[Cite as Ditech Fin., L.L.C. v. VAT Mgt., L.L.C., 2020-Ohio-485.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


DITECH FINANCIAL, L.L.C.,                              :

                 Plaintiff-Appellee,                   :
                                                                    No. 107546
                 v.                                    :

VAT MANAGEMENT, L.L.C., ET AL.,                        :

                 Defendants-Appellants.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: DISMISSED
                 RELEASED AND JOURNALIZED: February 13, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-17-875340


                                            Appearances:

                 Cooke Demers, L.L.C., David J. Demers, and Michelle L.
                 Polly-Murphy, for appellee.

                 Sandor W. Sternberg, for appellant.


FRANK D. CELEBREZZE, JR., J.:

                Defendant-appellant, VAT Management, L.L.C. (“VAT”), brings the

instant appeal from the trial court’s judgment granting summary judgment in favor

of plaintiff-appellee, Ditech Financial, L.L.C. (“Ditech”), in a foreclosure action.

VAT argues that there are genuine issues of material fact, and summary judgment
was improper. After a thorough review of the record and law, this court dismisses

the appeal.

                        I. Factual and Procedural History

              On October 30, 2006, Vonceil Murphy (“Murphy”) executed a

promissory note and mortgage from Wells Fargo Bank in the amount of $145,800.

The promissory note was secured by a mortgage executed by Murphy for the

property located at 5641 Bartlett Road, Bedford, Ohio. The mortgage was then

assigned to Countrywide Mortgage, which was subsequently absorbed by Bank of

America. The mortgage was again assigned from Bank of America to Ditech. On

March 17, 2014, Murphy conveyed the subject property to VAT through a quitclaim

deed.

              On May 13, 2014, Ditech sent Murphy a notice of default stating that

Murphy failed to make payments on the mortgage, and that Murphy owed

$140,605.40 with interest at 7 percent annum from “October 15, 2014.” The notice

was sent to Murphy’s attorney’s office, and was addressed as “Vonceil Murphy c/o

Sternberg, 56 Milford Dr Ste 310, Hudson Ohio.” On October 28, 2014, Ditech filed

an in rem foreclosure action against VAT and Murphy in Cuyahoga C.P. No. CV-14-

834967. VAT then filed a motion to dismiss for failure to state a claim. The trial

court granted VAT’s motion to dismiss and dismissed Ditech’s foreclosure complaint

without prejudice.

              Thereafter, on February 2, 2015, Ditech filed a second in rem

foreclosure action against VAT and Murphy in Cuyahoga C.P. No. CV-15-839861.
On January 6, 2017, the trial court dismissed the second foreclosure action without

prejudice for Ditech’s failure to perfect service as was previously ordered by the trial

court.

             On February 2, 2017, Ditech filed a third foreclosure action in Cuyahoga

C.P. No. CV-17-875340, which is the subject of the instant appeal. This third action

was also an in rem foreclosure action, and named VAT as the party defendant and

excluded Murphy in the action. In its complaint, Ditech stated that Murphy had

been relieved of any personal liability on the mortgage due to her discharge in

bankruptcy. On May 15, 2017, Ditech filed a motion for summary judgment.

              On June 1, 2017, VAT filed an amended answer instanter, and alleged

several affirmative defenses. Specifically, VAT alleged (1) the foreclosure complaint

failed to state a claim upon which relief could be granted; (2) Ditech “failed to

properly give notice of [the default] in writing sent to the address of the property

which is the subject hereof as required under Paragraph 15 of [the mortgage];” (3)

Ditech failed to join necessary parties that are required by Civ.R. 19; and (4) Ditech

failed to perform all conditions precedent prior to the acceleration of the notice of

default. On June 14, 2017, Murphy filed a motion to intervene that was denied by

the trial court.

             Then, on August 31, 2017, VAT filed a motion to strike Ditech’s

supporting affidavit and exhibits attached to Ditech’s motion for summary

judgment. VAT also filed a motion for summary judgment.
             On September 15, 2017, the magistrate issued a decision granting

Ditech’s motion for summary judgment and denying VAT’s motions.                      The

magistrate’s decision entered a decree of foreclosure against VAT.

             On October 6, 2017, VAT filed objections to the magistrate’s decision.

On October 11, 2017, the trial court issued a judgment entry granting a decree of

foreclosure. Then on October 26, 2017, the trial court, sua sponte, issued a journal

entry striking its October 11, 2017 judgment entry on the basis that VAT had filed

timely objections to the magistrate’s decision, and the trial court ordered the matter

to be returned to its active docket. On July 13, 2018, the trial court issued a judgment

entry overruling VAT’s objections and entered a decree of foreclosure against VAT.

              On August 15, 2018, VAT filed a motion seeking a stay of the execution

of the judgment and seeking a waiver of the supersedeas bond. In addition, on

August 15, 2018, VAT filed the instant notice of appeal.

              On August 24, 2018, the trial court issued a journal entry denying

VAT’s motion seeking a stay and waiver of the supersedeas bond. The trial court’s

journal entry specifically stated:

      [Civ.R. 62(B)] states that an appellant may obtain stay of execution of
      judgment or any proceedings to enforce judgment by giving an
      adequate supersedeas bond. The bond may be given at or after the time
      of filing the notice of appeal. [Civ.R. 62(B)]. Further, a stay is effective
      when the supersedeas bond is approved by the court. [Civ.R. 62(B)].

              On December 4, 2018, in this court, VAT filed a motion for stay of

execution and waiver of supersedeas bond. Ditech filed a brief in opposition on
December 5, 2018. On December 6, 2018, this court issued a journal entry denying

VAT’s motion. See motion No. 523460.

              On December 17, 2018, Ditech filed an order of sale in the trial court

notifying the court that the subject property was sold at an auction. The subject

property was sold to Ditech that in turn assigned its bid to the Federal National

Mortgage Association. On December 24, 2018, Ditech then filed a motion for

confirmation of sale and distribution of proceeds in the trial court. VAT did not file

a response opposing this motion. On March 12, 2019, the trial court issued a journal

entry holding Ditech’s motion for confirmation of sale and distribution of proceeds

in abeyance. Then, on July 30, 2019, Ditech filed a motion to lift the stay and for

confirmation of sale. Again, VAT did not file a response opposing this motion. On

October 16, 2019, the trial court issued a judgment entry granting Ditech’s motion

to lift the stay and for confirmation of sale, and confirmed the sale and ordered the

distribution of the proceeds.

              Additionally, and while the instant appeal was pending, Ditech filed

for Chapter 11 bankruptcy. On April 11, 2019, Ditech filed in this court a “notice of

filing of bankruptcy and imposition of automatic stay.” This court, on April 25, 2019,

issued a journal entry granting Ditech’s motion. On November 14, 2019, Ditech filed

a status update notifying this court of its confirmation of bankruptcy. On November

20, 2019, this court issued a journal entry reinstating the instant appeal to this

court’s active docket.

              VAT assigns a sole assignment of error for our review:
      I. The trial court erred in granting summary judgment to [Ditech] and
      ruling that there existed no genuine issue of material fact.

                                II. Law and Analysis

              In VAT’s sole assignment of error, it argues that the trial court erred

in granting summary judgment in favor of Ditech because there existed genuine

issues of material fact.

              Prior to addressing VAT’s arguments, we note that VAT neither

obtained a stay nor posted a supersedeas bond after filing its notice of appeal. In a

foreclosure action, an appeal from a decree of foreclosure is moot where the debtors

fail to obtain a stay from the distribution of proceeds or the confirmation of sale by

posting the required bond. Provident Funding Assocs., L.P. v. Turner, 8th Dist.

Cuyahoga No. 100153, 2014-Ohio-2529, ¶ 6.

              An action is moot

      ‘“[w]here the court rendering judgment has jurisdiction of the subject-
      matter of the action and of the parties, and fraud has not intervened,
      and the judgment is voluntarily paid and satisfied, such payment puts
      an end to the controversy, and takes away from the defendant the right
      to appeal or prosecute error or even to move for vacation of judgment.”’

Blodgett v. Blodgett, 49 Ohio St.3d 243, 245, 551 N.E.2d 1249 (1990), quoting

Rauch v. Noble, 169 Ohio St. 314, 316, 159 N.E.2d 451 (1959), quoting Lynch v.

Lakewood City School Dist. Bd. of Edn., 116 Ohio St. 361, 156 N.E. 188 (1927),

paragraph three of the syllabus.

              Furthermore, as this court has noted

      “[w]here a defendant in a foreclosure action fails to obtain a stay of the
      distribution of the proceeds, any appeal therefrom is moot because ‘the
      matter has been extinguished through satisfaction of the judgment, 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.”

Blisswood Village Home Owners Assn. v. Genesis Real Estate Holdings Group,

L.L.C., 8th Dist. Cuyahoga No. 105861, 2018-Ohio-1092, ¶ 13, quoting Bankers

Trust Co. of Cal., N.A. v. Tutin, 9th Dist. Summit No. 24329, 2009-Ohio-1333, ¶ 16.

              In the instant case, VAT attempted to obtain a stay in the trial court

and in this court. In particular, and contemporaneous with its filing of its notice of

appeal, VAT filed a motion seeking a stay of the execution of the judgment and a

waiver of the supersedeas bond in the trial court. The trial court denied VAT’s

motion. After the trial court denied VAT’s motion, VAT then failed to post the

required bond to prevent the sale and the distribution of the proceeds. Then, in this

court, VAT again filed a motion for stay of execution and waiver of supersedeas bond

that was denied by this court. Although VAT attempted to obtain a stay, it failed to

take the proper steps in order to obtain a stay.

              Moreover, while the instant appeal was pending, the foreclosed

property was sold at an auction pursuant to court order, and the court entered a

decree of confirmation of the sale on October 16, 2019. Subsequently, the proceeds

from the sheriff's sale were distributed on October 16, 2019. Therefore, the property

has been sold, the order of confirmation has been carried out, and the proceeds from

the sale have been distributed. Accordingly, VAT’s appeal is moot and there is no

relief that this court can afford to VAT. Turner, 8th Dist. Cuyahoga No. 100153,
2014-Ohio-2529, at ¶ 6; Blisswood Village Home Owners Assn. at ¶ 11; U.S. Bank

Trust Natl. Assn. v. Janossy, 2018-Ohio-2228, 114 N.E.3d 668, ¶ 7 (8th Dist.).

             Accordingly, the appeal is dismissed.

      It is ordered that appellee recover of appellant costs herein taxed.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
