ved - supreme court of ohio and the ohio judicial system reimer, arnovitz, chernek & jeffrey...

F08-02638: DEG/cjc ORIGINAL

IN THE SUPREME COURT OF OHIO

11- 0661Deutsche Bank National Trust Company, as ) On Appeal from the Darlce County CourtIndenture Trustee for New Century Home Equity ) of Appeals, Second Appellate DistrictLoan Trust, Series 2006-1,

Court of AppealsAppellant, ) Case No. 2010-CA-03

) Case No. 2010-CA-13vs. )

)Hank Richardson, et al., )

)Appellees. )

NOTICE OF APPEAL OF APPELLANT DEUTSCHE BANK NATIONAL TRUSTCOMPANY, AS INDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY

LOAN TRUST, SERIES 2006-1

Darryl E. Gormley (0067595)Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A.P.O. Box 9682450 Edison Blvd.Twinsburg, OH 44087Phone: (330) 425-4201Fax: (330) [email protected]

COUNSEL FOR APPELLANT, DEUTSCHE BANK NATIONAL TRUST COMPANY, ASINDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST, SERIES2006-1

Eric H. Brand (0004986)100 Washington AvenueP.O. Box 158Greenville, Ohio 45331Phone: (937) 548-2211

VED_APR 2 5 2011

CLERK OF COURTSUPREME COURT OF OHIO

COUNSEL FOR APPELLEE SECOND NATIONAL BANK

D

APR 2 5 2011CLERK OF CCURT

SUPREME COURT OF OHIO

Notice of Appeal of Appellant Deutsche Bank National Trust Company, as IndentureTrustee for New Century Home Epuity Loan Trust, Series 2006-1

Appellant, Deutsche Bank National Trust Company, as Indenture Trustee for New

Century Home Equity Loan Trust, Series 2006-1, hereby gives notice of appeal to the Supreme

Court of Ohio from the judgment of the Darke County Court of Appeals, Second Appellate

District, entered in Court of Appeals case No.s 2010-CA-03 and 2010-CA-13 on March 11,

2011. A copy of the Appellate judgment is attached hereto as Exhibit A; copies of the Common

Pleas judgments that were appealed are attached hereto as Exhibit B and Exhibit C.

This case raises a substantial constitutional question and is one of public or great general

interest.

Darryl E. Gormley (0067595)Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A.P.O. Box 9682450 Edison Blvd.Twinsburg, OH 44087Phone: (330) 425-4201Fax:(330)[email protected] for Appellant

2

CERTIFICATE OF SERVICE

A copy of the foregoing Notice of Appeal was sent by regular U.S. Mail on

q - ato the following:

Hank Richardson139 Love RoadNew Paris, Ohio 45347-9115

Linda Richardson139 Love RoadNew Paris, Ohio 45347-9115

Margaret B. Hayes, Asst. Prosecuting AttorneyDarke County Courthouse-3`d FloorGreenville, Ohio 45331Attorney for Scott J. Zumbririlc, Treasurer

Eagle Savings Bank6415 Bridgetown RoadCincinnati, Ohio 45248

Jay R. Langenbahn, Esq.Lindhorst & Dreidame312 Walnut Street, Suite 3100Cincinnati, Ohio 45202Attorney for North Side Bank and Trust Co.

Eric H. Brand, Esq.Goubeaux & Brand100 Washington AvenueP.O. Box 158Greenville, Ohio 45331Attorney for Second National Bank

Darryl E. Gor6ley (0067595)Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A.P.O. Box 9682450 Edison BTvd.Twinsburg, OI-I 44087Phone: (330) 425-4201Fax: (330) [email protected] for Appellant

3

oiCOURTClAPPEALS

DARKECO..OHiO IN THE COURT OF APPEALS OF DARICE COUNTY, OHIO

DEUTSCHE BANK NATIONAL TRUSTCOMPANY

Plaintiff-Appellant C'p'' CASE NOS. 2010-CA-03

2010-CA-13

T.C. CASE NO.

FINAL ENTRY

09-CD-50

Pursuant to the opinion of this court rendered on the

11th day of March2011, the judgment of the trial

court is Affirmed. Costs are to be paid as provided in App.R•

24.

THE COURT OF APPEALS OF OHIOSECOND qpPE}

TE DISTRICT

YVdL'- 1, PALE ! 1p

ING ,7UDGE

EXHIBIT--A-

Copies mailed to:

Darryl E. Gormley, Esq.P.O. Box 9682450 Edison Blvd.Twinsburg, OH 44087

Eric H. Brand, Esq.100 Washington AvenueP.O. Box 158Greenville, OR 45331

Margaret Hayes, Esq.504 S. Broadway StreetGreenville, OH 45331

Hank and Linda Richardson139 Love RoadNew Paris, OH 45347

Eagle Savings Bank6415 Bridgetown RoadCincinnati, OH 45248

Jay Langenbahn, Esq.312 Walnut StreetSuite 3100Cincinnati, OH 45202-4091

Hon. Jonathan P. HeinDarke County Common Pleas Court504 S. Broadway, 2' FloorGreenville, OH 45331-1986

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

:VOL ,_ 13 PA[E 779

I

IN THE COURT OF APPEALS OF DARKE COUNTY, OHIO

DEUTSCHE BANK NATIONAL TRUST C.A. CASENOS. 2010-CA-3

C^P̂laintiff-Appellant 2010-CA-13•

T.C. CASE NO. 09-CV-50vs.

HANR RICHARDSON, ET AL.(Civil Appeal from

Defendants-Appellees Common Pleas Court)

O P I N I O N

Rendered on the 11' day of March, 2011.

Darryl E. Gormley, Atty. Reg. No. 0067595, P.O. Box 968, 2450

Edison Blvd., Twinsburg, OH 44087Attorney for Plaintiff-Appellant Deutsche Bank National

Trust Company

Eric H. Brand, Atty. Reg. No. 0004986, 100 Washington Avenue,

P.O. Box 158, Greenville, OH 45331Attorney for Defendant-Appellee Second National Bank

Margaret Hayes, Atty. Reg. No. 0042031, 504 S. Broadway Street,

Greenville, OH.45331Attorney for Defendant-Appellee Dark County Treasurer

Hank and Linda Richardson, 139 Love Road, New Paris, OH 45347

Defendants-Appellees, Pro Se

Eagle Savings Bank, 6415 Bridgetown Road, Cincinnati, OH 45248

Defendant-Appellee

Jay Langenbahn, 312 Walnut Street, Suite 3100, Cincinnati, OH

45202-4091Attorney for Def'endant-Appellee The Northside Bank and Trust

Coaapanlt

GRADY, P.J.s

Plaintiff, Deutsche Bank National Trust Company ("Deutsche

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

Bank"), appeals from orders denying its Civ.R. 60(B)(4) motion

for relief from judgment and confirming a sale of real property.

On March 18, 2009, Deutsche Bank commenced an action for

foreclosure, alleging a default by Hank Richardson on a

promissory note obligation secured by a mortgage deed on real

property located at 6724 Ludy Road in Greenville ("the Richardson

Property"). Deutsche Bank sought judgment against Richardson in

the amount of $97,747.76, plus interest at the rate of 8.725%

from January 1, 2008, a sale of the Richardson Property, and a

finding that Deutsche Bank had a valid and first lien on the

Richardson Property that entitled it to proceeds from the sale.

Deutsche Bank named as Defendants Hank Richardson, Linda

Richardson, Eagle Savings Bank, The North Side Bank and Trust

Company, and the Treasurer of Darke County ("the Treasurer").

On April 3, 2009, the Treasurer filed an answer to Deutsche

Bank's complaint and a cross-complaint for foreclosure of the

Richardson Property. The Treasurer alleged first lien priority

for unpaid real estate taxes in the amount of $1 , 437 . 74 , and

requested the court to determine the priority of liens and sell

the Richardson Property. (Dkt. 21.)

The Richardsons did not file an answer to Deutsche Bank's

complaint or to the Treasurer's cross-complaint. Defendant The

North Side Bank and Trust Cordpany filed an answer to Deutsche

Bank's complaint, alleging that it has an interest in the

Richardson Property by way of a judgment lien. (Dkt. 22.) On

May 4, 2009, Deutsche Bank filed a motion for leave to amend its

TKE.,Cf2Y2'ftT,0B>ARPEALSOF OHIOSECOND APPELLATE DISTRICT

3

complaint to include Second National Bank as a party, which the

trial court granted. (Dkt. 29-31.) Second National Bank filed

an answer to Deutsche Bank' s complaint, seeking the sale of the

Richardson Property and $16,941.96 of the sale proceeds, based on

its interests as a lienholder. (Dkt. 35.)

On October 8, 2009, the trial court issued a scheduling

order that set November 10, 2009 as the trial date on Deutsche

Bank's complaint and the Treasurer's cross-complaint. (Dkt. 36.)

In an October 13, 2009 letter to the trial court, counsel for The

Northside Bank and Trust Company stated, in part: "We don' t

believe it is necessary to participate in the trial which is

scheduled for November 10, 2009. Our interest need only to be

noted if there is a recovery over and above what is owed to the

Plaintiff, Deutsche Bank National Trust Company." (Dkt. 37.)

The trial court sent a letter in response to The Northside Bank

and Trust Company's counsel, copying all counsel of record, that

stated, in pertinent part:

"I understand your impression that your lien interest is

relevant only if there are proceeds remaining after the

Plaintiff's judgment.is satisfied in full. However, since the

matter is scheduled for trial, all issues must be proven and

adjudicated. The failure of proof of the existence and validity

of your lien may call into ques-tion whether your c-lient has a

valid lien, and therefore, whether your client is entitled [to]

recovery of any proceeds." (Dkt. 38.)

On November 9, 2009, the day before the scheduled trial,

THE COURTOF APPEALS OF OHIOSECOND APPELLATE DISTRICT

counsel for Deutsche Bank telephoned the court and explained that

Deutsche Bank would not participate in the trial and that

Deutsche Bank intended to voluntarily dismiss its complaint

without prejudice.

The trial proceeded on November 10, 2009. Only the

Treasurer and counsel for Second National Bank were present at

the trial. After the presentation of evidence, the Treasurer

requested that its lien be granted first priority when the sale

proceeds are distributed. (Tr. 9.) Second National Bank

requested that all of the parties who did not appear at the trial

be found in default of the Treasurer's cross-complaint and that

the liens of any party who failed to appear at the trial be

declared null and void as to the Richardson Property and the

resulting sale proceeds.' (Tr. 8-9.)

On November 13, 2009, the trial court entered a Decision and

Judgment Entry, finding that the Treasurer had established a

right to delinquent real estate taxes in the amount of $1,965.67,

and that the Richardsons, Deutsche Bank, Eagle Savings Bank, and

The North Side Bank and Trust Company had failed to appear at

trial and prove the existence of any lien or other interest in

the Richardson Property. The trial court found that, therefore,

the interests of Deutsche Bank, Eagle Savings Bank, and The North

Side Bank and Trust Compas3y were "null It and -void!" and they would

1 Two days after the trial, Deutsche Bank filed anotice of voluntary dismissal without prejudice of all of itscl.ayms and also filed a motion for leave to file an answerinstanter to the Treasurer's cross complaint, which the trial

court d.^ '


5

not be entitled to any of the proceeds from the eventual sale of

the Richardson Property. (Dkt. 43.)

On November 20, 2009, the trial court entered a judgment

entry, decree of foreclosure, and order of sale. The judgment

entry provided that: ( 1) the Treasurer had a good and valid lien

on the Richardson Property in the amount of $1,965.67, plus

additional taxes, penalties, and assessment; (2) the interests of

Deutsche Bank, Eagle Savings Bank, and The North Side Bank and

Trust Company "are adjudicated to be null and void and not

entitled to any interest in any proceeds from the sale of the

[Richardson Property]";. (3) the rights of the Richardsons were

foreclosed, except for their equity of redemption and thel

statutory right to redeem; and (4) Second National Bank had a

good and valid lien upon the Richardson Property in the amount of

$16,941.96, plus interest and costs. (Dkt. 44.) The trial court

further ordered that the Richardson Property shall be sold and

the proceeds distributed in the following order of priority:ll

Clerk of Courts, the Treasurer, and Second National Bank.

No party filed a notice of appeal from the November 20, 2009

judgment entry. Rather, on January 4, 2010, Deutsche Bank filed

a Civ.R. 60(B) (4) motion for relief from the November 20, 2009

judgment. (Dkt. 47-48.) Deutsche Bank alleged that it had paid

to the Treasurer $1,938.43, which represented the current balancel

of property taxes owed to the Treasurer. The trial court deniedl

Deutsche Bank's Civ:R. 60(B) motion. (Dkt. 51.) On March 4,

2010, Deutsche Bank filed a notice of appeal from the triall


court's denial of the motion (Case No. 2010-CA-03).

A sheriff's sale of the Richardson Property was scheduled

for June 11, 2010. On May 18, 2010, Deutsche Bank fileda motion

to stay the execution of the trial court's November 20, 2009

judgment and the scheduled sheriff's sale. The trial court

denied the motion. Deutsche Bank then filed a motion to withdraw

the sheriff's sale, which the trial court denied on June 7, 2010.

The Richardson Property was sold for $30,000.00 at a sheriff's

sale on June 11, 2010. On June 15, 2010, Deutsche Bank filed

with this court a motion to stay the execution of the trial

court's November 20, 2009 judgment. We overruled this motion,

noting among other things that the Richardson Property had

already been sold.

On June 17, 2010, the trial court entered a judgment

confirming the sale and ordering distribution of the proceeds

from the sale to pay court costs; sheriff, auditor, and recorder

costs; and real estate taxes, in that priority. The court

ordered the balance of the proceeds from the sale, in the amount

of $27,430.55, held by the clerk of courts pending further order

of the trial court. As part of the June 17, 2010 judgment entry,

the trial court canceled Deutsche Bank's lien and partially

released the certificate of judgment liens of Second National

Ba^rk, Eagle Savings Dank, and The North Side Bankk. Deutsche Bank

filed a notice of appeal from that judgment on June 24, 2010

(Case No. 10-CA-13).


z

THIRD ASSIGNMENT OF ERROR

"THE TRIAL COURT ERRED IN NULL AND VOIDING PLAINTIFF'S

LIEN."

FOURTH ASSIGNMENT OF ERROR

"THE TRIAL COURT ERRED IN GRANTING JUDGMENT AND LIEN

PRIORITY IN FAVOR OF DEFENDANT SECOND NATIONAL BANK WHEN THE

COIIRT'S DECISION AND JODGMENT ENTRY RENDERED AFTER THE TRIAL DID

NOT INCLUDE ANY JUDGMENTS IN FAVOR OF DEFENDANT SECOND NATIONAL

BANR."

Deutsche Bank argues that the trial court erred when it

entered a judgment of foreclosure that failed to protect and

preserve the interests of Deutsche Bank as first lienholder, and

instead declared the lien held by Deutsche Bank to be null and

void. Deutsche Bank asks us to reverse and vacate the judgment

of foreclosure.

"The object of the foreclosure action is to obtain a sale of

premises pledged for the security of a debt, free from equities

of redemption, and when suit is brought to foreclose a mortgage,

all persons who may be affected by the judgment or the sale,

especially all persons who appear of record to have a lien upon

or interest in the mortgaged premises, must be made parties

defendant in the foreclosure proceeding, to cut off and finally

adj^udicate al1 such claims and inttrests against the-mortgaged

property-."--- 69- Ohio -Jurisprudence - 3d--(2004)- 432; -Mortgagesy

Section 311, citations omitted.

Both Deutsche Bank and the Treasurer filed complaints


seeking the sale of the Richardson Property and the distribution

of the resulting proceeds from the sale based on the priority of

the liens on the Richardson Property. In order to ensure that

the foreclosure proceedings included all of the parties who had

interests in the Richardson Property, Deutsche Bank and the

Treasurer named the Richardsons, Eagle Savings Bank, The

Northside Bank and Trust Company, and Second National Bank as

Defendants. The nature of a foreclosure proceeding, as well as

the trial court's October 15, 2009 letter (Dkt. 38), clearly put

each party to the foreclosure action on notice that failure to

appear at the trial of the complaint and cross-complaint could

adversely affect their order of priority to any proceeds

distributed from the sale of the Richardson Property.Z

Deutsche Bank, the Ri.chardsons, Eagle Savings Bank,.and The

Northside Bank and Trust Company failed to appear at trial and,

as a result, failed to prove the existence or validity of any

interest in the Richardson Property or entitlement to any

proceeds from the sale of the property. On the other hand, the

Treasurer and Second National Bank appeared at the trial and

presented evidence of their liens on the Richardson Property.

Consequently, the trial court did not err in finding that the

Treasurer and Second National Bank had valid liens on the

Richardson Property which entitled them to priority in receiving

2 Unlike a Civ.R. 56 proceeding on a motion forsummary judgment, which typically is used to determine actionsin foreclosure, the proceeding in the present case was a trialhearing that required the parties to appear and prove theirela}ms and defenses


9

proceeds from the ultimate sale of the property.

Deutsche Bank argues that the trial court erred by going

further and finding that Deutsche Bank's lien was "null and

void." We are unaware of any authority for the trial court to

declare a lien interest "null and void" in a judgment of

foreclosure and order of sale. Apparently, the trial court

intended to extinguish Deutsche Bank's lien interest through the

Iuse of this "null and void" language.

A "foreclosure suit consists of a number of steps,

culminating in the sale of the property, the confirmation of the

sale, and the possible entry of a deficiency judgment, and until

these steps are completed, it cannot be said that the property

has been foreclosed. Thus, the filing of a foreclosure action is

not the equivalent of foreclosure and does not, by itself,

extinguish the mortgage or the lien." 69 Ohio Jurisprudence 3d

(2004) 396-97, Mortgages, Section 280, ci.tations omitted.

Rather, the mortgage and liens are extinguished when a

foreclosure sale of the underlying real property is completed and

confirmed. Therefore, the trial court erred in extinguishing

Deutsche Bank's lien interest in the November 20, 2009 judgment

entry of foreclosure.

The fact that the trial court erred by proclaiming Deutsche

Bank' s interest "null and vol d" i:r. ta'ze November 20, 2009 judgment

of foreclosure, however, does not mean that Deutsche Bank is

entitled to an order from this court reversing and vacating that

judgment. It is undisputed that Deutsche Bank was prejudiced by

THE COURT OFAPPEALS OF OHIOSECOND APPELLATE DISTRICT

the trial court's November 20, 2009 judgment. Further, the trial

court's judgment of November 20, 2009, which ordered foreclosure,

found the amount due to the Treasurer and Second National Bank,

extinguished the other parties' lien interests, and ordered the

sale of the real property was a final, appealable order. Oberlin

Sav. Bank v. Fairchild (1963), 175 Ohio St. 311, 312-13; Federal

National Mortgage Association v. Day, 158 Ohio App.3d 349, 2004-

Ohio-4514, at 114. Therefore, in order to preserve appellate

review of any error committed by the trial court in the November

20, 2009 judgment of foreclosure, Deutsche Bank was required to

file a timely notice of appeal from the November 20, 2009

judgment. Deutsche Bank failed to do so. Therefore, we lack

jurisdiction to review the error Deutsche Bank assigns relating

to the November 20, 2009 judgment of foreclosure.

The third and fourth assignments of error are overruled.

FIRST ASSIGNMENT OF ERROR

"THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT WHEN THE TREASURER'S

CLAIM HAD BEEN SATISFIED IN FULL."

SECOND ASSIGNMENT OF ERROR

"THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT BY REASON OF

Pi,AI►tiiZFF` S FAILURE TO OB'PAI-N -EaRIOR CONSENT OF ALL P_RT3ES."

We review a trial court's denial of a Civ.R. 60(B) motion

for an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio

St.3d 75, 77. "`Abuse of discretion' has been defined as an

THE COURT OF'APPEALS OF OHIOSECOND APPELLATE DISTRICT

attitude that is unreasonable, arbitrary or unconscionable.

Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. Iti

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.

"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." AAAA Enterprises, Inc v. River Place

Community Redevelopment (1990), 50 Ohio St.3d 157, 161.

"To prevail on [a] motion under Civ.R. 60(B), the movant

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 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 Elec., Inc. v. ARC

Industries, Inc. (1976), 47 Ohio St.2d 146, 150, citations

omitted.

Deutsche Bank filed its mation for relief from judgment

pursuant to Civ.R. 60(B)(4), which states, in pertinent part:

"On motion and upon such terms as are just, the court may

relieve a party or his legal representative from a final


t2

judgment, order or proceeding for the following reasons: * * *

(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[.]"

The November 20, 2009 judgment of foreclosure and order of

sale found that the Richardson Property would be sold if the

amount owed to the Treasurer was not paid within three days.

There was no evidence presented in Deutsche Bank's Civ.R.

60(B)(4) motion that the Treasurer was paid within three days

from November 20, 2009. Further, the Treasurer and Second

National Bank did not consent to a withdrawal of the judgments in

their favor. Based on the record before us, we cannot find that

the trial court abused its discretion in denying Deutsche Bank's

request for Civ.R. 60(B)(4) relief.

We also note that a motion for relief from judgment pursuant

to Civ.R. 60(B) and a notice of appeal from a judgment are not

the same remedies and a party cannot use Civ.R. 60(B) relief as

a substitute for a timely appeal. LP3S Real Estate Securities,

Inc. v. Teague, Darke App. No. 2010CA5, 2010-Ohio-5634, at $16,

citations omitted. Any error by the trial court in granting a

judgment in foreclosure and canceling Deutsche Bank's lien could

have been raised in a direct apge-al oi the court's judgi-aent in

foreclosure. Deutsche Bank cannot use a Civ.R. 60(B) motion to

raise an issue that should have been raised in a direct appeal.

The first and second assignments of error are overruled.


13

FIFTH ASSIGNMENT OF ERROR

"THE TRIAL COURT ERRED IN PERMITTING DEFENDANT SECOND

NATIONAL BANK TO CONTINUE TO ORDER SALE OF THE SUBJECT PROPERTY

AND SUBSEQUENTLY SELL THE PROPERTY, WHEN THE COURT'S DECISION AND

JUDGMENT ENTRY RENDERED AFTER THE TRIAL DID NOT INCLUDE ANY

JUDGMENTS IN FAVOR OF DEFENDANT SECOND NATIONAL BANK AND THE

PARTY HOLDING THE FORECLOSURE DECREE, DEFENDANT TREASiJRER'S,

JUDGMENT HAD BEEN SATISFIED IN FULL."

The proper time to challenge the existence and extent of

mortgage liens is in the foreclosure action, not when the court

faces confirmation of a judicial sale. Day, 2004-Ohio-4514, at

115-16; Queen City Savings & LoanCo. v. Foley (1960), 170 Ohio

St. 383, 389-90. Rather, "confirmation involves only decisions

on whether a sale has been conducted in accordance with R.C.

2329.01 through R.C. 2329.61. This includes issues such as

whether the public-notice requirements in R.C. 2329.26 were

followed and whether the sale price was at least two-thirds of

the land's appraised value, as required by R.C. 2320.20. Ohio

Sav. Bank v. Ambrose (1990), 56 Ohio St.3d 53, 55, 563 N.E.2d

1388." Federal National Mortgage Association v. Day, 158 Ohio

App.3d 349, 2004-Ohio-4514, at 116 citing Bank One Dayton, N.A.

v. Ellington (1995), 105 Ohio App.3d 13.

Deutsche Sank does not a:ra3ue that the-sale of the R.ichardson

Property was not conducted in accordance with R.C. 2329.01

through R.C. 2329.61. Rather, Deutsche Bank argues that the sale

never should have happened because the trial court's November 20,


14

2009 judgment of foreclosure did not grant judgment in favor of

Second National Bank. In short, Deutsche Bank is arguing that

the trial court erred in its November 20, 2009 judgment of

foreclosure. Once again, Deutsche Bank should have raised this

argument in a direct appeal from the November 20, 2009 judgment.

OberZin Sav. Bank, 175 Ohi.o St. at 312-13. The failure to file

a timely notice of appeal from the November 20, 2009 judgment of

foreclosure requires us to overrule the fifth assignment of

error.

The assignments of error are overruled. The judgment of the

trial court will be affirmed.

FAIN, J. and FROELICH, J. concur.

Copies mailed to:

Darryl E. Gormley, Esq.Eric H. Brand, Esq.Margaret Hayes, Esq.Hank and Linda RichardsonEagle Savings BankJay Langenbahn, Esq.Hon. Jonathan P. Hein.


F I LFCCWA R? C ta P l. ' ,̂.,,_C,

2010 zJUN 17 PM y 1g•

CINDYIN THE COMMON PLEA§CCC OF DARICE COUNTY, OHIO

DEUTSCHE BANKNATIONAL TRUST COMPANY, et aL,

Plaintiff

vs.

HANK RICHARDSON, et al.,

Defendants

CASE NO. 09-CV-00050

JUDGMENT ENTRYCONFIRMATION OF SALE

Upon Motion of the Plaintiff and upon return of the Sheriff of the sale made under the

former Order of this Court, the Court, after careful examination of the proceedings of said

Sheriff, being satisfied that the sanie have been made in conformity to law and to the prior Order

of this Court, it is ORDERED that said proceedings and sale be, and they hereby ar•e approved

and confirmed by the Court.

It is further ORDERED that the Sheriff convey to the purchasers; by deed according to

law, the real estate so sold, being more particularly described as follows:

SEE EXIIIBIT "A" ATTACHED HERETO AND INCORPORATEDIIEREIN BY REFERENCE FOR LEGAL DESCRIPTION

FXHIBIT z

/

It is further ORDERED that the purchasers are hereby subrogated to all the rights of the

parties to the suit in said real estate for the protection of its title, and that a Writ of Possession is

ordered to place the purchasers in possession of said premises.

It is ORDERED that cancellations and/or Certificates of Cancellations shall be issued for

cancellation of all liens of record as to the subject premises, including the following:

SEE LIST ATTACHED FIERETO AND MARKED EXFIIBIT "B"AND INCORPORATED HEREIN BY REFERENCE

The Court fnrther ORDERS that the Sheriff shall distribute froin the deposit herein the

items set forth in the distribution schedule attached hereto and marked Exhibit "C" and made a

part hereof.

It is further ORDERED that the Sheriff shall deliver said. deed for recordation at the

office of the Darke County Recorder.

It is further ORDERED that the Sheriff shall deliver the balance of the purchase price to

the Clerk of this Court to be held pending farther Order of this Court.

And the same is so ORDERED.

Eric H. Brand (#0004986)Attorney for Plaintiff

Margaret B. Hayes (Assistant Prosecuting

This Law Firm is attempting to collect a debt and any information obtained

will be used for that purpose.

DAISKD COUNTYENGINEER

JUN 1 4 2010

SURVGY f'LAT qSII;IVEYDIVISION qLEGAL DESCRIPTION C°

EXHIBIT "A"

Situate in the County of Darlce, in the State of Ohio and in the Township of Greenville and

bounded and described as follows:

Situated in the Southeast Quarter of Section Twenty Eight (28), Township Twelve (12) North,Range Two (2) East, Greenville Township, Darlce County, Ohio being part of a 5.33 acre tractdescribed in Deed Records Volume 554, Page 49, in the office of the Darlce County Recorder

and being more particularly described as follows: .

Commencing at a spilce found at the northeast corner of said southeast quarter and in Ludy Road;thence' South 0027'56" East along the east line of said quarter and along said road 174.95 feet toa spike set, being the TRUE POINT OF BEGII\TNING for the tract herein described; thencecontinuing South 0°27'56" East along said east line and said road 184.00 feet to a spike found atthe southeast corner of said 5.33 acre tract; thence for the following four courses along the southand west line of said 5.33 acre tract; North 87°34'55" West 254.75 feet to a post found; thenceNorth 1°31'22" East 51.75 feet to a post found; thence North 87°33'37" West 12.74 feet to aniron pin found; thence North 2°36'43" East 126.75 feet to a post found; thence North 0°05'50"East along a new division line 15.60 feet to an iron pin set; thence South 85°18'07" East along anew division line 259.45 feet to the point of beginning, containing 1.127 acres, more or less,1.000 acres exclusive of road right-of-way, but subject to all legal highways, easements,restrictions, covenants and conditions of record. Bearings for the above description are basedupon the east line of said southeast quarter (South 0027'56" East) per Deed Records Volume554, Page 49. Surveyed and Prepared by James F. Stayton, Registered Surveyor #6739,

Eldorado, Ohio, dated May 31, 1989.

The above survey is recorded in Plat Boolc Volume 17, Page 27, in the Darlce County Recorder's

Office.

Bngineer's LD. No.: F24-0-212-28-00-00-248-00 (1.127 acres)

C:\docs\L.itigation\!SNB Litigation\SN13 v Richarson 09\Description ale.doc

EXHIBIT "B"

1. Lien of Plaintiff, of record in Book/Page 372-0581 .(Cancellation)

2. Certificate of Judgment Lien of Defendant, Second National Bank, of record in Book/Page29-361 . (Partial Release)

Certificate of Judgment Lien of Defendant, Eagle Savings Bank, of record in Book/Page

27_241 . (Partial Release)

Certificate of Judgment Lien of Defendant, The North Side Bank and Trust Company, ofrecord in Book/Page 27-319 .(Partial Release)

EXHIBIT "C"

The deposit of the Sheriffs sale totaling $4,500.00 against the sale price of $30,000.00,

which shall be applied as follows:

First, to the Clerk of Courts, Darke County, Ohio, the Court costs of this actioii in the

sum of $1,388.00.

Second, to the Sheriff of Darke County, Ohio, for deed preparation the sum of $125.00.

Third, to the Auditor of Darke County, Ohio, the conveyance fee in the sum of $60.00,

plus $0.50 transfer fee, for a total of $60.50.

Fourth, to the Treasurer of Darke County, Ohio, for real estate taxes and assessments due

and payable herein in the sum of $959.95.

Fifth, to the Darke County Recorder for recording fee in the sum of $36.00.

Sixth, ihe balance to be held by the Clerk pending fnrther Order of this Court.

2010 FC© 3 Pf'1 I 44

IN THE COMMON PLEAS9,QTfF^'X IOF DAI2It'E COUNTY, OHIO

CLERKDEtITSC1iE BANK, as'1'rustee CASE NO. 09-CV-00050

Plaintiff, Jonathan P. Hein, Judge

vs.

LIANK RICHARDSON, et. al.

Defendsutts.

JiTDGMENT ENTRY- Motionfor Relief from .ludgnient

This matter comes before the Court upon Motion oi'Plaintiff which asks the

Court, pursuant tn Civil Rule 60(B), for relief fToin thc judgment I,rranted herein on Novembor

20, 2(}09, No one lias filed ati ab,jection,

Statenient of the C:asc.

This casc involves a complaint fir fircclosure filed by thc Plaintiff on Mm-ch 19,

2009 against the reai estate owners and various lien hnlders. Answers were filed by sevetal

defendants. Ch October R, 2009, the ('cxn7 schocluled the matter lor trial to be conductc;cl on

November 10, 2009.

While not rc.flected in the pleadittgs, counsel for the Plaintiff callcd the Court on

November 9,2009 and advisc;d that Plaintif'f would not be prncecding a1 trial the next day - artcl,

liursuant to Civil Rule 41, Plaintiff has no duty to do so. Thc Noticc of Vnluntarily Dismissal

was ultimatcly filed on November 12, 2009.

EXHl4iT ^

However, Plaintiit's claim was not the only claini befbre the Court and several

I)efendants appeared for trial, namely, the Darke C,outtty'I'reasurer anci Second National Batik,

lioth Defendants presented testimony at trial anti the Court issued a dccision ha.scd on the

evidence presented. The evidence was void of any proof ni'the Plaintiff's note, mottgage,

amount. due, ctc.

'The Court's decision liled Novemher 13, 2009 granted,judgement. in f'avor of the

Darke County Treasurer and Second National hank, witli priorities being assigned in the same

ordcr. The alleged liens of other Defcndants were declared null and void due to the lack oC

evidence of sucli liens. Accordingly, the alleged licn interests of three parties warr. not

recognized.

Analysis

"1'he Court aclutowledges that Plaintiff sought a disrnissal of the verdict through

Plaintif'f's offer to pay tlie court costs and real estate taxes. llowever, since the set.tlement offer

was made after the trial decision was reridered and after the decree of foreclosure was

jounialized, consent of all intereslcd parties is necessary. Such consent was not forthcoming.

In the legal system, the conducting of a trial is akin to a day of reckoning. Mere

allegations in the complaint and any other pleadings must bc proven within the rules of procedure

and the rulos of ovidence. Substantive rights and con peting interests are resolved within

applicable rules. In this case, two parties appeared at trial and tnet their burdens of proof. The

Plaintiff did not,

'The implications of the Plaintift's failure to appear were obvious at uial.

Howevor, the Coutl could not .ruu s•punte take juclicial notice of the existence of a rnortgage

recorded in another governmental office_ The- Court would take nn the irnpermissible t-ole of an

advocate ii-it adjudicated claims without evidonce or protected the interests ofparties who failed

to appear, espccially when opposing parties had niet their hurden to prove their cnmpeting

inte•ests.

Based on the evidcnee presented at trial, thc licn of the Darke County Trcasurer

was proven. }3ased ott the evidence presented at trial, the licn of Second National Bank was

proven. Plaintiff voluntarilyc}7osnto abandon its claims as permitted by Civil Rule 41, Such

decision did not aff'eet the remaining claims.

Whiie tho trial decision herein sif;nificantly affected lho Plaintiff, such standard is

not one articulated by C:ivil Rule 60(13). indeed, the rights of thc realty owners and otlier licn

holders were also sigiriticantly affected_ The Court finds no basis for reliel'Irom judgment

pursuant to Civil Rule 60(B).

IT IS, THEREFORE, ORDEREI) AND DECREED that the Motion for relief

Irom judgment is denied. Additional costs to the T'laintiff.

cc: Peter L. Mehler, Attorney for Plaintiff (via fax)liunk and Linda Richardson, 139 Love Road, Now Paris, OH 45347Margaret B. Hayos, Attonrey l"or Darke C'ounty Treasurer (via l,and delivery)Eaglc Savings Bank, 6415 13ridgetown Road, Cincinnati, OH 45248Jay R. Langenbalin, Attorney for Nortli Side Bartk (via fax)Lric li. Brand, Att.orney for Second National Bank (via fax)

jph\reseurchlCi46O.deny

ved - supreme court of ohio and the ohio judicial system reimer, arnovitz, chernek & jeffrey...

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