[Cite as BAC Home Loans Servicing, L.P. v. Hodous, 2015-Ohio-5458.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
BAC HOME LOANS SERVICING, LP fka : OPINION
COUNTRYWIDE HOME LOANS
SERVICING, LP, :
CASE NO. 2014-A-0071
Plaintiff-Appellee, :
- vs - :
RONALD J. HODOUS aka RONALD :
HODOUS, et al.,
:
Defendant-Appellant.
:
Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011 CV
111.
Judgment: Affirmed.
Jeffrey R. Helms, Christopher J. Mantica, Kathryn Maria Divita, Jennifer E. Powers,
and Adam R. Fogelman, Lerner, Sampson & Rothfuss, L.P.A., 120 East Fourth Street,
8th Floor, P.O. Box 5480, Cincinnati, OH 45202 (For Plaintiff-Appellee).
Jonathan P. Blakely, P.O. Box 217, Middlefield, OH 44062 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Ronald Hodous, appeals the judgment of the Ashtabula County
Court of Common Pleas denying his motion to vacate the court’s order confirming the
sale of real estate that was the subject of the court’s foreclosure decree in favor of
appellee, BAC Home Loans Servicing fka Countrywide Home Loans Servicing, LP
(BAC) and against appellant. At issue is whether the court abused its discretion in
denying appellant’s motion to vacate. For the reasons that follow, we affirm.
{¶2} On April 24, 2003, appellant obtained a mortgage loan from America’s
Wholesale Lender (AWL) to purchase a parcel of property in the amount of $180,500.
In exchange, appellant executed a promissory note for that amount in favor of AWL.
AWL was a dba for Countrywide Home Loans Servicing, LP. Countrywide subsequently
changed its name to BAC.
{¶3} In order to secure the debt, on the same date, April 24, 2003, appellant
executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc.
(MERS), as nominee for AWL. On April 9, 2009, MERS assigned the mortgage to
Countrywide.
{¶4} On October 1, 2010, appellant defaulted on the note and mortgage. After
appellant failed to cure his default, BAC declared the entire amount owed under the
note and mortgage due in the amount of $175,404, plus interest.
{¶5} On February 2, 2011, BAC filed a complaint in foreclosure against
appellant. BAC alleged that it was the holder of the note and the assignee of the
mortgage; that appellant defaulted under the note and mortgage; that BAC had declared
the entire amount of the debt due; and that BAC was entitled to judgment on the note in
the amount of $175,404, plus interest, and to foreclosure of the mortgage. BAC
attached copies of the note, mortgage, and mortgage assignment to the complaint.
{¶6} On March 7, 2011, appellant, acting pro se, filed an answer, stating he
was “working on reinstating mortgage loan.” However, he did not deny any of the
2
allegations of the complaint. As a result, the allegations of the complaint were deemed
admitted. Civ.R. 8(D).
{¶7} The case was referred to the court’s mediation program; however, the
parties did not reach a resolution of the matter.
{¶8} Consequently, on April 18, 2013, BAC filed a motion for summary
judgment supported by an affidavit of its representative and other evidentiary materials.
BAC presented evidence that before the complaint was filed, it was the holder of the
note and the assignee of the mortgage. BAC also presented evidence that appellant
was in default; that the debt had been accelerated; and the amount appellant owed.
Further, BAC authenticated the note, mortgage, and assignment of the mortgage.
Appellant did not file a brief in opposition to summary judgment.
{¶9} On September 30, 2013, the trial court entered its judgment and
foreclosure decree in favor of BAC. Appellant did not appeal the court’s judgment.
{¶10} On February 10, 2014, the sheriff’s sale of the property was held, and the
property was sold to BAC for $165,000.
{¶11} On March 5, 2014, BAC, as the successful bidder at the sheriff’s sale,
assigned its bid for the real estate to Federal National Mortgage Association (Fannie
Mae). The assignment of the bid was filed with the court on that date.
{¶12} On March 6, 2014, BAC filed a motion to confirm the sale. Appellant did
not file a brief in opposition.
{¶13} On March 14, 2014, the court entered judgment confirming the sale;
ordering the sheriff to deliver a deed for the property to Fannie Mae; and ordering the
distribution of the sale proceeds. Accordingly, Fannie Mae has owned the property
3
since March 14, 2014. Appellant did not appeal the court’s judgment confirming the
sale.
{¶14} On April 11, 2014, BAC filed a praecipe requesting the clerk of courts to
issue a writ of possession to appellant. The clerk issued the writ, instructing appellant
to vacate the property.
{¶15} Upon receiving the writ, appellant retained counsel. On April 30, 2014,
appellant filed a motion to stay the writ of possession. In support, he alleged that he
had retained a third-party entity named “Home Protection Services” (HPS) to negotiate
a loan modification with BAC on his behalf and that he needed more time to attempt
further negotiations with BAC/Fannie Mae. In the alternative, appellant said that if such
negotiations were unsuccessful, he needed a stay to give him more time to move. On
May 5, 2014, the court granted appellant’s motion for stay.
{¶16} On August 4, 2014, the court’s magistrate conducted a status conference.
BAC stated that it was never contacted by a third party on behalf of appellant and that
the parties had not resolved the case. As a result, on August 6, 2014, the magistrate
entered an order finding that appellant was unable to negotiate a resolution of the case;
removing the previously-imposed stay of the writ of possession; and directing the clerk
to issue a writ of possession in favor of Fannie Mae, the owner of the property.
{¶17} On September 3, 2014, BAC filed a second praecipe requesting the clerk
of courts to issue a writ of possession to appellant. The clerk issued the writ, instructing
appellant to vacate the property by October 16, 2014.
{¶18} On October 9, 2014, appellant filed a Civ.R. 60(B) motion to vacate the
court’s March 14, 2014 judgment confirming the sale to Fannie Mae.
4
{¶19} In his motion to vacate the judgment, appellant conceded he stopped
making payments on his mortgage and defaulted on his mortgage loan. He said that
sometime in 2013, he received a notice from HPS, which advised him that it would work
with BAC to help him “re-do his mortgage loan.” Appellant said that HPS told him that
BAC required a reinstatement fee of $5,398, and he sent that amount to HPS to be
forwarded to BAC. He said that, afterward, HPS told him his mortgage loan was
modified. However, when he learned the property had sold and he received a notice to
vacate in April 2014, he retained an attorney. He said he also contacted BAC at that
time and learned that HPS had never contacted BAC or paid it any money. Appellant
said that because BAC had sold the property, he tried to negotiate a refinance with
Fannie Mae, the new owner of the property, but Fannie Mae rejected his proposal.
However, he argued that because BAC allegedly told him “it would work with him”
before Fannie Mae rejected his proposal, he was entitled to vacate the court’s judgment
confirming the sale to Fannie Mae.
{¶20} On October 16, 2014, the trial court entered judgment denying appellant’s
motion for relief from judgment. The court found it was “extremely unlikely” that
appellant could present a meritorious defense because, although the case had been
mediated through the court’s mediation program and appellant had ample time to
negotiate a resolution with Fannie Mae, which has owned the property since March 14,
2014, appellant admitted in his motion that Fannie Mae is not willing to work with him.
Further, the court found that appellant’s motion was not filed within a reasonable time.
{¶21} Appellant appeals that judgment, asserting the following for his sole
assignment of error:
5
{¶22} “The trial court erred and abused its discretion in overruling Defendant-
Appellant’s motion for relief from judgment which had confirmed a sheriff’s sale of his
home.”
{¶23} We note that on November 17, 2014, BAC filed a third praecipe in the trial
court requesting the clerk to issue a writ of possession to appellant. The clerk issued
the writ, instructing appellant to vacate the property by December 4, 2014.
{¶24} Appellant filed in this court a motion to stay the third writ of possession
pending this appeal. On December 3, 2014, this court denied the motion.
{¶25} Before addressing appellant’s substantive arguments, we note that BAC
raises certain procedural arguments, three of which have merit and are dispositive of
this appeal.
{¶26} First, BAC argues that appellant improperly used his motion to vacate the
court’s March 14, 2014 judgment confirming the sheriff’s sale as a substitute for a timely
appeal of the foreclosure decree. In support, BAC argues that none of the arguments
made by appellant in his motion to vacate challenged the confirmation of the sheriff’s
sale. Rather, his arguments challenged the foreclosure decree, which the court entered
on September 30, 2013. As noted above, appellant did not appeal the foreclosure
decree.
{¶27} It is well settled that a motion to vacate a judgment “‘may not be used as a
substitute for a timely appeal or to accommodate a party by extending the normal period
for appeal.’” HSBC Bank USA, N.A. v. Bailey, 11th Dist. Trumbull No. 2012-T-0086,
2014-Ohio-246, ¶16, quoting Steadley v. Montanya, 67 Ohio St.2d 297, 299 (1981).
Further, a motion to vacate a judgment cannot be based on arguments that could have
6
been raised on direct appeal. JP Morgan Chase Bank, N.A. v. Rhodes, 11th Dist. Lake
No. 2013-L-117, 2014-Ohio-2706, ¶18.
{¶28} Because appellant’s motion to vacate did not raise any issues with the
confirmation of sale, but, rather, challenged the foreclosure decree itself, appellant
improperly used his motion to vacate as a substitute for a timely appeal of the
foreclosure decree.
{¶29} Second, BAC argues this court lacks jurisdiction to address appellant’s
challenges to the underlying foreclosure decree. It is well settled that a trial court’s
foreclosure decree is a final appealable order. Countrywide Home Loans Servicing,
L.P. v. Nichpor, 136 Ohio St.3d 55, 2013-Ohio-2083, ¶6. Thus, the court’s foreclosure
decree, filed on September 30, 2013, was a final appealable order. Pursuant to App.R.
5, appellant had 30 days in which to file an appeal of the decree. However, appellant
did not appeal it. As noted above, none of the arguments in appellant’s motion to
vacate challenged the conduct of the sheriff’s sale; rather, they challenged the
foreclosure decree itself. Because appellant did not appeal the foreclosure decree, his
arguments are not properly before us at this time.
{¶30} Third, as noted above, appellant did not appeal the April 14, 2014
confirmation order. Instead, he also used his motion to vacate the confirmation order as
a substitute for a timely appeal of that order. For that additional reason, his motion to
vacate lacked merit.
{¶31} However, even if Civ.R. 60(B) could be used as a substitute for an appeal,
appellant’s motion to vacate would still lack merit. An appellate court’s review of a
judgment confirming a foreclosure sale is limited to determining whether the sale was
7
conducted in accordance with the law as set forth in R.C. 2329.01 through R.C.
2329.61. Bank One Dayton, N.A. v. Ellington, 105 Ohio App.3d 13, 16 (2d Dist.1995).
{¶32} At the outset, we note that an order denying a motion for relief from
judgment is reviewed by this court for an abuse of discretion. Len-Ran, Inc. v. Erie Ins.
Group, 11th Dist. Portage No. 2006-P-0025, 2007-Ohio-4763, ¶15. The term “abuse of
discretion” is one of art, connoting judgment exercised by a court, which does not
comport with reason or the record. Gaul v. Gaul, 11th Dist. Ashtabula No. 2009-A-0011,
2010-Ohio-2156, ¶24.
{¶33} Further, the Supreme Court of Ohio in CitiMortgage, Inc. v. Roznowski,
139 Ohio St.3d 299, 2014-Ohio-1984, ¶40, stated:
{¶34} The confirmation process is an ancillary one in which the issues
present are limited to whether the sale proceedings conformed to
law. Because of this limited nature of the confirmation proceedings,
the parties have a limited right to appeal the confirmation. For
example, on appeal of the order confirming the sale, the parties
may challenge the confirmation of the sale itself, including
computation of the final total owed by the mortgagor, accrued
interest, and actual amounts advanced by the mortgagee for
inspections, appraisals, property protection, and maintenance. The
issues appealed from confirmation are wholly distinct from the
issues appealed from the order of foreclosure. In other words, if the
parties appeal the confirmation proceedings, they do not get a
second bite of the apple, but a first bite of a different fruit.
{¶35} Appellant argues he had a defense because a loan modification is a
meritorious defense. However, since appellant’s motion sought to vacate only the
court’s March 14, 2014 judgment confirming the sale, he was required to assert a
defense in his motion to vacate based on the conduct of the sale itself. Appellant
admits on appeal that by his motion to vacate he was attempting to “indicate some kind
of irregularity in the foreclosure proceeding.” Because the existence of a modification is
8
irrelevant to whether the proper procedures were followed by the sheriff in conducting
the sale, the existence of a modification was not available to appellant as a defense.
{¶36} Here, appellant did not challenge the conduct of the sheriff’s sale in his
motion to vacate. Consequently, there is nothing for us to consider.
{¶37} Significantly, while BAC raised these issues in its brief, appellant does not
dispute or even address them. Having determined that appellant’s appeal is
procedurally flawed, appellant’s assignment of error lacks merit.
{¶38} For the reasons stated in this opinion, appellant’s assignment of error
lacks merit and is overruled. It is the order and judgment of this court that the judgment
of the Ashtabula County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J., concurs,
THOMAS R. WRIGHT, J., concurs in judgment only.
9