[Cite as Deutsche Bank Natl. Trust Co. v. Jones, 2018-Ohio-3286.]




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

 DEUTSCHE BANK NATIONAL TRUST                         :
 COMPANY, TRUSTEE                                     :
                                                      :     Appellate Case No. 27936
         Plaintiff-Appellee                           :
                                                      :     Trial Court Case No. 2017-CV-1937
 v.                                                   :
                                                      :     (Civil Appeal from
 MARLAINE Y. JONES, et al.                            :     Common Pleas Court)
                                                      :
         Defendant-Appellant                          :


                                              ...........

                                              OPINION

                           Rendered on the 17th day of August, 2018.

                                              ...........

SCOTT A. KING, Atty. Reg. No. 0037582, and TERRY W. POSEY, Atty. Reg. No.
0078292, Austin Landing I, 10050 Innovation Drive, Suite 400, Dayton, Ohio 45342
     Attorneys for Plaintiff-Appellee

WORRELL A. REID, Atty. Reg. No. 0059620, 6718 Loop Road, #2, Dayton, Ohio 45459
    Attorney for Defendant-Appellant

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




DONOVAN, J.
                                                                                         -2-




       {¶ 1} Defendant-appellant Marlaine Y. Jones appeals a judgment of the

Montgomery County Court of Common Pleas, Civil Division, granting the motion of

plaintiff-appellee Deutsche Bank National Trust Company (hereinafter referred to as “DB”)

to vacate a prior judgment of foreclosure pursuant to Civ.R. 60(B). Jones filed a timely

notice of appeal with this Court on March 13, 2018.

       {¶ 2} On April 24, 2017, DB filed a complaint in foreclosure against Jones. Jones

filed a pro se answer to DB’s complaint on May 22, 2017. Thereafter, DB filed a motion

for summary judgment on August 21, 2017. On August 22, 2017, the trial court issued

an entry ordering that any opposition to DB’s motion for summary judgment be submitted

on or before September 12, 2017. On September 3, 2017, counsel for Jones filed a

motion requesting an extension of time in which to file a response to DB’s motion for

summary judgment. The trial court granted Jones a 30-day extension in an entry issued

on September 11, 2017.

       {¶ 3} On October 5, 2017, Jones filed a motion requesting a second extension of

time. In her motion, Jones argued that she had previously sent a discovery packet to DB

in which she specifically requested it produce the original promissory note for the property

in question. Thus, Jones requested that the trial court hold the summary judgment

proceedings in abeyance until DB produced the original promissory note.

       {¶ 4} On October 10, 2017, the trial court scheduled a status conference for the

case to be held before a magistrate on November 9, 2017. However, on October 26,

2017, the trial court granted DB’s motion for summary judgment and issued a Foreclosure

Decree without first addressing Jones’s motion requesting a second extension of time or
                                                                                        -3-


the scheduled status conference to be held before the magistrate.

       {¶ 5} One day later on October 27, 2017, Jones filed a notice of appeal with this

Court in Montgomery App. No. CA 27788. In her appellate brief filed on November 13,

2017, Jones argued that she had been denied the opportunity to inspect the original

promissory note. Accordingly, Jones requested that we vacate the Foreclosure Decree

and remand the case to the trial court.

       {¶ 6} Thereafter, on February 12, 2018, DB filed a motion in this Court requesting

that we remand the case to the trial court so that it could vacate the Foreclosure Decree

judgment, thereby allowing Jones to inspect the original promissory note and then

ostensibly file a memorandum in opposition to DB’s motion for summary judgment. On

February 27, 2018, DB filed a motion to vacate the Foreclosure Decree with the trial court.

       {¶ 7} On March 5, 2018, we granted DB’s motion and remanded the case to the

trial court.   On March 12, 2018, the trial court granted DB’s motion to vacate the

Foreclosure Decree judgment. Jones filed a timely notice of appeal with this Court on

March 13, 2018. (Montgomery App. No. CA 27936). We note that on April 17, 2018, we

dismissed Jones’s first appeal in Case No. CA 27788, finding that the appeal was

rendered moot because the trial court vacated the Foreclosure Decree judgment.

       {¶ 8} Accordingly, the instant appeal in Case No. CA 27936 is now properly before

this Court.

       {¶ 9} Jones’s first assignment of error is as follows:

       THE ORDER GRANTING PLAINTIFF’S MOTION TO VACATE WAS

       CONTRARY TO LAW IN THAT THE MOTION UPON WHICH IT WAS

       BASED WAS FILED WHEN THE COURT OF APPEAL[S] HAD
                                                                                               -4-


       EXCLUSIVE JURISDICTION OF THE MATTER, AND THE SAID MOTION

       WAS A NULLITY AND COULD NOT HAVE BEEN RULED UPON BY THE

       TRIAL COURT.

       {¶ 10} In her first assignment, Jones contends that because her appeal was

pending before this Court in Case No. CA 27788, the trial court was without jurisdiction

to rule on DB’s motion to vacate the Foreclosure Decree judgment.

       {¶ 11} The proper procedure in filing a motion for relief from judgment while an

appeal is pending is to obtain from the trial court certification that it will consider the motion

and then move the court of appeals, for good cause shown, to remand the matter to the

trial court for the limited purpose of conducting a hearing on and deciding the motion for

relief from judgment. Majnaric v. Majnaric, 46 Ohio App. 2d 157, 161, 347 N.E.2d 552

(9th Dist.1975); see also Best Toy Mfg. Co. v. Good Time Servs., Inc., 2d Dist.

Montgomery Nos. 8185, 8406, 1984 WL 5421 (Jan. 12, 1984) (trial court erred when it

denied appellant's motion for relief from judgment on the basis that it lacked jurisdiction

over such motion while an appeal was pending, when appellant filed a motion for

certification which requested the trial court to certify that it would consider appellant's

motion for relief from judgment).

       {¶ 12} As previously stated, on February 12, 2018, DB filed a motion in this Court

requesting that we remand the case to the trial court so that it could vacate the

Foreclosure Decree judgment. We note that Jones’s appeal in Case No. CA 27788 was

pending at the time. Thereafter, on February 27, 2018, DB filed a motion to vacate the

Foreclosure Decree with the trial court.        On March 5, we granted DB’s motion and

remanded the case to the trial court, thus providing the trial court with jurisdiction to
                                                                                             -5-


consider the motion to vacate. After we remanded the case, the trial court granted DB’s

motion to vacate the Foreclosure Decree judgment on March 12, 2018.

       {¶ 13} In the instant case, we note that DB did not obtain a certification from the

trial court that it would consider the motion to vacate prior to filing the motion in this Court

requesting that we remand the case to the trial court. Aside from that minor procedural

deficiency, DB procured a remand from this Court on March 5, 2018, so that the trial court

could properly consider its motion to vacate the Foreclosure Decree judgment.

Significantly, the trial court did not rule on the motion to vacate until March 12, 2018, at

which time it had proper jurisdiction to consider the motion. Accordingly, we find that the

trial court had jurisdiction to consider and rule upon DB’s motion to vacate the Foreclosure

Decree judgment.

       {¶ 14} Jones’s first assignment of error is overruled.

       {¶ 15} Jones’s second assignment of error is as follows:

       THE ORDER GRANTING PLAINTIFF’S MOTION TO VACATE WAS

       CONTRARY TO LAW AS THE [PLAINTIFF] FAILED TO SHOW THAT

       THERE WAS A MERITORIOUS CLAIM OR DEFENSE, MISTAKE,

       INADVERTENCE, OR EXCUSABLE NEGLECT, AS IS REQUIRED BY

       CIV.R. 60(B), AND THE TRIAL COURT’S CORRECTION OF ITS

       PREVIOUS ORDER GRANTING SUMMARY JUDGMENT AS A MATTER

       OF LAW AND DECREE OF FORECLOSURE, WAS CONTRARY TO THE

       EXCLUSIVE JURISDICTION OF THE COURT OF APPEALS TO REVIEW

       FINAL ORDERS.

       {¶ 16} In her second and final assignment of error, Jones argues that the trial court
                                                                                            -6-


erred when it granted DB’s motion to vacate the Foreclosure Decree judgment for the

following reasons: 1) the trial court lacked jurisdiction to vacate the judgment; 2) DB could

not have moved to vacate the judgment while the appeal in Case No. CA 27788 was

pending; and 3) DB could not use Civ.R. 60(B) as a substitute for appeal.

       {¶ 17} Civ.R. 60(B) permits trial courts to relieve a party from a final judgment for

the following reasons: (1) “mistake, inadvertence, surprise or excusable neglect;” (2)

newly discovered evidence; (3) fraud, misrepresentation or other misconduct of an

adverse party; (4) the judgment has been satisfied, released or discharged; or (5) any

other reason justifying relief from the judgment. In order to prevail on a motion brought

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); and (3) the motion is made within a reasonable time

and, for reasons under Civ.R. 60(B)(1)-(3), not more than one year after judgment. GTE

Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),

paragraph two of the syllabus. All of these requirements must be satisfied, and the

motion should be denied if any one of the requirements is not met. Strack v. Pelton, 70

Ohio St.3d 172, 174, 637 N.E.2d 914 (1994); Cincinnati Ins. Co. v. Schaub, 2d Dist.

Montgomery No. 22419, 2008–Ohio–4729, ¶ 15.

       {¶ 18} We review the trial court's determination of a Civ. R. 60(B) motion for an

abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). An

abuse of discretion means that the court's attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).
                                                                                          -7-


       {¶ 19} Initially, we note that, in the analysis of Jones’s first assignment, we found

that the trial court had jurisdiction to rule on DB’s motion to vacate the Foreclosure Decree

judgment after we remanded the matter to the trial court. Therefore, to the extent that

Jones repeats her argument in that regard here, her assignment is overruled.

       {¶ 20} Furthermore, it is generally accepted that Civ.R. 60(B) relief is not a

substitute for a timely appeal. Cincinnati Ins. Co. v. Schaub, 2d Dist. Montgomery No.

22419, 2008-Ohio-4729, ¶ 16; State ex rel. Martin v. Ohio Adult Parole Auth., 124 Ohio

St.3d 63, 2009-Ohio-6164, 918 N.E.2d 1005, ¶ 1. However, this proposition of law is not

applicable to the instant case because DB did not appeal the trial court’s original decision

granting the Foreclosure Decree judgment. DB had no reason to appeal a ruling in its

favor. Rather, DB filed a motion in this Court seeking remand so that the trial court would

have jurisdiction to consider a motion to vacate the Foreclosure Decree judgment filed by

DB. Therefore, we find that DB did not file its motion to vacate pursuant to Civ.R. 60(B)

as a substitute for a timely appeal.

       {¶ 21} Finally, we note that DB argues that it sought remand to the trial court and

filed a motion to vacate the Foreclosure Decree judgment because it had located the

original promissory note signed by Jones. DB further argues that it was only through

some mistake and/or inadvertence on its part that Jones was not provided the promissory

note during the discovery phase of the case. Jones fails to provide us with any evidence

that DB’s argument does not constitute a proper basis for a Civ.R. 60(B) motion. Upon

review, we therefore conclude that the trial court did not abuse its discretion when it

granted DB’s motion to vacate the Foreclosure Decree judgment pursuant to Civ.R. 60(B).

       {¶ 22} Jones’s second and final assignment of error is overruled.
                                                                                    -8-


       {¶ 23} Both of Jones’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

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



FROELICH, J. and TUCKER, J., concur.



Copies mailed to:

Scott A. King
Terry W. Posey
Worrell A. Reid
Michele Phipps
Hon. Michael W. Krumholtz
