CitiMortgage, Inc. v. Fishel

[Cite as CitiMortgage, Inc. v. Fishel, 2012-Ohio-4117.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
CITIMORTGAGE, INC. SUCCESSOR ) CASE NO. 11 MA 97
BY MERGER TO ABN AMRO )
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
W. DANIEL FISHEL, et al. )
)
DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 09 CV 1424
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Thomas L. Henderson
Lerner, Sampson & Rothfuss
120 East Fourth Street, Eighth Floor
Cincinnati, Ohio 45202
For Defendant-Appellant: W. Daniel Fishel, Pro se
Lorraine Fishel, Pro se
P.O. Box 5051
Poland, Ohio 44514-5480
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 5, 2012
[Cite as CitiMortgage, Inc. v. Fishel, 2012-Ohio-4117.]
WAITE, P.J.
{¶1} Appellants W. Daniel and Loraine Fishel appeal the Mahoning County
Court of Common Pleas’ magistrate’s decision recommending judgment in favor of
Appellee, CitiMortgage, Inc. (“CitiMortgage”). The appeal arises out of a default
judgment and decree in foreclosure entered on August 11, 2009 in favor of Appellee.
That judgment was not appealed. Instead, Appellants filed a Civ.R. 60(B) motion to
vacate judgment on February 4, 2011, which was denied because it was not filed on
time. Appellants argued that CitiMortgage had no standing to litigate the foreclosure
action and that the judgment against them was void. They claimed that since the
judgment was void, the timeliness of their Civ.R. 60(B) motion was not an issue.
Appellants are mistaken that a question concerning a party’s standing to litigate
renders a judgment void. Since Appellants cannot establish that the default
judgment was void, they had to satisfy the usual requirements of Civ.R. 60(B) to
challenge the judgment. Appellants’ Civ.R. 60(B) was not filed in a timely fashion,
and therefore, the decision of the trial court is affirmed.
Statement of the Case
{¶2} CitiMortgage is the holder of a note, loan modification agreement and
mortgage executed by W. Daniel and Lorraine M. Fishel. The mortgage is a lien on
Appellants’ real property, located at 3082 Highland Avenue, Poland, Ohio 44514
(“Property”). The mortgage was recorded in volume 5242 of the Mahoning County
Recorder’s office on August 26, 2002. CitiMortgage is the successor by merger to
ABN AMRO Mortgage Group Inc. In 2008, Appellants fell behind on their mortgage
payments as well as on a loan modification agreement with CitiMortgage. The loan
account went into default due to nonpayment.
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Procedural History
{¶3} On April 20, 2009, CitiMortgage filed a complaint in foreclosure against
Appellants. Shortly after, on April 29, 2009, a summons was issued to a process
server to obtain service on the Appellants. The summons was returned and filed as
served on May 7, 2009. Appellants failed to plead or respond to the complaint. On
June 5, 2009, CitiMortgage filed a motion for default judgment. On June 26, 2009, a
copy of the hearing notice was sent from the court by mail to the parties. On August
11, 2009, the trial court entered a judgment and decree in foreclosure in favor of
CitiMortgage.
{¶4} On February 4, 2011, almost eighteen months after the foreclosure
judgment, Appellants filed a Civ.R. 60(B) motion to vacate judgment. The magistrate
denied the motion on March 21, 2011. Appellants filed an objection to the
magistrate’s decision on March 25, 2011. A judgment entry overruling Appellants’
objection was entered on May 31, 2011. It is from this judgment entry that Appellants
filed a notice of appeal on June 16, 2011.
{¶5} Appellants’ two assignments of error will be addressed together
because the legal issues presented are identical.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
OVERRULED AS “UNREASONABLY UNTIMELY” THE APPELLANTS
[SIC] MOTION TO VACATE.
ASSIGNMENT OF ERROR NO. 2
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THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND
THAT THE APPELLANT’S [SIC] MOTION FOR RELIEF PURSUANT
TO CIV.R. 60(B)(5) WAS “UNREASONABLY UNTIMELY.”
CitiMortgage’s Standing to Sue
{¶6} Appellants contend that CitiMortgage had no standing to prosecute a
foreclosure action, and for that reason they contend that the trial court’s judgment is
void. The implication of this argument is that Appellants believe they did not need to
comply with Civ.R. 60(B) to attack the judgment, since it was void. Although part of
Appellants’ argument is correct, their ultimate conclusions are not. Appellants
correctly state that where a court lacks subject matter jurisdiction, a judgment is void.
Carter-Jones Lumber Co. v. Willard, 6th Dist. No. L-06-1096, 2006-Ohio-6629, ¶8.
Courts have the inherent authority to vacate a void judgment at any time.
Westmoreland v. Valley Homes Corp., 42 Ohio St.2d 291, 294, 328 N.E.2d 406(1975). A party does not need to abide by the filing requirements of Civ.R. 60(B) to
challenge a void judgment. CompuServe, Inc. v. Trionfo, 91 Ohio App.3d 157, 631
N.E.2d 1120 (10th Dist.1993). Unfortunately for Appellants, lack of standing to
initiate a foreclosure action does not raise a question of subject matter jurisdiction
and does not void an otherwise valid judgment. Washington Mutual Bank, F.A. v.
Wallace, 194 Ohio App.3d 549, 2011-Ohio-4174, 957 N.E.2d 92 (12th Dist.); Wells
Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722(1st Dist.); In re Anderson, 7th Dist. No. 05 MO 14, 2007-Ohio-1107, ¶6. Therefore,
Appellants cannot avoid the procedural requirements of Civ.R. 60(B) by framing their
issue on appeal as a question of standing.
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Elements of a Civ.R. 60(B) Motion to Vacate
{¶7} According to Civ.R. 60(B), a court may relieve a party or legal
representative from a final judgment, order or proceeding for the following reasons:
(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 Civ.R. 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 the judgment.
{¶8} In order to prevail on a motion for relief from judgment, pursuant to
Civ.R. 60(B), the appellant 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 amount of 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 Electric, Inc. v. ARC Industries, 47 Ohio St.2d
146, 351 N.E.2d 113 (1976).
Timeliness of the Civ.R. 60(B) Motion
{¶9} The Civ.R. 60(B) motion must be made within a reasonable time, and
for reasons (1), (2), and (3) stated above, not more than one year after the judgment,
order or proceeding was entered or taken. A Civ.R. 60(B) motion does not affect the
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finality of a judgment or suspend its operation. Adomeit v. Baltimore, 39 Ohio App.2d
97, 101, 316 N.E.2d 469 (1974).
{¶10} A party has up to one year after the judgment entry is filed to file a
motion to vacate judgment, when the basis for relief arises out of Civ.R. 60(B)(1-3).
For cases arising from Civ.R. 60(B)(4-5), the only requirement for the timing of the
filing of the motion is that it was done within a reasonable amount of time. Every
Civ.R. 60(B) motion is subject to a “reasonable time” requirement. Id. at 106. In the
absence of any explanation or justification for the delay in filing a Civ.R. 60(B)
motion, the motion to vacate should be denied. Dunn v. Marthers, 9th Dist. No.
05CA008838, 2006-Ohio-4923.
{¶11} Appellants argued that CitiMortgage committed a fraud on the court and
asked for relief under Civ.R. 60(B)(5). Under Civ.R. 60(B)(5), the motion to vacate
must be filed within a reasonable amount of time.
{¶12} A 72-day delay can render a Civ.R. 60(B) motion untimely, as seen in
Larson v. Umoh, 33 Ohio App.3d 14, 17, 514 N.E.2d 145 (8th Dist.1986). Here, the
defendant filed a motion to vacate judgment in a forcible entry and detainer action.
Defendant waited 72 days after the entry of judgment against him to file the motion.
The trial court denied the motion as untimely, and the Eighth District Court of Appeals
affirmed the ruling.
{¶13} Where there is no explanation for the delay, a four-month delay in filing
the Civ.R. 60(B) motion has been found to be untimely. Mount Olive Baptist Church
v. Pipkins Paints, 64 Ohio App.2d 285, 413 N.E.2d 850 (8th Dist.1979). In Mount
Olive Baptist Church, the church brought action against a home improvement
company for breach of contract. The company failed to answer and shortly
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thereafter, the church was granted default judgment. The company filed a motion for
relief from judgment four months later and the trial court vacated the judgment. The
church appealed. The Eighth District Court of Appeals held that the more than four-
month delay was not a reasonable time within which to file the motion pursuant to
Civ.R. 60(B)(5). Further, there was no evidence to explain the delay in filing the
motion to vacate, thus the movant failed to demonstrate the timeliness of the motion.
{¶14} As seen in Mount Olive Baptist Church and Larson, a trial court has
wide discretion to deny a Civ.R. 60(B) motion for an untimely delay. In this case,
Appellants waited well over year to file their motion. Appellants took no action to
vacate the August 11, 2009, judgment entry until February 4, 2011. This is true
despite the fact that Appellants were served with the motion for default judgment,
judgment entry, and notice of sheriff’s sale. There is no explanation in the record
justifying the delay. This is clearly a much longer delay than cases reviewed by other
courts, and there exists very strong grounds for denying Appellants’ Civ.R. 60(B)
motion. If a 72-day delay warrants denial of a Civ.R. 60(B) motion, it follows that an
eighteen-month delay may also be denied. Appellants failed to meet their burden in
establishing the timeliness of their Civ.R. 60(B) motion to vacate and provided no
operative facts explaining their delay. It was well within the trial court’s discretion to
deny Appellants’ Civ.R. 60(B) motion. Thus, we find no error in the trial court’s
judgment.
{¶15} Although Appellants filed their Civ.R. 60(B)(5) motion under the catch-
all provision of section 60(B)(5), their fraud argument is more akin to a Civ.R.
60(B)(3) motion because Civ.R. 60(B)(3) specifically mentions fraud. Appellants’
allegation of fraud is based on the alleged misrepresentation of CitiMortgage
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regarding its standing to initiate and litigate the foreclosure action. Their assertion
stems from their belief that Federal Home Loan Mortgage Corporation (“Freddie
Mac”) owns their mortgage loan, and that CitiMortgage does not have standing. This
type of claim is usually raised under Civ.R. (60)(B)(3). See, e.g., Washington Mut.
Bank, F. A. v. Wallace, supra. Had Appellants filed a more appropriate 60(B)(3)
motion, it would still be denied, as the time limit is one year for filing that type of
claim.
Conclusion
{¶16} The trial court’s judgment entry was not void. Thus, Appellants were
required to establish a right to relief under Civ.R. 60(B), and they failed to do so.
Civ.R. 60(B) provides that the motion to vacate be made within reasonable time.
Appellants waited eighteen months to file the motion, and since an untimely filing of a
Civ.R. 60(B) is reason enough for denial, it was well within the trial court’s discretion
to dismiss the motion. Therefore, the judgment of the trial court is affirmed.
Vukovich, J., concurs.
DeGenaro, J., concurs.