[Cite as Bank of New York Mellon v. McMasters, 2016-Ohio-1588.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
THE BANK OF NEW YORK MELLON : OPINION
fka THE BANK OF NEW YORK,
AS TRUSTEE FOR THE :
CERTIFICATEHOLDERS OF THE CASE NO. 2015-L-068
CWABS INC., ASSET-BACKED :
CERTIFICATES, SERIES 2006-11,
:
Plaintiff-Appellee,
:
- vs -
:
JOAN MCMASTERS, et al.,
:
Defendant-Appellant.
Civil Appeal from the Lake County Court of Common Pleas, Case No. 12 CF 001607.
Judgment: Affirmed.
Adam J. Turer, Lerner Sampson & Rothfuss, 120 East Fourth Street, Suite 800, P.O.
Box 5480, Cincinnati, OH 45202 (For Plaintiff-Appellee).
David N. Patterson, 33579 Euclid Avenue, Willoughby, OH 44094-3199 (For
Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Joan McMasters, appeals from the judgment of the Lake
County Court of Common Pleas confirming sale, ordering deed, and distributing sale
proceeds. For the reasons discussed below, the trial court’s judgment is affirmed.
{¶2} On June 12, 2012, appellee, The Bank of New York Mellon fka The Bank
of New York, as Trustee for the Certificateholders of the CWABS Inc., Asset-Backed
Certificates, Series 2006-11, filed a complaint in foreclosure, premised upon appellant’s
default on a certain note and mortgage she executed in favor of appellee. Appellee filed
a motion for summary judgment. Appellant did not respond. On December 2, 2013, the
trial court entered an order of sale. Appellant did not file a notice of appeal from this
order.
{¶3} A land appraisement was conducted and filed February 28, 2014. A
Notice of Sheriff’s Sale was filed March 7, 2014, notifying the parties the sheriff’s sale
was scheduled for April 7, 2014. On April 1, 2014, appellant filed a motion to set aside
the entry of summary judgment pursuant to Civ.R. 60(B).
{¶4} After a hearing, the magistrate recommended appellant’s Civ.R. 60(B)
motion be denied. Appellant filed objections to the magistrate’s decision. The trial court
subsequently overruled appellant’s objections and adopted the magistrate’s decision.
Appellant filed an appeal. Finding appellant’s assigned error without merit, we stated:
Appellant’s Civ.R. 60(B) motion was filed pursuant to subsections
(B)(3), (B)(4), and (B)(5). Nevertheless, the Kuchta analysis still
applies. Because appellant had an opportunity to challenge, inter
alia, appellee’s standing during the pendency of the summary
judgment phase, the provisions allowing equitable relief pursuant to
Civ.R. 60(B)(4) and (B)(5) do not affect our decision. Appellant did
not establish an injustice so great as to warrant a departure from
the application of res judicata. See [Bank of Am., N.A. v. Kuchta,
141 Ohio St.3d 75, 2014-Ohio-4275, ¶15.] Instead, the record
simply reveals that appellant failed to oppose appellee’s motion for
summary judgment because she ‘gave up’ and never took
advantage of an opportunity to appeal the adverse judgment. Civ.R.
60(B) ‘does not exist to allow a party to obtain relief from his or her
own choice to forgo an appeal from an adverse decision.’ Id.
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Here, even though appellant challenged appellee’s standing in her
answer, she did not respond to appellee’s motion for summary
judgment. Appellant did not pursue a direct appeal from the entry of
summary judgment. Because appellant had a full opportunity to
litigate an issue unrelated to the court’s subject matter jurisdiction,
she is barred from collaterally challenging appellee’s standing in the
underlying motion to set aside judgment. See generally [Bank of
Am., N.A. v. Gibson, 11th Dist. Geauga No. 2014-G-3204, 2015-
Ohio-209].
Bank of N.Y Mellon v. McMasters, 11th Dist. Lake No. 2014-L-112, 2015-Ohio-1769,
¶15-16.
{¶5} On May 15, 2015, the trial court entered a judgment entry confirming sale,
ordering deed, and distributing sale proceeds. It is from this entry that appellant
appeals, assigning the following assignment of error:
{¶6} “The trial court erred to the prejudice of the Appellant by entering Entry of
Confirmation confirming the Sheriff Sale which was unreasonable, arbitrary, and
capricious due to the failure to comply with the statutory and common law
requirements.”
{¶7} On appeal, appellant maintains that because the entry of confirmation was
entered almost 15 months after the last appraisal of real estate, the sale was improper.
We disagree.
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
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parties appeal the confirmation proceedings, they do not get a
second bite of the apple, but a first bite of a different fruit.
CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, ¶40.
{¶8} A trial court has discretion to confirm or refuse to confirm a judicial sale.
Ohio Sav. Bank v. Ambrose, 56 Ohio St.3d 53, 55 (1990).
{¶9} R.C. 2329.17, which sets the standard for appraisals in foreclosure
proceedings, states in part:
(A) When execution is levied upon lands and tenements, the officer
who makes the levy shall call an inquest of three disinterested
freeholders * * * and administer to them an oath impartially to
appraise the property so levied upon, upon actual view. They
forthwith shall return to such officer, under their hands, an estimate
of the real value of the property in money.
{¶10} Initially, we note that appellant never objected below to the use of the
appraisal for purposes of conducting the sale. In her appellate brief, appellant claims
that an interior appraisal is warranted because “the interior condition of [the home] may
significantly impact the value through an exterior examination.” Yet, appellant has failed
to advance any evidence or argument that the subject property, interior or otherwise,
has changed since the initial appraisal. Further, appellant has failed to submit any
evidence that the interior condition would have impacted the appraisal. See Arch Bay
Holdings, LLC v. Brown, 2d Dist. Montgomery No. 25564, 2013-Ohio-5453, ¶9-14.
(“[A]n appraiser’s failure to examine the interior will constitute reversible error only
where the interior condition so impacts the value established based on an exterior
examination that the complaining party can demonstrate prejudicial effect.”). See also
Citimortgage, Inc. v. Hoge, 8th Dist. Cuyahoga No. 98597, 2013-Ohio-698, ¶9
(“‘[N]aked assertions’ of a failure to view the interior of the premises prior to appraisal
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will not show that the appraisal itself is invalid.”). Appellant cannot rely on her
unsubstantiated, ipse dixit declaration that an interior appraisal would have changed or
otherwise affected the appraised value.
{¶11} Appellant’s assignment of error is without merit.
{¶12} The judgment of the Lake County Court of Common Pleas is hereby
affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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