[Cite as US Bank Natl. Assn. v. Marino, 2012-Ohio-1487.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR WFASC 2005- AR2
Plaintiff-Appellee
-vs-
MICHAEL D. MARINO, ET AL
Defendants-Appellants
JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
:
:
: Case No. 2011CAE11 0108
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County
Court of Common Pleas, Case No. 10 CVE
05 0824
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 30, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SCOTT KING MARC E. DANN
TERRANCE MEBANE GRACE DOBERDRUK
41 South High Street, Ste. 1700 20521 Chagrin Blvd., Ste. D
Columbus, OH 43215 Shaker Heights, OH 44122
Gwin, P.J.
{1} Defendant-appellant Michael D. Marino appeals a judgment of the Court of
Common Pleas of Delaware County, Ohio, which overruled their motion for relief from
judgment brought pursuant to Civ. R. 60 (B). Plaintiff-appellee is U.S. Bank National
Association as Trustee for WFASC 2005-AR2. Appellant assigns two errors to the trial
court:
{2} “I. IT WAS AN ABUSE OF DISCRETION NOT TO VACATE THE
JUDGMENT UNDER CIVIL RULE 60 (B)(5) WHEN PLAINTIFF-APPELLEE FALSELY
FILED A COMPLAINT STATING IT WAS THE HOLDER OF THE NOTE.
{3} “II. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO
DENY APPELLANT MICHAEL MARINO’S 60 (B) MOTION TO VACATE WITHOUT
HOLDING A HEARING.”
{4} On May 27, 2010, appellee filed a complaint for foreclosure of appellant’s
property on a mortgage and note. Appellant did not file an answer or any other
response and on July 2, 2010, appellee filed its motion for default judgment, along with
a notice of filing an allonge of the note and a notice of filing of assignment of mortgage.
The trial court entered judgment for appellee on September 1, 2010.
{5} On November 5, 2010, appellant filed a Motion for Relief from Judgment,
and supplemented the motion on February 28, 2011. The court overruled the motion.
I.
{6} In their first assignment of error, appellant argues the court abused its
discretion in overruling his motion to vacate the judgment because appellee
misrepresented itself as the holder of note.
{7} Civ. R. 60 (B) states:
{8} 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.
{9} The decision whether to grant a motion for relief from judgment under
Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d
75, 514 N.E.2d 1122 (1987). In order to find an abuse of discretion, we must determine
the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{10} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:
(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief
under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be
timely. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351
N.E.2d 113 (1976) paragraph two of the syllabus. If a party fails to establish any one of
these three requirements, the motion must be overruled. Rose Chevrolet, Inc. v.
Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).
{11} Appellant argues the note attached to the complaint was payable to M/I
Financial Corporation, and contains an endorsement to Wells Fargo Bank, N.A. There
was no documentation of a transfer to appellee, but the first paragraph of the complaint
stated appellee was the holder of the note.
{12} On July 2, 2010, appellee filed a notice of filing note with allonge. The
allonge was a transfer of the note from Wells Fargo Bank, N.A. to appellee. The
assignment of mortgage filed with it transferred to appellee the mortgage from Mortgage
Electronic Registration System, Inc. as nominee for M/I Financial Corporation its
successors and assigns. The assignment of mortgage was executed on July 8, 2010,
approximately two weeks after the filing of the complaint.
{13} Appellant argues appellee was not the holder of the note at the time the
complaint was filed, and thus, the first paragraph of its complaint was false, and
appellee had no standing to pursue the foreclosure action.
{14} The trial court found appellant could not use Civ. R. 60(B)(5) to assert
appellee committed a fraud on the court by submitting a fraudulent assignment,
affidavit, and allonge. The court found claims based upon fraud should be brought
pursuant to Civ. R. 60 (B)(3).
{15} The trial court found in order to have a claim for relief under Civ. R. 60
(B)(3), the adverse party must have prevented the complaining party from fully and fairly
presenting its case or defense. Judgment Entry at page 8, citing Hardman v.
Chiarmonte, 39 Ohio App. 3d 9, 11, 528 N.E. 2d 1270 (1987). The court correctly
stated the party asserting fraud and misrepresentation has the burden of proving the
assertion by clear and convincing evidence.
{16} The trial court found appellee did not prevent appellant from having a fair
opportunity to present defenses to the complaint. The court found appellant had the
opportunity to participate in the litigation, to file an answer, and to participate in
discovery, but chose instead to proceed without an attorney. The court found appellant
had not presented clear and convincing evidence of fraud or misrepresentation.
{17} The trial court cited Deutsche Bank National Trust Company v. Pagani,
5th Dist. No. 09CA000013, 2009-Ohio-5665, where the defendants argued when the
plaintiff was not the real party in interest because the note and mortgage had not been
assigned to the plaintiff when it filed its complaint. This court found the plaintiff
demonstrated it had standing because it attached sufficient evidence to its motion for
summary judgment, demonstrating it was in fact the current holder and owner of the
mortgage and note. We find in the case at bar, appellee provided evidence it was the
current holder and owner of the mortgage, which is sufficient under Pagani,supra.
{18} As for appellant’s argument regarding the appearance and source of the
various documents, the trial court found no clear and convincing evidence of fraud, and
we agree.
{19} The first assignment of error is overruled.
II.
{20} In his second assignment of error, appellant argues the court abused its
discretion in not holding a hearing before it ruled on their Civ. R. 60 (B) motion. In Kay
v. Marc Glassman, Inc., 76 Ohio St. 3d 18, 1996-Ohio-430, 665 N.E. 2d 1102, the Ohio
Supreme Court found when a movant files a motion for relief from judgment, the trial
court should grant a hearing to take evidence only if the motion contains operative facts
which would warrant relief under Civ. R. 60 (B). Id. at 19, citing Coulson v. Coulson, 5
Ohio St. 3d 12, 16, 448 N.E. 2d 809 (1983).
{21} Upon review we find appellant has not set forth facts indicating he has a
meritorious defense if relief were granted. Appellant’s arguments regarding standing do
not challenge the merits of the case. Appellant does not allege he actually was not in
default nor does he articulate any defense to the foreclosure action.
{22} We find the trial court did not abuse its discretion in declining to conduct a
hearing on the matter.
{23} The second assignment of error is overruled.
{24} For the foregoing reasons, the judgment of the Court of Common Pleas of
Delaware County, Ohio, is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0313
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
US BANK NATIONAL ASSOCIATION
AS TRUSTEE FOR WFASC 2005-
AR2 :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MICHAEL D. MARINO, ET AL :
:
:
Defendant-Appellant : CASE NO. 2011CAE11 0108
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Delaware County, Ohio, is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER