People's Bank, N.A. v. Garcia

2018 Ohio 4365

• Court: Ohio Court of Appeals
• Decided: October 25, 2018
• Docket: 18CA8
• Status: Published

Opinion

[Cite as People's Bank, N.A. v. Garcia, 2018-Ohio-4365.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: PEOPLE’S BANK, N.A. : Hon. John W. Wise P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 18 CA 8 JESSICA N. GARCIA, ET AL : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Guernsey County Court of Common Pleas, Case No.15CV420

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 25, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JONATHAN A. VELEY JESSICA N. GARCIA Pro Se 2034 Cherry Valley Road 225 Long Street Newark, OH 43055 Cambridge, OH 43725 [Cite as People's Bank, N.A. v. Garcia, 2018-Ohio-4365.]

Gwin, J.,

{¶1} Appellant appeals the March 22, 2018 judgment entry of the Guernsey

County Court of Common Pleas confirming sale and ordering deed and distribution.

Facts & Procedural History

{¶2} On October 16, 2015, appellee People’s Bank, N.A., filed a foreclosure

complaint against appellant Jessica Garcia in regards to the property located at 225 Long

Street in Cambridge, Ohio. Appellee filed a motion for default judgment against appellant

on February 9, 2016. The trial court sent a notice to appellant that the motion for default

had been filed and scheduled a non-oral hearing on March 10, 2016. The trial court

continued the non-oral hearing to April 4, 2016 and ordered appellee to clarify the legal

description and attach the Court’s docket sheet to the final judicial report. Appellee filed

an amended final judicial report on March 31, 2016.

{¶3} On July 22, 2016, the trial court granted appellee’s motion for default

judgment against appellant and issued a foreclosure decree. The foreclosure decree

contains Rule 54(B) language that it is a final appealable order and there is no just cause

for delay. Appellant did not appeal the foreclosure decree.

{¶4} The premises at 225 Long Street was vandalized on August 28, 2016.

Appellant filed a claim through her insurance company State Farm Fire and Casualty

Company (“State Farm”).

{¶5} On February 3, 2017, appellee filed a motion for order authorizing Tim Lile

as a private selling officer to sell the real property at public auction. The trial court granted

the motion on February 6, 2017. Appellee filed a notice of sale on January 11, 2018. The

notice of sale provided the sale was set for January 31, 2018. There were no bids at the Guernsey County, Case No. 18 CA 8 3

January 31, 2018 sale, so the private selling officer rescheduled the sale with no reserve

for February 21, 2018.

{¶6} On February 20, 2018, appellant filed a motion to vacate. Appellant stated

in her motion that there was an insurance payment from State Farm and that appellee

agreed to her proposal to accept the payment from State Farm as full payment on the

mortgage loan and any deficiency. Appellant attached a letter from Attorney Ong outlining

appellant’s proposal that appellee accept the State Farm settlement check for full

payment on the loan and deficiency.

{¶7} The property was sold on February 21, 2018.

{¶8} Appellee filed a memorandum contra to appellant’s motion to vacate on

February 22, 2018. Appellee confirmed that it did receive the check from State Farm and

also received the letter from Attorney Ong. However, appellee stated that it never

accepted appellant’s offer and that it received the check from State Farm pursuant to the

mortgagee clause in State Farm’s policy. Appellee attached Exhibit A, a letter from State

Farm to appellee, stating State Farm denied claim payment to appellant, but since

appellee complied with the mortgage clause under the policy, the claim payment was

enclosed. Appellee also attached Exhibit B, the affidavit of Jonathan Veley, (“Veley”)

attorney for appellee. Veley confirmed that the letter from Attorney Ong was an offer to

settle all claims against appellant and her mother for deficiencies owed to appellee for the

amount of appellant’s insurance claim arising out of vandalism to the property at issue.

Veley stated he spoke with Attorney Ong on April 10, 2017 and rejected the offer. The

trial court denied appellant’s motion to vacate on February 22, 2018. Guernsey County, Case No. 18 CA 8 4

{¶9} On March 22, 2018, the trial court entered a journal entry confirming sale

and ordering deed and distribution.

{¶10} Appellant filed a notice of appeal of the March 27, 2018 journal entry of the

Guernsey County Court of Common Pleas and assigns the following as error:

{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THERE

WAS NO BREACH OF ANY CONTRACT BETWEEN THE PARTIES.

{¶12} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING

PLAINTIFF DID NOT COMMIT FRAUDULENT MISREPRESENTATION.

{¶13} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT

PLAINTIFF DID NOT MAKE ANY DEFAMATORY STATEMENTS IN THE SALE OF THE

PREMISES AT ISSUE.”

I., II., III.

{¶14} Appellant’s notice of appeal was filed on March 27, 2018. Appellant

attached to her notice of appeal a copy of the trial court’s March 22, 2018 judgment entry

confirming the sale.

{¶15} There are two judgments appealable in foreclosure actions: the order of

foreclosure and the confirmation of sale. CitiMortgage v. Roznowski, 139 Ohio St.3d 299,

2014-Ohio-1984, 11 N.E.3d 1140. Because the judgment of foreclosure was a final

appealable order, the entry overruling the motion to vacate the judgment is likewise final

and appealable. Aurora Bank F.S.B. v. Gordon, 8th Dist. Cuyahoga No. 103138, 2016-

Ohio-938, appeal not allowed sub nom. Aurora Bank F.S.B. v. Gordon, 146 Ohio St.3d

1471, 2016-Ohio-5108, 54 N.E.2d 1269. Guernsey County, Case No. 18 CA 8 5

{¶16} With regards to the March 22, 2018 judgment entry confirming the sale, “the

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

the sale proceedings conformed to the law” and the only arguments properly before this

Court are those related to the procedures employed in the sale and whether the trial court

abused its discretion in confirming the sale. CitiMortgage v. Roznowski, 139 Ohio St.3d

299, 2014-Ohio-1984, 11 N.E.3d 1140.

{¶17} As noted under the facts, appellant did not file an appeal from the trial

court’s entry and decree in foreclosure, which contained Civ.R. 54(B) “no just reason for

delay” language. Further, appellant did not file a timely appeal from the February 22,

2018 judgment entry denying her motion to vacate.

{¶18} Rather, the only timely appeal in this case is from the trial court’s March 22,

2018 confirmation entry of sale and distribution of proceeds. The issues raised in

appellant’s pro se brief, however, focus solely on the merits of the foreclosure judgment

and the denial of her motion to vacate, rather than the order confirming the sale. Appellant

assigns no error to the judgment entry confirming the sale. Thus, since appellant failed

to timely appeal the foreclosure decree and the entry denying her motion to vacate, any

issues concerning these entries have been waived and those issues may not be raised

in an appeal from the order confirming sale. Wells Fargo Bank, N.A. v. Parrish, 10th Dist.

Franklin No. 15AP-243, 2015-Ohio-4045; U.S. Bank, N.A. v. Alex, 8th Dist. Cuyahoga No.

101276, 2015-Ohio-871.

{¶19} Further, as noted by appellee, while appellant made an offer to appellee,

the offer was never accepted by appellee. Thus, the requirements for the formation of a Guernsey County, Case No. 18 CA 8 6

contract were not met. Huth v. Kus, 5th Dist. Tuscarawas No. 2017 AP 06 0015, 2018-

Ohio-1931.

{¶20} Finally, as to appellant’s second and third assignments of error, these

arguments were not made to the trial court. Failure to raise these issues before the trial

court operates as a waiver of appellant’s right to assert such for the first time on appeal.

Large v. Lilley, 5th Dist. Delaware No. 17 CAE 06 0043, 2018-Ohio-1017.

{¶21} Based on the foregoing, appellant’s assignments of error are overruled.

{¶22} The March 22, 2018 judgment entry of the Guernsey County Court of

Common Pleas is affirmed.

By Gwin, J.,

Wise, John, P.J., and

Delaney, J., concur