[Cite as BAC Home Loans Servicing, LP v. Henderson, 2013-Ohio-275.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98745
BAC HOME LOANS SERVICING, LP
PLAINTIFF-APPELLANT
vs.
DWAYNE R. HENDERSON, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-703485
BEFORE: Keough, J., Jones, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: January 31, 2013
ATTORNEYS FOR APPELLANT
Matthew T. Anderson
Timothy M. Clayton, Jr.
Brett M. Renzenbrink
Luper Neidenthal & Logan
50 West Broad Street
Suite 1200
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEES
For Dwayne R. Henderson
John Sherrod
Laura Mills
Paul Vincent
Mills, Mills, Fiely & Lucas
503 South Front Street
Suite 240
Columbus, Ohio 43215
For Centurion Capital Corp.
Centurion Capital Corp.
700 King Farm Blvd.
Rockville, Maryland 20850
For Alishea T. Henderson
Alishea T. Henderson
5188 Spencer Road
Lyndhurst, Ohio 44124
For St. Colman & Affiliates F.C.U.
St. Colman & Affiliates F.C.U.
6637 Lorain Avenue
Cleveland, Ohio 44102
For State of Ohio Department of Taxation
Joseph T. Chapman
Collections Enforcement
150 E. Gay Street, 21st Floor
Columbus, Ohio 43215
For Unknown Tenant
Unknown Tenant
5188 Spencer Road
Lyndhurst, Ohio 44124
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant, BAC Home Loans Servicing (“BAC”) appeals from the
trial court’s judgment that vacated a prior foreclosure decree against defendant-appellee,
Dwayne R. Henderson (“Henderson”), and dismissed BAC’s complaint without
prejudice. For the reasons that follow, we reverse and remand.
I. Background
{¶2} In September 2009, BAC filed its complaint in foreclosure alleging that it
was the owner of a note secured by a mortgage on property located at 5188 Spencer Road,
Lyndhurst, Ohio 44124, Henderson had defaulted on the note, and BAC was entitled to
foreclose on the mortgage. Henderson did not answer the complaint 1 and BAC
subsequently filed a motion for default judgment. The matter was referred to a
magistrate, who issued a decision entering judgment for BAC on its motion. On April
15, 2010, the trial court issued a journal entry adopting the magistrate’s decision. The
court ordered judgment for BAC against Henderson, entered a decree of foreclosure, and
ordered that BAC could proceed to sheriff’s sale of the property.
{¶3} A sale date was set for June 21, 2010, but two days prior to the sale,
Henderson filed a Chapter 13 petition for bankruptcy. Accordingly, the sale was
withdrawn and the proceedings were stayed. After Henderson’s bankruptcy case was
dismissed, the property was again set for sheriff’s sale on June 11, 2012.
Defendant State of Ohio, Department of Taxation, was the only defendant
1
that answered the complaint; the department disclaimed any interest in the
property and was dismissed.
{¶4} Henderson then filed a request for mediation. On May 30, 2012, the trial
court denied Henderson’s request and ordered that BAC could proceed to execute on its
judgment.
{¶5} Henderson then filed another request for mediation. On June 7, 2012, the
trial court entered an order finding that the case might be suitable for mediation and
staying all discovery and motion practice pending the mediator’s final determination
regarding suitability for mediation. The trial court ordered that the case would be set for
a pre-mediation conference by separate order, and further ordered that “failure of
plaintiff’s counsel to appear will result in the 04/15/10 judgment being vacated, and
dismissal of all claims without prejudice.” The court ordered the property sale to
proceed but stayed confirmation of the sale pending the results of mediation.
{¶6} On June 12, 2012, the trial court issued a journal entry setting the
pre-mediation conference for July 2, 2012 and again ordering that “failure of the
plaintiff’s counsel to appear in person at the pre-mediation conference will result in
dismissal of the plaintiff’s claims without prejudice.”
{¶7} BAC’s counsel did not appear at the pre-mediation conference. On July 3,
2012, the trial court issued a journal entry ordering that “pursuant to this court’s order
dated June 7, 2012, the judgment and decree of foreclosure dated 4-15-10 and the
sheriff’s sale of 6-11-12 are vacated.” The court ordered the sheriff to return the order
of sale without execution and to mark as void any deed that had been prepared as a result
of the sale. Finally, the trial court ordered that BAC’s claims were dismissed without
prejudice.
II. Analysis
{¶8} BAC raises three assignments of error, all of which challenge the trial
court’s July 3, 2012 journal entry. In its first assignment of error, BAC argues that the
trial court erred in sua sponte vacating its April 15, 2010 judgment and decree of
foreclosure; in its second assignment, BAC contends that the trial court erred in sua
sponte vacating the sheriff’s sale; and in its third assignment, BAC contends that the trial
court erred in sua sponte dismissing its foreclosure action. We agree with all of BAC’s
contentions.
{¶9} The trial court’s April 15, 2010 judgment ordering foreclosure and sale of
the property was a final, appealable order. Sky Bank v. Mamone, 182 Ohio App.3d 323,
2009-Ohio-2265, 912 N.E.2d 668, ¶ 25 (8th Dist.), citing Smith v. Najjar, 163 Ohio
App.3d 208, 2005-Ohio-4720, 837 N.E.2d 419, ¶ 10 (5th Dist.) (“An order of foreclosure
and sale is a final appealable order, * * * and the later order confirming the sale * * * is a
second, separate, final appealable order.”); see also Mtge. Elec. Reg. Sys., Inc. v.
Harris-Gordon, 6th Dist. No. L-10-1176, 2011-Ohio-1970, ¶ 10 (both the order of
foreclosure and the order confirming the sheriff’s sale are final, appealable orders).
{¶10} A trial court has no authority to sua sponte vacate its own final orders. In
re R.T.A., 8th Dist. No. 98498, 2012-Ohio-5080, ¶ 5, citing Dickerson v. Cleveland
Metro. Hous. Auth., 8th Dist. No. 96726, 2011-Ohio-6437, ¶ 7. Since the adoption of
the Civil Rules, Civ.R. 60(B) provides the exclusive means for a trial court to vacate a
final judgment. In re R.T.A., supra, citing Rice v. Bethel Assoc., Inc., 35 Ohio App.3d
133, 520 N.E.2d 26 (9th Dist.1987); In re D.R.M., 8th Dist. No. 98633, 2012-Ohio-5422,
¶ 7.
{¶11} Here, neither party filed a Civ.R. 60(B) motion for relief from judgment nor
asked the court to vacate any of the provisions of the court’s April 15, 2010 judgment.
Accordingly, the trial court erred in sua sponte vacating its judgment of foreclosure in
favor of BAC and in sua sponte vacating the sheriff’s sale.
{¶12} Henderson concedes that a court is without authority to sua sponte vacate its
final judgments but argues that the trial court had authority in this case to dismiss the
foreclosure action without prejudice because the court gave notice that the matter would
be dismissed if the parties failed to appear at the pre-mediation conference.
Henderson’s argument is without merit. Because the trial court had entered a judgment
of foreclosure for BAC and ordered the property to be sold at sheriff’s sale — a final
judgment — the court was without authority to sua sponte vacate its judgment and
dismiss the case. Henderson’s remedy upon the trial court’s order of foreclosure and
sale was to file an appeal or a Civ.R. 60(B) motion for relief from judgment in the trial
court. Because he did not file a Civ.R. 60(B) motion, the trial court was without
authority to sua sponte vacate its final judgment of foreclosure and sale and dismiss the
case.
{¶13} BAC’s assignments of error are therefore sustained. The trial court’s
judgment entry dated July 3, 2012 is reversed, and the matter is remanded to the trial
court with instructions to reinstate the April 15, 2010 judgment entry.
{¶14} Reversed and remanded.
It is, therefore, considered that said appellant recover of said appellee its costs
herein.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR