[Cite as GMAC Mtge., L.L.C. v. Blazetic, 2014-Ohio-5617.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                       LAKE COUNTY, OHIO


GMAC MORTGAGE, LLC, SUCCESSOR                          :    OPINION
BY MERGER TO GMAC MORTGAGE
CORPORATION,                                           :
                                                            CASE NO. 2014-L-066
                 Plaintiff-Appellee,                   :

        - vs -                                         :

DAVID G. BLAZETIC, et al.,                             :

                 Defendant-Appellant.                  :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 09 CF 000872.

Judgment: Affirmed.


Adam R. Fogelman, Lerner, Sampson & Rothfuss, L.P.A., 120 East Fourth Street, 8th
Floor, P.O. Box 5480, Cincinnati, OH 45201-5480 (For Plaintiff-Appellee).

David N. Patterson, 33579 Euclid Avenue, Willoughby, OH                44094-3199 (For
Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, David G. Blazetic, appeals from the judgment of the Lake

County Court of Common Pleas denying his motion for relief from the trial court’s entry

of judgment, filed pursuant to Civ.R 60(B). For the reasons discussed in this opinion,

we affirm the trial court.

        {¶2}     On April 18, 1999, appellant executed a note in favor of Charter One

Mortgage Corp. in the amount of $144,500. The note was secured by a mortgage
executed on the same date to Charter One Mortgage Corp. The mortgage encumbered

real property formerly owned by appellant, located at 9860 Weathersfield Dr., Concord

Township, Ohio 44060. It was properly recorded in the Lake County Recorder’s Office.

Charter One Mortgage Corp. subsequently assigned the note and mortgage to GMAC

Mortgage Corporation.        When GMAC Mortgage Corporation merged with appellee,

appellee became the holder of the note and mortgage.

          {¶3}   On January 11, 2007, after appellant defaulted in his payments, appellee

filed a complaint in foreclosure.       In September 2007, appellant executed a loan

modification agreement, modifying the original note. As a result, the parties filed a joint

voluntary dismissal of the action. Appellant, however, again defaulted on the modified

loan agreement. In July 2008, appellee filed its second complaint in foreclosure. The

defaulted loan, however, was reinstated and appellee voluntarily dismissed the second

action.

          {¶4}   In March 2009, after a third default, appellee filed its third complaint in

foreclosure. Service was perfected, but appellant neither filed an answer nor otherwise

made an appearance. As a result, in May 2009, appellee filed a motion for default

judgment. On June 30, 2009, the trial court granted the motion for default judgment and

entered judgment in appellee’s favor on its complaint in foreclosure. The property was

appraised and an order of sale was issued. Prior to the sale, appellant filed a notice of

bankruptcy, pursuant to Title 7 of the United States Code, and the trial court filed a

judgment withdrawing the order of sale. The matter was stayed pending the resolution

of appellant’s bankruptcy.

          {¶5}   In January 2013, the stay was terminated. The property was reappraised

and a new order of sale was issued. In September 2013, however, appellant filed


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another notice of bankruptcy, pursuant to Chapter 13 of the United States Code. The

trial court again entered a stay pending the resolution of the bankruptcy matter. After

the United States Bankruptcy Court dismissed appellant’s Chapter 13 proceeding,

appellee moved the court to reactivate the underlying proceeding. The court granted

the motion and a third order for sale was issued.

       {¶6}   In March 2014, appellant filed a motion to set aside the trial court’s order

granting appellee default judgment issued on June 30, 2009. Appellant argued he was

entitled to relief from judgment pursuant to Civ.R. 60(B)(4) and/or (5). As a basis,

appellant maintained the note was not properly assigned to appellee and, thus, he

possessed a meritorious defense. Appellant further argued the judgment was unjust

because, pursuant to Civ.R. 41(A), appellee’s third complaint was barred by the double-

dismissal rule. He also claimed he should be granted relief because he did not receive

notice of the hearing on appellee’s motion for default judgment.          Finally, appellant

asserted he should be granted relief from the default judgment because, if analyzed

under a Civ.R. 56 standard, there were genuine issues of material fact that should be

litigated on the merits of appellee’s complaint.

       {¶7}   In its memorandum in opposition, appellee argued appellant’s motion was

neither timely, nor was the purported defense he asserted meritorious. Appellee further

argued its third complaint was not barred by the double-dismissal rule because the

original dismissal was entered pursuant to a mortgage modification agreement which

changed the terms of the original contract.         Consequently, appellee asserted, the

second and third complaints were premised upon a different agreement than the first

complaint. Appellee additionally noted that appellant was properly served with notice of

its motion for default judgment, but voluntarily elected to do nothing.


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       {¶8}   On May 14, 2014, the magistrate denied appellant’s motion for relief from

judgment. The magistrate, inter alia, determined appellant’s motion failed to set forth

sufficient operative facts to establish he possessed a meritorious defense to the third

complaint.    Moreover, the magistrate reasoned that appellant failed to adequately

address why it took him nearly five years to file his motion for relief.            Thus, the

magistrate concluded, the motion was untimely.

       {¶9}   Appellant filed timely objections to the decision. And, on June 16, 2014,

finding no error of law or other defect, the trial court adopted the magistrate’s decision in

its entirety. Appellant now appeals and assigns three errors for this court’s review.

       {¶10} Before addressing appellant’s assignments of error, we first point out that

appellant, in his brief, fails to address the specific stated basis underlying the trial

court’s denial of his motion for relief from judgment; namely, that he failed to provide

sufficient justification for the near-five-year delay in filing the motion. The Ohio Supreme

Court has held:

       {¶11} 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)(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

              (1976), paragraph two of the syllabus.




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       {¶12} “If any one of the aforementioned requirements is not satisfied, the motion

is properly overruled.” Sokol v. HMDG, LLC, 11th Dist. Geauga No. 2012-G-3117, 2013-

Ohio-3476, ¶13.

       {¶13} The magistrate’s decision, adopted by the trial court, found appellant did

not file his motion within a reasonable time.       In effect, the court concluded that

requirement was not satisfied. Appellant, on appeal, does not specifically address this

determination. Appellant’s failure to contest the foundation of the trial court’s judgment

is sufficient basis for affirming the lower court’s ruling.        In the interest of a

comprehensive analysis, however, we shall consider the merits of appellant’s assigned

errors. His first assignment of error asserts:

       {¶14} “The trial court erred to the prejudice of the appellant by entering judgment

in favor of the appellee and denying the motion to set aside as the decree of foreclosure

is void pursuant to Civil Rule 41, Revised Code Section 2305.19, and the legal doctrine

of res judicata.”

       {¶15} Appellant asserts the trial court erred in failing to grant his Civ.R. 60(B)

motion because appellee’s third complaint was barred by the doctrine of res judicata

pursuant to the double-dismissal rule. Appellant asserts each of the complaints were

premised upon the same nucleus of operative facts and therefore the third complaint

was a nullity. We do not agree.

       {¶16} The double dismissal rule is set forth in Civ.R. 41(A)(1). It provides:

       {¶17} Subject to the provisions of Civ.R. 23(E), Civ.R. 23.1, and Civ.R.

              66, a plaintiff, without order of court, may dismiss all claims

              asserted by that plaintiff against a defendant by doing either of the

              following:


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      {¶18} (a) filing a    notice of   dismissal at any time        before the

             commencement of trial unless a counterclaim which cannot remain

             pending for independent adjudication by the court has been served

             by that defendant;

      {¶19} (b) filing a stipulation of dismissal signed by all parties who have

             appeared in the action. Unless otherwise stated in the notice of

             dismissal or stipulation, the dismissal is without prejudice, except

             that a notice of dismissal operates as an adjudication upon the

             merits of any claim that the plaintiff has once dismissed in any

             court. (Emphasis added.)

      {¶20} The Supreme Court of Ohio has discussed the application of the double-

dismissal rule to foreclosure actions. In U.S. Bank Natl. Assn. v. Gullotta, 120 Ohio

St.3d 399, 2008-Ohio-6268, the Court observed:

      {¶21} Civ.R. 41(A) would not apply to bar a third claim if the third claim

             were different from the dismissed claims. As the court in

             EMC[Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240, 2005-Ohio-

             5799 (10th Dist.)] pointed out, there are examples from Ohio courts

             where successive foreclosure actions were indeed considered to be

             different claims. In those cases, however, the underlying agreement

             had significantly changed or the mortgage had been reinstated

             following the earlier default. In Aames Capital Corp. v. Wells, 9th

             Dist. Summit No. 20703, 2002-Ohio-1498, (Apr. 3, 2002), the

             mortgagor argued that res judicata barred a second foreclosure

             action on the same note and mortgage. In the first foreclosure


                                          6
               action, the trial court had ruled against the mortgagee and required

               it to reinstate the note and mortgage. The mortgagee filed its

               second foreclosure action when the mortgagor failed to make

               payments on the reinstated note. The court in Aames held, “As the

               bases for the two complaints were different, the present action is

               not barred by res judicata.” Aames[, supra]. (Emphasis sic.)

               Gullotta, supra, at ¶33.

       {¶22} In the instant matter, appellee argued that the first complaint was

dismissed after the parties entered a loan modification agreement in which appellant

agreed to pay a principal balance different from the amount to which appellee claimed

entitlement.   According to appellee, the mortgage was subsequently reinstated with

different terms. Appellee consequently maintained the modification of the loan

represented a different contractual obligation than the mortgage on which appellee

sought foreclosure in its initial complaint.

       {¶23} At no point in the proceedings did appellant contest that the loan was

modified; moreover, appellant provided no argumentation to support a conclusion that

the modification did not change and reinstate the mortgage after his default. To the

extent there is nothing in the record to contradict appellee’s position, we agree with the

magistrate’s determination on this issue; to wit, that the second and third complaints

were premised upon different claims than the claim in the first action. Accordingly, the

double-dismissal rule was not implicated in this matter and the trial court did not err in

adopting the magistrate’s analysis of this point.

       {¶24} Appellant’s first assignment of error lacks merit.

       {¶25} Appellant’s second assignment of error provides:


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       {¶26} “The trial court erred to the prejudice of the appellant by entering judgment

in favor of the appellee and denying the motion to set aside as the appellee failed to

proffer competent, credible evidence to properly and sufficiently establish standing and

that it was the real party in interest.”

       {¶27} Appellant asserts, under his second assigned error, that the trial court

erred in adopting the magistrate’s decision because there was insufficient evidence to

establish appellee had standing as a real party in interest. And, appellant contends,

appellee’s alleged lack of standing compromised the subject-matter jurisdiction of the

trial court. Appellant therefore maintains he was entitled to relief from judgment. We do

not agree.

       {¶28} Recently, in Bank of America, N.A. v. Kuchta, ___ Ohio St.3d ___, 2014-

Ohio-4275, the Ohio Supreme Court held that, “[a]lthough standing is required in order

to invoke the jurisdiction of the court of common pleas over a particular action, lack of

standing does not affect the subject-matter jurisdiction of the court.” Id. at paragraph

three of the syllabus. Furthermore, the Court held, “[l]ack of standing is an issue that is

cognizable on appeal, and therefore it cannot be used to collaterally attack a judgment

in foreclosure.” Id. at paragraph two of the syllabus.

       {¶29} In this matter, appellant conflates standing with subject-matter jurisdiction;

moreover, appellant attempted to collaterally attack the default judgment in foreclosure

by way of a motion for relief from judgment. Pursuant to Kuchta, appellant’s substantive

argument is misplaced and he utilized a non-cognizable means to challenge the

judgment in foreclosure. His position is therefore without merit.

       {¶30} Appellant’s second assignment of error is not well taken.

       {¶31} Appellant’s third assignment of error provides:


                                             8
       {¶32} “The trial court erred to the prejudice of the appellant by granting and

upholding the default judgment without providing proper, constitutional notice of hearing

and opportunity to the appellant to be heard and defend the matter.”

       {¶33} Appellant asserts his motion for relief from judgment should have been

granted because he did not receive notice of the hearing.         Appellant asserts, in a

conclusory fashion, that he made an appearance and thus he was entitled to notice of

the hearing on appellee’s motion for default judgment, pursuant to Civ.R. 55(A). We do

not agree.

       {¶34} Civ.R. 55(A) provides, in relevant part:        “If the party against whom

judgment by default is sought has appeared in the action, he (or, if appearing by

representative, his representative) shall be served with written notice of the application

for judgment at least seven days prior to the hearing on such application.” Appellant

contends, in his brief, that he was “in contact with the Appellee regarding the

foreclosure and resolution thereof, which triggers notice rights.” Appellant, however,

fails to identify the manner in which he was in contact with appellee and thus fails to

provide any specific basis for his contention that he “appeared in the action.”

       {¶35} Ohio courts have liberally interpreted the concept of “appearance” vis-à-

vis Civ.R. 55(A). Accettola v. Big Sky Energy Inc., 11th Dist. Ashtabula No. 2012-A-

0049, 2014-Ohio-1340, ¶13.       On one hand, courts have noted a party makes an

appearance when the party “clearly expresses to the opposing party an intention and

purpose to defend the suit, regardless of whether a formal filing is made.” Johnson v.

Romeo, 7th Dist. Mahoning No. 06 MA 4, 2006-Ohio-7073, ¶19; see also Rocha v.

Salsbury, 6th Dist. Fulton No. F-05-014, 2006-Ohio-2615, ¶20.          Alternatively, some

courts have determined a party must “at least contact the court” in order to appear for


                                            9
purposes of Civ.R. 55(A). Walton Constr. Co. v. Perry, 2d Dist. Montgomery No. 15707,

1996 Ohio App. LEXIS 4647, *4 (Oct. 25, 1996); see also Hicks v. Extended Family

Concepts, 5th Dist. Stark Nos. 2010CA00159 & 2010CA00183, 2011-Ohio-3227. In

Accettola, supra, this court found the latter conception more persuasive because “the

language of Civ.R. 55 suggests court involvement.” Id. at ¶13.

      {¶36} In this case, there is no indication appellant met either conception of

“appearing” for Civ.R. 55(A) purposes. Nothing in the record suggests appellant either

(1) contacted the court at any time after appellee filed the complaint or (2) evinced some

intention to defend the suit.   We therefore hold appellant was not entitled to notice

pursuant to Civ.R. 55(A).

      {¶37} Appellant’s final assignment of error lacks merit.

      {¶38} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




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