[Cite as Bank of New York v. Roether, 2012-Ohio-1465.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
BANK OF NEW YORK AS TRUSTEE,
PLAINTIFF-APPELLEE,
v. CASE NO. 1-11-56
PATRICK ROETHER,
DEFENDANT-APPELLANT,
-and- OPINION
BRANDI ROETHER, ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV20080982
Judgment Affirmed
Date of Decision: April 2, 2012
APPEARANCES:
Patrick Allen Roether, Appellant
Matthew C. Steele for Appellee, Bank of New York as Trustee
Case No. 1-11-56
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Patrick A. Roether (hereinafter, “Appellant”),
pro se, appeals the judgment of the Allen County Court of Common Pleas denying
the motion to cancel the sheriff’s sale and void the default judgment that was
granted in favor of Plaintiff-Appellee, The Bank of New York, as Trustee (“the
Bank”), in its foreclosure action against Appellant in 2008.1 On appeal, Appellant
contends that the trial court erred in denying his motion because of fraud and
numerous irregularities committed by the Bank. For the reasons set forth below,
the judgment is affirmed.
{¶2} On June 23, 2008, the Bank commenced a foreclosure action against
Appellant. The Bank maintains that it is the holder of a promissory note (the
“Note”) executed on August 16, 2006 by Appellant in the original principal
amount of $188,700, plus interest, and secured by a mortgage granted by
Appellant upon the real property known as 7968 Sugar Creek Road, Lima, Ohio
(the “Mortgage”). The Bank stated that Appellant went into default on the
payment obligations under the Note and mortgage on or about October 1, 2007,
and it commenced a foreclosure action thereafter.
1
The original complaint was filed June 23, 2008 by The Bank of New York as Trustee for the
Certificateholders CWABS, Inc. Asset-Backed Certificates, Series 2006-14 c/o Countrywide Home Loan
Servicing, LP, versus Patrick Roether aka Patrick A. Roether, Brandi Roether, and State of Ohio
Department of Taxation.
-2-
Case No. 1-11-56
{¶3} The record shows that Appellant was personally served with a copy of
the Bank’s Complaint and Summons on June 23, 2008, by a private process server.
However, Appellant failed to answer or otherwise respond as required by Civ.R.
12 and the Bank subsequently moved for default judgment pursuant to Civ.R. 55.
The trial court entered a Judgment Entry and Decree of Foreclosure on behalf of
the Bank on September 15, 2008 (the “Judgment”).
{¶4} On August 8, 2011, nearly three years after the Judgment was final,
Appellant filed a “Motion to Cancel Sheriff Sale,” asserting numerous reasons in
the nearly fifty-page motion why the trial court should “void the Judgment and
cancel the order of sale and strike the lien instrument.” Appellant claimed that the
Bank’s actions were fraudulent and alleged numerous irregularities pertaining to
the Bank’s allegedly fraudulent proceedings, including but not limited to: forgery;
failure to provide original “Wet Ink Signature” documents; the Bank’s lack of
standing and that it was not the real party in interest; unlawful transfer; fraud
pertaining to the securitization of the loan; improper “robo-signing” of documents;
failure to notify the homeowner as to the transfer of the loan; improper assignment
of mortgage loan by MERS; the note having been transformed into Certificates
and Bonds through the securitization process and sold to unnamed investors;
illegal charges having been added to the balance owed; and, that the mortgage and
note had been improperly bifurcated.
-3-
Case No. 1-11-56
{¶5} The Bank filed a brief in opposition and, after due consideration, the
trial court issued its decision on September 8, 2011, denying Appellant’s motion to
vacate the default judgment. The trial court determined that Appellant’s motion
was requesting relief from the default judgment pursuant to Civ.R. 60(B) on the
grounds of fraud. However, the trial court found that Appellant’s motion did not
meet the mandatory requirements for relief from judgment because the motion was
untimely and it failed to present proper evidentiary materials of operative facts that
would constitute a meritorious defense.
{¶6} Appellant timely appeals this decision, raising several assignments of
error, which are summarized below.
A) The trial court erred in permitting non-original, illegally
manufactured documents to be filed as subject matter and
permitted the Bank to succeed with false affidavits.
B) The trial court erred in not requiring proof of employment
from endorsers of Mortgage and Note to prove authority to
endorse assignments.
C) The trial court erred by proceeding without subject matter
(the original note)
D) The trial court erred in siding with the Bank without even
looking at the facts in Appellant’s Motion.
E) The trial court erred in permitting the Bank more than
fourteen days to respond to Appellant’s Motion .
F) The trial court erred in filing the Judgment Entry before
Appellant received a copy of the Bank’s brief in opposition.
-4-
Case No. 1-11-56
{¶7} In his original Motion and in his Appeal, Appellant has raised multiple
issues that he submits are relevant to his mortgage and foreclosure situation.
These are issues that Appellant could have, and should have, raised in response to
the Bank’s original foreclosure action in 2008, either in an answer to the Bank’s
Complaint, and/or as a counterclaim. However, Appellant did not do so at that
time, and the trial court granted a default judgment against Appellant.
{¶8} Now, several years later, Appellant has belatedly submitted his briefs
and arguments and is attempting to “reopen” the case, which had already been
decided in favor of the Bank. However, before the trial court was permitted to
look at the substance and merits of Appellant’s arguments, it was required to
follow the law to determine whether or not Appellant was entitled to relief from
the judgment previously rendered.
{¶9} In order to prevail on his Civ.R. 60(B) motion for relief from
judgment, Appellant was required to demonstrate that (1) he had a meritorious
defense; (2) that his motion was timely; and, (3) that he was entitled to relief on
one of the five grounds stated in the rule. Buckeye Fed. S. & L. Assn. v.
Guirlinger, 62 Ohio St.3d 312, 317 (1991), citing to GTE Automatic Electric, Inc.
v. ARC Industries, Inc., 47 Ohio St.2d 146, 150 (1976). Because all three
conditions must apply, the failure to meet any one requirement precludes the trial
-5-
Case No. 1-11-56
court from granting relief from judgment and giving any further consideration to
any of the issues involved in the case.
{¶10} The Ohio Rules of Civil Procedure, specifically Civ.R. 60(B), set
forth the parameters for relief from judgment:
On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order or
proceeding for the following reasons: (1) mistake, inadvertence,
surprise or excusable neglect; (2) newly discovered evidence which
by 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; (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 the judgment. The motion shall be
made within a reasonable time, and for reasons (1), (2) and (3) not
more than one year after the judgment, order or proceeding was
entered or taken. A motion under this subdivision (B) does not affect
the finality of a judgment or suspend its operation.
(Emphasis added.) Civ.R. 60(B)
{¶11} Appellant’s claims against the Bank allege various types of fraud, so
Civ.R. 60(B)(3) is applicable, requiring Appellant to file his Motion within one
year of the final judgment. In this case, that would have been by September 15,
2009. In its judgment entry, the trial court stated:
First, defendant did not file his motion in a timely manner.
Defendant’s motion was filed nearly three years after the default
judgment was entered.
(Sept. 8, 2011 J.E., p. 3)
-6-
Case No. 1-11-56
{¶12} Appellant did not meet that time requirement. Therefore, the trial
court had no legal authority to consider any of the other arguments set forth by
Appellant, irrespective of any merit they may have.
{¶13} In a review of a trial court’s denial of a relief from judgment Civ.R.
60(B) determination, a reviewing court of appeals must determine whether the trial
court abused its discretion. Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-
1934, ¶ 7; State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153 (1997). A trial
court will be found to have abused its discretion when its decision is contrary to
law, unreasonable, not supported by the evidence, or grossly unsound. See State v.
Boles, 2d Dist. No. 23037, 2010–Ohio–278, ¶ 17–18, citing Black's Law
Dictionary (8 Ed.Rev.2004) 11; Bruce v. Bruce, 3d Dist. No. 9-10-57, 2012-Ohio-
45, ¶ 13. When applying the abuse of discretion standard, a reviewing court may
not simply substitute its judgment for that of the trial court. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶14} In this Court’s review of the judgment below, we find that the trial
court correctly applied the law and determined that it could not provide relief from
judgment because Appellant’s motion was untimely. Therefore, the trial court’s
decision was not an abuse of discretion. At oral arguments, Appellant himself
acknowledged that his motion did not comply with the time-limitations mandated
-7-
Case No. 1-11-56
by the Rules. Therefore, the trial court’s decision must be affirmed and
Appellant’s assignments of error are overruled.
{¶15} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and ROGERS, J., concur.
/jlr
-8-