[Cite as U.S. Bank, Natl. Assn. v. Hull, 2017-Ohio-2914.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

U.S. BANK, NATIONAL ASSN.                                   C.A. No.   16CA010979

        Appellee

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
BRAD A. HULL, et al.                                        COURT OF COMMON PLEAS
                                                            COUNTY OF LORAIN, OHIO
        Defendants                                          CASE No.   12CV178512

        and

LISA A. HULL

        Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: May 22, 2017



        CALLAHAN, Judge.

        {¶1}     Appellant, Lisa Hull, nka Pavkovich, appeals the judgment entered in favor of

Appellee, U.S. Bank, National Association (“the Bank”), in the Lorain County Court of Common

Pleas. For the reasons set forth below, this Court affirms.

                                                       I.

        {¶2}     The Bank filed a foreclosure action against Lisa and Brad Hull, the mortgagors, in

November 2012. At the time of the foreclosure filing, Lisa and Brad Hull were involved in

divorce proceedings.

        {¶3}     Ms. Hull’s divorce attorney filed an answer on her behalf on March 7, 2013. In

this answer, she admitted the allegations in paragraph 1 of the complaint which stated “[the
                                                   2


Bank] is in possession of, and entitled to enforce, a note executed by the defendants, Brad A.

Hull and Lisa A. Hull.” A month later, Mr. Hull’s divorce attorney filed an answer on behalf of

both of them. Their joint answer denied for want of knowledge that the Bank had possession of

and was entitled to enforce the note. Neither answer asserted standing as an affirmative defense.

       {¶4}    After a number of pretrials, the Bank filed a motion for summary judgment. The

Bank supported its motion for summary judgment with the affidavit from a representative of the

Bank’s servicing agent. As to standing, the representative averred that “[a]t the time of the filing

of the complaint * * *, and to date, [the Bank] * * *, has been in possession of the Promissory

Note.” The defendants failed to file a response brief.

       {¶5}    On October 24, 2013, the magistrate granted the Bank’s summary judgment and

the judge adopted the magistrate’s decision and entered a decree of foreclosure. No appeal was

filed. Sheriff’s sales were scheduled and canceled during the next two years, three times because

the Bank was “reviewing the file for loss mitigation options” with the homeowners and one time

due to an investor-directed moratorium.1

       {¶6}    Twenty-six months after the trial court granted summary judgment, Ms. Hull filed

a motion to set aside the judgment and requested a hearing. The Bank opposed the motion. The

trial court denied the motion without a hearing.

       {¶7}    Ms. Hull timely appeals, raising one assignment of error for review.




1
  The Bank’s brief indicates the sheriff’s sales were canceled due to Lisa and Brad Hull’s
bankruptcy filings. However, the trial court’s orders do not reflect that as the basis for canceling
the sheriff’s sales. Further, the docket contains only one notice of bankruptcy for Ms. Hull and it
was filed after the Bank’s motion to withdraw the fourth sheriff’s sale.
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                                                II.

                                 ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO
        SET ASIDE JUDGMENT WITHOUT HOLDING AN EVIDENTIARY
        HEARING.

        {¶8}   In her sole assignment of error, Ms. Hull argues the trial court erred by not

holding a hearing on her Civ.R. 60(B) motion. She argues that she set forth operative facts in her

motion and affidavit and was entitled to a hearing. This Court disagrees.

        {¶9}   In order to prevail on a Civ.R. 60(B) motion, the movant must establish that: (1)

the party has a meritorious defense or claim; (2) a circumstance arises under Civ.R. 60(B)(1)-(5);

and (3) the motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC

Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. If any of these three

requirements are not met, the motion must be denied. Rose Chevrolet, Inc. v. Adams, 36 Ohio

St.3d 17, 20 (1988). However, “Civ.R. 60(B) may not be used as a substitute for appeal.” Doe v.

Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128, 131 (1986).

        {¶10} A movant does not have an automatic right to a hearing on a motion for relief

from judgment. Youssefi v. Youssefi, 81 Ohio App.3d 49, 52 (9th Dist.1991), citing Adomeit v.

Baltimore, 39 Ohio App.2d 97, 103 (8th Dist.1974). “It is an abuse of discretion for a trial court

to overrule a Civ.R. 60(B) motion for relief from judgment without first holding an evidentiary

hearing only if the motion or supportive affidavits contain allegations of operative facts which

would warrant relief under Civ.R. 60(B).” (Emphasis sic.) Boster v. C & M Servs., Inc., 93 Ohio

App.3d 523, 526 (10th Dist.1994); see Fairbanks Capital Corp. v. Unknown Heirs at Law,

Devisees, Legatees, Exrs. or Admrs. of Douglas, 9th Dist. Summit No. 22733, 2005-Ohio-6459,

¶ 14.
                                                4


       {¶11} According to the trial court, “at no time [did Ms. Hull] identify any operative facts

to show that she [was] entitled to relief under Civ.R. 60(B)(4) or (5).” Additionally, the trial

court denied the motion as being an improper substitute for an appeal and barred by res judicata.

       {¶12} On appeal, Ms. Hull limits her argument to the trial court’s failure to conduct a

hearing and relies solely on Civ.R. 60(B)(4). Ms. Hull ignores the trial court’s determination that

her Civ.R. 60(B) motion was barred by res judicata.

       {¶13} This Court finds it is unnecessary to review whether the trial court abused its

discretion in denying Ms. Hull’s Civ.R. 60(B) motion without a hearing, because res judicata

bars this Court’s consideration of Ms. Hull’s assigned error. “The doctrine of res judicata

precludes a party from relitigating any issue that was, or should have been, litigated in a prior

action between the parties.” Dun-Rite Constr., Inc. v. Hoover Land Co., 9th Dist. Summit No.

25731, 2011-Ohio-4769, ¶ 8. “[L]ack of standing is an issue that is cognizable on appeal, and

therefore it cannot be used to collaterally attack a judgment.” Bank of Am., N.A. v. Kuchta, 141

Ohio St.3d 75, 2014-Ohio-4275, ¶ 25.

       {¶14} In her Civ.R. 60(B) motion, Ms. Hull argued as a meritorious defense that the

Bank lacked standing at the time it filed the foreclosure action. While Ms. Hull did not assert an

affirmative defense for lack of standing, she admitted the Bank had standing in her original

answer and then denied the Bank had standing in her subsequent answer. Based on her answers,

Ms. Hull challenged the Bank’s standing.

       {¶15} In support of its summary judgment motion, the Bank submitted an affidavit

setting forth its standing to bring the foreclosure action. Ms. Hull did not file any opposition to

the Bank’s summary judgment.        The issue of standing could have been challenged at the

dispositive motion stage, but was not.
                                                 5


       {¶16} Further, Ms. Hull did not file an appeal of the trial court’s decree of foreclosure.

Instead, Ms. Hull waited twenty-six months to file her Civ.R. 60(B) motion, thereby rendering it

a substitute for an appeal. “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.” Kutcha,

141 Ohio St.3d 75, 2014-Ohio-4275, at ¶ 16, citing Harris v. Anderson, 109 Ohio St.3d 101,

2006-Ohio-1934, ¶ 8-9.

       {¶17} Ms. Hull has not demonstrated the existence of an injustice so great as to warrant

a departure from the application of res judicata. See Kutcha at ¶ 15. Instead, the record merely

reflects that Ms. Hull failed to appeal the foreclosure judgment. However, Civ.R. 60(B) “does

not exist to allow a party to obtain relief from his or her own choice to forgo an appeal from an

adverse decision.” Id., citing Ackermann v. United States, 340 U.S. 193, 198 (1950).

       {¶18} In this case, Ms. Hull filed a Civ.R. 60(B) motion in order to relitigate an issue

that she had raised at the start of litigation, but failed to raise in response to the Bank’s summary

judgment motion and failed to pursue on appeal. Thus, the doctrine of res judicata bars her

attempted collateral attack against the judgment in foreclosure. See Kutcha at ¶ 16; see JP

Morgan Grantor Trustee v. Sponseller, 9th Dist. Summit No. 27244, 2014-Ohio-5533, ¶ 8, 10;

see Deutsche Bank Trust Co. Americas v. Ziegler, 2d Dist. Montgomery No. 26287, 2015-Ohio-

1586, ¶ 56, 62; see Bank of New York Mellon v. McMasters, 11th Dist. Lake No. 2014-L-112,

2015-Ohio-1769, ¶ 15-16; see Bank of New York Mellon v. Hutchins, 8th Dist. Cuyahoga No.

100435, 2014-Ohio-2765, ¶ 8, 10. Because res judicata bars this Court’s consideration of Ms.

Hull’s assigned error, her assignment of error is overruled.
                                                 6


                                                III.

       {¶19} Ms. Hull’s sole assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT


HENSAL, P. J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:

MARC E. DANN and EMILY WHITE, Attorneys at Law, for Appellant.

SCOTT A. KING and TERRY W. POSEY, JR., Attorneys at Law, for Appellee.
