[Cite as Governors Place Condominium Owners Assn., Inc. v. Unknown Heirs of Polson, 2017-Ohio-885.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                      LAKE COUNTY, OHIO


GOVERNORS PLACE CONDOMINIUM                          :           OPINION
OWNERS ASSOCIATION, INC.,
                                                     :
                 Plaintiff,
                                                     :           CASE NO. 2016-L-070
        - vs -
                                                     :
THE UNKNOWN HEIRS, DEVISEES,
LEGATEES, EXECUTORS,                                 :
ADMINISTRATORS, SPOUSES AND
ASSIGNS AND THE UNKNOWN                              :
GUARDIANS OF MINOR AND/OR
INCOMPETENT HEIRS OF                                 :
BARBARA J. POLSON, et al.,
                                                     :
                 Defendants,
                                                     :
LINDA L. MEKUS, et al.,
                                                     :
                 Defendant-Appellant,
                                                     :
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR THE HOLDERS OF                        :
THE CSFB MORTGAGE SECURITIES,
CORP., ADJUSTABLE RATE                               :
MORTGAGE TRUST 2005-8,
ADJUSTABLE RATE MORTGAGE-                            :
BACKED PASS-THROUGH
CERTIFICATES, SERIES 2005-8,                         :

                 Defendant-Appellee.                 :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 2013 CF 002265.

Judgment: Reversed and remanded.


Thomas J. Sacerich, Sacerich, O’Leary & Field, 8302 Yellowbrick Road, Mentor, OH
44060-4960 (For Defendant-Appellant).

James W. Sandy, McGlinchey Stafford, PLLC, 25550 Chagrin Boulevard, Suite 406,
Cleveland, OH 44122-4640 (For Defendant-Appellee).



TIMOTHY P. CANNON, J.

      {¶1}   This is an appeal from a judgment entry of the Lake County Court of

Common Pleas ordering the distribution of remaining proceeds from a confirmed sale of

foreclosed property. For the following reasons, the trial court’s judgment is reversed,

and the matter is remanded for further proceedings.

      {¶2}   The record reflects that Barbara J. Polson owned a condominium unit in

Mentor, Ohio, prior to her death in 2011. It appears from the preliminary judicial report,

and as alleged in the complaint, that title to the condominium unit vested in Mrs.

Polson’s daughters, Linda L. Mekus and Diane M. Miller, via a transfer on death deed.

      {¶3}   This foreclosure action was instituted on October 18, 2013, by Governors

Place Condominium Owners Association, Inc. (“Governors Place”). Governors Place

sought to foreclose on a certificate of lien recorded against the condominium unit for

unpaid maintenance fees, common expenses, and assessments, which it alleged was

second only to real estate taxes and prior recorded liens. The defendants named in the

complaint were the record owners (Mekus and Miller) and their unknown spouses, if

any; the unknown spouse of Mrs. Polson, if any; the unknown heirs, devisees, legatees,

executors, administrators, spouses and assigns of Mrs. Polson; the unknown guardians

of minor and/or incompetent heirs of Mrs. Polson; the Lake County Treasurer; Mortgage

Electronic Registration Systems, Inc., as nominee for Countrywide Home Loans, Inc.

(“MERS”); and U.S. Bank National Association, as trustee for the holders of the CSFB



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Mortgage Securities, Corp., Adjustable Rate Mortgage Trust 2005-8, Adjustable Rate

Mortgage Backed Pass-Through Certificates, Series 2005-8 (“U.S. Bank”).

       {¶4}   The Preliminary Judicial Report attached to the complaint indicates a

mortgage was assigned from MERS to U.S. Bank and recorded on July 5, 2011. The

Final Judicial Report indicates the mortgage was assigned to Nationstar Mortgage LLC

(“Nationstar”) and recorded on October 17, 2013, one day prior to the filing of the

complaint.

       {¶5}   On June 25, 2014, Governors Place filed a motion to substitute Nationstar

in place of U.S. Bank as a party-defendant. The trial court granted this motion on July

7, 2014.

       {¶6}   On October 2, 2014, Governors Place filed a motion for default judgment

against the defendants (with the exception of the Lake County Treasurer) for failure to

plead or otherwise defend against the action. Attached to the motion was an affidavit of

account, submitted by the managing agent for Governors Place.

       {¶7}   The trial court issued a judgment entry on October 17, 2014, granting

default judgment against the record owners (Mekus and Miller) and their unknown

spouses; against Nationstar and MERS; and against the unknown spouse, unknown

heirs, devisees, legatees, executors, administrators, spouses and assigns and unknown

guardians of minor and/or incompetent heirs of Mrs. Polson. The trial court stated these

defendants, by reason of their default, “are forever barred from asserting any right, title,

or interest in the premises described herein.”

       {¶8}   The trial court also found that Governors Place had good and valid liens

on the property, subject only to the Lake County Treasurer’s good and valid lien. The




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trial court entered a decree of foreclosure on the condominium unit and set forth the

order of priority for the proceeds once the sale of the property was complete. No appeal

was taken from this order.

       {¶9}   An order of sale was issued on January 12, 2015, and the condominium

unit was appraised at $135,000. Notice of a sheriff’s sale was issued on March 24,

2015, and the property was sold to a private third party on April 13, 2015, for $103,000.

       {¶10} On May 26, 2015, Nationstar filed a motion to substitute U.S. Bank as a

party-defendant.    Nationstar attached to its motion a “Corporate Assignment of

Mortgage,” dated March 19, 2015, which stated “the assignment is being recorded to

correct the assignee name in the assignment recorded 07/05/2011.”                 Nationstar

asserted that U.S. Bank is the actual holder of the note and mortgage, as was originally

alleged in the complaint. The trial court granted the motion to substitute and stated,

“[t]his Order shall be nunc pro tunc and all other Orders shall remain in full force and

effect.”

       {¶11} U.S. Bank filed a “stipulated motion for leave to file answer instanter,” in

which it stated that, “[d]espite reasonable diligence, Substitute Defendant was unable to

retrieve its records regarding its interest herein in sufficient time to allow it to file its

answer timely.” The trial court granted U.S. Bank leave to file its answer instanter on

May 28, 2015.

       {¶12} In its answer, U.S. Bank asserted it was entitled to enforce a certain

promissory note, a copy of which was attached, in the sum of $68,761.93 plus interest.

It also stated “that by agreement of the parties hereto, that Plaintiff [Governors Place]

shall take its distribution of the proceeds of the judicial sale that occurred on April 13,




                                             4
2015 before the Substitute Defendant.” U.S. Bank did not file a cross-claim against the

other named defendants.       In addition, there was no indication of any agreement

between U.S. Bank and any of the other defendants regarding the distribution of the

proceeds.

      {¶13} Governors Place filed a motion to confirm sale on June 18, 2015. The trial

court approved and confirmed the sale in an August 11, 2015 judgment entry. It also

ordered the Clerk of Courts to cause satisfaction and cancellation of the mortgage to

U.S. Bank, the mortgage to MERS, and the lien by Governors Place. The trial court

further ordered the Lake County Sheriff to distribute the proceeds of the sale as follows:

             FIRST:        To the Clerk of Courts, the sum of $4442.12 for the
                           costs herein * * *;

             SECOND:       To the Lake County Treasurer the sum of $2,591.28
                           for real estate taxes, penalties, and assessments * * *;

             THIRD:        To the Sheriff, the sum of $128.00 for Deed and
                           Poundage;

             FOURTH:       To the Auditor, the sum of $412.00 for transfer tax
                           and conveyance fee;

             FIFTH:        To the Recorder, the sum of $28.00 for recording the
                           Deed;

             The balance to be held by the Sheriff pending further order of the
             Court.

      {¶14} On September 9, 2015, the Clerk of Courts released and satisfied the

mortgage to U.S. Bank, the mortgage to MERS, and the lien by Governors Place.

      {¶15} On September 10, 2015, Governors Place filed a “motion for supplemental

order of distribution” for its valid lien on the premises. On October 20, 2015, the trial




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court entered a supplemental order of distribution, in which it ordered the Sheriff to

distribute the remaining funds as follows:

              SIXTH:        The Sheriff shall pay to [Governors Place] the sum of
                            $15,552.09 on its valid certificate of lien.

              SEVENTH: The balance, if any, shall be held by Sheriff pending
                       further order.

       {¶16} On May 17, 2016, Attorney Thomas J. Sacerich, on behalf of the unknown

heirs of Barbara J. Polson, filed a motion to distribute the balance of the funds. The

motion asserted that Mrs. Polson’s estate, “as the owner of the property on the date of

the Sheriff’s sale, is entitled to the balance of the proceeds presently being held by the

Sheriff.” On May 20, 2016, U.S. Bank objected and filed its own motion to release the

proceeds. In its motion, U.S. Bank asserted “it is the first lien holder on the subject

premises. Pursuant to the attached Affidavit in Support of Judgment, [U.S. Bank] is

currently owed the amount of $76,313.61. As such, [U.S. Bank] requests that this

Honorable Court issue an order to the Lake County Clerk of Courts instructing it to

release the funds in the amount of $76,313.61 to [U.S. Bank].”

       {¶17} The trial court issued a judgment entry on June 3, 2016, ordering

distribution of the remaining proceeds. It stated, in pertinent part:

              The property at issue sold for $103,000. To date, $23,153.49 of the
              sale proceeds were distributed. The sum of $79,846.51 remains for
              further distribution.

              U.S. Bank established based on the affidavit of Jesslyn Williams, a
              document Execution Specialist at Nationstar Mortgage, L.L.C., loan
              service for U.S. Bank, that it is owed $76,313.61 on the note and
              mortgage of Polson.

              Based on the preliminary judicial title report and the answer of U.S.
              Bank subordinating its interest to Governors Place, the order of
              priority for the distribution of the remaining $79,846.51 is as follows:



                                             6
             SEVENTH: To U.S. Bank, the sum of $76,313.61;

             EIGHTH:       The balance, to the Heirs, in care of their counsel,
                           Thomas J. Sacerich, less any costs determined by the
                           clerk of court due.

      {¶18} It is this entry that is currently before us on appeal. Only one assignment

of error has been raised for our review:

      {¶19} “The trial court erred in ordering the remaining proceeds from the

foreclosure sale disbursed to US Bank National Association, as US Bank National

Association had no interest in the proceeds.”

      {¶20} A foreclosure decree “determines that damages have occurred and sets

forth the parties’ rights and liabilities as they are related to those damages”; the order

confirming the property sale “sets forth the specific damage amount and distributes the

funds accordingly.” CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-

1984, ¶24.

      {¶21} The issue before us is whether the trial court erred by distributing funds to

U.S. Bank after the confirmation of sale when the trial court had not determined in the

foreclosure decree that U.S. Bank had any right to those funds. We review this matter

de novo. See Cty. Savs. Bank v. Argonne Bldg. Ltd. Partnership, 3d Dist. Allen No. 1-

92-94, 1993 WL 74844, *2 (Mar. 12, 1993), citing Conneaut Bldg. & Loan Co. v. Felch,

100 Ohio App. 52, 54 (7th Dist.1955) (holding a trial court has no discretion in

distributing proceeds because they take the place of the sold property).

      {¶22} The trial court’s October 17, 2014 judgment awarded a decree of

foreclosure; found that Governors Place and the Lake County Treasurer had valid liens

and ordered their priority; and found the remaining defendants were in default and



                                            7
forever barred from asserting any right, title, or interest in the premises. At the time of

the entry, Nationstar had been substituted as a party-defendant in place of U.S. Bank.

Subsequently, U.S. Bank was substituted as a party-defendant in place of Nationstar.

The substitution order stated, “[t]his Order shall be nunc pro tunc and all other Orders

shall remain in full force and effect.”      The effect of the substitution order on the

foreclosure decree was, therefore, that U.S. Bank was in default and forever barred

from asserting any right, title, or interest in the premises.

       {¶23} The foreclosure decree was a final, appealable order because it set forth

the rights of all lienholders. CitiMortgage, supra, at ¶39. “Accordingly, if an individual or

entity believes that the order of foreclosure fails to accurately reflect an interest in the

property, the proper means to challenge the court’s determination is by appealing the

order of foreclosure.” Id. at ¶38. Otherwise, although a motion for relief from judgment

cannot be used as a substitute for an appeal, “‘Civ.R. 60(B) provides the exclusive

means for a trial court to vacate a final judgment’” if the proper criteria is set forth. Fed.

Natl. Mtge. Assn. v. Day, 158 Ohio App.3d 349, 2004-Ohio-4514, ¶21 (2d Dist.), quoting

Soc. Natl. Bank v. Repasky, 7th Dist. Mahoning No. 99 C.A. 193, 2000 WL 1486767, *3

(Sept. 21, 2000) (citations omitted).      Either way, “the proper time to challenge the

existence and extent of mortgage liens is in the foreclosure action.” Id. at ¶15 (citation

omitted).

       {¶24} Nationstar did not appeal the order prior to U.S. Bank’s substitution. U.S.

Bank could not have appealed the foreclosure decree because it was not a party at the

time the judgment was entered. U.S. Bank was subsequently granted leave to file an

answer instanter. The filing of this answer did not have the effect of vacating the decree




                                               8
of foreclosure. U.S. Bank did not file a cross-claim or otherwise attempt to prosecute its

claim against the co-defendants. Thus, U.S. Bank’s sole remedy to obtain relief from

the default judgment entered against it in the foreclosure action was a Civ.R. 60(B)

motion.

       {¶25} U.S. Bank did not file a Civ.R. 60(B) motion. Instead, U.S. Bank filed a

motion for distribution of proceeds from the sale. The amount claimed by U.S. Bank in

this motion had never been reduced to judgment. While it claimed it had a first lien on

the property, the record is clear that almost eight months prior, the Clerk of Courts,

pursuant to the trial court’s foreclosure decree and order confirming sale, released U.S.

Bank’s mortgage on September 9, 2015.

       {¶26} The trial court issued an order stating U.S. Bank established that it is

owed money on the note and mortgage based on the affidavit U.S. Bank attached to its

motion for distribution of proceeds. By issuing this order, the trial court “improperly

attempted to alter the effect of the previous foreclosure judgment, which should have

been appealed or been the subject of a Civ.R. 60(B) motion.” Day, supra, at ¶29.

       {¶27} Because the trial court improperly modified the final and appealable

foreclosure decree, the trial court did not have authority to distribute any proceeds of the

sale to U.S. Bank. We must determine, however, whether a remedy exists, as the

property has been sold and the proceeds have been distributed.

       {¶28} Generally, when a judgment has been satisfied and a stay has not been

obtained, “‘the individual subject matter of the case is no longer under the control of the

court and the court cannot afford relief to the parties to the action.’” Art’s Rental Equip.,

Inc. v. Bear Creek Constr., LLC, 1st Dist. Hamilton Nos. C-110544, et seq., 2012-Ohio-




                                             9
5371, ¶9 (collecting cases), quoting Bankers Trust Co. of California, N.A. v. Tutin, 9th

Dist. Summit No. 24329, 2009-Ohio-1333, ¶16.

      {¶29} Some courts have carved out narrow exceptions to this precedent,

recognizing that even where a stay was not obtained, “R.C. 2329.45 preserves the

remedy of restitution, even after the property has been sold at sheriff’s sale and the

proceeds distributed.” U.S. Bank Natl. Assn. v. Mobile Assoc. Natl. Network Sys., Inc.,

195 Ohio App.3d 699, 2011-Ohio-5284, ¶19 (10th Dist.), citing LaSalle Bank Natl. Assn.

v. Murray, 179 Ohio App.3d 432, 2008-Ohio-6097 (7th Dist.); Ameriquest Mtge. Co. v.

Wilson, 11th Dist. Ashtabula No. 2006-A-0032, 2007-Ohio-2576; and Chase Manhattan

Mtge. Corp. v. Locker, 2d Dist. Montgomery No. 19904, 2003-Ohio-6665. See also

Everhome Mtge. Co. v. Baker, 10th Dist. Franklin No. 10AP-534, 2011-Ohio-3303, ¶13,

citing Ameriquest, supra, at ¶19 (“the case is not moot because the court is not without

power to offer a remedy”).

      {¶30} In Ameriquest, this court held that restitution was appropriate where the

debtor filed for a stay, but was unsuccessful due to his inability to post a supersedeas

bond. Ameriquest, supra, at ¶19, citing Chase Manhattan, supra, at ¶44. The Sixth

District Court of Appeals has also held that satisfaction of the judgment under those

circumstances is involuntary, and therefore the appeal is not moot. MIF Realty L.P. v.

K.E.J. Corp., 6th Dist. Wood No. 94WD059, 1995 WL 311365, *2 (May 19, 1995). In

Everhome, the Tenth District addressed the mootness doctrine and stated: “It is a

suspect argument to assert that a void, voidable, or merely erroneous judgment might

evade appellate review simply because it was rendered rapidly, completely, and without




                                          10
notice. * * * [S]uch a holding would allow no recourse in a case in which a foreclosure

action proceeded, completely in error[.]” Everhome, supra, at ¶14.

       {¶31} We have already determined that the trial court erred in distributing funds

to U.S. Bank.        Therefore, in the interest of justice, we find that satisfaction of the

judgment was involuntary, despite the fact that no stay was obtained. The appeal is not

moot, as a viable remedy is available in the form of restitution.

       {¶32} The assignment of error is with merit.

       {¶33} “A remand to the trial court reinstates the matter on the docket, and the

lower court ‘is required to proceed from the point at which the error occurred.’” Mentor

Lumber & Supply Co. v. Victor, 11th Dist. Lake No. 91-L-083, 1992 WL 86527, *1 (Mar.

31, 1992), quoting Armstrong v. Marathon Oil Co., 32 Ohio St.3d 397, 418 (1987).

Here, the error occurred when the trial court issued its June 3, 2016 judgment ordering

distribution of the remaining proceeds to U.S. Bank. On remand, the parties should be

returned to the status quo that existed before the June 3, 2016 order was entered.

       {¶34} For the reasons stated above, the judgment of the Lake County Court of

Common Pleas is reversed. This matter is remanded for further proceedings consistent

with this opinion.



CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.




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