[Cite as BAC Home Loans Servicing, LP v. Henderson, 2013-Ohio-275.]




                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98745


                  BAC HOME LOANS SERVICING, LP
                                                PLAINTIFF-APPELLANT

                                                  vs.

                   DWAYNE R. HENDERSON, ET AL.
                                                DEFENDANTS-APPELLEES




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-703485

        BEFORE:          Keough, J., Jones, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                        January 31, 2013
ATTORNEYS FOR APPELLANT

Matthew T. Anderson
Timothy M. Clayton, Jr.
Brett M. Renzenbrink
Luper Neidenthal & Logan
50 West Broad Street
Suite 1200
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEES

For Dwayne R. Henderson

John Sherrod
Laura Mills
Paul Vincent
Mills, Mills, Fiely & Lucas
503 South Front Street
Suite 240
Columbus, Ohio 43215

For Centurion Capital Corp.

Centurion Capital Corp.
700 King Farm Blvd.
Rockville, Maryland 20850

For Alishea T. Henderson

Alishea T. Henderson
5188 Spencer Road
Lyndhurst, Ohio 44124

For St. Colman & Affiliates F.C.U.

St. Colman & Affiliates F.C.U.
6637 Lorain Avenue
Cleveland, Ohio 44102

For State of Ohio Department of Taxation
Joseph T. Chapman
Collections Enforcement
150 E. Gay Street, 21st Floor
Columbus, Ohio 43215

For Unknown Tenant

Unknown Tenant
5188 Spencer Road
Lyndhurst, Ohio 44124




KATHLEEN ANN KEOUGH, J.:
       {¶1} Plaintiff-appellant, BAC Home Loans Servicing (“BAC”) appeals from the

trial court’s judgment that vacated a prior foreclosure decree against defendant-appellee,

Dwayne R. Henderson (“Henderson”), and dismissed BAC’s complaint without

prejudice.   For the reasons that follow, we reverse and remand.

                                     I. Background

       {¶2} In September 2009, BAC filed its complaint in foreclosure alleging that it

was the owner of a note secured by a mortgage on property located at 5188 Spencer Road,

Lyndhurst, Ohio 44124, Henderson had defaulted on the note, and BAC was entitled to

foreclose on the mortgage.       Henderson did not answer the complaint 1 and BAC

subsequently filed a motion for default judgment.          The matter was referred to a

magistrate, who issued a decision entering judgment for BAC on its motion. On April

15, 2010, the trial court issued a journal entry adopting the magistrate’s decision. The

court ordered judgment for BAC against Henderson, entered a decree of foreclosure, and

ordered that BAC could proceed to sheriff’s sale of the property.

       {¶3} A sale date was set for June 21, 2010, but two days prior to the sale,

Henderson filed a Chapter 13 petition for bankruptcy.          Accordingly, the sale was

withdrawn and the proceedings were stayed.       After Henderson’s bankruptcy case was

dismissed, the property was again set for sheriff’s sale on June 11, 2012.




       Defendant State of Ohio, Department of Taxation, was the only defendant
       1

that answered the complaint; the department disclaimed any interest in the
property                  and                  was                   dismissed.
       {¶4} Henderson then filed a request for mediation.       On May 30, 2012, the trial

court denied Henderson’s request and ordered that BAC could proceed to execute on its

judgment.

       {¶5} Henderson then filed another request for mediation. On June 7, 2012, the

trial court entered an order finding that the case might be suitable for mediation and

staying all discovery and motion practice pending the mediator’s final determination

regarding suitability for mediation.   The trial court ordered that the case would be set for

a pre-mediation conference by separate order, and further ordered that “failure of

plaintiff’s counsel to appear will result in the 04/15/10 judgment being vacated, and

dismissal of all claims without prejudice.”       The court ordered the property sale to

proceed but stayed confirmation of the sale pending the results of mediation.

       {¶6} On June 12, 2012, the trial court issued a journal entry setting the

pre-mediation conference for July 2, 2012 and again ordering that “failure of the

plaintiff’s counsel to appear in person at the pre-mediation conference will result in

dismissal of the plaintiff’s claims without prejudice.”

       {¶7} BAC’s counsel did not appear at the pre-mediation conference. On July 3,

2012, the trial court issued a journal entry ordering that “pursuant to this court’s order

dated June 7, 2012, the judgment and decree of foreclosure dated 4-15-10 and the

sheriff’s sale of 6-11-12 are vacated.”   The court ordered the sheriff to return the order

of sale without execution and to mark as void any deed that had been prepared as a result

of the sale. Finally, the trial court ordered that BAC’s claims were dismissed without

prejudice.
                                       II.    Analysis

       {¶8} BAC raises three assignments of error, all of which challenge the trial

court’s July 3, 2012 journal entry. In its first assignment of error, BAC argues that the

trial court erred in sua sponte vacating its April 15, 2010 judgment and decree of

foreclosure; in its second assignment, BAC contends that the trial court erred in sua

sponte vacating the sheriff’s sale; and in its third assignment, BAC contends that the trial

court erred in sua sponte dismissing its foreclosure action. We agree with all of BAC’s

contentions.

       {¶9} The trial court’s April 15, 2010 judgment ordering foreclosure and sale of

the property was a final, appealable order.    Sky Bank v. Mamone, 182 Ohio App.3d 323,

2009-Ohio-2265, 912 N.E.2d 668, ¶ 25 (8th Dist.), citing Smith v. Najjar, 163 Ohio

App.3d 208, 2005-Ohio-4720, 837 N.E.2d 419, ¶ 10 (5th Dist.) (“An order of foreclosure

and sale is a final appealable order, * * * and the later order confirming the sale * * * is a

second, separate, final appealable order.”); see also Mtge. Elec. Reg. Sys., Inc. v.

Harris-Gordon, 6th Dist. No. L-10-1176, 2011-Ohio-1970, ¶ 10 (both the order of

foreclosure and the order confirming the sheriff’s sale are final, appealable orders).

       {¶10} A trial court has no authority to sua sponte vacate its own final orders.     In

re R.T.A., 8th Dist. No. 98498, 2012-Ohio-5080, ¶ 5, citing Dickerson v. Cleveland

Metro. Hous. Auth., 8th Dist. No. 96726, 2011-Ohio-6437, ¶ 7. Since the adoption of

the Civil Rules, Civ.R. 60(B) provides the exclusive means for a trial court to vacate a

final judgment. In re R.T.A., supra, citing Rice v. Bethel Assoc., Inc., 35 Ohio App.3d
133, 520 N.E.2d 26 (9th Dist.1987); In re D.R.M., 8th Dist. No. 98633, 2012-Ohio-5422,

¶ 7.

         {¶11} Here, neither party filed a Civ.R. 60(B) motion for relief from judgment nor

asked the court to vacate any of the provisions of the court’s April 15, 2010 judgment.

Accordingly, the trial court erred in sua sponte vacating its judgment of foreclosure in

favor of BAC and in sua sponte vacating the sheriff’s sale.

         {¶12} Henderson concedes that a court is without authority to sua sponte vacate its

final judgments but argues that the trial court had authority in this case to dismiss the

foreclosure action without prejudice because the court gave notice that the matter would

be dismissed if the parties failed to appear at the pre-mediation conference.

Henderson’s argument is without merit.      Because the trial court had entered a judgment

of foreclosure for BAC and ordered the property to be sold at sheriff’s sale — a final

judgment — the court was without authority to sua sponte vacate its judgment and

dismiss the case.    Henderson’s remedy upon the trial court’s order of foreclosure and

sale was to file an appeal or a Civ.R. 60(B) motion for relief from judgment in the trial

court.    Because he did not file a Civ.R. 60(B) motion, the trial court was without

authority to sua sponte vacate its final judgment of foreclosure and sale and dismiss the

case.

         {¶13} BAC’s assignments of error are therefore sustained.        The trial court’s

judgment entry dated July 3, 2012 is reversed, and the matter is remanded to the trial

court with instructions to reinstate the April 15, 2010 judgment entry.

         {¶14} Reversed and remanded.
          It is, therefore, considered that said appellant recover of said appellee its costs

herein.

          It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
