[Cite as Honda Fed. Credit Union v. Shutway, 2016-Ohio-4982.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    CHAMPAIGN COUNTY

 HONDA FEDERAL CREDIT UNION                          :
                                                     :    Appellate Case No. 2015-CA-40
         Plaintiff-Appellee                          :
                                                     :    Trial Court Case No. 14-CV-83
 v.                                                  :
                                                     :    (Civil appeal from Champaign County
 JOHN A. SHUTWAY, et al.                             :     Common Pleas Court)
                                                     :
         Defendant-Appellant                         :
                                                     :

                                             ...........

                                             OPINION

                             Rendered on the 15th day of July, 2016.

                                             ...........

JEFFREY A. MERKLIN, Atty. Reg. No. 0029746, Allen, Yurasek, Merklin & Owens-Ruff,
LLC, 233 West 5th Street – Box 391, Marysville, Ohio 43078
      Attorney for Plaintiff-Appellee, Honda Federal Credit Union

JOHN A. SHUTWAY, 573 East Church Street, Urbana, Ohio 43078
     Defendant-Appellant, John A. Shutway, pro se

                                           .............

HALL, J.

        {¶ 1} John A. Shutway appeals pro se from the trial court’s October 9, 2015
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judgment entry overruling a Civ.R. 60(B) motion for relief from judgment. The motion

concerned the trial court’s rulings in a foreclosure action brought by appellee Honda

Federal Credit Union (HFCU).

       {¶ 2} Shutway advances seven assignments of error. First, he contends the trial

court erred in adjudicating the case without subject-matter jurisdiction. Second, he claims

the trial court erred in issuing an order of confirmation and distribution. Third, he asserts

that HFCU committed fraud on the court. Fourth, he argues that the clerk of court erred

by issuing a writ of possession without payment being received for court costs. Fifth, he

maintains that HFCU colluded with sheriff’s deputies and engaged in fraud and

conspiracy. Sixth, he contends HFCU, the trial court, and other officials colluded to

deprive him of his property without payment being given. Seventh, he claims the trial court

erred in overruling the Civ.R. 60(B) motion.

       {¶ 3} The record reflects that HFCU filed a May 2014 foreclosure complaint against

Shutway and his wife. The complaint alleged that HFCU was the holder of a promissory

note under which the Shutways were in default. The complaint further alleged that the

Shutways had executed and delivered to HFCU a mortgage to secure payment on the

note. Attached to the complaint were copies of the note and mortgage. HFCU requested

judgment on the note and foreclosure on the mortgage. It also requested that the subject

property be sold to satisfy the debt. (Doc. #2).

       {¶ 4} HFCU subsequently moved for summary judgment with a supporting

affidavit. (Doc. #46). The trial court sustained the motion on January 21, 2015. (Doc. #54).

It found that HFCU was the holder of the note and mortgage. It also found that the

Shutways were in default and owed $73,417.34 plus interest. The trial court then filed a
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March 3, 2015 foreclosure decree. (Doc. #76). On April 14, 2015 Shutway filed a Notice

of Appeal of “the final order of Judge/Magistrate Selvaggio entered on March 3, 2015.”

(Doc. #94) That appeal was docketed as Champaign County Court of Appeals Case No.

2015-CA-0015. By Decision and Final Judgment Entry dated July 1, 2015, we dismissed

that appeal because the Notice of Appeal was filed beyond the 30 days for appeal

required by App. R. 4(A) and we therefore did not have jurisdiction to consider it. The

subject property was sold at a sheriff’s sale. The trial court filed a July 2015 order of

confirmation of sale and distribution of proceeds. (Doc. # 100). The trial court’s filing

reflects that HFCU purchased the property for $56,667 and distribution of proceeds was

ordered. The ruling included a deficiency judgment. Shutway did not file an appeal of that

order. HFCU later obtained a writ of possession. The trial court vacated the writ, however,

in September 2015 upon determining that HFCU had not yet “received a sheriff’s deed or

paid the disbursement fees (i.e., in this case, the court costs and real estate taxes).” (Doc.

#116).

         {¶ 5} On September 22, 2015, the Shutways filed the Civ.R. 60(B) motion that is

the subject of John Shutway’s present appeal. (Doc. #129). In their motion, the Shutways

sought vacation of (1) the January 2015 summary judgment, (2) the March 2015

foreclosure decree, and (3) the July 2015 confirmation of sale. HFCU opposed the motion.

(Doc. #130). The trial court overruled the motion on October 9, 2015. (Doc. #134).

Shutway’s Notice of Appeal in this case specifically indicates that it is an appeal of “the

final appealable order of Judge/Magistrate Selvaggio entered on October 9, 2015.”

         {¶ 6} The standards governing relief under Civ.R. 60(B) are well settled. “To prevail

on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party
                                                                                          -4-


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., 47 Ohio St.2d 146, 351 N.E.2d

113 (1976), paragraph two of the syllabus. A Civ.R. 60(B) motion “is not a substitute for

a timely appeal” from a challenged judgment. GMAC Mortgage, L.L.C. v. Herring, 189

Ohio App.3d 200, 2010-Ohio-3650, 937 N.E.2d 1077 (2d Dist.), ¶ 35, citing State ex rel.

Martin v. Ohio Adult Parole Auth., 124 Ohio St.3d 63, 2009-Ohio-6164, 918 N.E.2d 1005,

¶ 1.

       {¶ 7} We have previously observed that “it is well-settled in the State of Ohio that

two judgments are appealable in foreclosure actions, to wit: 1) the order of foreclosure

and sale; and 2) the order of confirmation of sale. Citimortgage v. Roznowski, 139 Ohio

St.3d 299, 2014–Ohio–1984, 11 N.E.3d 1140, ¶ 35.” Citimortgage, Inc. v. Bocock, 2d Dist.

Montgomery No. 26366, 2015–Ohio–341, ¶ 8. The appeal before us involves neither.

Additionally, a ruling denying a Civ.R. 60 motion is a final appealable order.

       {¶ 8} A trial court’s Civ.R. 60(B) decision is reviewed for an abuse of discretion.

Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). “ ‘Abuse of discretion’

has been defined as an attitude that is unreasonable, arbitrary, or unconscionable.”

(Citation omitted.) AAAA Enterprises, Inc. v. River Place Community Urban

Redevelopment Corp., 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.”

Id.
                                                                                          -5-




       {¶ 9} In his first assignment of error, Shutway contends the trial court erred in

adjudicating HFCU’s complaint without possessing subject-matter jurisdiction. His

argument concerns HFCU’s failure to provide a written “statement of account” with its

complaint or to supply such a statement thereafter showing the amount due. Shutway

asserts that he is entitled to raise this issue now because a trial court’s jurisdiction may

be challenged at any time. “It is well established that a Civ.R. 60(B) motion cannot be

used as a substitute for an appeal and that the doctrine of res judicata applies to such a

motion. Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 8–9.

In this case, the Kuchtas filed a Civ.R. 60(B) motion in order to relitigate an issue that

they had raised at the start of litigation and that they failed to appeal. Thus, the doctrine

of res judicata bars their attempted collateral attack against the judgment in foreclosure.”

Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 16.

We believe that res judicata bars Shutway from contesting any orders of the court that

were not appealed. Nevertheless, we analyze his arguments independently.

       {¶ 10} Upon review, we find no merit in Shutway’s challenge to the trial court’s

jurisdiction. The note and mortgage attached to HFCU’s complaint indicated that those

documents were executed in favor of HFCU. The complaint also specifically alleged that

HFCU was the holder of the note and that the Shutways had executed and delivered the

mortgage to HFCU. For purposes of invoking the trial court’s jurisdiction, nothing more

was required. See, e.g., HIP Loans 1, LLC v. Horta, LLC, 2d Dist. Clark No. 2015-CA-10,

2016-Ohio-518, ¶9-11. The trial court correctly reached this conclusion in its summary

judgment ruling. (See Doc. #54 at 4). HFCU’s failure to provide a written “statement of
                                                                                             -6-


account” did not deprive the trial court of jurisdiction. The recourse for a plaintiff’s failure

to provide pertinent documents in a foreclosure action is a motion for a more definite

statement. Wells Fargo Bank v. Horn, 142 Ohio St.3d 416, 2015-Ohio-1484, 31 N.E.3d

637, ¶ 16. We note too that HFCU’s summary judgment motion included an affidavit

detailing the amount of the delinquent debt. Finally, although Shutway makes reference

to the mortgage bearing a stamp from First American Lenders Advantage, that entity

appears to have been a title insurer, not the holder of the note or mortgage. (See Doc. #2

at Exh. B, pg. 5). The first assignment of error is overruled.

       {¶ 11} In his second assignment of error, Shutway claims error exists in the trial

court’s July 16, 2015 order of confirmation and distribution. In the portion of the order he

challenges, the trial court directed HFCU to disburse its winning bid of $56,667 as follows:

              The Court further finds that there is due from the Plaintiff, costs of

       this action and Orders that Plaintiff pay to the Logan County Sheriff for the

       following:

              1. To the Clerk of Courts of Champaign County, Ohio, court costs in

       the amount of $698.50;

              2. The Champaign County Treasurer shall be paid $7,950.91, which

       represents the real estate taxes, assessments, and any penalty and interest

       on those taxes; prorated to date of sale.

              3. To Plaintiff, Honda Federal Credit Union, Inc., a credit in the

       amount of $48,017.59 to apply against the Judgment heretofore rendered.

              The Court further finds that upon payment of $48,017.59 to Plaintiff,

       Honda Federal Credit Union, upon the Judgment heretofore rendered in its
                                                                                           -7-


       favor against John A. Shutway and Jan E. Shutway, there remains unpaid

       upon said Judgment, the sum of $28,440.76, and a deficiency Judgment is

       hereby rendered * * *.

(Doc. #100 at 2).

       {¶ 12} Aside from the trial court’s apparently clerical error by reference to HFCU

making payment to the Logan County Sheriff, 1 we are unsure what Shutway is

challenging. In any event, he cannot obtain Civ.R. 60(B) relief based on the content of the

trial court’s order for at least two reasons. First, a review of the Civ.R. 60(B) motion

reveals that the Shutways did not present any argument regarding the substance of the

July 16, 2015 order in their motion. Second, as we have indicated, any defect in the order

could have been raised on direct appeal. “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.’ ” Bank of New York Mellon v.

Ackerman, 2d Dist. Montgomery No. 26779, 2016-Ohio-960, ¶ 18, quoting Conley v.

Conley, 2d Dist. Miami No. 2002-CA-1, 2002-Ohio-4332, ¶ 12. The second assignment

of error is overruled.

       {¶ 13} In his third assignment of error, Shutway asserts that HFCU committed

fraud on the court. Specifically, he contends HFCU’s counsel perpetrated fraud by serving

a July 27, 2015 praecipe for a writ of possession “with full knowledge that the amount due

had not been paid as required by the trial court in its ORDER OF CONFIRMATION AND



1 The reference to Logan County rather than Champaign County is an apparent clerical
error because the proceeds are to be distributed to the clerk of Champaign County, the
treasurer of Champaign County and the plaintiff Honda Federal. The trial court can sua
sponte correct such a clerical error at any time.
                                                                                       -8-


DISTRIBUTION, journalized July 16, 2015.” (Appellant’s brief at 6). As set forth above,

however, the trial court subsequently vacated the writ of possession at issue due to

HFCU’s failure to pay the applicable fees. (Doc. #116). Therefore, we see no conceivable

basis for any relief under Civ.R. 60(B). The third assignment of error is overruled.

       {¶ 14} In his fourth assignment of error, Shutway contends the clerk of court erred

in issuing the above-referenced writ of possession when HFCU had not paid the

applicable fees. Once again, we see no conceivable basis for Civ.R. 60(B) relief given

that the trial court vacated the writ. The fourth assignment of error is overruled.

       {¶ 15} In his fifth assignment of error, Shutway claims HFCU’s counsel “colluded

with Champaign County Sheriff’s Deputies failing to provide the due process of law and

committed fraud when they conspired to take possession of the property of 573 East

Church Street in Urbana Ohio on September 8, 2015.” (Appellant’s brief at 8). This

assignment of error again addresses the writ of possession that the trial court vacated.

Consequently, the fifth assignment of error is overruled.

       {¶ 16} In his sixth assignment of error, Shutway asserts that “the Champaign

County Common Pleas Court, Judge, Sheriff, Recorder, Clerk of Courts and Appellee

Honda Federal Credit Union, committed plain error by colluding to deprive Appellant of

his property without payment being given as required.” (Appellant’s brief at 9). This

assignment of error involves a praecipe and a second writ of possession that was issued

on September 28, 2015. But that writ was not, and could not have been, the subject of

the Shutways’ Civ.R. 60(B) motion, which they filed on September 22, 2015, six days

before the second writ was issued. Because the writ addressed in the sixth assignment

of error post-dated, and is therefore unrelated to, the Civ.R. 60(B) motion that is the
                                                                                        -9-


subject of this appeal, the sixth assignment of error is overruled.

       {¶ 17} In his seventh assignment of error, Shutway contends the trial court erred

in overruling the Civ.R. 60(B) motion. In support, he merely incorporates by reference

assignments of error we rejected above. In particular, he repeats his contention that the

trial court should have dismissed HFCU’s complaint for lack of subject-matter jurisdiction.

Based on our review of the record, and for the reasons set forth above, we find this

argument to be unpersuasive. Accordingly, the seventh assignment of error is overruled.

       {¶ 18} The judgment of the Champaign County Common Pleas Court is affirmed.

                                     .............



FROELICH, J., and WELBAUM, J., concur.




Copies mailed to:

Jeffrey A. Merklin
John A. Shutway
Jane Napier
Zebulon Wagner
Jan Shutway
Hon. Nick A. Selvaggio
