeal not allowed sub nom. Aurora Bank F.S.B. v. Gordon, 146 Ohio St. 3d
1471, 2016-Ohio-5108, 54 N.E.2d 1269.
Guernsey County, Case No. 18 CA 8 5
{¶16} With regards to the March 22, 2018 judgment entry confirming the sale, “the
confirmation process is an ancillary one in which the issues present are limited to whether
the sale proceedings conformed to the law” and the only arguments properly before this
Court are those related to the procedures employed in the sale and whether the trial court
abused its discretion in confirming the sale. CitiMortgage v. Roznowski, 139 Ohio St. 3d
299, 2014-Ohio-1984, 11 N.E.3d 1140.
{¶17} As noted under the facts, appellant did not file an appeal from the trial
court’s entry and decree in foreclosure, which contained Civ.R. 54(B) “no just reason for
delay” language. Further, appellant did not file a timely appeal from the February 22,
2018 judgment entry denying her motion to vacate.
{¶18} Rather, the only timely appeal in this case is from the trial court’s March 22,
2018 confirmation entry of sale and distribution of proceeds. The issues raised in
appellant’s pro se brief, however, focus solely on the merits of the foreclosure judgment
and the denial of her motion to vacate, rather than the order confirming the sale. Appellant
assigns no error to the judgment entry confirming the sale. Thus, since appellant failed
to timely appeal the foreclosure decree and the entry denying her motion to vacate, any
issues concerning these entries have been waived and those issues may not be raised
in an appeal from the order confirming sale. Wells Fargo Bank, N.A. v. Parrish, 10th Dist.
Franklin No. 15AP-243, 2015-Ohio-4045; U.S. Bank, N.A. v. Alex, 8th Dist. Cuyahoga No.
101276, 2015-Ohio-871.
{¶19} Further, as noted by appellee, while appellant made an offer to appellee,
the offer was never accepted by appellee. Thus, the requirements for the formation of a
Guernsey County, Case No. 18 CA 8 6
contract were not met. Huth v. Kus, 5th Dist. Tuscarawas No. 2017 AP 06 0015, 2018-
Ohio-1931.
{¶20} Finally, as to appellant’s second and third assignments of error, these
arguments were not made to the trial court. Failure to raise these issues before the trial
court operates as a waiver of appellant’s right to assert such for the first time on appeal.
Large v. Lilley, 5th Dist. Delaware No. 17 CAE 06 0043, 2018-Ohio-1017.
{¶21} Based on the foregoing, appellant’s assignments of error are overruled.
{¶22} The March 22, 2018 judgment entry of the Guernsey County Court of
Common Pleas is affirmed.
By Gwin, J.,
Wise, John, P.J., and
Delaney, J., concur