Huntington Natl. Bank v. Daly

2025 Ohio 402

• Court: Ohio Court of Appeals
• Decided: February 7, 2025
• Docket: L-24-1011
• Status: Published

Opinion

[Cite as Huntington Natl. Bank v. Daly, 2025-Ohio-402.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

The Huntington National Bank Court of Appeals No. L-24-1011

Appellant Trial Court No. CI0201904367

v.

Dennis J. Daly, et al. DECISION AND JUDGMENT Appellees Decided: February 7, 2025

*****

Eric T. Deighton, for appellant.

James W. Sandy and Kevin A. Buryanek, for appellee, Bank of America, N.A.

***** OSOWIK, J.

{¶ 1} Appellant, The Huntington National Bank (“Huntington”), appeals from an

order vacating an entry confirming sale and ordering distribution that was granted by the

Lucas County Court of Common Pleas. For the reasons that follow, we reverse the

judgment of the trial court. Statement of the Case and Facts

A. BANA’s Loan and Interest on the Property

{¶ 2} On March 23, 2016, Dennis Daly and his wife, Karen Daly, (collectively, the

“Dalys”) executed a note (the “Note”) with appellee Bank of America, N.A. (“BANA”)

in the original amount of $84,968.00. That same day, the Dalys executed a mortgage (the

“Mortgage”) and granted BANA a security interest in the Property. The Mortgage was

recorded with the Lucas County Recorder’s Office on April 8, 2016. Thereafter,

Huntington, which had a previously-recorded mortgage on the Property -- in the original

amount of $70,000 -- entered into a Subordination Agreement wherein it agreed to

subordinate its interest in the Property in favor of BANA.

B. The Foreclosure

{¶ 3} In November 2019, Huntington filed a Complaint for Money and Foreclosure

(the “Foreclosure”). BANA was named as a defendant because it held a mortgaged interest

in the Property that, pursuant to the Subordination Agreement, had priority over

Huntington’s interest. BANA subsequently answered the Complaint and indicated that

there was due and owing to it the unpaid principal balance of $79,757.65 plus interest at a

rate of 4.5% per annum from November 1, 2019. Because BANA held the senior interest

in the Property, BANA further requested that any sale be subject to its Mortgage.

{¶ 4} Huntington then moved for default judgment against various non-answering

parties. On January 23, 2020, the trial court issued a Judgment and Decree of Foreclosure

(the First Foreclosure Decree). The First Foreclosure Decree expressly recognized

2. BANA’s priority interest in the Property and, further, made clear that any sale was to be

subject to the BANA Mortgage. Following discovery of a defect in the entry1, the trial court

completely vacated the First Foreclosure Decree.

{¶ 5} On or about September 22, 2021, the trial court issued a second Judgment

Entry and Decree of Foreclosure (the Second Foreclosure Decree). Like the First

Foreclosure Decree, the Second Foreclosure Decree recognized BANA’s priority interest

in the Property and ordered that the Property be sold subject to the BANA mortgage.

However, the Second Foreclosure Decree also directed the Sheriff or private selling officer

to “sell said premises as upon execution and according to law, free and clear of the interests

of all parties to this action.” (Emphasis added.)

{¶ 6} Despite this language indicating that BANA’s mortgage would be eliminated

and released through foreclosure of the Property, the Second Foreclosure Decree was not

appealed by BANA.

{¶ 7} Nearly eight months after the Second Foreclosure Decree was issued, and after

no effort was made by BANA to amend, clarify, or object to the decree’s mandate that the

property be sold free and clear of all interests of all parties to the action, an order of sale

by a private selling officer was issued. The order of sale included no mention of the

Property being sold subject to BANA’s Mortgage.

{¶ 8} The Property was sold, and on September 20, 2022, a final and appealable

Judgment Entry Confirming Sale and Ordering Distribution of Sale Proceeds

1 This defect was unrelated to issues raised in the current appeal.

3. (“Confirmation Entry”) was filed. The Confirmation Entry, prepared by counsel for

Huntington and signed and docketed by the trial court, provided that $66,777.33 of sale

proceeds would be distributed to Huntington and that another $87,349.98 of sale proceeds

would be held by the clerk of courts pending further order and that BANA’s mortgage was

ordered released. The signed and docketed Confirmation Entry was emailed to counsel for

BANA on September 20, 2022, by the clerk of courts. BANA never appealed this entry.

{¶ 9} Dennis Daly then filed a motion seeking distribution of the $87,349.98 being

held by the clerk of courts from the sale of the Property. BANA did not respond to or object

in any way to Daly’s motion. On or about January 25, 2023, the trial court granted the

motion. A copy of the January 25, 2023 order distributing the remaining proceeds to Daly

was served by the trial court upon BANA’s counsel by email on January 26, 2023.

C. The Motion to Vacate

{¶ 10} On December 28, 2023, some 15 months after the confirmation order was

issued, BANA filed a “Motion to Partially Vacate Confirmation Entry Regarding Release

of Bank of America’s Mortgage or as to Proceeds Paid to Plaintiff.” In this motion, BANA

sought one of two forms of relief: either that BANA’s mortgage be ordered reinstated on

the Property, or that Huntington be ordered to return to the court the sale proceeds that

were disbursed to it and that those sale proceeds be disbursed to BANA to apply as a partial

payment on its mortgage lien interest. BANA’s motion did not request any relief as to the

$87,349.98 of proceeds that were distributed to Mr. Daly.

4. {¶ 11} As grounds for relief, Bana argued first that the Confirmation Entry was void

because it exceeded the relief granted in the Second Foreclosure Decree since it improperly

released BANA’s Mortgage. Alternatively, BANA argued for relief pursuant to Civ.R.

60(B)(5), which allows a party to be relieved from the “unjust operation of judgment.”

BANA argued that it had a meritorious claim, to wit, a first lien Mortgage on the Property

and an explicit finding by the Trial Court that any sale should be subject to its Mortgage.

In addition, BANA argued that its motion to vacate was brought within a reasonable time,

noting that none of its “pre-sale documents” were served upon its counsel. Notably, BANA

never denied receipt of the docketed Confirmation Entry that was emailed to its counsel on

September 20, 2022. Nor did it deny having received a copy of the Second Foreclosure

Decree entered almost exactly a year earlier, on September 22, 2021.

{¶ 12} On January 4, 2024, only four business days after BANA’s motion was filed,

the trial court issued its Order Vacating the Entry Confirming Sale and Ordering

Distribution, which ordered, in the alternative, either that BANA’s Mortgage be ordered

reinstated on the Property or that Huntington return the $66,777.33 that was disbursed to

it to the Clerk of Courts and that those sale proceeds be disbursed to BANA.

{¶ 13} On January 17, 2024, Huntington filed a timely notice of appeal.

Assignments of Error

{¶ 14} On appeal, appellant asserts the following assignments of error:

I. The trial court abused its discretion in granting 60(B) relief where Bank of

America did not timely file its motion.

5. II. The trial court abused its discretion in granting 60(B) relief where it no longer

had jurisdiction over the subject matter of the case.

III. The trial court abused its discretion by issuing an indefinite and ambiguous

order which was subject to dual interpretations.

Law and Analysis

Huntington did not waive its arguments on appeal by failing to raise them in the trial court.

{¶ 15} Before considering the merits of the appeal, it is necessary to address

BANA’s argument that all the arguments Huntington raises on appeal have been waived

because it failed to first raise them in the trial court. See State v. Wintermeyer, 2019-

Ohio-5156, ¶ 10 (“A first principle of appellate jurisdiction is that a party ordinarily may

not present an argument on appeal that it failed to raise below.”).

{¶ 16} In this case, where counsel for Huntington was mailed a service copy of

BANA’s Motion to Vacate the Confirmation Entry on December 28, 2023, and then the

Order Vacating Confirmation Entry was docketed three days after New Year’s Day, on

January 4, 2024, it is clear that Huntington was not granted an opportunity to respond.

This violates fundamental due process. See Raben Tire Co., Inc. v. K&G Contracting

Servs., Inc., 2009-Ohio-6526, ¶ 14, citing Boddie v. Connecticut, 401 U.S. 371, 378

(1971); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (where

appellant was never granted any opportunity to respond to motion filed by appellee,

fundamental due process was violated). Accordingly, we decline to find that

Huntington’s arguments have been waived on appeal.

6. A Civ.R. 60(B) motion cannot be used as a substitute for a timely appeal.

{¶ 17} “In foreclosure actions, two judgments are appealable: the order of

foreclosure and the confirmation of sale.” Treasurer of Cuyahoga Cty. v. Holloway,

2022-Ohio-301, ¶ 15 (8th Dist.), citing CitiMortgage, Inc. v. Roznowski, 2014-Ohio-

1984, ¶ 39. “Once the property is sold in foreclosure or forfeiture, failure to timely appeal

confirmation of the sale limits the former owner’s remedies because the law protects the

property rights of the third-party purchaser, who retains title to the property.” Id., citing

Blisswood Village Home Owners Assn. v. Euclid Community Reinvestment, L.L.C., 2018-

Ohio-1091, ¶ 16. (Additional citation omitted.)

{¶ 18} “In order to prevail on a motion for relief from judgment, ‘the moving

party must demonstrate that he or she (1) has a meritorious defense or claim to present if

the relief is granted, (2) is entitled to relief under one of the grounds stated in Civ.R.

60(B)(1) through (5), and (3) has made the motion within a reasonable time unless the

motion is based upon Civ.R. 60(B)(1), (2), or (3), in which case it must be made not more

than one year after the judgment.’” LaCourse v. LaCourse, 2023-Ohio-972, ¶ 20 (6th

Dist.), quoting Oullette v. Oullette, 2020-Ohio-705, ¶ 34 (6th Dist). “A party seeking

relief under Civ.R. 60(B) is required to allege ‘operative facts’ that support the claim[.]”

Henry Cty. Bank v. Dudley, 2022-Ohio-4192, ¶ 13 (6th Dist.), citing Treasury of Lucas

Cty. v. Mt. Airy Investments, Ltd., 2019-Ohio-3932, ¶ 24 (6th Dist.). “We review a

determination under Civ.R. 60(B) for an abuse of discretion.” Id. “An ‘abuse of

7. discretion’ requires a finding of more than an error of judgment and implies the trial court

acted unreasonably, arbitrarily, or unconscionably.” Id. at ¶ 35.

{¶ 19} Here, BANA asserts that its meritorious defense is that it holds a first lien

mortgage on real property and that it is entitled to relief under Civ.R. 60(B)(5), the catch-

all provision reflecting the inherent power of a court to relieve a person from the unjust

operation of a judgment. Specifically, BANA complains that “despite the Trial Court’s

explicit finding that any sale of the Property was to be subject to BANA’s Mortgage,

Huntington sold the Property free and clear of BANA’s Mortgage,” and “then

exacerbated the harm to BANA by not distributing a penny of the excess proceeds to it.”

{¶ 20} As for the timeliness of BANA’s motion, BANA asserts that there is no

time limit for seeking relief under Civ.R. 60(B)(5), and that its having sought relief from

judgment around 15 months after the Confirmation Order was entered was “clearly

within a reasonable time.”

{¶ 21} Here, all of BANA’s arguments were available, and could have been

raised, both following the order of foreclosure and following the confirmation of sale. “It

is well established that ‘Civ.R. 60(B) is not available as a substitute for a timely

appeal…nor can the rule be used to circumvent or extend the time requirements for filing

an appeal.’” Kraus v. Kraus, 2016-Ohio-972, ¶ 38 (6th Dist.), quoting Blasco v. Mislik,

69 Ohio St.2d 684, 686 (1982); see also Doe v. Trumbull Cty. Children Services Bd., 28

Ohio St.3d 128 (1986), paragraph two of the syllabus. Accordingly, arguments that could

have been made on direct appeal may not be considered through a Civ.R. 60(B) motion.

8. See Arp-Hall v. Lind, 2003-Ohio-7252, ¶ 12. Because BANA’s arguments could have

been made on direct appeal, the trial court abused its discretion in granting BANA’s

Civ.R. 60(B) motion.

{¶ 22} BANA asserts that there are sufficient operative facts in this case to

establish an exception to the general rule that Civ.R.60(B) cannot be utilized as a

substitute for a timely appeal. Specifically, BANA argues that its counsel “never received

notice of any of the pre-sale filings that would have alerted it to the attempt to sell the

Property free and clear of BANA’s Mortgage, notwithstanding the prior decisions to the

contrary.”

{¶ 23} Although there does exist authority stating that “Civ.R. 60(B) is the proper

avenue to attack a judgment when the claim is a party did not receive notice,” Summers v.

Lancia Nursing Homes, Inc., 2016-Ohio-7935 (7th Dist.), ¶ 27, in considering BANA’s

argument, we note that BANA never claimed that it did not receive the Confirmation

Entry or subsequent filings. BANA claimed only that pre-sale documents were not

served on BANA and that a service copy of the Motion to Confirm Private Selling

Officer’s Sale, filed on September 13, 2022, was sent directly to BANA instead of to its

counsel. Importantly, BANA never denied that its counsel was sent a proposed copy of

the Confirmation Entry before it was signed by the court and docketed on September 20,

2022, or that it was not served a copy of the docketed Confirmation entry itself. In fact,

the court docket makes clear that a copy was emailed to BANA’s counsel on September

20, 2022, by the clerk of courts. Likewise, BANA makes no assertion that it was not

9. served a copy of the September 22, 2021 judgment entry of foreclosure, which the court

docket shows was emailed to Bana’s counsel on September 22, 2021. Accordingly,

BANA has failed to provide sufficient operative facts to establish an exception to the

general rule that Civ.R. 60(B) cannot be used as a substitute for a timely appeal.

The trial court’s confirmation entry was not void for lack of jurisdiction.

{¶ 24} BANA additionally argues that the trial court’s Confirmation Entry was

void because it exceeded the jurisdictional limits of R.C. 2329.20 when it ordered the

release BANA’s senior mortgage. See Home Fed. S.&L. Assn. of Niles v. Keck, 2016-

Ohio-651, ¶ 40 (7th Dist.) (a movant need not satisfy the requirements for vacating a

judgment under Civ.R. 60(B) where the judgment sought to be vacated is void as opposed

to voidable).

{¶ 25} R.C. 2329.20, which governs the price at which mortgaged property may

be sold in a foreclosure sale. provides:

In all cases in which a junior mortgage or other junior lien is sought to be enforced against real estate by an order, judgment, or decree of court, subject to a prior lien thereon, and such prior lien, and the claims or obligations secured thereby, are unaffected by such order, judgment or decree, the court making such order, judgment, or decree, may determine the minimum amount for which such real estate may be sold. In such a case, the minimum amount shall not be less than two-thirds of the difference between the appraised value of the real estate as determined in that section, and the amount remaining unpaid on the claims or obligations secured by such prior lien.

10. According to BANA, “[t]he plain language and history of R.C. § 2329.20, as well as

common practice, make clear that a trial court’s jurisdiction to order real property sold

after a foreclosure judgment has been entered is limited and prescribed by statute.”

BANA goes on to argue: “Despite the statutory limitations on the Trial Court’s

jurisdiction to confirm the sale of the Property – and despite BANA previously

demanding the sale be subject to its Mortgage and the Trial Court ordering the same, the

Trial Court’s Confirmation Order, prepared by Huntington’s counsel, exceeded the limits

of R.C. § 2329.20 when it ordered BANA’s senior mortgage to be released…The

Confirmation order was therefore void and BANA could challenge the same pursuant to

the Trial Court’s inherent authority to vacate void judgments.”

{¶ 26} There is no question that “[a] court has the inherent authority to vacate its

own void judgments.” Lingo v. State, 2014-Ohio-1052, ¶ 48, citing Patton v. Diemer, 35

Ohio St.3d 68 (1988), paragraph four of the syllabus. And it is also true that “the issue of

subject-matter jurisdiction can be challenged at any time and that a court’s lack of

subject-matter jurisdiction renders that court’s judgment void ab initio.” Bank of Am.,

N.A. v. Kuchta, 2014-Ohio-4275, ¶ 17, citing Pratts v. Hurley, 2004-Ohio-1980, ¶ 11.

{¶ 27} However, “[s]ubject-matter jurisdiction is the power of a court to entertain

and adjudicate a particular class of cases.” Kuchta at ¶ 19, citing Morrison v. Steiner, 32

Ohio St.2d 86, 87 (1972) “A court’s subject-matter jurisdiction is determined without

regard to the rights of the individual parties involved in a particular case.” Id., citing State

ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75 (1998). (Additional citation omitted.)

11. {¶ 28} A court’s jurisdiction over a particular case, on the other hand, “refers to

the court’s authority to proceed or rule on a case that is within the court’s subject-matter

jurisdiction.” Id., citing Pratts at ¶ 12. “This latter jurisdictional category involves

consideration of the rights of the parties.” Id. “If a court possesses subject-matter

jurisdiction, any error in the invocation or exercise of jurisdiction over a particular case

causes a judgment to be voidable rather than void.” Id., citing Pratts at ¶ 12.

{¶ 29} It is well established that “actions in foreclosure are within the subject-

matter jurisdiction of a court of common pleas.” Id. at ¶ 20, citing Robinson v. Williams,

62 Ohio St. 401, 408 (1990). Thus, the jurisdiction that BANA seeks to challenge is not

subject matter jurisdiction, but rather jurisdiction over this particular case, and any

jurisdictional defect in the Confirmation Entry would render the entry voidable rather

than void.

{¶ 30} “‘Generally, a voidable judgment may be set aside only if successfully

challenged on direct appeal.’” In re K.K., 2022-Ohio-3888, ¶ 48, quoting State v. Harper,

2020-Ohio-2913, ¶ 26, citing State v. Payne, 2007-Ohio-4642, ¶ 28. And “‘[u]nless it is

vacated on appeal, a voidable judgment has the force of a valid legal judgment, regardless

of whether it is right or wrong.’” Id., quoting State v. Henderson, 2020-Ohio-4784, ¶ 17.

(Additional citation omitted.)

{¶ 31} For the foregoing reasons, Huntington’s first assignment of error is found

well-taken. In light of our resolution of the first assignment of error, the remaining

assignments of error are moot.

12. Conclusion

{¶ 32} The trial court’s January 4, 2024 Order Vacating Entry Confirming Sale

and Ordering Distribution is reversed and vacated. Appellee is ordered to pay the costs of

appeal pursuant to App.R, 24.

Judgment reversed and vacated.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Charles E. Sulek, P.J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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