[Cite as US Bank Natl. Assn. v. Avery, 2015-Ohio-3908.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



US BANK NATIONAL ASSOCIATION                      :       JUDGES:
                                                  :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        :       Hon. Sheila G. Farmer, J.
                                                  :       Hon. Patricia A. Delaney, J.
-vs-                                              :
                                                  :
JOHN E. AVERY, ET AL.                             :       Case No. 14CA89
                                                  :
        Defendants-Appellants                     :       OPINION




CHARACTER OF PROCEEDING:                                  Appeal from the Court of Common
                                                          Pleas, Case No. 12CV0533




JUDGMENT:                                                 Affirmed




DATE OF JUDGMENT:                                         September 23, 2015




APPEARANCES:

For Plaintiff-Appellee                                    For Defendants-Appellants

SCOTT A. KING                                             DANIEL L. MCGOOKEY
TERRY W. POSEY, JR.                                       KATHRYN M. EYSTER
10050 Innovation Drive                                    225 Meigs Street
Suite 400                                                 Sandusky, OH 44870
Miamisburg, OH 45342
Richland County, Case No. 14CA89                                                       2

Farmer, J.

      {¶1}    On May 8, 2012, appellee, U.S. Bank National Association, as Trustee for

Credit Suisse First Boston Mortgage Securities Corp., Home Equity Asset Trust 2006-2,

Home Equity Pass-Through Certificates, Series 2006-2, filed a foreclosure complaint

against appellants, John and Florine Avery, and others, for money due and owing on a

mortgage secured by a note. Appellant John Avery had received a Chapter 7 discharge

in bankruptcy; therefore, his personal liability on the note had been extinguished.

      {¶2}    On March 19, 2013, appellee filed a motion for summary judgment,

claiming genuine issues of material fact did not exist. By in rem judgment entry filed

May 6, 2013, the trial court granted the motion and ordered foreclosure.

      {¶3}    On August 21, 2014, appellants filed a Civ.R. 60(B) motion for relief from

judgment, claiming appellee did not establish that it was entitled to enforce the

mortgage and note and met the conditions precedent prior to filing the foreclosure

complaint, and did not act equitably in the case. By order filed October 16, 2014, the

trial court denied the motion, finding appellants did not raise any meritorious claims

and/or defenses and the motion was not made within a reasonable time.

      {¶4}    Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

      {¶5}    "THE   TRIAL     COURT     ERRED      IN   GRANTING       JUDGMENT      TO

PLAINTIFF."
Richland County, Case No. 14CA89                                                           3


                                              I

      {¶6}   Appellants claim the trial court erred in denying their Civ.R. 60(B) motion

for relief from judgment. We disagree.

      {¶7}   A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's

sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987). In order to find an abuse

of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217 (1983). Appellants based their Civ.R. 60(B) motion on

"any other reason justifying relief from the judgment."          Civ.R. 60(B)(5).     In GTE

Automatic Electric Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two

of the syllabus, the Supreme Court of Ohio held the following:



             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.



      {¶8}   Appellants argue they have meritorious claims to present: 1) appellee

failed to establish it was the holder of the mortgage and note, 2) appellee did not

establish it met the conditions precedent to filing the foreclosure complaint, 3) appellee
Richland County, Case No. 14CA89                                                        4

did not act in accordance with a consent judgment executed on April 4, 2012 in United

States v. Bank of America Corporation, Case No. 12CV0361, United States District

Court for the District of Columbia, and 4) justice and equity require relief from judgment

because of appellee's actions pre-suit and post-judgment.

      {¶9}   On March 19, 2013, appellee filed a motion for summary judgment with

attached affidavits and assignments of mortgage and note. In their response filed April

26, 2013, appellants alleged the amounts due were incorrect and included an affidavit of

appellant John Avery. On May 6, 2013, the trial court granted the summary judgment

motion and filed an in rem judgment entry and decree of foreclosure.

      {¶10} Appellants did not file an appeal of the trial court's May 6, 2013 judgment

entry. Also, appellants' response to the summary judgment motion did not raise any of

the issues argued in their Civ.R. 60(B) motion.

      {¶11} In Bank of America, N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275,

the Supreme Court of Ohio reviewed the issue of whether a party could collaterally

attack a foreclosure order by attacking the issue of standing via a Civ.R. 60(B) motion.

In finding a Civ.R. 60(B) motion cannot be used as a substitute for a timely appeal, the

court found the Kuchtas did not allege intrinsic fraud, and stated the following at ¶ 15-

16:



             Further, because the issue of standing could have been and in fact

      was raised during the foreclosure proceedings, res judicata prevents the

      Kuchtas from using the issue to establish entitlement to relief.      Ohio's

      Civ.R. 60(B) is substantially equivalent to Fed.R.Civ.P. 60(b), which
Richland County, Case No. 14CA89                                                        5


      codified the centuries-old "rule of equity to the effect that under certain

      circumstances, one of which is after-discovered fraud, relief will be

      granted against judgments" regardless of their finality. Hazel-Atlas Glass

      Co. v. Hartford-Empire Co., 322 U.S. 238, 244, 64 S.Ct. 997, 88 L.Ed.

      1250 (1944). Civ.R. 60(B) exists to resolve injustices that are so great

      that they demand a departure from the strict constraints of res judicata.

      Id. However, the rule does not exist to allow a party to obtain relief from

      his or her own choice to forgo an appeal from an adverse decision.

      Ackerman v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95 L.Ed. 207

      (1950).

             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 which they failed to appeal. Thus, the doctrine of res judicata bars

      their attempted collateral attack against the judgment in foreclosure.



      {¶12} In its October 16, 2014 order denying the Civ.R. 60(B) motion, the trial

court correctly concluded that the time to challenge appellee's standing or status as the

holder of the mortgage and note and conditions precedent was at the motion for

summary judgment.      Appellants did not do so; therefore, Civ.R. 60(B) relief is not

appropriate or warranted.
Richland County, Case No. 14CA89                                                      6


      {¶13} As for the consent judgment claim, we concur with the trial court's analysis

that the consent judgment in not enforceable by third-parties and appellants were not

parties to the consent judgment, and it was without jurisdiction to enforce the consent

agreement.

      {¶14} Appellants also argue the facts sub judice cry for equitable relief.

Specifically, in their August 21, 2014 Civ.R. 60(B) motion, appellants argued appellee's

pre-suit and post-judgment actions require relief:



             In February 2011, the Averys were advised by the lender's

      representatives to quit paying so they could apply for loan modification

      after being 3 months behind. As a result of this representation, they quit

      paying on the loan. The Averys were further informed they would qualify

      for a loan modification. Shortly thereafter, the Averys were informed the

      investor would not allow a second loan modification (their loan had a

      previous loan modification). The lender continued to accept financials,

      informing the Averys that there were certain facts and circumstances that

      would allow an exception to the investor's guideline.

             ***

             In November 2013, the Averys were approved for $25,000

      reinstatement money as long as the Averys contributed an additional

      $47,200. The Averys pulled from retirement and sent to the HUD agency

      the amount of $47,200. This money was sent in a timely manner. The

      HUD agency attempted to send the reinstatement money to the lender
Richland County, Case No. 14CA89                                                        7


      prior to the expiration of the reinstatement quote but the lender increased

      the reinstatement amount by another $9,000, unexpectedly and without

      explanation. The Averys did not have another $9,000. As a result, Ohio's

      Save the Dream program sent $47,200 back to the Averys and closed the

      file.

              ***

              The lender has continued to ask for financials and then deny based

      upon the investor guideline. It was apparent after the last submission and

      denial that the lender has no intent to help borrowers. As a result, the

      Averys immediately sought counsel.



      {¶15} We find any pre-suit claims appellants had against appellee were

extinguished by the failure to raise those defenses in their answer or at the motion for

summary judgment. Although appellants' May 18, 2012 answer claimed appellee was

barred from bringing suit because appellants were pursuing a workout agreement, this

claim or any facts to substantiate it were not presented in the defense for summary

judgment. Therefore, we conclude any pre-suit action is barred under the doctrine of

res judicata and failure to appeal the May 6, 2013 judgment entry.

      {¶16} As for appellants' post-judgment claims, post-judgment attempts to settle

may very well mitigate on the issue of timeliness of a Civ.R. 60 motion, but do not attack

the legality or sufficiency of the judgment. The delay caused by the attempts to resolve

this "in rem only" action afforded appellants additional opportunities to keep their

property. These delays do not demonstrate that appellants' were prejudiced.
Richland County, Case No. 14CA89                                                      8


      {¶17} Upon review, we find the trial court did not err nor abuse its discretion in

denying appellants' Civ.R. 60(B) motion for relief from judgment.

      {¶18} The sole assignment of error is denied.

      {¶19} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




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