Bank of New York Mellon v. Ackerman

[Cite as Bank of New York Mellon v. Ackerman, 2016-Ohio-960.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
BANK OF NEW YORK MELLON :
:
Plaintiff-Appellee : C.A. CASE NO. 26779
:
v. : T.C. NO. 09CV3194
:
GREGORY T. ACKERMAN, et al. : (Civil appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___11th___ day of _____March_____, 2016.
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SCOTT A. KING, Atty, Reg. No. 0037582 and TERRY W. POSEY, JR., Atty. Reg. No.
0078292, 10050 Innovation Drive, Suite 400, Miamisburg, Ohio 45342
Attorneys for Plaintiff-Appellee
GREGORY T. ACKERMAN, 556 Shadowlawn Avenue, Dayton, Ohio 45419
Defendant-Appellant
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DONOVAN, P.J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Gregory T.
Ackerman and Joyce L. Ackerman, filed July 29, 2015. The Ackermans appeal from the
June 29, 2015 “Final and Appealable Decision, Order and Entry Overruling Defendants’
Motion for Relief from Judgment,” issued in favor of The Bank of New York Mellon, fka
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The Bank of New York as Successor in interest to JP Morgan Chase Bank NA as Trustee
for Bear Stearns Asset-Backed Certificates, Series 2005-SD1 (“BNYM”). We hereby
affirm the judgment of the trial court.
{¶ 2} BNYM filed a complaint in foreclosure against the Ackermans on April 21,
2009, seeking judgment on the balance due on a Note and to foreclose on a Mortgage
securing the payment of the Note. The subject property is located at 556 Shadowlawn
Avenue. On November 11, 2010, the trial court granted BNYM’s Motion for Summary
Judgment and entered a Decree in Foreclosure. This Court affirmed the decision of the
trial court in Bank of N.Y. Mellon v. Ackerman, 2d Dist. Montgomery No. 24390, 2012-
Ohio-956.
{¶ 3} On May 3, 2013, the Shadowlawn property was sold to Freshzone Products,
Inc. (“Freshzone”), for $73,100.00 at sheriff’s sale; Freshzone paid 10% of the purchase
price as a down payment, and the sale was confirmed on June 20, 2013. On August 23,
2013, BNYM filed a “Motion to Vacate Journal Entry Confirming Sale, to Set Aside
Sheriff’s Sale and to Punish Purchaser as for Contempt.” According to BNYM, Freshzone
failed to remit to the Sheriff the balance of its successful bid. On January 16, 2014, the
magistrate sustained BNYM’s motion.
{¶ 4} On February 3, 2014, the trial court adopted the magistrate’s decision. On
the same day, the Ackermans filed both objections to the magistrate’s decision and
“Defendant’s Motion for Leave of Court to File ‘Out of Rule.’ ” On February 4, 2014 the
court issued an “Order and Entry Finding Defendant’s Motion for Leave of Court to File
‘Out of Rule’ to be Moot.” The court determined that the Ackermans’ objections were
untimely since “Defendants had until January 31, 2014 to file their objections to the
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magistrate’s decision.” The court determined as follows:
The Court further finds in Defendant’s Objections to Magistrate
Judge Decision that Defendants do not move the Court’s Judgment Entry
Adopting Magistrte’s Decision to be vacated pursuant to Civ.R. 60(B) or
otherwise, nor have Defendants appealed the Court’s final judgment entry
pursuant to App.R. 4. Although Defendants’ opportunity to initiate an
appeal of the Court’s final judgment entry remains as of the date of this
entry, the Court must interpret Defendant’s Objections to Magistrate
Decision as a motion for reconsideration. Therefore, upon consideration
made pursuant to [Murray v. Goldfinger, 2d Dist. Montgomery No. 19433,
2003-Ohio-459, ¶ 5], the Court finds Defendant’s Objections to Magistrate
Judge Decision to be a nullity, and thus moot. For purposes of clarity, this
entry shall not be considered a final appealable order.
{¶ 5} On February 11, 2014, the Ackermans filed a “Judicial Notice of Time Upon
Defendant’s Objections to the Magistrate Judge Decision,” in which they argued that their
objections were timely filed, citing Civ.R. 5(B)(2)(c) and Civ.R. 6. On February 13, 2014,
the court issued a “Notice to Parties on Defendants’ Judicial Notice of Time Upon
Defendant’s Objections to the Magistrate Judge Decision.” Therein the court noted that
the Ackermans failed to appeal its decision adopting the magistrate’s decision and were
accordingly limited to seeking relief pursuant to Civ.R. 60(B). The court noted as follows:
“However, [the Ackermans] merely rely on Civ.R. 6 in their ‘Judicial Notice.’ ” Civ.R. 6
provides in relevant part: “Whenever a party has the right or is required to do some act or
take some proceedings within a prescribed period after the service of a notice or other
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document upon that party and the notice or paper is served upon that party by mail or
commercial carrier service under Civ.R. 5(B)(2)(c) or (d), three days shall be added to the
prescribed period. * * *.” Civ.R. 6(D). The Court concluded that “although [the
Ackermans] move the Court in their ‘Judicial Notice,’ because such notice is not captioned
as a motion nor does it rely upon Civ.R. 60(B), the Court cannot rule on the merits of any
motion therein.” The court noted, “for the sole purpose of clarity to the parties,” that the
three additional days provided in Civ.R. 6 does not apply to extend the 14-day time period
for filing objections to a magistrate’s decision, citing in part, Duganitz v.Ohio Adult Parole
Auth., 92 Ohio St. 3d 556, 558, 751 N.E.2d 1058 (2001).
{¶ 6} On February 19, 2014, the Ackermans filed a “Motion for 2nd Judicial Notice
Request Pursuant to Evid.R. 102 and Substantial Rights, Motion for Time (Civ.R.6) Upon
Defendant’s Timely Objections to Magistrate Judge Decision, Motion for Relief Pursuant
to Civ.R. 60(A) and (B),” asking the court to vacate its judgment adopting the magistrate’s
decision. In a section entitled “Substantive Law and Substantive Right,” the Ackermans
cited Civ.R. 53 and Civ.R. 6, and they asserted in part as follows:
* * *[T]he Defendant’s (sic) objection to the magistrate decision are
(sic) timely, authorized and conforming to these Ohio Rules of Civil
Procedure for objecting the magistrate’s decision, which is due by time
computation on February 03, 2014. A show cause of 14 days to file
“objections to magistrate decision”, plus 3 days “service by mail”, plus, 1
day for the “next succeeding day which is not, . . . a Sunday” equals 18 days
from the magistrate decision filed on January 16, 2014. In conclusion, the
court’s “Judgment Entry Adoption of the Magistrate’s Decision” filed on
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February 03, 2014 at 3:43 PM is premature and imprudent to the
Defendant’s (sic) fair objection to the magistrate decision, and moot to this
court proceeding.
{¶ 7} In a section entitled “Motion for Relief from Judgment or Order,” the
Ackermans asserted as follows:
The Defendants motion the court with good cause and timely show
cause merit (sic) in presenting their valid adjudicative facts and proper
conclusions of law for remedies of relief, have timely filed their “Defendant’s
Objections to the Magistrate Judge Decision” on February 03, 2014 for non-
prejudicial sua sponte action of the court based on these above invoked
rules of law. The Defendants now also invoke Civ.R. 60(A) and (B) for
addition[al] measures of remedies of relief from all judgments and orders
pursuant to this court’s; oversight, omission and mistakes * * *.
{¶ 8} BNYM replied to the motion on March 5, 2014, asserting that “[a]lthough
Defendants cite to Civil Rule 60(B), they make no reference to how this Rule applies to
their case, nor do they raise any error upon which their Motion is based.” Also on that
date, the Ackermans filed a Notice of Appeal, which resulted in Montgomery County Case
No. CA 26118, which this Court dismissed on March 31, 2015 for failure to file an
appellate brief and prosecute the appeal. The trial court did not rule upon the Ackermans’
February 19, 2014 motion while the appeal was pending.
{¶ 9} In ruling in favor of BNYM and denying the Ackermans’ motion on June 29,
2015, the trial court initially quoted Civ.R. 53(D)(4)(e)(i), which provides that “[i]f the court
enters a judgment during the fourteen days permitted by Civ.R. 53(D)(3)(b)(i) for the filing
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of objections, the timely filing of objections to the magistrate’s decision shall operate as
an automatic stay of execution of the judgment until the court disposes of those objections
* * *.” The court noted that this rule does not apply herein, since the court’s entry
adopting the magistrate’s decision was filed 18 days after the magistrate’s decision was
issued, and accordingly, the Ackermans were not entitled to an automatic stay. After
noting that it had previously addressed the Ackermans’ argument that the court erred in
in its computation of time for the filing of objections to a magistrate’s decision in the court’s
February 13, 2014 “Notice to Parties on Defendants’ Judicial Notice of Time Upon
Defendant’s Objections to the Magistrate Judge Decision” the court concluded that it “has
not yet addressed” the Defendants’ request for relief from Judgment pursuant to Civ.R.
60.
{¶ 10} The court then considered Civ.R. 60(A) and (B) and conducted the following
analysis:
***
With respect to Defendants’ request that the Court invoke Civ.R.
60(A), the Court finds such arguments to be unpersuasive, as the Court’s
previous Judgment Entry Adopting Magistrate Decision contains no clerical
errors or omissions which would permit relief under this rule. * * *In the
instant matter, the Defendants are arguing that the Court made a legal
and/or factual mistake in its computation of the time for filing objections to
the Magistrate’s Decision, which is substantive in nature and therefore
governed by Civ.R. 60(B). * * * Accordingly, the Defendants’ motion will be
considered under Civ.R. 60(B).
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With respect to Civ.R. 60(B), the Court acknowledges that it is
without authority to sua sponte vacate its previous judgment entries under
this rule, and that it must consider the merits of the Defendants’ arguments.
* * * Upon consideration of the respective arguments of the parties, the
Court finds that the Defendants have failed to demonstrate that they are
entitled to relief under Civ.R. 60(B). The Defendants have not specified that
they are entitled to relief under one of the grounds of Civ.R. 60(B)(1) through
(5), which is a requirement under the GTE [Automatic Electric, Inc. v. ARC
Industries, Inc., 47 Ohio St. 2d 146, 351 N.E.2d 113 (1976)] test. * * * Even
if this Court were to construe the Defendants’ argument that the Court was
mistaken in its computation of time for the filing of objections as a motion
for relief from judgment pursuant to Civ.R. 60(B)(1), the Second District
Court of Appeals has held that “ ‘ a motion for relief from judgment cannot
be predicated upon the argument that the trial court made a mistake in
rendering its decision.’ ” * * * Accordingly, the Defendants have failed to
meet the second prong of the GTE test. * * * Further, the Defendants have
failed to present a meritorious defense as required under the first prong of
the GTE test. * * *
Accordingly, the Defendants failed to meet the first and second
prongs of the GTE test. * * * As the Defendants have failed to make a prima
facie showing that the ends of justice would be better served by setting
aside this Court’s previous judgments, the Court hereby overrules
Defendants’ Motion for Relief from Judgment, the sole remaining issue as
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contained in Defendants’ Motion for 2nd Judicial Notice Request of
Defendant’s Objections to the Magistrate Judge Decision.
{¶ 11} Prior to addressing the Ackermans’ assigned errors herein, we note that
the caption of their brief contains a jury demand, and that the body of their brief contains
a motion for appointment of counsel. A jury demand is not properly asserted in an
appellate brief, and this Court denied the Ackermans’ motion for appointment of counsel
by entry dated Nobember 24, 2015.
{¶ 12} The Ackermans assert two lengthy assignments of error herein which may
be summarized together; according to the Ackermans, the trial court created a “prejudicial
omission” of the automatic stay provided for in Civ.R. 53(D)(3)(b)(i), and further, the
Ackermans assert that their objections were timely filed based upon the application of
Civ.R. 6. BNYM responds that the Ackermans are not entitled to relief under Civ.R. 60.
In Reply, the Ackermans assert that their “timely filed” objections are a “meritorious
defense invoking an ‘automatic stay’ of the proceedings (beginning 02/03/2014).”
{¶ 13} Civ.R. 60 provides as follows:
(A) Clerical mistakes
Clerical mistakes in judgments, orders or other parts of the record
and errors therein arising from oversight or omission may be corrected by
the court at any time on its own initiative or on the motion of any party and
after such notice, if any, as the court orders. * * *
(B) Mistakes; inadvertence; excusable neglect; newly discovered
evidence; fraud; etc.
On motion and upon such terms as are just, the court may relieve a
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party or his 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 Rule 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. The motion shall be made
within a reasonable time, and for reasons (1), (2) and (3) not more than one
year after the judgment, order or proceeding was entered or taken. A motion
under this subdivision (B) does not affect the finality of a judgment or
suspend its operation.
The procedure for obtaining any relief from a judgment shall be by
motion as prescribed in these rules
{¶ 14} This Court reviews the denial of both Civ.R. 60(A) and Civ.R. 60(B) motions
for an abuse of discretion. Brush v. Hassertt, 2d Dist. Montgomery No. 21687, 2007-
Ohio-2419, ¶ 25 (“Because a trial court is in the best position to know what it actually
meant, we give considerable deference to its ruling on a Civ.R. 60(A) motion and will not
reverse absent an abuse of discretion. * * *.”); Ray v. Ramada Inn N., 2d Dist. Montgomery
No. 25140, 2012-Ohio-6226, ¶ 8 (“We review the denial of a Civ.R. 60(B) motion for an
abuse of discretion.”). As this Court has noted:
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* * * An “abuse of discretion” means “an attitude that is unreasonable,
arbitrary or unconscionable.” * * * “ ‘It is to be expected that most instances
of abuse of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary.’ ” Id., quoting
AAAA Enterprises, Inc. v. River Place Community Redevelopment, 50 Ohio
St.3d 157, 161, 553 N.E.2d 597 (1990). “ ‘A decision is unreasonable if there
is no sound reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de novo, would
not have found that reasoning process to be persuasive, perhaps in view of
countervailing reasoning processes that would support a contrary result.’ ”
Id.
(Citation omitted.) Ray at ¶ 8.
{¶ 15} Regarding the application of Civ.R.60(A), this Court in Brush noted as
follows:
“ ‘The basic distinction between clerical mistakes that can be
corrected under Civ.R. 60(A) and substantive mistakes that cannot be [so]
corrected is that the former consists of “blunders in execution” whereas the
latter consists of instances where the court changes its mind, either
because it made a legal or factual mistake in making its original
determination, or because, on second thought, it has decided to exercise
its discretion in a different manner.’ ”
(Citations omitted.) Id., ¶ 26.
{¶ 16} As noted above, the Ackermans’ motion sought to have the trial court’s
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decision adopting the magistrate’s decision vacated. Civ.R. 60(A) by its plain language
does not contemplate such relief, and we agree with the trial court that its decision
contains no clerical errors or omissions subject to correction under Civ.R. 60(A).
{¶ 17} Regarding the application of Civ.R. 60(B), as this Court has further noted:
To prevail on a Civ.R. 60(B) motion, the movant must show that he
has a meritorious claim or defense to present, that he is entitled to relief
under at least one of the grounds found in Civ.R. 60(B)(1) through (5), and
that the motion is timely. Longworth v. Montgomery Cty. Treasurer, 2d Dist.
Montgomery No. 25058, 2012–Ohio–4442, ¶ 11.
Ray, ¶ 8. Failure to establish any one of these three requirements is fatal to relief
pursuant to Civ.R. 60(B). Deutsche Bank Trust Co. Americas v. Ziegler, 2d Dist.
Montgomery No. 26287, 2015-Ohio-1586, ¶ 3. “ ‘A “meritorious defense” means a
defense “going to the merits, substance, or essentials of the case.” * * * Relief from a final
judgment should not be granted unless the party seeking such relief makes at least a
prima facie showing that the ends of justice will be better served by setting the judgment
aside.’ * * *.” (Citations omitted.) GMAC Mortgage, L.L.C. v. Herring, 189 Ohio App. 3d
200, 2010-Ohio-3650, 937 N.E.2d 1077, ¶ 32 (2d Dist.).
{¶ 18} A motion pursuant to Civ.R. 60(B) “is not a substitute for appeal. * * *
Grounds for Civ.R. 60(B) relief must be those stated in the rule, not grounds that should
have been asserted in an appeal.” Conley v. Conley, 2d Dist. Miami No. 2002-CA-1, 2002-
Ohio-4332, ¶ 12. We also note, as did the trial court, that a “ ‘motion for relief from
judgment cannot be predicated upon the argument that the trial court made a mistake in
rendering its decision. * * * The type of mistake contemplated by Civ.R. 60(B)(1) is a
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mistake by a party or his legal representative, not a mistake by the trial court in its legal
analysis. * * *.’ ” (Citations omitted). Ford Motor Credit Co. v. Cunningham, 2d Dist.
Montgomery No. 20341, 2004-Ohio-6226, ¶ 15.
{¶ 19} As this Court has previously noted, the doctrine of res judicata “bars all
claims that were litigated in a prior action as well as claims which might have been litigated
in that action.” Deaton v. Burney, 107 Ohio App. 3d 407, 669 N.E.2d 1 (2d Dist. 1991).
As BNYM asserts, “the Ackermans prosecuted an appeal from the Judgment Entry
[adopting the magistrate’s decision], and lost. They do not get a second bite at the apple
through a post-judgment motion.” In other words, the Ackermans cannot rely upon Civ.R.
60(B) to assert arguments which are barred by the doctrine of res judicata.
{¶ 20} Further, as the trial court noted, the Ackermans failed to assert a meritorious
defense going to the merits of BNYM’s case against them, and they accordingly failed to
establish that the ends of justice would be better served by setting aside the trial court’s
adoption of the magistrate’s decision. The Ackermans’ argument that the trial court
improperly “omitted” the automatic stay provided in Civ.R. 53(D)(4(e)(i) and erred in failing
to apply Civ.R. 6 does not constitute a meritorious defense against BNYM’s claims (and
is baseless, since the objections were untimely, as the trial court correctly determined
more than once). Finally, the trial court correctly found that the Ackermans failed to
specify that they are entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)-
(5).
{¶ 21} Since an abuse of discretion is not demonstrated, the Ackermans’
assigned errors are accordingly overruled. The judgment of the trial court is affirmed.
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FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Scott A. King
Terry W. Posey, Jr.
Gregory T. Ackerman
Hon. Dennis J. Langer