Bank of New York Melon Trust Co. v. Zakrajsek

2017 Ohio 17

• Court: Ohio Court of Appeals
• Decided: January 5, 2017
• Docket: 104367
• Status: Published

Opinion

[Cite as Bank of New York Melon Trust Co. v. Zakrajsek, 2017-Ohio-17.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104367

BANK OF NEW YORK MELLON TRUST COMPANY PLAINTIFF-APPELLEE

vs.

STANLEY F. ZAKRAJSEK, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED IN PART; DISMISSED IN PART

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-845974

BEFORE: Stewart, J., McCormack, P.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: January 5, 2017 ATTORNEY FOR APPELLANT

David N. Patterson Patterson & Simonelli 33579 Euclid Avenue Willoughby, OH 44094

Also Listed

Jane Doe, unknown spouse, if any, of Stanley F. Zakrajsek 25635 Glenbrook Blvd. Euclid, OH 44117

Greentree Servicing, L.L.C. The Bank of New York Mellon c/o CT Corporation System, Agent 1300 East Ninth Street Cleveland, OH 44114

Mortgage Electronic Registration Systems, Inc. c/o CT Corporation System, Agent 1300 East Ninth Street Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

Stefanie Deka Kimberly Y. Smith Rivera McGlinchey Stafford, P.L.L.C. 25550 Chagrin Boulevard, Suite 406 Cleveland, OH 44122

Ted A. Humbert Law Offices of John D. Clunk, Co., L.P.A. 4500 Courthouse Boulevard, Suite 400 Stow, OH 44224 MELODY J. STEWART, J.:

{¶1} Defendant-appellant Stanley F. Zakrajsek appeals from orders that granted

foreclosure of certain real property to plaintiff-appellee Bank of New York and confirmed

the sheriff’s sale of that real property. The issues on appeal complain that the court erred

by granting foreclosure and by confirming the sheriff’s sale of the property.

{¶2} We first consider whether we have jurisdiction to rule on any assignments of

error based on the judgment of foreclosure.

{¶3} The bank’s complaint alleged that it was the holder of a promissory note

signed by Zakrajsek, that he was in default of the note, and that the bank was owed

$116,725.79 as a result of the default. The complaint also alleged that the bank was the

assignee of the mortgage on the property pledged as collateral for the note and that the

default entitled it to foreclosure of the mortgage. Finally, the bank alleged that Zakrajsek

entered into an unrecorded loan modification with its servicing agent, and that the bank

was entitled to enforce the loan modification as a valid and equitable lien against the

property. {¶4} The court granted a boilerplate summary judgment to the bank; as relevant

here, it stated only that the bank was entitled to judgment as a matter of law on its

complaint — it did not state an amount owed to the bank. In that same judgment entry,

the court noted that a “supplemental” journal entry would follow. Zakrajsek, however,

filed a notice of appeal — 8th Dist. Cuyahoga No. 103631 — before the court could issue

the supplemental journal entry. The court issued the supplemental judgment entry of

foreclosure (setting forth the amount of the judgment and lien priority) while the appeal

was pending. At the same time Appeal No. 103631 was pending in this court, a sheriff’s

sale of the property was scheduled and apparently conducted (there was no return of sale

filed by the sheriff).

{¶5} We dismissed Appeal No. 103631 for want of a final order because the

boilerplate summary judgment failed to make a determination as to the priority of liens or

the amount of judgment. Following that dismissal, the court reentered the supplemental

judgment entry of foreclosure. Zakrajsek did not appeal from that order. Three months

later, the court entered a “decree of confirmation” of the sheriff’s sale. Zakrajsek

appeals from the decree of confirmation. {¶6} A foreclosure action consists of two judgments that can be appealed: the

order of foreclosure and the confirmation of sale. CitiMortgage, Inc. v. Roznowski, 139

Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 39. “The order of foreclosure

determines the extent of each lienholder’s interest, sets forth the priority of the liens, and

determines the other rights and responsibilities of each party in the action.” Id. “The

confirmation process is an ancillary one in which the issues present are limited to whether

the sale proceedings conformed to law.” Id. at ¶ 39.

{¶7} When the court issued the first “supplemental” judgment entry in foreclosure,

it lacked jurisdiction to do so because jurisdiction over the case rested with this court

once the notice of appeal from the summary judgment in foreclosure had been filed in

Appeal No. 103631. “[T]he filing of the notice of appeal divests the trial court of

jurisdiction to proceed with the adjudication during the pendency of the appeal.” State

ex rel. Elec. Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129

Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 16. The court, however, reentered the

supplemental judgment entry on January 19, 2016, after we dismissed Appeal No.

103631. The reentry of judgment was valid and constituted a final, appealable order

subject to direct appeal. Wells Fargo Bank, N.A. v. McGowan, 8th Dist. Cuyahoga No.

101779, 2015-Ohio-1544, ¶ 11. Zakrajsek did not appeal within 30 days from the

reentered supplemental judgment granting foreclosure, see App.R. 4(A)(1), so we lack

jurisdiction over assignments of error one, two, and three, relating to that judgment. {¶8} The only assignment of error remaining for review is that the court erred by

entering the order of confirmation and the writ of possession. Zakrajsek raises several

arguments in this respect: (1) the order confirming the sheriff’s sale was a form provided

by the bank and that the entry was “vague, insufficient, and otherwise invalid;” (2) the

appraisal was “stale, incorrect, and/or improper;” (3) the bank and the property appraiser

“did not comply with statutory and regulatory guidelines for a prior, fair and, reasonable

appraisal;” and (4) that Zakrajsek was not given a “proper and reasonable opportunity to

object to the appraisal.”

{¶9} Zakrajsek’s brief does not conform to App.R. 16(A)(7). That rule requires

the appellant’s brief to present “[a]n argument containing the contentions of the appellant

with respect to each assignment of error presented for review and the reasons in support

of the contentions, with citations to the authorities, statutes, and parts of the record on

which appellant relies.” For purposes of App.R. 16(A)(7), the word “argument” means

more than just an assertion that an error occurred — it is an obligation to persuade an

appellate court why an error exists. This means that the appellate brief must contain a

reason or set of reasons to support the claimed error. An assertion of error that is not

developed in a party’s brief does not preserve a claim of appellate review. {¶10} The portions of the brief we quoted above qualify as statements of error, but

that is all that they are. Zakrajsek cites applicable law, but fails to connect that law to the

facts of this case to show why any error occurred. For example, Zakrajsek asserts,

without any additional discussion, that the order confirming the sheriff’s sale was a form

provided by the bank and that the entry was “vague, insufficient, and otherwise invalid.”

This is a conclusion, not an argument. He has not explained why the order was vague or

insufficient, nor has he offered any explanation as to what prejudice he suffered from the

order.

{¶11} As another example, Zakrajsek asserts that the appraisal was “stale,

incorrect, and/or improper,” but gives no basis for that assertion other than that the

appraisal was made just over two years before the confirmation of sale. He cites to

nothing in the record to show that the value of the house changed during that time period

apart from his assumption that the value of the property changed over time.

{¶12} Finally, Zakrajsek asserts that he was not given a reasonable opportunity to

object to the appraisal. This assertion is not supported by any reference to facts in the

record. The second assignment of error is overruled.

{¶13} Judgment affirmed in part; appeal dismissed in part.

It is ordered that appellee recover of appellant 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 common

pleas 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.

______________________________________________ MELODY J. STEWART, JUDGE

TIM McCORMACK, P.J., and ANITA LASTER MAYS, J., CONCUR