[Cite as Bank of New York Mellon Trust Co., Natl. Assn. v. Loudermilk, 2014-Ohio-2546.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

THE BANK OF NEW YORK                                      JUDGES:
MELLON TRUST COMPANY,                                     Hon. William B. Hoffman, P.J.
NATIONAL ASSOCIATION                                      Hon. John W. Wise, J.
                                                          Hon. Patricia A. Delaney, J.
        Plaintiff-Appellee
                                                          Case No. 13-CA-75
-vs-

CHARLES H. LOUDERMILK,                                    OPINION
DECEASED, ET AL.

        Defendants-Appellants



CHARACTER OF PROCEEDING:                              Appeal from the Fairfield County Court of
                                                      Appeals, Case No. 10 CV 106


JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               June 12, 2014


APPEARANCES:


For Plaintiff-Appellee                                For Defendants-Appellants


AMELIA BOWER                                          THOMAS JAMES CORBIN
300 East Broad Street                                 842 North Columbus Street
Suite 590                                             Lancaster, Ohio 43130
Columbus, Ohio 43215
Fairfield County, Case No. 13-CA-75                                                     2

Hoffman, P.J.


      {¶1}    Defendants-appellants    Charles   H.   Loudermilk,    Deceased,    Et   Al.

(“Appellants") appeal the October 14, 2013 Entry entered by the Fairfield County Court

of Common Pleas, which overruled their Motion for Relief from Judgment pursuant to

Civ. R. 60(B). Plaintiff-appellee is The Bank of New York Mellon Trust Co. (“the Bank”).

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Charles Loudermilk (“Loudermilk”) purchased the real property known as

4105 Lancaster–Chillicothe Road S.W., Lancaster, Ohio, in 1968. When he purchased

the property, it consisted of 184 total acres. Loudermilk sold 80.5 acres to third parties

in 1999, and conveyed another 14.3 acres to a third party in 2001. In October, 2001,

Loudermilk mortgaged the remaining 89 acres to Washtenaw Mortgage (“Washtenaw”).

He refinanced one year later with a mortgage to CIT Consumer Finance (“CIT

Consumer”).     With the funds from the CIT Consumer refinance, he paid off the

Washtenaw mortgage. In December of 2004, Loudermilk had a survey performed to

split off ten acres from the 89 acre parcel. The ten acre parcel (“the Parcel”) included

the land on which Loudermilk's three-bedroom home was located. In January of 2005,

Loudermilk refinanced with First Magnus Financial (“First Magnus”), securing the

Parcel. Funds received from the First Magnus mortgage went to pay the CIT Consumer

mortgage, taxes, credit card bills, and the costs of surveying the property. The

description of the Parcel was prepared by a surveyor hired by Vantage Land Title, the

title agency closing both the 2005 and 2006 transactions.
Fairfield County, Case No. 13-CA-75                                                   3


      {¶3}   Loudermilk again refinanced in May, 2006, executing a note in favor of

LoanCity in the amount of $171,000. Loudermilk secured the note with a mortgage to

Mortgage Electronic Registration Systems (“MERS”) as nominee for LoanCity. LoanCity

subsequently endorsed the note in blank and transferred it to Residential Funding

Corporation (“Residential Funding”). Residential Funding then endorsed the note in

blank and transferred it to JPMorgan Chase Bank, N.A.          (“JPMorgan Chase”) as

Trustee for RAMP 2006RS5. Attached to the note is an allonge endorsing the note from

JPMorgan Chase as Trustee for RAMP 2006RS5 to The Bank of New York Mellon Trust

Co. (“the Bank”) as successor to JPMorgan Chase as Trustee for RAMP 2006RS5. At

the time of the refinance, the lender appraised the Parcel. Loudermilk used the funds

from the refinancing to pay off the 2005 mortgage and unsecured debt. The mortgage

contained no legal description, but included the 4105 Lancaster–Chillicothe Road S.W.,

Lancaster, Ohio street address and the auditor's permanent parcel number. The

mortgage was not recorded. At the closing, Loudermilk executed a quit-claim deed to

split the Parcel from the remainder of the 89 acres. While the lot split was approved by

the Fairfield County Engineer, the split was not concluded because the deed process

was not finished.

      {¶4}   Subsequent to the execution of the 2006 mortgage, Loudermilk conveyed

22 acres to a third party, leaving a balance of approximately 67 acres. Loudermilk died

intestate on December 22, 2008. On February 13, 2009, Dale Loudermilk was

appointed administrator of Charles H. Loudermilk's estate. Dale Loudermilk previously

lived in a mobile home on the property, but which was not part of the Parcel. After

Loudermilk's death, Dale Loudermilk moved into the house located on the Parcel, which
Fairfield County, Case No. 13-CA-75                                                    4


had been mortgaged in 2005. Dale Loudermilk testified he had not paid the mortgage,

real estate taxes, rent, or insurance on the property since moving into the house in

2009.

        {¶5}   Appellants defaulted under the terms of the note and mortgage and the

Bank accelerated the debt. On January 27, 2010, the Bank filed a Complaint for

Foreclosure against Loudermilk and Unknown Spouse of Charles H. Loudermilk;

Thomas Corbin; Dale Loudermilk as heir of the Estate of Charles Loudermilk; Pamela

Rupp as heir of the Estate of Charles Loudermilk; and Dale Loudermilk as Administrator

of the Estate of Charles Loudermilk. Copies of the note, allonge to note, and mortgage

were attached as exhibits to the Complaint.

        {¶6}   The Bank filed a motion for summary judgment seeking foreclosure of the

Parcel. Appellants filed a response and a motion for summary judgment. On May 15,

2012, the trial court entered an order granting the Bank's motion for summary judgment.

The trial court instructed the Bank to submit a foreclosure decree. Appellants filed an

appeal of the trial court's May 15, 2012 judgment entry.    This Court affirmed the trial

court’s grant of summary judgment in favor of the Bank via Opinion and Entry filed June

3, 2013. Bank of New York Mellon v. Loudermilk, 5th Dist. Fairfield No.2012–CA–30,

2013–Ohio–2296, ¶ 43. Appellants filed a motion for reconsideration which this Court

denied. The Ohio Supreme Court declined jurisdiction.

        {¶7}   The Bank filed a Praecipe for Order of Sale on July 2, 2013. The property

was appraised. After the appraisement was filed and the sale date set, Appellants

moved the trial court to postpone the sale and requested a hearing on the issue of

ingress and egress to the Parcel, which issue had come to light on June 26, 2013. The
Fairfield County, Case No. 13-CA-75                                                      5


trial court postponed the sale via entry dated September 6, 2013. On September 23,

2013, Appellants filed a motion for relief from judgment. The trial court vacated the

postponement of the sale on September 24, 2013. Via entry dated October 14, 2013,

the trial court overruled Appellants' 60(B) motion.

       {¶8}   It is from the October 14, 2013 judgment entry, Appellants prosecute this

appeal, raising the following as alleged errors:

       {¶9}   "I. THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S

MOTION FOR RELIEF JUDGMENT PURSUANT TO CIVIL RULE 60(B).

       {¶10} "II. THE TRIAL COURT ERRED IN ORDERING THE APPELLANT TO

REIMBURSE THE PLAINTIFF THE COSTS TO RE-ADVERTISE THE SUBJECT

PREMISES FOR SALE."

                                                   I

       {¶11} In the first assignment of error, Appellants maintain the trial court erred in

failing to grant the Civ. R. 60(B) motion for relief from judgment.

       {¶12} Civ. R. 60(B) provides the basis upon which a party may obtain relief from

judgment, and states in pertinent part: “On motion and upon such terms as are just, the

court may relieve a party * * * from a final judgment, order or proceedings for the

following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly

discovered evidence which by due diligence could not have been discovered in time to

move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the

judgment has 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
Fairfield County, Case No. 13-CA-75                                                              6


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

from the judgment. The motion shall be made within a reasonable time, and for reasons

(1), (2), and (3) not more than one year after the judgment, order, or proceeding was

entered to taken.”

       {¶13} To prevail on a motion made pursuant to Civ.R. 60(B), the movant must

demonstrate: (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 Electric, Inc. v.

ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 150–151. Where timely relief is sought

from a default judgment, and the movant has a meritorious defense, doubt should be

resolved in favor of the motion to set aside the judgment so that cases may be decided

on their merits. Id. at paragraph three of the syllabus. Our standard of review of a

court's decision as to whether to grant a Civ. R. 60(B) motion is abuse of discretion. Id.

at 148, 351 N.E.2d 113. The GTE Automatic factors are “independent and conjunctive,

not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App. No. 12–CA–86.

“[F]ailing to meet one is fatal, for all three must be satisfied in order to gain relief.” Id.

       {¶14} For purposes of our review, we shall find, as the trial court did, Appellants'

Civ. R. 60(B) motion was timely filed. We now must determine whether Appellants

established a meritorious defense

       {¶15} Appellants submit the decree of foreclosure must be vacated as the result

of the Ohio Department of Transportation “plac[ing] a condition upon its approval of the
Fairfield County, Case No. 13-CA-75                                                        7


subdivision.”1   Appellants contend, although ODOT permitted the subdivision, such

approval was “only upon condition that access to the remaining acreage be through the

said ten acre tract.” Defendant’s Motion for Relief from Judgment. We disagree.

       {¶16} We do not find ODOT’s statement, “No new points of access shall be

given for this or future lot split” to be a condition for ODOT’s approval of the subdivision.

ODOT expressly approved the split, but noted it would not allow any new points of

access. Even if ODOT’s statement is a condition of approval, we do not find such

requires vacation of the foreclosure decree. The fact the remainder of the Loudermilk

property is left without access and the sale of the Parcel makes no provision for ingress

and egress does not invalidate the mortgage or the Bank’s rights thereunder.

Appellants have adequate remedies at law should access become an issue following

the sale of the Parcel.

       {¶17} Appellants' first assignment of error is overruled.

                                                 II

       {¶18} In the second assignment of error, Appellants contend the trial court erred

in ordering them to reimburse the Bank the costs to re-advertise the subject premises

for sale.




1
  The splitting of the Parcel from the remaining acreage is considered a “subdivision”
within the meaning of the Fairfield County Subdivision Regulations. Therefore, the Bank
needed approval from the Regional Planning Commission in order to complete the
process. The Regional Planning Commission was required to submit the proposed
subdivision to the Ohio Department of Transportation because the subject property
fronts a state highway. ODOT stated it had “no issues with lot split”, but noted,
“however, both the split (10 acres) and the remainder (57.55 acres) utilize existing point
of access as a shared point of access for both parcels.” ODOT then indicated, “No new
points of access shall be given for this or future lot splits.” See, Exhibit “A”, Appellant’s
Motion to Postpone Sale”.
Fairfield County, Case No. 13-CA-75                                                    8


       {¶19} Civ.R. 54(D) permits a trial court to award a prevailing party the costs of

litigating that party's claim, and provides:

               Except when express provision therefore is made either in a statute

       or in these rules, costs shall be allowed to the prevailing party unless the

       court otherwise directs.

       {¶20} This rule gives the trial court broad discretion to assess costs, and the

court's ruling will not be reversed absent an abuse of that discretion.         Vance v.

Roedersheimer, 64 Ohio St.3d 552, 597 N.E.2d 153 (1992).

       {¶21} Upon review of the record, we cannot say the trial court abused its

discretion in ordering Appellants to pay costs associated with re-advertising the subject

property for sale

       {¶22} Appellants' second assignment of error is overruled.

       {¶23} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur
