[Cite as Bank of New York Mellon Trust Co. v. Bowers, 2013-Ohio-5488.]


STATE OF OHIO                   )                        IN THE COURT OF APPEALS
                                )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                )

BANK OF NEW YORK MELLON TRUST                            C.A. No.        12CA010289
CO.

        Appellee
                                                         APPEAL FROM JUDGMENT
        v.                                               ENTERED IN THE
                                                         COURT OF COMMON PLEAS
JEFFREY J. BOWERS, et al.                                COUNTY OF LORAIN, OHIO
                                                         CASE No.   11CV172158
        Appellants

                                DECISION AND JOURNAL ENTRY

Dated: December 16, 2013



        WHITMORE, Judge.

        {¶1}    Appellants, Jeffrey and Deborah Bowers (collectively, “the Bowerses”), appeal

from the judgment of the Lorain County Court of Common Pleas, denying their motion to vacate

a default judgment. This Court affirms.

                                                     I

        {¶2}    On May 23, 2011, The Bank of New York Mellon Trust Co. (“the Bank”) filed a

foreclosure action against the Bowerses. The Bank alleged the Bowerses had defaulted on their

mortgage payments and sought to foreclose on the Bowerses’ Murray Ridge Road property. The

Bowerses were properly served, but failed to file an answer or otherwise respond.

        {¶3}    On September 23, 2011, the Bank filed a motion for default judgment against the

Bowerses. The court scheduled a default hearing for the end of October. The Bowerses failed to

respond or appear at the hearing. On November 21, 2011, the magistrate recommended that the
                                                2


trial court grant the Bank’s motion for default judgment. The trial court adopted the magistrate’s

decision and entered an order granting default judgment against the Bowerses.

       {¶4}    In January, an order and notice of sale were issued. On February 24, 2012, the

Bowerses filed a motion to set aside the default judgment. The Bank filed a memorandum in

opposition. On September 4, 2012, the court denied the Bowerses’ motion. The Bowerses now

appeal and raise one assignment of error for our review.

                                                II

                                      Assignment of Error

       THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS AND
       ABUSED ITS DISCRETION BY FAILING TO GRANT THEIR CIV.R. 60(B)
       MOTION.

       {¶5}    In their sole assignment of error, the Bowerses argue that the court erred by

denying their Civ.R. 60(B) motion. We disagree.

       {¶6}    “The decision to grant or deny a motion to vacate judgment pursuant to Civ.R.

60(B) lies in the sound discretion of the trial court and will not be disturbed absent an abuse of

discretion.” Kish v. Kish, 9th Dist. Lorain No. 12CA010185, 2012-Ohio-5430, ¶ 9, quoting

Buckingham, Doolittle & Burroughs, L.L.P. v. Healthcare Imaging Solutions L.L.C., 9th Dist.

Summit No. 24699, 2010-Ohio-418, ¶ 8. An abuse of discretion indicates that the trial court’s

decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶7}    “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) though (5); and (3) the

motion is made within a reasonable time * * *.” GTE Automatic Elec., Inc. v. ARC Industries,
                                                3


Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. “A ‘meritorious defense’ means a

defense going to the merits, substance, or essentials of the case.” (Internal quotations omitted.)

CitiMortgage, Inc. v. Dudek, 9th Dist. Summit No. 25806, 2012-Ohio-899, ¶ 13.

       {¶8}    The Bowerses filed a Civ.R. 60(B) motion requesting the trial court set aside the

default judgment because the Bank had led them to believe that it was processing a loan

modification, that the loan modification would be approved, and that the foreclosure action

would be dismissed.     There was no evidence that a binding loan modification had been

consummated. Instead, the Bowerses argued to the trial court that they had a meritorious claim

because they “did not understand the legal complications of this matter.” The Bowerses did not

deny that they had defaulted on the note, that the note was secured by the mortgage, or that the

Bank had the rights to enforce the terms of the note and foreclose on the mortgage. While the

allegations that the Bank misled the Bowerses into believing that they did not need to participate

in the foreclosure proceedings could support a claim of excusable neglect or fraud, thereby

satisfying the second prong of the GTE test, see Civ.R. 60(B)(1), (3), the Bowerses did not assert

any meritorious defense to the foreclosure action in their Civ.R. 60(B) motion. See Dudek at ¶

13 (not a meritorious defense that the bank “told her to not worry about a foreclosure and that

any foreclosure proceedings were on hold”). (Internal quotations omitted.) Therefore, the

Bowerses failed to satisfy the first prong of the GTE test. See GTE Automatic Elec., Inc. at 150.

       {¶9}    On appeal, the Bowerses argue that they have a meritorious defense because the

Bank did not “fulfill a condition precedent” before filing for foreclosure. Specifically, the

Bowerses argue that the Bank was required to notify them in writing, by mail that their loan

modification was denied prior to filing for foreclosure. This argument was not raised in the trial

court. “This Court has ‘consistently held that arguments which are not raised below may not be
                                                4


considered for the first time on appeal.’” See Dudek, at ¶ 11, quoting State v. Schwarz, 9th Dist.

Medina No. 02CA0042-M, 2003-Ohio-1294, ¶ 14.

       {¶10} The Bowerses further argue that this defense has not been waived on appeal

because it is jurisdictional and can be raised at any time under the authority of Federal Home

Loan Mortg. Corp v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017.                    However,

Schwartzwald is inapplicable here. Schwartzwald is relevant when determining whether a party

filing a foreclosure action has standing. Here, the Bowerses do not dispute that the Bank is the

real party in interest and that it has standing to maintain the foreclosure action. Instead, the

Bowerses argue that the Bank has not complied with a contractual notice requirement set forth in

the note and the mortgage. This does not go to the court’s jurisdiction to hear the matter. See

Wells Fargo Bank, N.A. v. Hazel, 10th Dist. Franklin No. 11AP-1061, 2012-Ohio-5770, ¶ 13

(where cause of action is contingent upon the satisfaction of some condition precedent and the

plaintiff pleads that such conditions have been met, those conditions are deemed admitted if the

defendant fails to deny them).

       {¶11} After reviewing the record, the Bowerses did not assert a meritorious defense in

their Civ.R. 60(B) motion to the trial court, and this Court will not address new arguments raised

on appeal. The Bowerses’ sole assignment of error is overruled.

                                               III

       {¶12} The Bowerses’ assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 5


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                      BETH WHITMORE
                                                      FOR THE COURT



BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶13} I concur that the trial court properly denied Mr. and Mrs. Bowers’ motion for

relief from judgment. Although the trial court was displeased with the bank’s conduct in this

case, it determined that Mr. and Mrs. Bowers had not demonstrated that they had a meritorious

defense to the foreclosure as they had merely asserted that their meritorious defense to the

foreclosure action was they “did not understand the legal complications of this matter.” Because

that is not a defense against the underlying cause of action and there was no development of any

argument on appeal on this point, Mr. and Mrs. Bowers failed to satisfy the first prong of GTE

Automatic Elec., In. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the

syllabus, and, therefore, the trial court did not commit reversible error in denying their motion.
                                                6


       {¶14} I write separately, however, to clarify that this is not a ratification of the behavior

of the bank in this case and in some cases, a meritorious defense could be raised as a

consequence of a bank’s conduct when engaging in the loan modification process. Foreclosure

is an action that sounds in equity, and actions by the bank that a homeowner relies upon to his or

her detriment could affect whether foreclosure is appropriate. See Natl. City Mtge. v. Skipper,

9th Dist. Summit No. 24772, 2009-Ohio-5940, ¶ 25. See also TD Bank, N.A. v. J and M

Holdings, LLC, 143 Conn.App 340, 350 (2013) (“Equitable estoppel is a recognized defense in a

foreclosure action.”); Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256-257 (5th

Cir.2013) (“Promissory estoppel may overcome the statute-of-frauds requirement in Texas, but

there must have been a promise to sign a written contract which had been prepared and which

would satisfy the requirements of the statute of frauds.”) (Internal quotations and footnote

omitted.). However, Mr. and Mrs. Bowers have not developed any legal argument concerning a

meritorious defense in light of the circumstances in this case. See App.R. 16(A)(7). Thus, I

concur that their assignment of error must be overruled.


CARR, J.
DISSENTING.

       {¶15} I respectfully dissent. Mr. and Mrs. Bowers alleged a meritorious defense that

went directly to the underlying merits of the case, namely that the parties engaged in a mutual

modification of the loan agreement that would preclude foreclosure. See CitiMortgage, Inc. v.

Dudek, 9th Dist. Summit No. 25806, 2012-Ohio-899, ¶ 18 (Carr, J., dissenting).
                                      7


APPEARANCES:

JEFFREY J. BOWERS and DEBORAH D. BOWERS, pro se, Appellants.

BENJAMIN W. OGG and MATTHEW J. RICHARDSON, Attorneys at Law, for Appellee.
