U.S. Bank, N.A. v. Chibinda

2025 Ohio 1212

• Court: Ohio Court of Appeals
• Decided: April 7, 2025
• Docket: CA2024-07-094
• Status: Published

Opinion

[Cite as U.S. Bank, N.A. v. Chibinda, 2025-Ohio-1212.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

U.S. BANK, N.A., : CASE NO. CA2024-07-094 Appellee, : OPINION : 4/7/2025 - vs - :

PETER CHIBINDA, ET AL., :

Appellants. :

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV 2017 10 2412

Reisenfeld & Associates LLC, and Brian E. Chapman, for appellee.

Peter Chibinda and Dora Chibinda, pro se.

BYRNE, P.J.

{¶ 1} Pro se appellants, Peter and Dora Chibinda, appeal the decision of the

Butler County Court of Common Pleas denying their Civ.R. 60(B) motion for relief from

judgment.1 For the reasons detailed below, we affirm the trial court's decision.

1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on the regular calendar for purposes of issuing this opinion. Butler CA2024-07-094

Factual and Procedural Background

{¶ 2} On October 26, 2017, U.S. Bank National Association, as Trustee for Banc

of America Funding Corporation Mortgage Pass-Through Certificates, Series 2006-5

("U.S. Bank"), filed a complaint in foreclosure and reformation of mortgage against

Miranda Muma, aka Miranda Ngoh ("Muma"). The complaint was in reference to property

Muma owned located at 5718 Liberty Pass Drive in Liberty Township, Butler County, Ohio

("the Property"). There is no dispute that the Chibindas were Muma's tenants living at the

Property at the time of U.S. Bank's filing.

{¶ 3} The Chibindas were permitted to intervene in the proceedings as a third-

party plaintiff. In their third-party complaint, the Chibindas alleged that they entered into

an agreement to lease the Property in March of 2012 and that the agreement included an

option to purchase the Property from Muma.

{¶ 4} On August 29, 2018, U.S. Bank filed a motion for default judgment against

Muma and a motion for summary judgment against the Chibindas. Neither Muma nor the

Chibindas filed anything in response to the motions.

{¶ 5} On December 12, 2018, the trial court issued a judgment entry and decree

of foreclosure. The foreclosure decree determined the extent of each lienholder's interest,

set forth the priority of the liens, and determined the other rights and responsibilities of

each party in the action. The trial court ordered distribution of proceeds in the following

order of priority:

1. To the Clerk of this Court, the costs of this action including the fees of appraisers.

2. To the Treasurer of this County, the taxes and assessments, due and owing as of the date of transfer of the property after Sheriff's Sale.

3. To the Plaintiff [U.S. Bank], the sum of $181,643.91 plus interest at the rate of 6.7500 percent per annum from June 1,

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2014, together with all expenses and costs.

4. The balance, if any, to be deposited with the clerk.

The foreclosure decree contained Civ.R. 54(B) language stating there was "no just reason

for delay," but the Chibindas did not appeal the trial court's decision.

{¶ 6} On December 2, 2021, the Property was sold at a sheriff's sale. The sheriff's

return order of sale lists Dora as the purchaser for the sum of $314,200.00. On April 18,

2022, the trial court issued a confirmation order, which ordered the distribution of sale

proceeds. In relevant part, the trial court ordered the proceeds from the sale be distributed

in the following order of priority:

• To the Clerk of this Court, the sum of $7,940.50, for the costs of this action.

• To the Treasurer of this County, the sum of $5,357.22, for all past-due real estate taxes, assessments, penalties, and interest.

• To the Plaintiff, [U.S. Bank], the balance of said proceeds of sale, being the sum of $300,902.28 to apply against the judgment heretofore rendered in favor of the Plaintiff.

{¶ 7} Nearly two years later, on March 31, 2024, the Chibindas filed a Civ.R.

60(B) motion for relief from judgment with respect to the April 18, 2022 confirmation order,

claiming, among other things, that there should be "surplus funds" and the trial court's

order did not reflect their "concerns as persons with vested interest in the property in

question." In other words, the Chibindas sought a portion or all of the "surplus funds" from

the sale of the Property.

{¶ 8} The trial court denied the Civ.R. 60(B) motion on the basis that the

Chibindas failed to demonstrate they were entitled to relief under one of the grounds listed

in Civ.R. 60(B)(1)-(5), and failed to present operative facts that would further a meritorious

claim or defense. The Chibindas filed this appeal listing three assignments of error for

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review, which we will consider collectively.

Appeal

{¶ 9} The Chibindas' Assignment of Error No. 1 states:

THE TRIAL COURT ERRED BY NOT RULING ON THE DISTRIBUTION OF PROCEEDS CONTROVERSY BETWEEN THE TWO PARTIES.

{¶ 10} The Chibindas' Assignment of Error No. 2 states:

THE TRIAL COURT ALLOWED FRAUD TO INTERVENED.

(sic).

{¶ 11} The Chibindas' Assignment of Error No. 3 states:

THE TRIAL COURT ERRED BY FAILINGTO EXECUTING PROPER SERVICES AND ADEQUATE NOTICS ON APPELLANTS.

{¶ 12} In support of these assignments of error, the Chibindas argue the trial court

erred by denying their Civ.R. 60(B) motion for relief from the trial court's April 18, 2022

confirmation order. In so doing, the Chibindas claim that they are junior lienholders in the

Property and have an interest in the distribution of the proceeds of the sheriff’s sale. 2

{¶ 13} Civ.R. 60(B) provides that a moving party may obtain relief from judgment

on the following grounds:

(1) Mistake, inadvertence, surprise or excusable neglect;

(2) Newly discovered evidence which by the due diligence could not have been discovered in time to move for a new trial under Rule 59(B);

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;

2. The Chibindas' pro se brief is difficult to follow, as they raise a variety of vague and speculative arguments. It appears they take particular issue with the fact that U.S. Bank's judgment exceeded the original note on the Property. However, we note the foreclosure decree awarded U.S. Bank $181,643.91 plus interest at the rate of 6.75 percent per annum from June 1, 2014. -4- Butler CA2024-07-094

(4) The judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(5) Any other reason justifying relief from judgment.

"To prevail on a Civ.R. 60(B) motion, the moving party must demonstrate that (1) he has

a meritorious defense or claim to present if relief is granted, (2) he is entitled to relief

under one of the grounds stated in Civ.R. 60(B), and (3) the motion is made within a

reasonable time." Total Quality Logistics, L.L.C. v. ATA Logistics, Inc., 2020-Ohio-1553,

¶ 7 (12th Dist.). Because all three criteria must be satisfied in order for the trial court to

grant relief, the moving party's failure to meet any one of these three factors is fatal.

Scrimizzi v. Scrimizzi, 2019-Ohio-2793, ¶ 51 (12th Dist.).

{¶ 14} The decision to grant or deny a Civ.R. 60(B) motion lies in the sound

discretion of the trial court and will not be reversed on appeal absent an abuse of that

discretion. Cox v. Zimmerman, 2012-Ohio-226, ¶ 14 (12th Dist.). An abuse of discretion

implies the trial court acted unreasonably, arbitrarily, or unconscionably. Johnson v. First

Key Homes, LLC, 2025-Ohio-882, ¶ 11 (12th Dist.).

{¶ 15} The Ohio Supreme Court has noted that "[f]oreclosure actions proceed in

two stages, both of which end in a final, appealable judgment: the order of foreclosure

and the confirmation of sale." Farmers State Bank v. Sponaugle, 2019-Ohio-2518, ¶ 18.

"The order of foreclosure determines the extent of each lienholder's interest, sets out the

priority of the liens, determines the other rights and responsibilities of each party, and

orders the property to be sold by sheriff's sale." Id., citing CitiMortgage, Inc. v. Roznowski,

2014-Ohio-1984, ¶ 39. "On appeal, parties may challenge the court's decision to grant

the decree of foreclosure." Farmers State Bank at ¶ 18, citing Roznowski at ¶ 39. But

"[o]nce the foreclosure decree is final and upon completion of the appeals process, the

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rights and responsibilities of the parties under the foreclosure decree may no longer be

challenged." Farmers State Bank at ¶ 18.

{¶ 16} A foreclosure decree is distinct from the confirmation of sale, which "is an

ancillary proceeding limited to whether the sheriff's sale conformed to law." Id. at ¶ 19. In

describing this confirmation proceeding, the Ohio Supreme Court has explained that "[i]f

the trial court, after examining the proceedings, finds that the sale conformed with R.C.

2329.01 through 2329.61, inclusive, then the court enters an order confirming the sale

and orders the dispersal of the proceeds." Id. A party may appeal the confirmation of sale,

but this appeal "is limited to challenging the confirmation order itself and to issues related

to confirmation proceedings—for example, computation of the final total amount owed by

the mortgagor, accrued interest, and amounts advanced by the mortgagee for

inspections, appraisals, property protection, and maintenance." Id.

{¶ 17} In the present case, the trial court issued the foreclosure decree in

December 2018. The foreclosure decree determined that U.S. Bank was entitled to

foreclose on the Property and held the third-in-priority interest on the Property. Pursuant

to the foreclosure decree, the Chibindas did not possess a lien on the Property which

could entitle them to a portion of the proceeds from the sale of the Property. The

Chibindas did not appeal from the foreclosure decree and therefore the rights and

responsibilities of the parties under the foreclosure decree may no longer be challenged.

Roznowski, 2014-Ohio-1984 at ¶ 39.

{¶ 18} Thereafter, the Property was sold and the trial court issued a confirmation

order in April 2022. Nearly two years later, in March 2024, the Chibindas filed the instant

Civ.R. 60(B) motion seeking relief from the confirmation order, which the trial court

denied. On appeal, all of the Chibindas' arguments about the confirmation order are

based on the assumption that the Chibindas are junior lienholders in the Property and

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have an interest in the distribution of the proceeds from the sale. However, the foreclosure

decree does not list the Chibindas as a lienholder. The time to contest such a decision

was in an appeal of the foreclosure decree, which the Chibindas failed to do. The Ohio

Supreme Court has stated that a Civ.R. 60(B) motion cannot be used as a substitute for

an appeal, and the doctrine of res judicata applies to such motions. Bank of Am., N.A. v.

Kuchta, 2014-Ohio-4275, ¶ 16; In re R.B., 2013-Ohio-2392, ¶ 20 (12th Dist.). Since the

foreclosure decree became final, the rights and responsibilities of the parties under the

order are no longer subject to challenge. Roznowski at ¶ 39; Royal Oaks Landmark,

L.L.C. v. Royal Oak Cal, L.L.C., 2022-Ohio-1144, ¶ 38 (12th Dist.). Thus, all of the

arguments now advanced by the Chibindas are barred by the doctrine of res judicata.

Kuchta at ¶ 16; In re R.B. at ¶ 20.

{¶ 19} As a result, we find the trial court did not abuse its discretion by denying the

Chibindas' Civ.R. 60(B) motion for relief from judgment. The trial court correctly concluded

that the Chibindas failed to point to a meritorious defense or claim that they could present

if Civ.R. 60(B) relief were granted. The Chibindas also failed to demonstrate they were

entitled to relief under any of the grounds set forth in Civ.R. 60(B)(1)-(5). None of the

Chibindas' arguments on appeal have merit because those arguments are barred by res

judicata. Accordingly, the Chibindas' three assignments of error are overruled.

{¶ 20} Judgment affirmed.

HENDRICKSON and PIPER, JJ., concur.

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