Wells Fargo Bank, N.A. v. Collins

[Cite as Wells Fargo Bank, N.A. v. Collins, 2021-Ohio-508.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

WELLS FARGO BANK, N.A., :

Plaintiff-Appellee, :
No. 109555
v. :

VIRGIL H. COLLINS, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 25, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-904354

Appearances:

Reimer Law Co. and Michael L. Wiery, for appellee.

Virgil H. Collins, pro se.

MARY EILEEN KILBANE, J.:

Pro se defendant-appellant, Virgil Collins (“Collins”), appeals from

the trial court’s denial of his Civ.R. 60(B) motion for relief from judgment in the

foreclosure action instituted by plaintiff-appellee, Wells Fargo Bank, N.A. (“Wells

Fargo”). For the reasons that follow, we affirm.
Procedural History

On September 25, 2018, Wells Fargo filed a complaint for foreclosure

against Collins, any unknown spouse of Collins, his wife Ruth Collins (“Ruth”), any

unknown spouse of Ruth, New Century Mortgage Corporation (“NCMC”), and New

Century Liquidating Trust as successor-in-interest to NCMC. Wells Fargo alleged

that it was the holder of and entitled to enforce a promissory note because

defendants were in default of the note and mortgage. The complaint alleged that

$126,719.39 plus interest was due and unpaid.

This case concerns a residential mortgage and corresponding note for

a single-family home located at 4932 Nan Drive, Richmond Heights, Ohio. On June

2, 2006, Collins and Ruth executed an adjustable rate note in the amount of

$152,000 and a corresponding mortgage as security for the note.

On November 7, 2018, Collins filed a motion for leave to file an

answer instanter, which the trial court granted.1

On January 15, 2019, Wells Fargo filed a motion for summary

judgment against Collins and a motion for default judgment against the other

defendants. On March 26, 2019, the trial court granted the motion for default

judgment against Ruth, any unknown spouses, NCMC, and New Century

Liquidating Trust and held the motion for summary judgment in abeyance.

1 Except where otherwise noted, Collins was represented by counsel during the
lower court proceedings.
 On May 24, 2019, the court held a settlement conference, during

which Collins made an oral motion to file an amended answer. The court granted

this motion over Wells Fargo’s objection and instructed Collins to file his amended

answer on or before June 21, 2019. On June 21, 2019, Collins filed a motion for an

extension of time to file an amended answer and counterclaim, and the trial court

granted this motion and imposed a new deadline of September 13, 2019. Despite

receiving multiple extensions, at no point in the proceedings did Collins ever file an

amended answer or counterclaim.

On November 25, 2019, the trial court granted Wells Fargo’s motion

for summary judgment. On December 11, 2019, the court issued a magistrate’s

decision with findings of fact and conclusions of law. Collins did not file objections

to the magistrate’s decision, but on December 20, 2019, he filed a “motion for stay

to seek resolution with plaintiff.” Wells Fargo filed an objection to this motion on

December 23, 2019. On December 30, 2019, the trial court denied Collins’s motion

for a stay.

On January 7, 2020, the trial court entered an order adopting the

magistrate’s decision and a decree of foreclosure. Collins did not appeal from this

order. On January 14, 2020, Collins filed a motion for a settlement conference. On

January 16, 2020, a praecipe for an order of sale was issued, and on January 17,

2020, an order of sale was issued to the sheriff.
 On January 28, 2020, Collins filed a pro se “motion for objection to

magistrate’s default judgment decision against defendant.” On February 20, 2020,

the trial court denied this motion.

On February 2, 2020, Collins filed a “combined motion to vacate

judgment, for relief from judgment, leave to amend answer and to submit

counterclaim” pursuant to Civ.R. 60(B). In this motion, Collins’s counsel submitted

that due to complications with her case management software and health problems

resulting in a six-week absence from her office, she had failed to request an

additional extension to file an amended answer and counterclaim. Further, the

motion asserted that the underlying mortgage in this case was induced by fraud. On

February 17, 2020, Wells Fargo filed a brief in opposition to Collins’s Civ.R. 60(B)

motion. On February 23, 2020, Collins filed a reply brief in support of his Civ.R.

60(B) motion.

On February 20, 2020, the trial court granted Collins’s motion for a

settlement conference and scheduled a telephone settlement conference for

February 27, 2020.

On February 24, 2020, Collins filed an expedited motion to stay the

foreclosure sale in the trial court. On February 25, 2020, the trial court denied

Collins’s Civ.R. 60(B) motion. It is from this journal entry that Collins filed a notice

of appeal on February 28, 2020.

On March 2, 2020, Wells Fargo filed a brief in opposition to Collins’s

expedited motion to stay. The same day, the order of sale was returned and the
property was sold. On March 3, 2020, Collins filed a pro se motion to this court to

stay the confirmation and execution of the sale. On March 4, 2020, this court denied

this motion, citing the pending motion to stay in the trial court filed on February 24,

2020. On March 5, 2020, Collins filed yet another pro se motion to stay

confirmation of the sale in the trial court. On March 6, 2020, the trial court denied

Collins’s February 24, 2020 expedited motion to stay, and his pro se motion to stay

was likewise denied on March 10, 2020.

On March 11, 2020, Collins filed a second pro se motion to stay with

this court. On March 12, 2020, this court granted the motion upon the condition

that Collins post a supersedeas bond in the amount of $23,984, representing “the

amount of the judgment, plus interest, minus the amount of the appraised value of

the property ($150,000) as set forth by the appellee in its motion opposing the

confirmation of sale filed in the trial court.”

On May 26, 2020, Collins filed a motion for a 60-day extension to

post the supersedeas bond. On June 8, 2020, this court denied the motion as moot

because the Cuyahoga County Court of Common Pleas issued an administrate order

staying sheriff sales and confirmations of sale until July 31, 2020, in response to

COVID-19. On July 28, 2020, Collins filed a second motion for a 60-day extension.

This court granted the motion and imposed a new deadline of October 1, 2020.

On September 28, 2020, Collins filed a “motion for an emergency

injunction to prevent confirmation of sale and request for supersedeas bond.” In

this motion, Collins argued that the federal moratorium on foreclosures and
evictions in response to COVID-19 applied to his mortgage and should operate as a

stay on the foreclosure in this case. On September 29, 2020, this court issued a sua

sponte order instructing Wells Fargo to respond to Collins’s motion. On September

30, 2020, Wells Fargo filed a brief in opposition, arguing that Collins had not met

the standard for an injunction. On October 2, 2020, Collins filed a reply brief and a

request to withdraw his emergency injunction motion and amend his request to an

extension pursuant to the national foreclosure moratorium. On October 5, 2020,

this court entered a second sua sponte order instructing Wells Fargo to respond and

specifically address whether the federal moratorium applied to Collins’s mortgage.

On October 6, 2020, Wells Fargo filed a brief in opposition to Collins’s October 2

filing.

On October 9, 2020, this court issued the following journal entry:

Motion by appellant, pro se, to withdraw emergency injunction motion,
leave to amend request to an extension per the national foreclosure
moratorium is granted in part. The motion to withdraw the injunction
that was filed on September 28, 2020 is granted. The federal
moratorium does not apply to the appellant’s mortgage. However, due
to the financial difficulties caused by COVID-19, the time to file the
supersedeas bond is extended to December 31, 2020. The appeal has
been fully briefed and is to be set at the earliest feasible date. Notice
issued.

On December 21, 2020, Collins filed an emergency motion for an extension or

suspension of the supersedeas bond requirement. On December 29, 2020, Wells

Fargo filed a brief in opposition. On December 30, 2020, this court granted Collins

an extension until February 15, 2021, or the date upon which this opinion is released.

On February 11, 2021, Collins filed another emergency motion for an extension of
the supersedeas bond requirement. On February 12, 2021, this court granted the

emergency motion in part, stating that Collins has until this decision is released to

post the required bond.

This appeal follows. Collins presents five assignments of error.

Assignments of Error

I. The magistrate erred by naming all four of the defendants in the
default judgment.

II. The magistrate erred by ignoring Collins’s claims of mortgage fraud,
high interest rates, multiple loan attachments, and that the original
loan mortgagor was named as a co-defendant.

III. The magistrate abused its discretion by failing to consider Civ.R.
62(h) and Civ.R. 54(b).

IV. The magistrate erred and abused its discretion by not staying the
foreclosure pursuant to Civ.R. 60(B).

V. The magistrate erred by failing to include Collins’s name in the
default judgment.

Legal Analysis

We reiterate that Collins appealed only from the trial court’s denial of

his Civ.R. 60(B) motion. To the extent that the above assignments of error attempt

to challenge either the magistrate’s default judgment or the foreclosure judgment,

these arguments are not properly before us. Further, to the extent that Collins refers

to claims he may have had against any party in this case, we again note that Collins

never filed an amended answer or counterclaim raising any such claims before the

trial court. For ease of discussion, we will address Collins’s assignments of error out

of order.
Civ.R. 60(B) Motion for Relief

Collins’s fourth assignment of error is the only one in which he

directly challenges the trial court’s denial of his Civ.R. 60(B) motion. Collins’s fourth

assignment of error states, verbatim:

Magistrate [erred] and abused her discretion in her decision not to stay
judgment per 60(B) due to the following complications suffered by
Appellant’s counsel: Appellant’s counsel missed a deadline for
submitting his complaints, and counterclaims due to a sudden illness,
and complications in the office. Had the Magistrate properly
[reviewed] the case, based on the multiple parties [involved], she would
have detected some potential complexities in the case that might need
further review to determine the equity and liabilities in the case before
the court. It would have clearly [revealed] the issues concerning subject
matter jurisdiction.

A reviewing court will not disturb a trial court’s decision regarding a

Civ.R. 60(B) motion absent an abuse of discretion. S. Park Manor Condominiums

Unit Owners’ Assn. v. Clarendon Group, Inc., 8th Dist. Cuyahoga No. 105672, 2017-

Ohio-8491, ¶ 7. To prevail on a Civ.R. 60(B) motion for relief from judgment, the

moving party must demonstrate (1) the party has a meritorious defense or claim to

present if relief is granted; (2) the party is entitled to relief under one of the grounds

stated in Civ.R. 60(B)(1) through (B)(5); and (3) the motion is made within a

reasonable time, and where the grounds for relief are Civ.R. 60(B)(1), (2), or (3), not

more than one year after the judgment was entered. Id., citing GTE Automatic Elec.

v. ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the

syllabus. If the moving party fails to establish any one of these requirements, the
motion is properly overruled. Id., citing Svoboda v. Brunswick, 6 Ohio St.3d 348,

351, 453 N.E.2d 648 (1983).

In support of this assignment of error, Collins argues that he was

fraudulently induced to enter into the mortgage. Specifically, Collins asserts that

NCMC, who originated the mortgage loan, falsely led him to believe that he was

receiving a VA loan. Collins appears to be using this argument to satisfy the first

element of his Civ.R. 60(B) claim, arguing that the fraud constitutes a meritorious

defense to the foreclosure action. We disagree. Even if the record contained

something to substantiate Collins’s allegations of fraud, it is unclear how such

allegations would operate as a meritorious defense to Wells Fargo’s foreclosure

action to satisfy the first requirement of a Civ.R. 60(B) claim.

Further, Collins was required to demonstrate that he was entitled to

one of the following grounds for relief under Civ.R. 60(B):

(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
judgment.

Because the Civ.R. 60(B) motion cites Collins’s counsel’s health problems and

difficulties with her case management software as the reason she failed to timely

request an additional extension to file an amended answer and counterclaim, it
appears the claimed ground for relief is mistake or excusable neglect pursuant to

Civ.R. 60(B)(1). We disagree that there was a mistake or excusable neglect.

Collins had asked for and received multiple extensions to file an

amended answer and counterclaim. In its August 15, 2019 journal entry granting

Collins’s most recent request for an extension until September 13, 2019, the trial

court noted that no further extensions would be granted. While Collins’s Civ.R.

60(B) motion describes a “comedy of errors” leading to the failure to request yet

another extension, it neither describes the timing of the events in question nor

attempts to explain why an additional extension would have been granted after the

trial court’s declaration that it would not grant any further extensions. It is worth

noting that the presumed basis of an amended answer and counterclaim related to

Collins’s unsupported assertions of fraud that was alleged to have occurred in 2006,

when Collins executed the note and mortgage. At no point does Collins explain why

he required such a significant period of time — more than a year from the date Wells

Fargo filed the foreclosure complaint — to file an amended answer. Therefore,

Collins’s motion did not adequately establish that he was entitled to relief under

Civ.R. 60(B)(1).

Moreover, it is well established that Civ.R. 60(B) cannot be used as a

substitute for an appeal. Fannie Mae v. Nedbalski, 8th Dist. Cuyahoga No. 102247,

2015-Ohio-2159, ¶ 14, citing Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio St.3d

128, 502 N.E.2d 605 (1986), paragraph two of the syllabus. Because public policy

favors the finality of judgments, a Civ.R. 60(B) motion may not be used as a
substitute for appeal to collaterally attack a final judgment. Id., quoting Bank of

Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 16, citing

Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 8-9.

Therefore, Collins’s fourth assignment of error is overruled.

Collins’s Remaining Assignments of Error

In Collins’s first assignment of error, he attempts to challenge the

March 26, 2019 default judgment entered against Ruth, NCMC, and New Century

Liquidating Trust. Specifically, Collins argues that this constituted error because it

somehow precluded him from bringing counterclaims against NCMC. We reiterate

that Collins did not appeal from the default judgment, and therefore arguments

relating to that judgment are not properly before us. Even if this argument were

properly before us, however, it has no merit.

None of the defendants against whom the court granted Wells Fargo’s

motion for default judgment filed an answer in the underlying case. Therefore,

default judgment was appropriate pursuant to Civ.R. 55. Further, Collins’s

argument that the trial court somehow precluded him from bringing counterclaims

against NCMC is not grounded in law. Although Collins cites to Fed.R.Civ.P. 62(h),

which provides:

A court may stay the enforcement of a final judgment entered under
Rule 54(b) until it enters a later judgment or judgments, and may
prescribe terms necessary to secure the benefit of the stayed judgment
for the party in whose favor it was entered.
Collins also cites to Fed.R.Civ.P. 62.1(a), which deals with a motion for relief made

while an appeal is pending.

Fed.R.Civ.P. 1 provides that the federal rules of civil procedure govern

the procedure in all civil actions and proceedings in the United States district courts.

While they may provide guidance to state courts, they do not govern civil procedure

in Ohio state courts and are not binding. Cach v. Alderman, 10th Dist. Franklin No.

15AP-980, 2017-Ohio-5597, ¶ 14, citing Cooke v. Bowen, 4th Dist. Scioto No.

12CA3497, 2013-Ohio-4771, ¶ 16; In re Anisha N., 6th Dist. Lucas No. L-02-1370,

2003-Ohio-2356. Even if the rules cited by Collins did govern this case, they do not

apply in the way he seems to believe they do. Collins argument appears to be

grounded in a misunderstanding of the impact of both the default judgment and the

denial of his Civ.R. 60(B) motion. Collins’s assertion, both in his Civ.R. 60(B)

motion and in his brief to this court, that he had counterclaims to raise against

NCMC has no bearing on the default judgment. When the trial court granted default

judgment against NCMC, there was no pending counterclaim against them. In fact,

because of Collins’s failure to file an amended answer and counterclaim, there was

never a pending counterclaim against NCMC. Further, despite Collins’s argument,

the default judgment had no bearing on the court’s denial of his Civ.R. 60(B) motion.

Therefore, Collins’s first assignment of error is overruled.

Collins’s second assignment of error argues that the magistrate erred

by failing to address Collins’s claims of mortgage fraud and failing to address the

federal question of truth in lending practices. An appellant’s brief must cite to the
“parts of the record on which appellant relies.” Ohio App.R. 16(A)(7). Further, an

appellate court “may disregard an assignment of error raised for review if the party

raising it fails to identify in the record the error on which the assignment of error is

based.” App.R. 12(A)(2). Collins has failed to comply with these rules, and a review

of the record shows that the issue of truth in lending practices was not raised before

the trial court. Therefore, we decline to review Collins’s second assignment of error.

In Collins’s third assignment of error, he argues that the trial court

abused its discretion by failing to “consider the precautions suggested in Civil R.

62(h) and Civil R. 54(b)” concerning multiple parties when considering a stay

request. Not only does Collins make misguided citations similar to those in his first

assignment of error, he also fails to articulate exactly which decision of the trial court

was an abuse of discretion. Collins filed numerous motions to stay in the trial court.

We can only infer that he is attempting to challenge the trial court’s denial of one of

these. These denials are not the subject of this appeal, however, and therefore these

arguments are not properly before us. We decline to address Collins’s third

assignment of error.

Finally, Collins’s fifth assignment of error states, verbatim:

The magistrate [erred] when she failed to include the Appellant’s name
in her Default Judgment. The magistrate issued her default judgment
decision on December 11, 2019. On January 7, 2020, the Judgment
Entry adopting the Magistrate’s Decision was filed. On January 28,
2020, the Appellant, pro se, filed a Motion for Objection to Magistrate’s
Default Judgment Decision against Defendant. The Magistrate failed
to include the Appellant’s name in her default judgment which [led] the
Appellant to assume that the trial court was not including him in the
default judgment because of his efforts to present his claims and
 counterclaims to the court. By the time he realized that he also was
included in the default judgment, and filed his objection to the decision,
it was too late and his request was denied.

The statements in this assignment of error demonstrate a misunderstanding of the

events that occurred in the trial court. As we stated above, the court appropriately

entered default judgment against all defendants except Collins because no other

defendant filed an answer in this case.

The December 11, 2019 decision Collins refers to was the magistrate’s

foreclosure decision. Collins did not object to this decision. Collins filed a motion

for stay on December 30, 2019, which was denied. The trial court entered an order

adopting the magistrate’s decision and decree of foreclosure on January 7, 2020.

Collins did not appeal this decision. Instead, he filed an untimely pro se motion to

object to the magistrate’s decision. His counsel filed a Civ.R. 60(B) motion. As we

have explained above, neither motion can serve as a substitute for an appeal of the

January 7, 2020 decree of foreclosure. Therefore, Collins’s fifth assignment of error

is overruled.

To the extent that Collins has attempted to use this appeal to

collaterally attack the decree of foreclosure, the attempt was misguided. For the sake

of clarity, however, we note that even if Collins had properly appealed the decree of

foreclosure, we have found nothing in the record that would have supported such an

appeal.
 Finally, we note that although Collins has failed to appeal from the

foreclosure judgment in this case, this does not necessarily preclude him from

appealing the subsequent confirmation of sale.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas 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.

MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and
LISA B. FORBES, J., CONCUR