[Cite as Nationstar Mtge., L.L.C. v. Groves, 2017-Ohio-887.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


NATIONSTAR MORTGAGE LLC,                                 :     OPINION

                 Plaintiff-Appellee,                     :
                                                               CASE NO. 2016-P-0029
        - vs -                                           :

TOMMY J. GROVES, et al.,                                 :

                 Defendant-Appellant.                    :


Civil Appeal from the Portage County Court of Common Pleas.
Case No. 2014 CV 00247.

Judgment: Affirmed.


John B. Kopf and Michael L. Dillard, Jr., Thompson Hine LLP, 41 South High Street,
Suite 1700, Columbus, OH 43215-6101 (For Plaintiff-Appellee).

Sam Thomas, III, Sam Thomas, III and Associates, LLC, 1510 East 191st Street,
Euclid, OH 44117 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Tommy J. Groves, appeals from the April 19, 2016 judgment of

the Portage County Court of Common Pleas, denying his Civ.R. 60(B) motion. For the

reasons that follow, the trial court’s judgment is affirmed.

        {¶2}     On March 25, 2014, appellee, Nationstar Mortgage LLC initiated the

underlying foreclosure action naming appellant, among others, as a defendant.

Appellant filed an answer on April 25, 2014.
       {¶3}   Appellee filed a motion for summary judgment on January 27, 2015.

Appellant filed a motion to stay summary judgment proceedings or for an extension of

time to file a brief in opposition; the trial court granted an extension until March 13,

2015. No brief in opposition to the motion for summary judgment was ever filed. On

May 7, 2015, the trial court issued a judgment entry, granting appellee’s motion for

summary judgment and issuing a decree of foreclosure. The judgment contained Civ.R.

54(B) language, stating: “There is no just reason for delay in entering Judgment as

aforesaid.” Appellant did not appeal this judgment within 30 days of its entry.

       {¶4}   On December 11, 2015, the court ordered the sale of the property. It was

appraised and scheduled to be sold at a sheriff’s sale on March 7, 2016. Appellant filed

an emergency motion to stay execution of judgment of the decree of foreclosure, order

of sale, and sheriff’s sale, which the trial court overruled.

       {¶5}   The property was sold, and on March 28, 2016, the trial court ordered the

confirmation of sale and distribution of proceeds.              Appellant did not appeal this

judgment.     On March 30, 2016, appellant filed another emergency motion to stay

execution of the decree of foreclosure and of the sheriff’s sale that had occurred on

March 7, 2016. Appellee filed a brief in opposition, but it appears the trial court did not

rule on the motion.

       {¶6}   Also on March 30, 2016, appellant filed a Civ.R. 60(B) motion to set aside

the order of summary judgment, the decree of foreclosure, and the confirmation of sale.

In his Civ.R. 60(B) motion, appellant argued the affidavit submitted by appellee in its

summary judgment motion was insufficient to establish there was no issue of material

fact; the affidavit should not have been considered because it did not meet the




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requirements of Civ.R. 56(E); appellee failed to establish it was the real party in interest

and had standing; and appellee failed to submit any specific evidence of damages.

Appellee’s brief in opposition argued appellant’s motion failed to meet the requirements

of Civ.R. 60(B). On April 19, 2016, the trial court denied appellant’s motion, stating it

was untimely filed.

       {¶7}      On May 10, 2016, appellant filed a timely notice of appeal from the trial

court’s April 19, 2016 judgment. In the trial court, appellant filed another motion to stay

execution of the decree of foreclosure, decree of confirmation of sale, and the order

denying his Civ.R. 60(B) motion, pending appeal. The trial court denied appellant’s

motion to stay on May 16, 2016. Appellant did not seek a stay or post any type of bond

in this court.

       {¶8}      The trial court issued a writ of possession to the purchaser of the property,

which was delivered on May 24, 2016.

       {¶9}      On July 26, 2016, appellee filed a motion to dismiss the appeal, which this

court overruled.

       {¶10} Appellant asserts two assignments of error on appeal:

                 [1.] 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.

                 [2.] The trial court erred to the prejudice of Appellant by granting
                 the Appellee’s Motion for Summary Judgment despite genuine
                 issues of material fact regarding the Appellee’s failure to provide
                 sufficient evidence of entitlement to foreclosure and/or damages.

       {¶11} We address appellant’s assignments of error together.            Under his first

assignment of error, appellant argues the trial court erred in denying his Civ.R. 60(B)



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motion because the trial court’s May 7, 2015 judgment granting summary judgment is

void ab initio. Appellant maintains the trial court did not have subject-matter jurisdiction

over the action because appellee lacked standing at the time of filing. In his second

assignment of error, appellant argues the trial court erred in denying his Civ.R. 60(B)

motion because appellee failed to meet its burden under Civ.R. 56 of establishing there

was no genuine issue of material fact. Appellee argues in response that appellant

improperly used his Civ.R. 60(B) motion as a substitute for a direct appeal of the trial

court’s May 7, 2015 judgment.

       {¶12} The decision of whether to grant relief under Civ.R. 60(B) is entrusted to

the sound discretion of the trial court. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987).

Accordingly, we review the trial court’s decision to grant or deny a Civ.R. 60(B) motion

for an abuse of discretion. Id. An abuse of discretion is the trial court’s “‘failure to

exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist.

Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th

Ed.2004).

       {¶13} To prevail on a Civ.R. 60(B) motion, a movant must satisfy the three-prong

test set out in GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146

(1976). Appellant must demonstrate (1) he has a meritorious claim or defense to raise if

relief is granted; (2) he is entitled to relief under one of the subsections of Civ.R. 60(B);

and (3) the motion is made within a reasonable time and, where the grounds for relief

are Civ.R. 60(B)(1), (2), or (3), the motion is made not more than one year after the

judgment was entered. Id. at paragraph two of the syllabus. Appellant claims he is

entitled to relief under Civ.R. 60(B)(4) and (5), which provide: “(4) the judgment has




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been satisfied, released, or discharged, or a prior judgment upon which it is based has

been reversed or otherwise vacated, or it is no longer equitable that the judgment

should have prospective application; or (5) any other reason justifying relief from

judgment.”

       {¶14} “In a foreclosure action, the decree of foreclosure and the order confirming

sale are separate and distinct actions, both of which constitute final appealable orders

once entered.”     Emerson Tool, LLC v. Emerson Family Ltd. Partnership, 9th Dist.

Summit No. 24673, 2009-Ohio-6617, ¶13 (citations omitted). App.R. 4(B)(5) provides:

              If an appeal is permitted from a judgment or order entered in a case
              in which the trial court has not disposed of all claims as to all
              parties, other than a judgment or order entered under Civ.R. 54(B),
              a party may file a notice of appeal within thirty days of entry of the
              judgment or order appealed or the judgment or order that disposes
              of the remaining claims. Division (A) of this rule applies to a
              judgment or order entered under Civ.R. 54(B). [Emphasis added.]

       {¶15} “[W]here there are multiple claims and/or parties involved, an entry

entering final judgment as to one or more but fewer than all of the claims or parties is

not a final, appealable order in the absence of Civ.R. 54(B) language stating that ‘there

is no just reason for delay[.]’” W. Res. Port Auth. v. Range Resources-Appalachia, LLC,

11th Dist. Portage No. 2015-T-0036, 2015-Ohio-2903, ¶8, quoting Civ.R. 54(B)

(citations omitted).

       {¶16} The order granting summary judgment and entering a decree in

foreclosure were in the same order and contained the above Civ.R. 54(B) language;

therefore, appellant only had until June 8, 2015, to file an appeal. See App.R. 4(A).

Instead of filing a direct appeal, appellant waited until March 30, 2016, to file a Civ.R.

60(B) motion, requesting the trial court set aside the May 7, 2015 judgment. The Civ.R.




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60(B) motion essentially attacked (1) the standing of appellee to file suit and (2) the

sufficiency of the affidavit and evidence that formed the basis for the trial court’s grant of

summary judgment. Both of those issues could have been, and should have been,

raised in a direct appeal from the May 7, 2015 judgment.

       {¶17} Appellant did not appeal the May 7, 2015 judgment and is using Civ.R.

60(B) as a vehicle to launch a collateral attack on that judgment. However, the doctrine

of res judicata prevents a party from using a Civ.R. 60(B) motion to “obtain relief from

his or her own choice to forgo an appeal from an adverse decision.” Bank of Am., N.A.

v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶15. Therefore, appellant’s arguments

are barred by res judicata. Id. at ¶16.

       {¶18} Furthermore, the trial court’s May 7, 2015 judgment is not void ab initio. A

judgment is void where the court lacks subject-matter jurisdiction over the case.

Wagenbrenner v. Wagenbrenner, 10th Dist. Franklin No. 10AP-933, 2011-Ohio-2811,

¶11 (citation omitted). A void judgment is a legal nullity that can be collaterally attacked

and is not subject to the doctrine of res judicata. Id. In contrast, a voidable judgment is

rendered by a court with jurisdiction, but the judgment is irregular or erroneous. Id.

(citations omitted). A voidable judgment has the same effect as a proper legal order

unless it is challenged through a direct appeal on the merits. Id. (citation omitted).

       {¶19} A court that has subject-matter jurisdiction over an action does not lose

that jurisdiction because a party to the action lacks standing. Kuchta, supra, at ¶17.

Therefore, a lack of standing cannot be used to collaterally attack a judgment. Id. at

¶25. In Kuchta, the Ohio Supreme Court stated:

              Standing is certainly a jurisdictional requirement; a party’s lack of
              standing vitiates the party’s ability to invoke the jurisdiction of a



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              court—even a court of competent subject-matter jurisdiction—over
              the party’s attempted action. But an inquiry into a party’s ability to
              invoke a court’s jurisdiction speaks to jurisdiction over a particular
              case, not subject-matter jurisdiction.

              ***

              * * * Accordingly, Bank of America’s alleged lack of standing to
              initiate a foreclosure action against the Kuchtas would have no
              effect on the subject-matter jurisdiction of the [trial court] over the
              foreclosure action.

              ***

              We hold that the Kuchtas did not establish that the judgment
              entered by the [trial court] was void ab initio[.]

Id. at ¶22-24 (emphasis sic) (internal citations omitted).

       {¶20} Here, the trial court had subject-matter jurisdiction over appellee’s action

in foreclosure. See id. at ¶20 (stating that actions in foreclosure are within the subject-

matter jurisdiction of courts of common pleas). Appellee’s alleged lack of standing did

not deprive the trial court of its subject-matter jurisdiction. Any alleged error in the

court’s exercise of its jurisdiction as claimed by appellant would be voidable rather than

void and would, therefore, have to be addressed on direct appeal rather than collaterally

through a Civ.R. 60(B) motion. See id. at ¶19.

       {¶21} Even if appellant’s arguments were not barred by res judicata, the trial

court did not abuse its discretion when it denied his Civ.R. 60(B) motion as being

untimely.

       {¶22} Pursuant to Civ.R. 60(B), a motion for relief from judgment based on

subsections (4) and (5) must be brought “within a reasonable time.” The trial court

entered the judgment granting appellee’s motion for summary judgment and ordering

the decree in foreclosure on May 7, 2015.         More than ten months later, after the



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confirmation of sale and distribution of proceeds had already been entered, appellant

filed his Civ.R. 60(B) motion to set aside the May 7, 2015 judgment. The trial court

denied appellant’s Civ.R. 60(B) motion, stating it was untimely filed. In his motion,

appellant stated he was entitled to relief under Civ.R. 60(B)(4) and (5), but failed to

demonstrate that his motion was filed within a reasonable time. On appeal, appellant

similarly fails to demonstrate that his motion was filed within a reasonable time and

provides no explanation for the ten-month delay. The trial court, therefore, did not

abuse its discretion in denying appellant’s Civ.R. 60(B) motion.

      {¶23} Appellant’s assignments of error are without merit.

      {¶24} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.




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