Citimortgage, Inc. v. Russ

2011 Ohio 5093

Opinion

[Cite as Citimortgage, Inc. v. Russ, 2011-Ohio-5093.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: CITIMORTGAGE, INC. : William B. Hoffman, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11-CA-31 : : MARY RUSS, et al., : OPINION

Defendants-Appellants

CHARACTER OF PROCEEDING: Civil Appeal from Licking County Court of Common Pleas Case No. 2010CV01264

JUDGMENT: Affirmed In Part, Vacated and Remanded In Part

DATE OF JUDGMENT ENTRY: September 30, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellant

THOMAS L. HENDERSON ROSS A. GILLESPIE Lerner, Sampson & Rothfuss Gillespie & Johnston, LLC 120 East Fourth Street, Eight Floor 5650 Blazer Parkway Cincinnati, Ohio 45202 Dublin, Ohio 43017

For Defendant-Licking County Treasurer

DENNIS DOVE 20 South Second Street Newark, Ohio 43055 [Cite as Citimortgage, Inc. v. Russ, 2011-Ohio-5093.]

Edwards, J.

{¶1} Appellant, Mary Russ, appeals the February 28, 2011, judgment of the

Licking County Common Pleas Court confirming the order of sale on her home, which

had been foreclosed on by default judgment entered September 23, 2010. Appellee is

Citimortgage, Inc.

STATEMENT OF FACTS AND CASE

{¶2} Appellee filed the instant foreclosure action against appellant on August

17, 2010. On August 24, 2010, the docket shows service of the action was perfected by

certified mail, received by “Cena Mascan.” Appellant failed to answer the complaint.

The trial court granted default judgment on September 23, 2010. An order confirming

the sale of the property was entered on February 28, 2011.

{¶3} Appellant filed a motion to vacate pursuant to Civ. R. 60(B) on March 7,

2011, alleging that receipt of service was signed by her 13-year-old daughter, and

appellant had no notice of the filing of the complaint until a tag was placed on the door

of her home indicating it had been sold. On March 23, 2011, she filed an appeal from

the February 28, 2011 order confirming the sale. The trial court found on April 12, 2011,

that the notice of appeal divested it of jurisdiction to rule on the Civ. R. 60(B) motion and

denied the motion. Appellant assigns three errors:

{¶4} “I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE’S

MOTION FOR DEFAULT JUDGMENT AS SERVICE WAS NEVER PROPERLY

COMPLETED UPON MARY RUSS PURSUANT TO CIVIL RULES 4.1 AND 4.2

{¶5} “II. THE TRIAL COURT ERRED IN CONFIRMING THE SALE AND

DISTRIBUTION OF PROCEEDS FROM THE SHERIFF’S SALE OF THE SUBJECT Licking County App. Case No. 11-CA-31 3

PROPERTY ON FEBRUARY 28, 2011, AS THE TRIAL COURT NEVER PROPERLY

OBTAINED PERSONAL JURISDICTION OVER THE DEFENDANT-APPELLANT

MARY RUSS.

{¶6} “III. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-

APPELLANT’S MOTION TO VACATE.”

I

{¶7} In her first assignment of error, appellant argues that the trial court erred in

entering default judgment against her because she was not properly served with the

complaint. App. R. 4(A) requires a party to file a notice of appeal within 30 days. While

appellant argues that she did not receive this entry and therefore could not file a timely

appeal, the entry reflects that a copy of the default judgment was mailed to her. Having

failed to timely appeal the September 23, 2010, judgment, appellant cannot assign error

to the entry of default judgment.

{¶8} The first assignment of error is overruled.

II

{¶9} Appellant argues that the court erred in confirming the order of sale

because she had not been properly served with the complaint and the court therefore

did not have jurisdiction over her. The docket reflects that the complaint was sent to

appellant by certified mail and was signed for by “Cena Mascan.” Thus at the time the

court confirmed the sale, the court had no reason to believe service had not been

properly perfected upon appellant. While appellant now argues that the signature was

that of her 13-year-old daughter and appellant was unaware of the foreclosure action

until the tag appeared on her door indicating the home was sold, the court had no Licking County App. Case No. 11-CA-31 4

information before it at the time it confirmed the sale to indicate that service was

improper.

{¶10} The second assignment of error is overruled.

III

{¶11} In her final assignment of error, appellant argues that the court erred in

overruling the Civ. R. 60(B) motion to vacate. The court states in its order that it was

divested of jurisdiction to rule on the motion by the March 23, 2011 notice of appeal,

and then went on to deny the Civ. R. 60(B) motion. Appellant concedes in her reply

brief that the trial court was divested of jurisdiction to rule on the motion. Howard v.

Catholic Social Serv. Of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 146-147.

{¶12} While the trial court correctly noted that it lacked jurisdiction over the

motion due to the pending appeal, the court nevertheless denied the motion. The trial

court lacked jurisdiction to rule on the 60(B) motion at that time, and erred in issuing a

judgment denying the motion.

{¶13} The third assignment of error is sustained. Licking County App. Case No. 11-CA-31 5

{¶14} The judgment of the Licking County Common Pleas Court denying the

60(B) motion is vacated. This cause is remanded to that court with instructions to

consider and rule on the pending Civ. R. 60(B) motion.

By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

______________________________

JUDGES

JAE/r0729 [Cite as Citimortgage, Inc. v. Russ, 2011-Ohio-5093.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CITIMORTGAGE, INC. : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : MARY RUSS, et al., : : Defendants-Appellants : CASE NO. 11-CA-31

For the reasons stated in our accompanying Memorandum-Opinion on file, the

February 28, 2011, order confirming sale is affirmed but the judgment of the Licking

County Court of Common Pleas denying the 60(B) motion is vacated. This matter is

remanded to the trial court for further proceedings. Costs assessed 50% to appellee

and 50% to appellants.

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