Huntington Natl. Bank. v. White

2012 Ohio 807

• Court: Ohio Court of Appeals
• Decided: March 1, 2012
• Docket: 96835
• Status: Published

Opinion

[Cite as Huntington Natl. Bank. v. White, 2012-Ohio-807.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96835

HUNTINGTON NATIONAL BANK

PLAINTIFF-APPELLEE

vs.

KENNETH A. WHITE, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-719673

BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J.

RELEASED AND JOURNALIZED: March 1, 2012 2

ATTORNEY FOR APPELLANT

J. Reid Yoder Kaffen, Zimmerman, Dicaudo, and Yoder, LLC 520 South Main Street Suite 500 Akron, Ohio 44311

ATTORNEYS FOR APPELLEE

Robert H. Young Daniel A. Friedlander Weltman, Weinberg & Reis Co., LPA 323 West Lakeside Avenue Suite 200 Cleveland, Ohio 44113 3

EILEEN A. GALLAGHER, J.:

{¶1} Appellant, Kenneth A. White, appeals the trial court’s order denying his

motion to vacate a sheriff’s sale. The property was the subject of a foreclosure action

initiated by plaintiff-appellee, Huntington National Bank (“Huntington”). Appellant

argues that the trial court was without jurisdiction because he had removed the case to

federal court, thereby divesting the state court of jurisdiction. We affirm the decision of

the trial court.

{¶2} On February 26, 2010, Huntington filed a complaint in foreclosure against

appellant in the Cuyahoga County Court of Common Pleas. Huntington filed a motion

for summary judgment and a motion for default judgment on July 28, 2010. On

December 15, 2010, the trial court adopted the magistrate’s decision that granted

Huntington’s motions for summary judgment and default judgment and decreed

foreclosure. Thereafter, the trial court issued an order for the sale of property and the

sheriff’s sale was scheduled for February 22, 2011.

{¶3} On February 7, 2011, appellant filed a notice of removal with the trial

court, indicating that he had removed the case to the United States District Court for the

Northern District of Ohio. Notwithstanding the notice of removal, the property was sold

on February 22, 2011. On March 1, 2011, appellant filed a motion to stay proceedings

arguing that the removal of the case to the federal court had divested the state court of

jurisdiction. The trial court granted appellant’s motion and stayed the proceedings on 4

March 7, 2011.

{¶4} On April 11, 2011, the United States District Court dismissed appellant’s

case, without prejudice, for failure to comply with a prior order requiring the appellant to

pay the filing fee or submit a financial application and prisoner account. Appellant

moved the district court to reinstate his claim on April 19, 2011, and on April 29, 2011,

the district court reinstated the appellant’s claim.

{¶5} Between the April 11 dismissal and the April 29 reinstatement in the

district court, the trial court, upon motion by Huntington, reinstated its own proceedings.

On April 26, 2011, the trial court found that appellant had misrepresented that the

original removal to the federal court had been effected and that the reinstatement had

occurred when in fact, at that time, neither was true. The trial court then vacated the

stay of proceedings and confirmed the sheriff’s sale. Appellant filed a motion to vacate

the sheriff’s sale on May 2, 2011, which the trial court denied on May 4, 2011.

Appellant brings the present appeal asserting the following assignment of error: “[t]he

trial court erred in vacating the stay of proceedings and/or confirming the sheriff sale of

the property.”

{¶6} Appellant argues that he effected removal to the United States District

Court and, because that court never remanded the case, the trial court was without

jurisdiction to deny his motion to vacate the sheriff’s sale.

{¶7} This is not a legal question of whether the appellant’s removal of the case 5

to federal court divested the trial court of jurisdiction. Rather, we are presented with a

procedural inquiry of whether appellant actually removed his case to the United States

District Court.

{¶8} Three procedural steps are required under 28 U.S.C. 1446 for a defendant

to remove an action from state court to federal court. First, a defendant must file in the

federal court “a notice of removal * * * containing a short and plain statement of the

grounds for removal, together with a copy of all process, pleadings, and orders served

upon such defendant or defendants.” Second, the defendant must give written notice to

all adverse parties, and finally, the defendant must file a copy of the removal notice in

state court. Removal is not complete until all three steps are taken. Luri v. Natl.Union

Fire Ins. Co. of Pittsburgh, N.D.Ohio No. 1:09-CV-1664, 2010 WL 1254282 (Mar. 24,

2010). Once the defendant has accomplished these three steps, the case is removed

from state court and the state court shall proceed no further unless and until the case is

remanded. 28 U.S.C. 1446(d); Borkowski v. Abood, 117 Ohio St.3d 347, 2008-Ohio-857,

884 N.E.2d 7, at ¶ 11.

{¶9} Although appellant filed what he captioned a “Notice of Removal” with

the state court, the record reflects that the appellant never actually removed his case to

the district court. What appellant actually filed was a separate action seeking to

challenge the state court’s decision.

{¶10} The civil cover sheet from the United States District Court, attached to 6

appellant’s purported notice of removal that was filed with the trial court, specifically

indicates that the case is an “Original Proceeding” rather than a case “Removed from

State Court.” The cover sheet reflects that the appellant is the plaintiff and Huntington

is the defendant in the federal action — this is distinct from the underlying state court

action in which Huntington was the plaintiff. The cover sheet also reflects the cause of

action to be truth in lending violations based upon 15 U.S.C. 1635. The federal

complaint itself, also attached to appellant’s notice, is titled, “Complaint, Petition,

Declaration for termination of SECURITY INTEREST / MORTGAGE * * *.” Finally,

a copy of the United States District Court’s docket, attached to Huntington’s March 11,

2011 motion to reconsider, reflects that a required notice of removal is absent from the

record.

{¶11} The case that appellant filed in the United States District Court was an

amalgam of claims based upon statutory violations and an attempt to indirectly appeal a

state court judgment in the federal court. Appellant’s federal filing was a separate and

original action, not a removal of this case. Appellant failed to perfect the first of three

procedural steps required by 28 U.S.C. 1446 that is, actually filing for removal of his

case in federal court. We find nothing in the record that disputes the trial court’s

conclusion that “defendant Kenneth A. White in his 3/1/11 motion for stay

misrepresented that the U.S. District Court had granted removal.” Thus, removal was

never effected and the trial court was never divested of jurisdiction. 7

{¶12} We find that the trial court retained jurisdiction over the case and

appellant’s sole assignment of error is without merit.

{¶13} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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

COLLEEN CONWAY COONEY, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR