[Cite as US Bank Natl. Assn. v. Marino, 2012-Ohio-1487.]




                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR WFASC 2005- AR2

                        Plaintiff-Appellee

-vs-

MICHAEL D. MARINO, ET AL

                 Defendants-Appellants


       JUDGES:
:      Hon. W. Scott Gwin, P.J.
:      Hon. William B. Hoffman, J.
:      Hon. Sheila G. Farmer, J.
:
:
:      Case No. 2011CAE11 0108
:
:
:      OPINION




CHARACTER OF PROCEEDING:                              Civil appeal from the Delaware County
                                                      Court of Common Pleas, Case No. 10 CVE
                                                      05 0824

JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               March 30, 2012
APPEARANCES:

For Plaintiff-Appellee                       For Defendant-Appellant

SCOTT KING                                   MARC E. DANN
TERRANCE MEBANE                              GRACE DOBERDRUK
41 South High Street, Ste. 1700              20521 Chagrin Blvd., Ste. D
Columbus, OH 43215                           Shaker Heights, OH 44122


Gwin, P.J.

         {1}   Defendant-appellant Michael D. Marino appeals a judgment of the Court of

Common Pleas of Delaware County, Ohio, which overruled their motion for relief from

judgment brought pursuant to Civ. R. 60 (B). Plaintiff-appellee is U.S. Bank National

Association as Trustee for WFASC 2005-AR2. Appellant assigns two errors to the trial

court:

         {2}   “I. IT WAS AN ABUSE OF DISCRETION NOT TO VACATE THE

JUDGMENT UNDER CIVIL RULE 60 (B)(5) WHEN PLAINTIFF-APPELLEE FALSELY

FILED A COMPLAINT STATING IT WAS THE HOLDER OF THE NOTE.

         {3}   “II. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO

DENY APPELLANT MICHAEL MARINO’S 60 (B) MOTION TO VACATE WITHOUT

HOLDING A HEARING.”

         {4}   On May 27, 2010, appellee filed a complaint for foreclosure of appellant’s

property on a mortgage and note.        Appellant did not file an answer or any other

response and on July 2, 2010, appellee filed its motion for default judgment, along with

a notice of filing an allonge of the note and a notice of filing of assignment of mortgage.

The trial court entered judgment for appellee on September 1, 2010.
      {5}     On November 5, 2010, appellant filed a Motion for Relief from Judgment,

and supplemented the motion on February 28, 2011. The court overruled the motion.

                                               I.

      {6}     In their first assignment of error, appellant argues the court abused its

discretion in overruling his motion to vacate the judgment because appellee

misrepresented itself as the holder of note.

      {7}     Civ. R. 60 (B) states:

      {8}     On motion and upon such terms as are just, the court may relieve a

      party or his legal representative from a final judgment, order or proceeding

      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 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

      or taken. A motion under this subdivision (B) does not affect the finality of

      a judgment or suspend its operation.
       {9}    The decision whether to grant a motion for relief from judgment under

Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d

75, 514 N.E.2d 1122 (1987). In order to find an abuse of discretion, we must determine

the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {10}   A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:

(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief

under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be

timely. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351

N.E.2d 113 (1976) paragraph two of the syllabus. If a party fails to establish any one of

these three requirements, the motion must be overruled.           Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).

       {11}   Appellant argues the note attached to the complaint was payable to M/I

Financial Corporation, and contains an endorsement to Wells Fargo Bank, N.A. There

was no documentation of a transfer to appellee, but the first paragraph of the complaint

stated appellee was the holder of the note.

       {12}   On July 2, 2010, appellee filed a notice of filing note with allonge. The

allonge was a transfer of the note from Wells Fargo Bank, N.A. to appellee.             The

assignment of mortgage filed with it transferred to appellee the mortgage from Mortgage

Electronic Registration System, Inc. as nominee for M/I Financial Corporation its

successors and assigns. The assignment of mortgage was executed on July 8, 2010,

approximately two weeks after the filing of the complaint.
       {13}   Appellant argues appellee was not the holder of the note at the time the

complaint was filed, and thus, the first paragraph of its complaint was false, and

appellee had no standing to pursue the foreclosure action.

       {14}   The trial court found appellant could not use Civ. R. 60(B)(5) to assert

appellee committed a fraud on the court by submitting a fraudulent assignment,

affidavit, and allonge. The court found claims based upon fraud should be brought

pursuant to Civ. R. 60 (B)(3).

       {15}   The trial court found in order to have a claim for relief under Civ. R. 60

(B)(3), the adverse party must have prevented the complaining party from fully and fairly

presenting its case or defense.      Judgment Entry at page 8, citing Hardman v.

Chiarmonte, 39 Ohio App. 3d 9, 11, 528 N.E. 2d 1270 (1987). The court correctly

stated the party asserting fraud and misrepresentation has the burden of proving the

assertion by clear and convincing evidence.

       {16}   The trial court found appellee did not prevent appellant from having a fair

opportunity to present defenses to the complaint. The court found appellant had the

opportunity to participate in the litigation, to file an answer, and to participate in

discovery, but chose instead to proceed without an attorney. The court found appellant

had not presented clear and convincing evidence of fraud or misrepresentation.

       {17}   The trial court cited Deutsche Bank National Trust Company v. Pagani,

5th Dist. No. 09CA000013, 2009-Ohio-5665, where the defendants argued when the

plaintiff was not the real party in interest because the note and mortgage had not been

assigned to the plaintiff when it filed its complaint. This court found the plaintiff

demonstrated it had standing because it attached sufficient evidence to its motion for
summary judgment, demonstrating it was in fact the current holder and owner of the

mortgage and note. We find in the case at bar, appellee provided evidence it was the

current holder and owner of the mortgage, which is sufficient under Pagani,supra.

      {18}   As for appellant’s argument regarding the appearance and source of the

various documents, the trial court found no clear and convincing evidence of fraud, and

we agree.

      {19}   The first assignment of error is overruled.

                                               II.

      {20}   In his second assignment of error, appellant argues the court abused its

discretion in not holding a hearing before it ruled on their Civ. R. 60 (B) motion. In Kay

v. Marc Glassman, Inc., 76 Ohio St. 3d 18, 1996-Ohio-430, 665 N.E. 2d 1102, the Ohio

Supreme Court found when a movant files a motion for relief from judgment, the trial

court should grant a hearing to take evidence only if the motion contains operative facts

which would warrant relief under Civ. R. 60 (B). Id. at 19, citing Coulson v. Coulson, 5

Ohio St. 3d 12, 16, 448 N.E. 2d 809 (1983).

      {21}   Upon review we find appellant has not set forth facts indicating he has a

meritorious defense if relief were granted. Appellant’s arguments regarding standing do

not challenge the merits of the case. Appellant does not allege he actually was not in

default nor does he articulate any defense to the foreclosure action.

      {22}   We find the trial court did not abuse its discretion in declining to conduct a

hearing on the matter.

      {23}   The second assignment of error is overruled.
      {24}   For the foregoing reasons, the judgment of the Court of Common Pleas of

Delaware County, Ohio, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur




                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          _________________________________
                                          HON. SHEILA G. FARMER


WSG:clw 0313
          IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                            FIFTH APPELLATE DISTRICT


US BANK NATIONAL ASSOCIATION
AS TRUSTEE FOR WFASC 2005-
AR2                                        :
                                           :
                      Plaintiff-Appellee   :
                                           :
                                           :
-vs-                                       :       JUDGMENT ENTRY
                                           :
MICHAEL D. MARINO, ET AL                   :
                                           :
                                           :
                  Defendant-Appellant      :       CASE NO. 2011CAE11 0108




  For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Delaware County, Ohio, is affirmed. Costs to appellant.




                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. WILLIAM B. HOFFMAN


                                               _________________________________
                                               HON. SHEILA G. FARMER
