[Cite as OCWEN Loan Servicing v. Prater, 2012-Ohio-4879.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             MARION COUNTY




OCWEN LOAN SERVICING, LLC,

        PLAINTIFF-APPELLEE,                                 CASE NO. 9-12-23

        v.

JAMES PRATER, AKA
JIM PRATER, ET AL.,                                         OPINION

        DEFENDANTS-APPELLANTS.




                Appeal from Marion County Common Pleas Court
                          Trial Court No. 2011 CV 0577

                                     Appeal Dismissed

                          Date of Decision: October 22, 2012




APPEARANCES:

        Brian K. Duncan and Bryan D. Thomas for Appellants

        David M. Gauntner and Antonio J. Scarlato for Appellee
Case No. 9-12-23



SHAW, P.J.

      {¶1} Defendants-appellants, James and Deborah Prater (collectively

referred to as the “Praters”), appeal the January 10, 2012 judgment of the Marion

County Court of Common Pleas granting the motion for default judgment filed by

plaintiff-appellee, Ocwen Loan Servicing, LLC (“Ocwen”), and ordering the

foreclosure and sale of the property on which the Praters had executed a mortgage.

      {¶2} On August 22, 2011, Ocwen filed a complaint for foreclosure alleging

the Praters to be in default on a mortgage they executed to purchase the property

located at 816 Catalina Drive in Marion, Ohio.

      {¶3} On October 21, 2011, the Praters were successfully served with notice

of the complaint.

      {¶4} On December 27, 2011, Ocwen filed a motion for default judgment.

      {¶5} On January 10, 2012, the trial court granted Ocwen’s motion for

default judgment and ordered the foreclosure and sale of the property, which was

scheduled to take place on May 18, 2012. However, the Clerk of Courts did not

serve notice of the judgment on the parties pursuant to Civ.R. 58(B) until March

15, 2012, which then began the time for appeal. See App.R. 4(A).

      {¶6} On March 26, 2012, counsel for the Praters filed a notice of

appearance.



                                       -2-
Case No. 9-12-23



       {¶7} On April 13, 2012, the Praters filed “Defendants’, James Prater and

Deborah Prater, Combined Motion To Vacate This Court’s January 10, 2012

Judgment Entry; Motion For Leave To Respond Or Plead To Plaintiff’s

Complaint; and Motion For Stay Of Post Judgment Proceedings, Including But

Not Limited To, The Sheriff’s Sale Set For Friday, May 18, 2012,” (referred to as

“motion to vacate judgment”). In an attached memorandum, the Praters asserted

that they were entitled to relief from judgment on the grounds enumerated in

Civ.R. 60(B)(1) and (5). The Praters also requested that the trial court stay all

post-judgment proceedings until the trial court ruled on their motion to vacate

judgment.

       {¶8} On April 16, 2012, three days after filing their motion to vacate

judgment, the Praters filed their notice of appeal in this case. The Praters attached

to their notice of appeal the trial court’s January 10, 2012 judgment granting

Ocwen’s motion for default judgment and ordering the foreclosure and sale of the

property.

       {¶9} On April 26, 2012, the Clerk of Courts certified the record for our

consideration on appeal.

       {¶10} The following assignments of error are now asserted by the Praters.




                                         -3-
Case No. 9-12-23



                      ASSIGNMENT OF ERROR NO. I

      THE TRIAL COURT ERRED WHEN IT FAILED TO
      VACATE ITS JANUARY 10, 2012 JUDGMENT ENTRY
      BASED ON CIV.R. 60(B)(1) AND/OR (5), AS DEFENDANTS
      FILED THEIR MOTION TO VACATE ON APRIL 13, 2012.

                     ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT ERRED WHEN IT FAILED TO
      VACATE ITS JANUARY 10, 2012 JUDGMENT ENTRY
      PURSUANT TO THE TRIAL COURT’S POLICY AND
      “LONGSTANDING PRACTICE” WITH RESPECT TO
      ADJUDICATING MATTERS ON THEIR MERITS AS
      OPPOSED TO PROCEDURAL DEFECTS.

                     ASSIGNMENT OF ERROR NO. III

      THE TRIAL COURT ABUSED ITS DISCRETION BY
      FAILING TO CONDUCT AN EVIDENTIARY HEARING ON
      DEFENDANTS’ MOTION TO VACATE FILED ON APRIL
      13, 2012.

                     ASSIGNMENT OF ERROR NO. IV

      THE TRIAL COURT ABUSED ITS DISCRETION BY
      FAILING TO ADDRESS, OR EVEN CONSIDER,
      ALLEGATIONS   OF   OPERATIVE    FACTS   WHICH
      DEMONSTRATE THAT DEFENDANTS WERE ENTITLED
      TO RELIEF UNDER CIV.R. 60(B) AND NOT ISSUING A
      JUDGMENT ENTRY ON DEFENDANTS’ MOTION TO
      VACATE FILED ON APRIL 13, 2012.

              First, Second, Third and Fourth Assignments of Error

      {¶11} On appeal, the Praters’ assignments of error pertain to the trial

court’s handling of their motion to vacate judgment. However, the docket reflects


                                       -4-
Case No. 9-12-23



that the trial court has not yet ruled on this motion. The notice of appeal filed in

this case only references the trial court’s January 10, 2012 default judgment.

Thus, the trial court’s judgment entry granting default judgment is the only

judgment properly before us on appeal.         Nevertheless, the Praters have not

assigned any error to that judgment. The failure to provide any assignment of

error relating to the judgment on appeal as required by App.R. 16(A)(3) is grounds

for dismissal. See App.R. 12(A)(2); see also State v. Lovell, 157 Ohio App.3d

227, 232, 2004-Ohio-2617, ¶ 17 (3d Dist. 2004).

       {¶12} Moreover, the filing of a notice of appeal deprives the trial court of

jurisdiction to consider Civ.R. 60(B) motions for relief from judgment. Howard v.

Catholic Soc. Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141 (1994). Jurisdiction

may be conferred on the trial court only through an order by the reviewing court

remanding the matter for consideration of the Civ.R. 60(B) motion. Id. No such

remand was requested by the Praters in this case. Therefore, the trial court was

divested of jurisdiction to rule on the Praters’ motion to vacate judgment because

they filed their notice of appeal a mere three days after they filed the motion.

Consequently, the trial court no longer retained jurisdiction to rule on the Praters’

motion to vacate judgment. Thus, the assignments of error raised by the Praters’

regarding this motion are premature and not ripe for our review.



                                         -5-
Case No. 9-12-23



       {¶13} Accordingly, for all these reasons we are unable to find any grounds

upon which an appellate decision can be issued regarding this matter and the

appeal is therefore dismissed.

                                                            Appeal Dismissed

PRESTON and ROGERS, J.J., concur.

/jlr




                                       -6-
