[Cite as Bank of New York Mellon v. Hutchins, 2014-Ohio-2765.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100435
BANK OF NEW YORK MELLON
PLAINTIFF-APPELLEE
vs.
EDDIE HUTCHINS, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-09-703398
BEFORE: Stewart, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 26, 2014 ATTORNEY FOR APPELLANTS
James R. Douglass James R. Douglass Co., L.P.A. 4600 Prospect Avenue Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
James L. Sassano Eric T. Deighton Carlisle, McNellie, Rini, Kramer & Ulrich Co., L.P.A. 24755 Chagrin Boulevard, Suite 200 Cleveland, OH 44122 MELODY J. STEWART, J.:
{¶1} Defendant-appellant Eddie Hutchins appeals the trial court’s denial of his
motion to vacate judgment in a foreclosure action. In two assigned errors, Hutchins
argues that the trial court erred when it failed to grant his emergency motion to vacate
void judgment on the basis that it was untimely and, secondly, that plaintiff-appellee bank
lacked standing to sue because it failed to plead and prove compliance with certain
conditions precedent. We affirm the decision of the trial court.
{¶2} Bank of New York Mellon commenced a foreclosure action against Hutchins
on September 8, 2009, after Hutchins defaulted on a promissory note and mortgage that
secured the note. Hutchins filed, pro se, an answer containing a general denial of the
allegations and a motion to dismiss the action with prejudice. The trial court denied the
motion to dismiss. Hutchins filed subsequent motions for dismissal and for summary
judgment on the basis of lack of standing, claiming that the bank had not produced any
documentation demonstrating that it was the owner and holder of the note at the time the
complaint was filed. The trial court likewise denied these motions. The bank moved for
summary judgment in April 2010 that was opposed by Hutchins. The magistrate granted
the motion, and the trial court adopted the magistrate’s decision in June 2010. Hutchins
did not appeal this decision. Instead, Hutchins filed an action in federal court
contesting the bank’s jurisdiction. This action was dismissed in August 2010. {¶3} After filing various pro se motions contesting the bank’s standing, Hutchins,
through newly retained counsel, filed in June 2013 an emergency Civ.R. 60(B) motion to
vacate void judgment on jurisdictional grounds. The trial court denied the motion as
untimely. It is from this order Hutchins appeals.
{¶4} Pursuant to Civ.R. 60(B), a movant must demonstrate three factors in order to
obtain relief from judgment: (1) a meritorious defense or claim if relief is granted; (2)
entitlement to relief under Civ.R. 60(B)(1)-(5); and (3) that the motion was filed within a
reasonable time, with a maximum time being one year from the entry of judgment if the
movant alleges entitlement to relief under Civ.R. 60(B)(1)-(3). GTE Automatic Elec. v.
ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the
syllabus.
{¶5} We review a trial court’s decision to deny or grant a Civ.R. 60(B) motion for
an abuse of discretion. Wash. Mut. Bank v. Novak, 8th Dist. Cuyahoga No. 88121,
2007-Ohio-996, 12, citing State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 684
N.E.2d 1237 (1997). An abuse of discretion is more than an error in judgment or law; it
implies an attitude on the part of the trial court that is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶6} In this case, we need not review whether the trial court abused its discretion
in denying Hutchins’s motion to vacate. Res judicata bars our consideration of his
assigned errors. {¶7} Res judicata prevents repeated attacks on a final judgment and applies to all
issues that were or might have been litigated. Bank of New York v. Jackson, 8th Dist.
Cuyahoga No. 99874, 2013-Ohio-5133, 10, citing Rogers v. Whitehall, 25 Ohio St.3d
67, 494 N.E.2d 1387 (1986). “Principles of res judicata prevent relief on successive,
similar motions raising issues which were or could have been raised originally.”
Coulson v. Coulson, 5 Ohio St.3d 12, 13, 448 N.E.2d 809 (1983). See Brick
Processors, Inc. v. Culbertson, 2 Ohio App.3d 478, 442 N.E.2d 1313 (5th Dist.1981),
paragraph one of the syllabus.
{¶8} In its motion for summary judgment that the trial court granted in June
2010, the bank attached a supporting affidavit that averred the following:
1. The note and mortgage attached to Plaintiff’s Complaint are true copies of the original note and mortgage executed by the Defendant.
2. The Defendant is in default of payment of said note; and
3. There is an acceleration provision in Plaintiff’s note and Plaintiff has exercised said provision and called the entire unpaid principal balance with interest immediately due and payable.
Hutchins did not appeal the trial court’s grant of summary judgment in favor of the bank.
As previously noted, he did, however, file various motions with the trial court that
challenged the bank’s standing and the trial court’s jurisdiction, and also requested that
the court stay the foreclosure action. These motions were denied and Hutchins filed no
appeal. Res judicata, therefore, bars Hutchins from using this appeal to attack the trial
court’s final judgment in the underlying case. {¶9} Wells Fargo Bank, N.A. v. Perkins, 10th Dist. Franklin No. 13AP-318,
2014-Ohio-1459, presents a fact pattern similar to this case. In Perkins, the property
owner, like Hutchins, failed to file a direct appeal after the trial court granted summary
judgment in favor of the bank. Perkins instead filed multiple motions for relief from
judgment pursuant to Civ.R. 60(B). Each time the trial court denied these motions,
Perkins appealed the denial. In his third appeal, Perkins argued that the trial court
erroneously denied his motion where the bank’s lack of standing equated to a lack of
subject matter jurisdiction. Perkins had made this same argument in his second Civ.R.
60(B) motion, which also had been denied by the trial court. Perkins, like Hutchins,
cited Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017,
979 N.E.2d 1214, to support his argument that in a foreclosure action where the bank
lacks standing, the court lacks subject matter jurisdiction and any judgment rendered by
the court is void. The Tenth District, however, rejected this argument and affirmed the
decision of the trial court holding that Perkins’s reliance on Schwartzwald was misplaced.
The court stated:
Schwartzwald does not stand for the proposition that a court of common pleas lacks subject-matter jurisdiction over a foreclosure action where the plaintiff lacks standing at the time the complaint is filed.
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[Cite as Bank of New York Mellon v. Hutchins, 2014-Ohio-2765.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100435
BANK OF NEW YORK MELLON
PLAINTIFF-APPELLEE
vs.
EDDIE HUTCHINS, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-09-703398
BEFORE: Stewart, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 26, 2014 ATTORNEY FOR APPELLANTS
James R. Douglass James R. Douglass Co., L.P.A. 4600 Prospect Avenue Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
James L. Sassano Eric T. Deighton Carlisle, McNellie, Rini, Kramer & Ulrich Co., L.P.A. 24755 Chagrin Boulevard, Suite 200 Cleveland, OH 44122 MELODY J. STEWART, J.:
{¶1} Defendant-appellant Eddie Hutchins appeals the trial court’s denial of his
motion to vacate judgment in a foreclosure action. In two assigned errors, Hutchins
argues that the trial court erred when it failed to grant his emergency motion to vacate
void judgment on the basis that it was untimely and, secondly, that plaintiff-appellee bank
lacked standing to sue because it failed to plead and prove compliance with certain
conditions precedent. We affirm the decision of the trial court.
{¶2} Bank of New York Mellon commenced a foreclosure action against Hutchins
on September 8, 2009, after Hutchins defaulted on a promissory note and mortgage that
secured the note. Hutchins filed, pro se, an answer containing a general denial of the
allegations and a motion to dismiss the action with prejudice. The trial court denied the
motion to dismiss. Hutchins filed subsequent motions for dismissal and for summary
judgment on the basis of lack of standing, claiming that the bank had not produced any
documentation demonstrating that it was the owner and holder of the note at the time the
complaint was filed. The trial court likewise denied these motions. The bank moved for
summary judgment in April 2010 that was opposed by Hutchins. The magistrate granted
the motion, and the trial court adopted the magistrate’s decision in June 2010. Hutchins
did not appeal this decision. Instead, Hutchins filed an action in federal court
contesting the bank’s jurisdiction. This action was dismissed in August 2010. {¶3} After filing various pro se motions contesting the bank’s standing, Hutchins,
through newly retained counsel, filed in June 2013 an emergency Civ.R. 60(B) motion to
vacate void judgment on jurisdictional grounds. The trial court denied the motion as
untimely. It is from this order Hutchins appeals.
{¶4} Pursuant to Civ.R. 60(B), a movant must demonstrate three factors in order to
obtain relief from judgment: (1) a meritorious defense or claim if relief is granted; (2)
entitlement to relief under Civ.R. 60(B)(1)-(5); and (3) that the motion was filed within a
reasonable time, with a maximum time being one year from the entry of judgment if the
movant alleges entitlement to relief under Civ.R. 60(B)(1)-(3). GTE Automatic Elec. v.
ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the
syllabus.
{¶5} We review a trial court’s decision to deny or grant a Civ.R. 60(B) motion for
an abuse of discretion. Wash. Mut. Bank v. Novak, 8th Dist. Cuyahoga No. 88121,
2007-Ohio-996, 12, citing State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 684
N.E.2d 1237 (1997). An abuse of discretion is more than an error in judgment or law; it
implies an attitude on the part of the trial court that is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶6} In this case, we need not review whether the trial court abused its discretion
in denying Hutchins’s motion to vacate. Res judicata bars our consideration of his
assigned errors. {¶7} Res judicata prevents repeated attacks on a final judgment and applies to all
issues that were or might have been litigated. Bank of New York v. Jackson, 8th Dist.
Cuyahoga No. 99874, 2013-Ohio-5133, 10, citing Rogers v. Whitehall, 25 Ohio St.3d
67, 494 N.E.2d 1387 (1986). “Principles of res judicata prevent relief on successive,
similar motions raising issues which were or could have been raised originally.”
Coulson v. Coulson, 5 Ohio St.3d 12, 13, 448 N.E.2d 809 (1983). See Brick
Processors, Inc. v. Culbertson, 2 Ohio App.3d 478, 442 N.E.2d 1313 (5th Dist.1981),
paragraph one of the syllabus.
{¶8} In its motion for summary judgment that the trial court granted in June
2010, the bank attached a supporting affidavit that averred the following:
1. The note and mortgage attached to Plaintiff’s Complaint are true copies of the original note and mortgage executed by the Defendant.
2. The Defendant is in default of payment of said note; and
3. There is an acceleration provision in Plaintiff’s note and Plaintiff has exercised said provision and called the entire unpaid principal balance with interest immediately due and payable.
Hutchins did not appeal the trial court’s grant of summary judgment in favor of the bank.
As previously noted, he did, however, file various motions with the trial court that
challenged the bank’s standing and the trial court’s jurisdiction, and also requested that
the court stay the foreclosure action. These motions were denied and Hutchins filed no
appeal. Res judicata, therefore, bars Hutchins from using this appeal to attack the trial
court’s final judgment in the underlying case. {¶9} Wells Fargo Bank, N.A. v. Perkins, 10th Dist. Franklin No. 13AP-318,
2014-Ohio-1459, presents a fact pattern similar to this case. In Perkins, the property
owner, like Hutchins, failed to file a direct appeal after the trial court granted summary
judgment in favor of the bank. Perkins instead filed multiple motions for relief from
judgment pursuant to Civ.R. 60(B). Each time the trial court denied these motions,
Perkins appealed the denial. In his third appeal, Perkins argued that the trial court
erroneously denied his motion where the bank’s lack of standing equated to a lack of
subject matter jurisdiction. Perkins had made this same argument in his second Civ.R.
60(B) motion, which also had been denied by the trial court. Perkins, like Hutchins,
cited Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017,
979 N.E.2d 1214, to support his argument that in a foreclosure action where the bank
lacks standing, the court lacks subject matter jurisdiction and any judgment rendered by
the court is void. The Tenth District, however, rejected this argument and affirmed the
decision of the trial court holding that Perkins’s reliance on Schwartzwald was misplaced.
The court stated:
Schwartzwald does not stand for the proposition that a court of common pleas lacks subject-matter jurisdiction over a foreclosure action where the plaintiff lacks standing at the time the complaint is filed. * * * “[a] lack of standing does not deprive a court of subject-matter jurisdiction” in a mortgage foreclosure action. (Citation omitted.) Id. at 12.
The court went on to state that even if there was a defect in the bank’s standing, this
would only result in the court’s judgment being voidable — not void. Id. at 13. A
voidable judgment may not be “collaterally, repeatedly, and duplicatively attacked without limitation” and “Schwartzwald does not prohibit application of the doctrine of res
judicata.” Id.
{¶10} We find this case analogous to Perkins. Any issues relating to the bank’s
standing to file the complaint did not deprive the court of subject matter jurisdiction and
res judicata bars these claims where the issue was previously litigated in the trial court
and not appealed. Since Hutchins failed to file a direct appeal, he cannot now assert
these claims again in the form of a Civ.R. 60(B) motion. A Civ.R. 60(B) motion cannot
be used as a substitute for a timely filed appeal. Doe v. Trumbull Cty. Children Servs.
Bd., 28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus.
{¶11} Lastly, Hutchins has waived the arguments concerning the bank’s alleged
failure to satisfy conditions precedent to the foreclosure action because he failed to assert
these claims during the pleadings stage when he answered the complaint. “In pleading
the performance or occurrence of conditions precedent, it is sufficient to aver generally
that all conditions precedent have been performed or have occurred. A denial of
performance or occurrence shall be made specifically and with particularity.” Civ.R.
9(C).
{¶12} In paragraph three of its complaint, the bank stated “it has performed all of
the conditions required to be performed by it.” While Hutchins’s answer contained
general denials of the allegations to the bank’s complaint, he made no specific mention of
which conditions precedent the bank failed to satisfy. He has therefore failed to comply
with Civ.R. 9(C). {¶13} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and SEAN C. GALLAGHER, J., CONCUR 100435 KEY WORDS AND SUMMARY
Mortgage; note; standing, res judicata; Civ.R. 60(B); appeal; jurisdiction. Res judicata bars appellant’s claims where issue of standing was litigated and adjudicated by the trial court prior to granting summary judgment in favor of bank. A Civ.R. 60(B) motion cannot be used as a substitute for an appeal.