Deutsche Bank Natl. Trust Co. v. Harvey

2013 Ohio 2948

• Court: Ohio Court of Appeals
• Decided: July 3, 2013
• Docket: 99401
• Status: Published

Opinion

[Cite as Deutsche Bank Natl. Trust Co. v. Harvey, 2013-Ohio-2948.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99401

DEUTSCHE BANK NATIONAL TRUST COMPANY PLAINTIFF-APPELLANT

vs.

MICHELLE L. HARVEY, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-766188

BEFORE: E.A. Gallagher, J., Stewart, A.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: July 3, 2013 ATTORNEY FOR APPELLANTS

Darryl E. Gormley Reimer, Arnovitz, Chernek, Jeffrey 30455 Solon Road Solon, OH 44139

FOR APPELLEE, MICHELLE L. HARVEY

Michelle L. Harvey, pro se 8997 Cedar Road Chesterland, OH 44026

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS

Mortgage Electronic Registration Systems 1901 East Voorees Street Suite C Danville, IL 61834 EILEEN A. GALLAGHER, J.:

{¶1} In this accelerated appeal, appellant Deutsche Bank National Trust

Company, etc., appeals from the decision of the trial court denying its motion for relief

from judgment. Deutsche Bank argues the trial court abused its discretion when it failed

to correct an error in the legal description contained in the decree of confirmation, the

judgment and the magistrate’s decision. We find that the legal description attached to

all three entries does contain an error and remand the matter for correction.

{¶2} Deutsche Bank filed a foreclosure complaint against Michelle L. Harvey

for breach of a note and mortgage for nonpayment. The trial court issued its judgment

of foreclosure and an order to the Cuyahoga County Sheriff to sell the property.

Deutsche Bank successfully purchased the home and the trial court granted a decree of

confirmation of the purchase through a journal entry signed on June 15, 2012.

{¶3} After the foreclosure sale, a representative from the sheriff’s department

notified counsel for Deutsche Bank that there was an error in the sublot number in the

real estate description contained in the judgment. Specifically, the legal description in

the judgment contained “sublot number 194” when the correct sublot number for the

foreclosed property is 193. This error was also reflected in both the magistrate and trial

court’s decisions. Deutsche Bank’s counsel confirmed this error with the title company

and filed a motion to vacate decree of confirmation, judgment and magistrate’s decision

and to re-enter judgment containing the correct sublot number. The trial court denied

the motion as moot in that the property was sold and the sale confirmed. {¶4} Deutsche Bank appeals, raising the following assignment of error:

The trial court abused its discretion by not granting plaintiff/apellant’s motion to vacate decree of confirmation, judgment and magistrate’s decision and to re-enter judgment.

{¶5} To be entitled to relief from judgment under Civ.R. 60(B), the movant

must demonstrate that:

(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.

GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),

paragraph two of the syllabus.

{¶6} In the present case, we find that Deutsche Bank is entitled to relief from

judgment. Upon review of the record, it is clear that the supplemental preliminary

judicial report, which was issued and submitted to the court by the Chicago Title

Insurance Company, contained a mistake. The report mistakenly identified the property

at issue as “being Sublot No. 194” when, in fact, the property upon which appellant was

seeking to foreclose is Sublot No. 193. Subsequent to that judicial report, each of

Deutsche Bank’s filings as well as the decrees of foreclosure contained the erroneous

sublot number and, in fact, the misidentified sublot is that which was offered, and

purchased, at sheriff’s sale.

{¶7} Clearly, a mistake occurred that needs to be corrected. The judgment entry granting a decree of purchase of sublot number 194, a home that is not in

foreclosure and is not owned by Deutsche Bank, as well as the judgment entries of the

trial court and magistrate containing the erroneous sublot number, cannot stand.

Additionally, all references in the record to sublot number 194 need to be corrected.

This court, therefore, remands the matter to the trial court to vacate the decree of

foreclosure as well as the sale of the property and allow for presentment of the actual

property that was foreclosed upon to be subject to sale at a sheriff’s auction.

{¶8} We do have grave concerns about adverse effects that these errors may

have upon the property owner and the property that was offered for sale and sold at

public auction and the title to that property and instruct the trial court to have plaintiff’s

counsel ensure that there has been no ill effects from those errors.

{¶9} Judgment reversed and the cause remanded for further proceedings consistent

with this opinion.

It is ordered that appellant recover of said appellee 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

lower 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. EILEEN A. GALLAGHER, JUDGE

MELODY J. STEWART, A.J., and SEAN C. GALLAGHER, J., CONCUR