[Cite as U.S. Bank, N.A. v. Marino, 2014-Ohio-3453.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
U.S. BANK, N.A., as Trustee for JUDGES:
WFASC 2005-AR2 Hon. William B. Hoffman, P. J.
Hon. Sheila G. Farmer, J.
Plaintiff-Appellee Hon. John W. Wise, J.
-vs- Case No. 12 CAE 09 0065
MICHAEL D. MARINO, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 10 CV E 05 0824
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 8, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SCOTT A. KING GRACE DOBERDRUK
THOMPSON HINE DOBERDRUK & HARSHMAN
10050 Innovation Drive, Suite 400 4600 Prospect Avenue
Miamisburg, Ohio 45401 Cleveland, Ohio 44103
TERRANCE A. MEBANE
THOMPSON HINE
41 South High Street, Suite 1700
Columbus, Ohio 43215
Delaware County, Case No. 12 CAE 09 0065 2
Wise, J.
{¶1} Defendant-Appellant Michael D, Marino appeals the April 8, 2013,
decision of the Court of Common Pleas of Delaware County, Ohio, denying his Civ.R.
60(B) motion to vacate judgment of foreclosure in favor of Plaintiff-Appellee U.S. Bank,
N.A.
STATEMENT OF THE FACTS AND CASE
{¶2} This case arose from a residential foreclosure action. The relevant facts
and procedural history are as follows:
{¶3} On November 19, 2004, Defendant-Appellant Michael Marino executed a
promissory note ("Note"), in favor of M/I Financial Corporation ("M/I"), payment of which
was secured by a mortgage ("Mortgage") against the Property, executed by both
Appellant Marino and his wife, Elizabeth Markusic. The mortgagee under the Mortgage
was Mortgage Electronic Registration Systems ("MERS"), as nominee for M/I and its
successors and assigns.
{¶4} The Note and Mortgage cross-reference each other. The Note states in
Section 10, entitled Uniform Secured Note:
{¶5} "In addition to the protections given to the Note Holder under this Note, a
Mortgage Deed of Trust, or Security Deed (the 'Security Instrument'), dated the same
day as this Note, protects the Note Holder from possible losses which might result if I do
not keep the promises which I make in this Note. That Security Instrument describes
how and under what conditions I may be required to make immediate payment in full of
all amounts I owe under the Note."
{¶6} The Mortgage states:
Delaware County, Case No. 12 CAE 09 0065 3
{¶7} "This Security Instrument secures to Lender: (i) the repayment of the
Loan, and all renewals, extensions and modifications of the Note; and (ii) the
performance of Borrower's conveyance under the Security Instrument and the Note. For
this purpose, Borrower does hereby mortgage, grant and convey to Lender the following
described property."
{¶8} On May 27, 2010, U.S. Bank, National Association, as Trustee for WFASC
2005-AR2 ("U.S. Bank") filed a Complaint against Michael D. Marino ("Marino") and
Elizabeth A. Markusic ("Markusic") in the Delaware County Court of Common Pleas to
recover the balance due under a promissory note and foreclose a mortgage against
2623 Open Bay Court, Galena, Ohio 43021. In said Complaint, U.S. Bank alleged that it
was the "holder" of the Note. A copy of the Note was attached to the Complaint and
bore the endorsement from M/I to Wells Fargo Bank, N.A. ("Wells Fargo"), but no
endorsement to U.S. Bank.
{¶9} On June 2, 2010, Appellant Marino was served by certified mail with
summons and the Complaint. Appellant did not file an answer.
{¶10} On July 2, 2010, U.S. Bank filed a Notice of Filing of Allonge. The Allonge
identifies the Note by date, maker, original payee and original principal balance. The
Allonge was executed by Herman Kennerty as Vice President of Loan Documentation of
Wells Fargo, and assigned the Note to U.S. Bank. The copy of the Note attached to the
Notice has four hole punch marks at the top, while the Allonge only has two.
{¶11} On July 2, 2010, U.S. Bank also filed a Notice of Filing of Assignment of
the Mortgage. The notice of Assignment of Mortgage was executed by Mr. Kennerty as
Delaware County, Case No. 12 CAE 09 0065 4
"Assistant Secretary" for MERS. The Assignment states that it was transferring both the
Mortgage and "all sums of money due and to become due thereon."
{¶12} On July 2, 2010, U.S. Bank moved for default judgment. The Motion's
certificate of service page shows that it was served on Appellant. Appellant did not
oppose the Motion.
{¶13} On July 7, 2010, the trial court issued a Scheduling Entry, and on August
9, 2010, a Judgment Entry granting U.S. Bank additional time to comply with the
Scheduling Entry, both of which were served on Appellant.
{¶14} On September 1, 2010, the trial court granted default judgment and issued
its decree in foreclosure, both of which were served on Appellant.
{¶15} On September 3, 2010, the Clerk of Courts sent notice of the final order to
Appellant. Appellant did not appeal.
{¶16} On November 5, 2010, Appellant filed a Rule 60(B) Motion for Relief From
Judgment.
{¶17} On December 3, 2010, U.S. Bank filed a Memorandum Contra to that
Motion.
{¶18} On January 15, 2011, Marino's wife, Elizabeth Markusic, filed a
bankruptcy petition in the U.S. District Court for the Southern District of Ohio, Case No.
2:11-bk-20325.
{¶19} On January 31, 2011, U.S. Bank filed a motion for relief from the
automatic stay imposed by the bankruptcy action, and attached to that Motion a copy of
the Note. A copy of the Allonge was not included.
Delaware County, Case No. 12 CAE 09 0065 5
{¶20} On February 9, 2011, attorney John Sherrod was substituted as
Appellant’s counsel, and on February 14, 2011, requested that the 60(B) Motion be held
in abeyance pending resolution of Markusic's bankruptcy action.
{¶21} On March 2, 2011, the U.S. Bankruptcy Court for the Southern District of
Ohio terminated the automatic stay.
{¶22} On February 28, 2011, Appellant filed a second Civ.R. 60(B) motion which
was accompanied by an Affidavit signed by Appellant. The second motion argued that
the Allonge and the Assignment were fraudulent because they were supposedly
executed by a "robo-signer," and that U.S. Bank lacked standing because the
Assignment was not executed until after it filed the Complaint. The second motion did
not mention any purported defect with the copy of the Note filed in the bankruptcy
action. Appellant’s Affidavit stated that he never received a copy of the motion for
default judgment, but did not argue that this was a basis to vacate the foreclosure
judgment.
{¶23} On May 17, 2011, U.S. Bank gave notice that the automatic stay imposed
by the bankruptcy action had been terminated and filed its Memorandum Contra.
{¶24} On June 18, 2011, Appellant filed a Motion to Stay Proceedings pending
the Ohio Supreme Court's resolution of a certified conflict in U.S. Bank, NA. v. Duvall,
Cuyahoga App. No. 94174, 2010-Ohio-6478, dismissed as moot 129 Ohio St.3d 1479,
2011-Ohio-4751, 953 N.E.2d 844.
{¶25} On July 12, 2011, U.S Bank filed its Memorandum in Opposition to that
Motion.
Delaware County, Case No. 12 CAE 09 0065 6
{¶26} On October 24, 2011, the trial court rejected Appellant's arguments and
denied the Motion to Stay pending Duvall.
{¶27} On November 21, 2011, Appellant filed an appeal.
{¶28} On December 22, 2011, Appellant filed his brief, arguing that U.S. Bank
misrepresented itself as the "holder" of the Note when it filed the Complaint, and that
the Trial Court abused its discretion by not holding a hearing before it ruled on the
Second Motion. The two assignments raised by Appellant in that appeal were:
{¶29} “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.
{¶30} “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.”
{¶31} By Opinion and Entry filed March 30, 2012, this Court rejected both
arguments and affirmed the trial court's decision in its entirety. U.S. Bank, N.A. v.
Michael Marino, 5th Dist. Delaware App. No. 2011CAE11 0108, 2012-0hio-1487. This
Court found that U.S. Bank "provided evidence it was the current holder and owner of
the mortgage, which is sufficient under Deutsche Bank National Trust Company v.
Pagani, 5th Dist. No. 09CA000013, 2009-0hio- 5665." Id. at 17. This Court also found
that 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." Id. at 21.
{¶32} On June 1, 2012, Appellant filed a 60(B)(4) Motion to Vacate the
Judgment of Foreclosure, arguing that the foreclosure judgment should be vacated
Delaware County, Case No. 12 CAE 09 0065 7
because U.S. Bank allegedly lacked standing when it filed the Complaint and because
the copy of the Note which U.S. Bank submitted in Appellant’s wife's bankruptcy was
not accompanied with a copy of the Allonge.
{¶33} Simultaneously with the third motion, Appellant also filed a fourth motion
captioned Common Law Motion to Vacate the Judgment of Foreclosure asserting that
the trial court lacked personal jurisdiction over Appellant because he did not receive
notice of U.S. Bank's motion for default judgment.
{¶34} On August 28, 2012, the Court overruled the third and fourth motions.
{¶35} On September 14, 2012, Appellant filed a notice of appeal.
{¶36} On October 22, 2012, Appellant filed a bankruptcy petition in the U.S.
District Court for the Southern District of Ohio, Case No. 2:12-bk-59071.
{¶37} On February 26, 2013, U.S. Bank gave notice that the automatic stay
imposed by Appellant’s bankruptcy had terminated because he failed to file the
necessary documents.
{¶38} On February 26, 2013, the trial court issued an Entry reactivating the
case.
{¶39} On April 1, 2013, Appellant filed his Brief.
{¶40} Appellants now appeal, assigning the following Assignments of Error.
ASSIGNMENTS OF ERROR
{¶41} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
MICHAEL MARINO'S MOTION TO VACATE UNDER CIVIL RULE 60(B)(4) WITHOUT
A HEARING IN LIGHT OF THE ALLEGATION THAT THE SUBJECT NOTE WITH A
Delaware County, Case No. 12 CAE 09 0065 8
DIFFERENT INDORSEMENT AND NO ALLONGE WAS FILED AS AN EXHIBIT IN
APPELLANT'S WIFE'S BANKRUPTCY CASE SUBSEQUENT TO JUDGMENT.
{¶42} “II. THE TRIAL COURT ERRED BY DENYING APPELLANT'S COMMON
LAW MOTION TO VACATE WHEN THE COURT LACKED JURISDICTION TO ENTER
A JUDGMENT.”
I., II.
{¶43} In his First Assignment of Error, Appellant argues that the trial court erred
denying his Civ.R. 60(B) motion without a hearing. In his Second Assignment of Error,
Appellant argues the trial court erred in denying his common law motion to vacate.
More specifically, Appellant maintains that the trial court lacked jurisdiction to enter a
judgment in this matter. We disagree.
{¶44} In this case, we need not review whether the trial court abused its
discretion in denying Appellant’s motions to vacate. Res judicata bars our consideration
of his assigned errors.
{¶45} Res judicata prevents repeated attacks on a final judgment and applies to
all issues that were or might have been litigated. Bank of New York v. Jackson, 8th Dist.
Cuyahoga No. 99874, 2013–Ohio–5133, citing Rogers v. Whitehall, 25 Ohio St.3d 67,
494 N.E.2d 1387 (1986). “Principles of res judicata prevent relief on successive, similar
motions raising issues which were or could have been raised originally.” Coulson v.
Coulson, 5 Ohio St.3d 12, 13, 448 N.E.2d 809 (1983). See Brick Processors, Inc. v.
Culbertson, 2 Ohio App.3d 478, 442 N.E.2d 1313 (5th Dist.1981), paragraph one of the
syllabus.
Delaware County, Case No. 12 CAE 09 0065 9
{¶46} Wells Fargo Bank, N.A. v. Perkins, 10th Dist. Franklin No. 13AP–318,
2014-Ohio-1459, presents a fact pattern similar to this case. In Perkins, the property
owner, like Appellant in the instant case, failed to file a direct appeal after the trial court
granted judgment in favor of the bank. Instead, Perkins filed multiple motions for relief
from judgment pursuant to Civ.R. 60(B). Each time the trial court denied these motions,
Perkins appealed the denial. In his third appeal, Perkins argued that the trial court
erroneously denied his motion where the bank's lack of standing equated to a lack of
subject matter jurisdiction. Perkins had made this same argument in his second Civ.R.
60(B) motion, which also had been denied by the trial court. Perkins, like Appellant
herein, cited Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012–
Ohio–5017, 979 N.E.2d 1214, to support his argument that in a foreclosure action
where the bank lacks standing, the court lacks subject matter jurisdiction and any
judgment rendered by the court is void. The Tenth District, however, rejected this
argument and affirmed the decision of the trial court holding that Perkins's reliance on
Schwartzwald was misplaced. The court stated:
{¶47} “Schwartzwald does not stand for the proposition that a court of common
pleas lacks subject-matter jurisdiction over a foreclosure action where the plaintiff lacks
standing at the time the complaint is filed. * * * “[a] lack of standing does not deprive a
court of subject-matter jurisdiction” in a mortgage foreclosure action.” (Citation omitted.)
Id. at 12.
{¶48} The Perkins court went on to state that even if there was a defect in the
bank's standing, this would only result in the court's judgment being voidable, not void.
Id. at 13. A voidable judgment may not be “collaterally, repeatedly, and duplicatively
Delaware County, Case No. 12 CAE 09 0065 10
attacked without limitation” and “Schwartzwald does not prohibit application of the
doctrine of res judicata.” Id.
{¶49} Upon review, we find this case analogous to Perkins. Here, these issues
were previously litigated to a determination, which became the law of the case when it
was left unchallenged. Any issues relating to the bank's standing to file the complaint
did not deprive the court of subject matter jurisdiction and res judicata bars these claims
where these issues were previously litigated in this Court and no appeal to the Ohio
Supreme Court was taken therefrom.
{¶50} To allow Appellant to again argue the same issues as those in the
decisions determining standing, from which no appeal was taken is an attempted end
run around codified procedures designed for the efficient administration of cases and
casts doubt on the validity of the judgment.
{¶51} Appellant’s First and Second Assignments of Error are overruled.
{¶52} For the foregoing reasons, the judgment of the Court of Common Pleas of
Delaware County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
JWW/d 0730
Delaware County, Case No. 12 CAE 09 0065 11