Citimortgage, Inc. v. Russ

[Cite as Citimortgage, Inc. v. Russ, 2011-Ohio-5093.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
CITIMORTGAGE, INC. : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 11-CA-31
:
:
MARY RUSS, et al., : OPINION
Defendants-Appellants
CHARACTER OF PROCEEDING: Civil Appeal from Licking County
Court of Common Pleas Case No.
2010CV01264
JUDGMENT: Affirmed In Part, Vacated
and Remanded In Part
DATE OF JUDGMENT ENTRY: September 30, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellant
THOMAS L. HENDERSON ROSS A. GILLESPIE
Lerner, Sampson & Rothfuss Gillespie & Johnston, LLC
120 East Fourth Street, Eight Floor 5650 Blazer Parkway
Cincinnati, Ohio 45202 Dublin, Ohio 43017
For Defendant-Licking County Treasurer
DENNIS DOVE
20 South Second Street
Newark, Ohio 43055
[Cite as Citimortgage, Inc. v. Russ, 2011-Ohio-5093.]
Edwards, J.
{¶1} Appellant, Mary Russ, appeals the February 28, 2011, judgment of the
Licking County Common Pleas Court confirming the order of sale on her home, which
had been foreclosed on by default judgment entered September 23, 2010. Appellee is
Citimortgage, Inc.
STATEMENT OF FACTS AND CASE
{¶2} Appellee filed the instant foreclosure action against appellant on August
17, 2010. On August 24, 2010, the docket shows service of the action was perfected by
certified mail, received by “Cena Mascan.” Appellant failed to answer the complaint.
The trial court granted default judgment on September 23, 2010. An order confirming
the sale of the property was entered on February 28, 2011.
{¶3} Appellant filed a motion to vacate pursuant to Civ. R. 60(B) on March 7,
2011, alleging that receipt of service was signed by her 13-year-old daughter, and
appellant had no notice of the filing of the complaint until a tag was placed on the door
of her home indicating it had been sold. On March 23, 2011, she filed an appeal from
the February 28, 2011 order confirming the sale. The trial court found on April 12, 2011,
that the notice of appeal divested it of jurisdiction to rule on the Civ. R. 60(B) motion and
denied the motion. Appellant assigns three errors:
{¶4} “I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE’S
MOTION FOR DEFAULT JUDGMENT AS SERVICE WAS NEVER PROPERLY
COMPLETED UPON MARY RUSS PURSUANT TO CIVIL RULES 4.1 AND 4.2
{¶5} “II. THE TRIAL COURT ERRED IN CONFIRMING THE SALE AND
DISTRIBUTION OF PROCEEDS FROM THE SHERIFF’S SALE OF THE SUBJECT
Licking County App. Case No. 11-CA-31 3
PROPERTY ON FEBRUARY 28, 2011, AS THE TRIAL COURT NEVER PROPERLY
OBTAINED PERSONAL JURISDICTION OVER THE DEFENDANT-APPELLANT
MARY RUSS.
{¶6} “III. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-
APPELLANT’S MOTION TO VACATE.”
I
{¶7} In her first assignment of error, appellant argues that the trial court erred in
entering default judgment against her because she was not properly served with the
complaint. App. R. 4(A) requires a party to file a notice of appeal within 30 days. While
appellant argues that she did not receive this entry and therefore could not file a timely
appeal, the entry reflects that a copy of the default judgment was mailed to her. Having
failed to timely appeal the September 23, 2010, judgment, appellant cannot assign error
to the entry of default judgment.
{¶8} The first assignment of error is overruled.
II
{¶9} Appellant argues that the court erred in confirming the order of sale
because she had not been properly served with the complaint and the court therefore
did not have jurisdiction over her. The docket reflects that the complaint was sent to
appellant by certified mail and was signed for by “Cena Mascan.” Thus at the time the
court confirmed the sale, the court had no reason to believe service had not been
properly perfected upon appellant. While appellant now argues that the signature was
that of her 13-year-old daughter and appellant was unaware of the foreclosure action
until the tag appeared on her door indicating the home was sold, the court had no
Licking County App. Case No. 11-CA-31 4
information before it at the time it confirmed the sale to indicate that service was
improper.
{¶10} The second assignment of error is overruled.
III
{¶11} In her final assignment of error, appellant argues that the court erred in
overruling the Civ. R. 60(B) motion to vacate. The court states in its order that it was
divested of jurisdiction to rule on the motion by the March 23, 2011 notice of appeal,
and then went on to deny the Civ. R. 60(B) motion. Appellant concedes in her reply
brief that the trial court was divested of jurisdiction to rule on the motion. Howard v.
Catholic Social Serv. Of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 146-147.
{¶12} While the trial court correctly noted that it lacked jurisdiction over the
motion due to the pending appeal, the court nevertheless denied the motion. The trial
court lacked jurisdiction to rule on the 60(B) motion at that time, and erred in issuing a
judgment denying the motion.
{¶13} The third assignment of error is sustained.
Licking County App. Case No. 11-CA-31 5
{¶14} The judgment of the Licking County Common Pleas Court denying the
60(B) motion is vacated. This cause is remanded to that court with instructions to
consider and rule on the pending Civ. R. 60(B) motion.
By: Edwards, J.
Hoffman, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0729
[Cite as Citimortgage, Inc. v. Russ, 2011-Ohio-5093.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITIMORTGAGE, INC. :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MARY RUSS, et al., :
:
Defendants-Appellants : CASE NO. 11-CA-31
For the reasons stated in our accompanying Memorandum-Opinion on file, the
February 28, 2011, order confirming sale is affirmed but the judgment of the Licking
County Court of Common Pleas denying the 60(B) motion is vacated. This matter is
remanded to the trial court for further proceedings. Costs assessed 50% to appellee
and 50% to appellants.
_________________________________
_________________________________
_________________________________
JUDGES