[Cite as U.S. Bank Natl. Assn. v. Cotton, 2022-Ohio-2998.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
U.S. BANK NATIONAL
ASSOCIATION, TRUSTEE FOR
CITIGROUP MORTGAGE CASE NO. 14-22-08
LOAN TRUST 2006-WFHE3,
ASSET-BACKED PASS-THROUGH
CERTIFICATES, SERIES 2006-WFHE3,
PLAINTIFF-APPELLEE,
v.
OPINION
MARLA COTTON,
DEFENDANT-APPELLANT.
Appeal from Union Common Pleas Court
Trial Court No. 2020-CV-0047
Judgment Affirmed
Date of Decision: August 29, 2022
APPEARANCES:
Marla Grace Cotton, Appellant
Samantha J. Chugh for Appellee
Case No. 14-22-08
WILLAMOWSKI, J.
{¶1} Defendant-appellant Marla G. Cotton (“Cotton”), pro se, appeals the
judgment of the Union County Court of Common Pleas, raising various arguments
against the trial court’s decision to deny her Civ.R. 60(B) motion. For the reasons
set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} In 2006, Steven S. Bahr (“Bahr”) executed a mortgage that placed a lien
on a property in Union County, Ohio. Doc. 2, Ex. B. On December 20, 2016, Bahr
passed away. Doc. 6, Ex. A. On his death, the property at issue in this case
transferred to Cotton. Doc. 2, Ex. D, E. The mortgagee received no payments on
the mortgage note after Bahr passed away. Doc. 2, 47, 58. On March 12, 2020,
U.S. Bank National Association (“USB”) filed a complaint to foreclose the
mortgage on the property that was transferred to Cotton.1 Doc. 2. In its complaint,
USB stated that it was “not seeking a personal judgment against [Cotton] * * * but
[was] * * * seeking instead to enforce its security interest.” Doc. 2.2 Cotton never
filed an answer to USB’s complaint. Appellant’s Brief, 4. Doc. 45, 58.
1
U.S. National Bank Association filed this action as “U.S. National Bank Association, as Trustee for the
Citigroup Mortgage Loan Trust 2006-WFHE3, Asset-Backed Pass-Through Certificates, Series 2006-
WFHE3.” Doc. 1, 2.
2
On June 11, 2021, the trial court issued an “In Rem Judgment Entry and Decree in Foreclosure.” Doc. 58.
In this order, the trial court did not enter a judgment against Cotton personally. Doc. 58.
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{¶3} On April 27, 2021, USB filed a motion for a default judgment. Doc.
45. However, the final judicial report (“FJR”) indicated that Cotton had transferred
the property that was subject to Bahr’s mortgage to her son, Christopher J. Souders
(“Souders”), via a quitclaim deed on March 10, 2021. Doc. 53, Ex. A. In response
to the FJR, the trial court issued an order on May 26, 2021 that directed USB to
demonstrate that all necessary parties had been joined to this action. Doc. 54. On
June 8, 2021, USB filed a response, arguing that Souders did not need to be joined
to this action as he “took title subject to the outcome of the pending action and with
constructive knowledge of the same.” Doc. 57.
{¶4} On June 11, 2021, the trial court entered judgment in favor of USB.
Doc. 58. On July 12, 2021, Cotton filed a notice of appeal from this judgment entry.
Doc. 64. This notice of appeal became the basis of Appellate Case No. 14-21-17.
Doc. 64. However, this prior appeal was dismissed by this Court on October 29,
2021 for want of prosecution. On February 18, 2022, Cotton filed a Civ.R. 60(B)
motion to vacate the June 11, 2021 judgment of the trial court. Doc. 79. She argued
that the trial court failed to join Souders as a necessary party. Doc. 79. On March
8, 2022, the trial court denied Cotton’s Civ.R. 60(B) motion. Doc. 83.
{¶5} Cotton filed her notice of appeal on March 8, 2022. Doc. 88. On
appeal, she raises the following six assignments of error:
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Case No. 14-22-08
First Assignment of Error
The Trial Court committed reversible error by entering judgment
against me, Marla Grace Cotton, knowing that title was
transferred and I no longer had any interest in the Property in
question.
Second Assignment of Error
The Trial Court committed reversible error by denying my
Motion to Vacate because the said Court failed to apply the Law
of Equity to myself, and or potential or necessary parties,
specifically, Christopher Jason Souders.
Third Assignment of Error
The trial court committed reversible error by entering judgment
that denied Due Process of Law to my son, Christopher Jason
Souders.
Fourth Assignment of Error
The Trial Court committed reversible error by improperly
applying the Doctrine of Lis Pendens in that case.
Fifth Assignment of Error
The Trial Court committed reversible error by recognizing that
Christopher Jason Souders should be made a party to the Trial
Court case, and subsequently abandoning that fundamental
principal [sic] without proper justification.
Sixth Assignment of Error
The Trial Court committed reversible error by striking the
documents filed by Christopher Jason Souders unjustifiably.
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Case No. 14-22-08
We will consider Cotton’s first and second assignments of error together in one
analysis. We will then consider her third, fourth, fifth, and sixth assignments of
error together in one analysis.
First and Second Assignments of Error
{¶6} Cotton essentially argues that she should not have been the named
defendant in the trial court’s judgment entry. These two assignments of error largely
reassert the arguments Cotton raised in her Civ.R. 60(B) motion.
Legal Standard
{¶7} “Civ.R. 60 addresses motions for relief from judgment.” Hyslop v.
Hyslop, 6th Dist. Wood No. WD-03-053, 2004-Ohio-3793, ¶ 12. A motion made
pursuant to Civ.R. 60(B) constitutes “a collateral attack on a judgment.” U.S. Bank
Natl. Assn. v. Maxfield, 12th Dist. Butler No. CA2015-06-120, 2016-Ohio-3396, ¶
22. It “is a special, collateral proceeding.” Moeller v. Wurdlow, 10th Dist. Franklin
No. 95APG10-1286, 1996 WL 102341, *2 (Feb. 29, 1996). Ohio law is clear that
a party may not use a Civ.R. 60(B) motion “as a substitute for direct appeal.” In re
Estate of Messenger, 3d Dist. Hancock No. 5-08-07, 2008-Ohio-5193, ¶ 7.
{¶8} “The doctrine of res judicata applies to a Civ.R. 60(B) motion filed as
a substitute for appeal.” In re Complaint of Pilkington N. Am., Inc., 145 Ohio St.3d
125, 2015-Ohio-4797, 47 N.E.3d 786, ¶ 34.
Under the doctrine of res judicata, ‘[a] valid, final judgment
rendered upon the merits bars all subsequent actions based upon
any claim arising out of the transaction or occurrence that was
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the subject matter of the previous action.’ Grava v. Parkman Twp.
(1995), 73 Ohio St.3d 379, 653 N.E.2d 226, syllabus.
Kelm v. Kelm, 92 Ohio St.3d 223, 227, 2001-Ohio-168, 749 N.E.2d 299, 303 (2001).
Thus, if a Civ.R. 60(B) motion contains arguments that could have been raised on
direct appeal, then the doctrine of res judicata will apply to those arguments. Sydnor
v. Qualls, 2016-Ohio-8410, 78 N.E.3d 181, ¶ 29 (4th Dist.), citing Bank of Am., N.A.
v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 16.
‘[T]he use of Civ. R. 60(B) is generally reserved to issues that
cannot be raised on appeal.’ Burgess v. Safe Auto, 2d Dist.
Montgomery No. 20941, 2005-Ohio-6829, ¶ 32. Therefore, when
a party merely repeats arguments that concern the merits of the
case and that could have been raised on appeal, relief under
Civ.R. 60(B) is not available. Wozniak v. Tonidandel, 121 Ohio
App.3d 221, 228, 699 N.E.2d 555 (8th Dist. 1997).
Upkins v. Brosh, 2d Dist. Miami No. 2018-CA-2, 2018-Ohio-2971, ¶ 26, quoting
Beyoglides v. Elmore, 2d Dist. Montgomery No. 24905, 2012-Ohio-3979, ¶ 17.
Legal Analysis
{¶9} In this case, USB filed a motion for a default judgment on April 27,
2021. Doc. 45. USB alleged that Cotton had been “duly served with a Summons
and Complaint but [was] * * * in default for failure to file an Answer or otherwise
* * *.” Doc. 45. In her brief, Cotton indicates that she never filed an answer to the
plaintiff’s complaint. Appellant’s Brief, 4. See Doc. 58. She did not provide any
explanation as to why she failed to respond, saying only that she “was unable, for
various reasons, to answer Plaintiff’s complaint.” Id.
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{¶10} On May 6, 2021, the FJR was filed with the trial court and indicated
that Cotton had transferred her interest in the property at issue to her son on March
10, 2021. Doc. 53. On May 26, 2021, the trial court issued an order that required
USB to demonstrate that all necessary parties had been joined to this action. Doc.
54. Notice of this order was sent to Cotton. Doc. 56. USB then filed a response,
arguing that all necessary parties had been joined. Doc. 57, 58. Cotton did not file
any response that contested USB’s arguments.
{¶11} On June 11, 2021, the trial court entered in judgment in favor of USB.
Doc. 58. The trial court found “that service of summons upon all defendants was
proper” and that it “ha[d] jurisdiction over all defendants, therefore, all necessary
parties are properly before the Court.” Doc. 58. Cotton then initiated Appellate
Case No. 14-21-17 by timely filing notice of appeal on July 12, 2021 from the trial
court’s judgment entry. Doc. 64. However, Appellate Case No. 14-21-17 was
dismissed for want of prosecution on October 29, 2021. Doc. 64. In this prior direct
appeal, Cotton could have raised arguments that challenged the judgment entry of
the trial court, but she chose not to pursue this prior appeal, resulting in its dismissal.
{¶12} On February 18, 2022, Cotton filed her Civ.R. 60(B) motion. Doc. 79.
The appeal presently before this Court arises from the denial of this Civ.R. 60(B)
motion. In her 60(B) motion, Cotton raised issues that were considered and decided
by the trial court during the litigation that occurred prior to the June 11, 2021
judgment entry. She could have raised these issues before the trial court or on her
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prior direct appeal. However, she chose not to do so. Under Ohio law, Cotton
cannot raise these issues in a Civ.R. 60(B) motion as an alternative to raising these
issues in a direct appeal. See Messenger, supra, at ¶ 7.
{¶13} On appeal, Cotton’s first and second assignments of error reassert
arguments from her Civ.R. 60(B) motion. These are arguments that could have been
raised on the direct appeal that she filed but chose not to prosecute. For this reason,
res judicata operates to bar consideration of these arguments. See Kuchta, supra, at
¶ 16; U.S. Bank National Assn. v. Hull, 9th Dist. Lorain No. 16CA010979, 2017-
Ohio-2914, ¶ 18; College Hills Assn. v. TT Group, L.L.C., 11th Dist. Lake No. 2014-
L-016, 2015-Ohio-1406, ¶ 20 (applying res judicata to arguments raised in a Civ.R.
60(B) motion that was filed after a default judgment was entered in a foreclosure
action). Accordingly, we conclude that the trial court did not err in denying Cotton’s
Civ.R. 60(B) motion. Her first and second assignments of error are overruled.
Third, Fourth, Fifth, and Sixth Assignments of Error
{¶14} In these assignments of error, Cotton argues that the trial court erred
by (1) violating Souders’s rights to due process; (2) applying the doctrine of lis
pendens to Souders’s interest in the property; (3) not making Souders a party to this
case; and (4) denying various motions filed by Souders.3 As a general matter, these
arguments were not the subjects of Cotton’s Civ.R. 60(B) motion.
3
Souders filed motions to join this action on June 25, 2021 and July 8, 2021. Doc. 62, 63. These two motions
were filed after the June 11, 2021 judgment entry was issued. Doc. 58. Souders also filed a Civ.R. 60(B)
motion on January 20, 2022. Doc. 75. These motions were not granted. Doc. 71, 85.
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Legal Standard
{¶15} “A party must have standing to be entitled to have a court decide the
merits of a dispute.” Utility Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St.3d
284, 2009-Ohio-6764, 921 N.E.2d 1038, ¶ 49, quoting N. Canton v. Canton, 114
Ohio St.3d 253, 2007-Ohio-4005, 871 N.E.2d 586, ¶ 11. “The Supreme Court of
Ohio has defined standing as ‘[a] party’s right to make a legal claim or seek judicial
enforcement of a duty or right.’” Brown v. Columbus City School Bd. of Edn., 10th
Dist. Franklin No. 08AP-1067, 2009-Ohio-3230, ¶ 6, quoting Ohio Pyro, Inc. v.
Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶
27. “In order for a party to have standing to appeal, that party must have been
aggrieved or prejudiced by the order appealed.” Alesi v. Warren Cty. Bd. of
Commrs., 2014-Ohio-5192, 24 N.E.3d 667, ¶ 51 (12th Dist.).
{¶16} “To have standing, the general rule is that ‘a litigant must assert its
own rights, not the claims of third parties.’” Utility Serv. Partners, Inc., at ¶ 49,
quoting N. Canton, at ¶ 11. Thus, as a general matter, “the party bringing an appeal
can only challenge trial court rulings that are injurious to her[.]” Cain v. Cain, 11th
Dist. Portage No. 2016-P-0011, 2017-Ohio-708, ¶ 20. “An appellant usually does
not have standing to argue issues affecting another person.” UBS Financial Services
Inc. v. Lacava, 9th Dist. Summit No. 28147, 2017-Ohio-7916, ¶ 9.
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Legal Analysis
{¶17} In her third, fourth, fifth, and sixth assignments of error, Cotton asserts
that Souders’s interests were prejudiced in various ways by the trial court’s
judgment. However, she does not demonstrate how these alleged errors adversely
affected any of her rights or interests. Having reviewed these assignments of error,
we conclude that Cotton does not have standing to raise these arguments on her
son’s behalf in this appeal. Cain, supra, at ¶ 21 (“An appealing party is not
permitted to vicariously assert that a non-party’s constitutional due process rights
were violated.”); Am. Savs. Bank, FSB v. Wrage, 2016-Ohio-2879, 63 N.E.3d 793,
¶ 19 (4th Dist.) (Appellant did not have standing to challenge “the trial court’s ruling
on the issue of lis pendens” on behalf of junior lienholders as this issue was “a matter
between the lienholders and the new owners, not appellant.); Warino v. Worldwide
News Corp., 7th Dist. Mahoning No. 12 MA 153, 2013-Ohio-5884, ¶ (Appellant
did “not have standing to assert alleged errors relating to * * * nonparties to th[e]
appeal.”); Hetlin v. Hetlin, 3d Dist. Seneca No. 13-14-08, 2014-Ohio-4997, ¶ 40
(Appellant “cannot complain about the failure of the trial court to grant a non-
appealing party’s motion, unless she can demonstrate how the alleged error
prejudiced her.”). Accordingly, Cotton’s third, fourth, fifth, and sixth assignments
of error are overruled.
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Conclusion
{¶18} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Union County Court of Common Pleas is
affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/hls
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