U.S. Bank Natl. Assn. v. Smith

[Cite as U.S. Bank Natl. Assn. v. Smith, 2023-Ohio-1940.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

U.S. BANK NATIONAL ASSOCIATION,

Plaintiff-Appellee,

v.

RONALD J. SMITH ET AL.,

Defendants-Appellants.

OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0111

Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2005 CV 03869

BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.

JUDGMENT:
Affirmed.

Atty. David A. Wallace and Atty. Karen M. Cadieux, Carpenter Lipps & Leland LLP, 280
Plaza, Suite 1300, 280 North High Street, Columbus, Ohio 43215, for Plaintiff-Appellee
U.S. Bank National Association as Trustee and
Ronald J. Smith and Nancy L. Smith, Pro Se, 4525 North 66th Street #53, Scottsdale,
Arizona 85251, Defendants-Appellants.

Dated: June 12, 2023
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D’Apolito, P.J.

{¶1} Defendants-Appellants, Ronald J. Smith and Nancy L. Smith, appeal the
judgment of the Mahoning County Court of Common Pleas overruling their second motion
for relief from judgment filed pursuant to Civ R. 60(B), which challenges the distribution
of the sale proceeds to U.S. Bank, National Association (“U.S. Bank”), successor trustee
to Bank of America, National Association (“Bank of America”), successor by merger to
LaSalle Bank, National Association (“LaSalle”), as trustee, on behalf of the trust of the
Bear Stearns Asset Backed Securities I Trust 2004-HE5, Asset-Backed Certificates,
Series 2004-HE5 (collectively “trust”), in this foreclosure action. Appellants argue that the
trial court erred in distributing the proceeds of the sale to the trust because LaSalle, not
U.S. Bank, is the trustee named in the 2007 foreclosure order.
{¶2} Appellants’ original Civ. R. 60(B) motion challenging the confirmation entry
of sale and distribution of proceeds issued on April 29, 2020 (“Confirmation/Distribution
order”) was the subject of a previous appeal. Because Appellants could have advanced
the argument raised in their second 60(B) motion in their original 60(B) motion, we find
that Appellants’ second 60(B) motion is barred by res judicata. Even assuming arguendo
that the second 60(B) motion is properly before us, we find that the trust is the holder in
this case, and therefore the trial court did not err in distributing the proceeds of the sale
to the trust, by way of U.S. Bank, the current trustee.

FACTS AND PROCEDURAL HISTORY

{¶3} This case began on October 13, 2005 when the trust, with LaSalle acting
as trustee, filed a complaint in foreclosure against Appellants. In the almost eighteen
years that have followed, this matter has been the subject of continuous litigation in both
the state and federal courts. The above-captioned appeal marks the fifth occasion the
matter has been before us.
{¶4} The underlying facts are presented in detail in U.S. Bank, Natl. Assn. v.
Smith, 7th Dist. Mahoning No. 17 MA 0093, 2018-Ohio-2489, reconsideration denied, 7th
Dist. Mahoning No. 17 MA 0093, 2018-Ohio-3770 (“Smith III”). However, the following
summary of those facts informs our decision.

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{¶5} On March 5, 2004, Appellants executed an adjustable rate note in favor of
Encore Credit Corporation (“Encore”) in the amount of $528,500. On March 22, 2004,
Encore assigned the note and mortgage to the trust, with LaSalle acting as trustee.
{¶6} Appellants defaulted within three months of executing the note and
mortgage. When Appellants were five payments in arrears, they entered into a
forbearance agreement.
{¶7} After their default on the forbearance agreement in April of 2005, they
entered into a second forbearance agreement, and again defaulted. A third, and final,
forbearance agreement was entered in October of 2005. Appellants made only one
payment under that agreement.
{¶8} As previously stated, the trust filed the complaint in foreclosure against
Appellants on October 13, 2005. On January 12, 2007, the trial court granted summary
judgment in favor of the trust and entered the order authorizing foreclosure and sale of
the property. Appellants did not file an appeal of the foreclosure order. Bank of America
acquired LaSalle in April of 2007, and LaSalle merged with Bank of America in October
of 2007.
{¶9} Despite over a decade of challenges to the validity of the foreclosure order,
the foreclosure order remains in effect. Nonetheless, Appellants successfully avoided
countless proposed sales of the property, dating back to August 3, 2007. On that date,
for instance, Appellants filed a Chapter 13 petition in bankruptcy court and the order of
sale effective at that time was withdrawn.
{¶10} The matter reached us for the first time on August 27, 2012 in LaSalle Bank
Natl. Assoc. v. Smith, 7th Dist. Mahoning No. 11 MA 85, 2012-Ohio-4040 (“Smith I”). In
that case, we affirmed the trial court’s denial of Appellants’ Civ.R. 60(B) motion.
{¶11} Litigation continued and a second appeal was filed in 2013. On December
20, 2015, we affirmed the trial court’s decision overruling Appellants’ motion to vacate the
foreclosure order in LaSalle Bank Natl. Assn. v. Smith, 7th Dist. Mahoning No. 13 MA
148, 2015-Ohio-5597 (“Smith II”). On May 18, 2016, the Ohio Supreme Court declined
jurisdiction. Three additional proposed sales were scheduled and cancelled thereafter
due to continuing litigation. In June of 2016, U.S. Bank appeared as trustee in the case
as a successor in interest to Bank of America.

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{¶12} The matter reached us again in Smith III. On June 21, 2018, we addressed
Appellants’ assertion that U.S. Bank was not the owner of the note and mortgage and
therefore fraudulently obtained the then most-recent order of sale. We affirmed the trial
court’s decision overruling Appellants’ Civ.R. 60(B) motion. In so doing, we explained
U.S. Bank’s role in the foreclosure action:

Appellants base their request for relief solely on their contention that U.S.
Bank committed a fraud on the court when it filed the praecipe for order of
sale on February 23, 2017 because U.S. Bank has admitted that it does not
own the note and mortgage on the property.

Appellants’ fraud claim is based on correspondence from U.S. Bank dated
August 16, 2016. This letter, however, clearly states that U.S. Bank is the
trustee representing the trust that does own the note and mortgage on the
property. The correspondence further explains that U.S. Bank is not the
lender or servicer for the mortgage on the property, and that the servicer,
with the authority and responsibility to make decisions and take action
regarding individual mortgage loans, is a party to the trust. (8/11/16
Correspondence, attached to 60(B) motion as Def. Exh. A1-2.)

Based on this correspondence, as well as U.S. Bank’s marketing materials,
Appellants somehow conclude that U.S. Bank is not the real party in interest
and thus that it has perpetrated a fraud on the court by seeking an order of
sale. However, Appellants misunderstand U.S. Bank’s role in this
foreclosure action. The trust owns the mortgage and note on the property
just as it did when LaSalle was the trustee. The ownership of the note and
mortgage has not changed; only the trustee assigned to execute the sale of
the property has changed. U.S. Bank appears in this case as a successor
in interest to the previous trustee. Civ.R. 25 does not require that U.S. Bank
file a notice of substitution. Due to this crucial fact, Appellants have not
shown any fraud on the part of U.S. Bank.

Smith III at ¶ 32-34.

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{¶13} In order to prevent yet another sale of the property, Appellants again filed a
Chapter 13 petition in the bankruptcy court on February 19, 2019. On March 22, 2019,
the trust entered an appearance in the bankruptcy proceedings and was granted
permission to seek relief in this matter. On October 17, 2019, the trust sought an order of
sale. Appellants argued that the proposed sale violated the stay order based on their
mistaken belief that the trust was not the party that obtained relief from the stay. The trial
court rejected Appellants’ argument and approved the order of sale.
{¶14} On February 19, 2020, the trust was the high bidder at the sale with a bid
of $327,334.00. On March 10, 2020, Appellants filed a motion to stay confirmation of the
sale, which the trial court overruled. On April 27, 2020, the bid was re-assigned. Two days
later, the trial court issued the Confirmation/Distribution order at issue in the current
appeal.
{¶15} On May 15, 2020, Appellants filed the original Civ.R. 60(B) motion
challenging the Confirmation/Distribution order, which was summarily overruled. Despite
Appellants’ continued attempts to challenge the order of foreclosure in their appeal of the
original 60(B) motion, we limited Appellants’ arguments to the Confirmation/Distribution
order and affirmed the judgment of the trial court on September 29, 2021. U.S. Bank Natl.
Assn. v. Smith, 7th Dist. Mahoning No. 20 MA 0061, 2021-Ohio-3592, reconsideration
denied, 7th Dist. Mahoning No. 20 MA 0061, 2022-Ohio-1450 (“Smith IV”).
{¶16} Smith IV reads, in relevant part:

Preliminarily, the Smiths continue in this appeal to attack the merits of the
foreclosure order. Despite the fact that we clarified in our September 30,
2020 judgment entry that the only possible issue now ripe on appeal is the
confirmation of sale, the Smiths repeatedly attack U.S. Bank/the trust’s
status in this matter. As noted by the Ninth District, when an appeal is
limited to the confirmation of sale, issues surrounding the ability of a third
party to act as a plaintiff and “whether the originator of the loan actually
existed and contests whether the loan documents were properly
transferred” to the bank are outside the scope of appeal. Deutsche Bank
Natl. Tr. Co. v. Taylor, 9th Dist. Summit No. 28069, 2016-Ohio-7090, ¶ 14.

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The Ninth District held that any issues related to standing were also outside
the scope of the appeal.

Here, the Smiths repeatedly challenge the ability of the trust and U.S. Bank
to pursue this matter as party plaintiffs. Their argument pertains to the
foreclosure order, however. Their current appeal is limited by law to issues
surrounding the confirmation of sale. Thus, the Smiths’ argument is outside
the scope of appeal and is not properly before us.

In any event, the Smiths have exhausted this issue, which was most
recently addressed in Smith III and [the order on the application for
reconsideration. There], we acknowledged that “[t]he trust owns the
mortgage and note on the property just as it did when LaSalle was the
trustee. The ownership of the note and mortgage has not changed; only the
trustee assigned to execute the sale of the property has changed. U.S.
Bank appears in this case as a successor in interest to the previous trustee.”
Smith III at ¶ 34. Thus, we have previously determined that the trust owns
the note and mortgage and that U.S. Bank represents the trust as trustee
following its merger with LaSalle.1 As such, both the trust and U.S. Bank
were proper plaintiffs in this matter.

Because the ability of the trust and U.S. Bank to pursue this matter is not
properly before us and the merits of that issue have been exhausted, we
will not further address this argument, despite the fact that it is contained in
every assignment of error.

(Emphasis added) Smith IV at ¶ 19-22.

{¶17} On September 20, 2022, Appellants filed a second motion for relief from
judgment predicated upon “prima facie evidence that fraud was committed by U.S. Bank

1 Smith IV misstates that U.S. Bank became the successor trustee following a merger with
LaSalle. In fact, LaSalle merged with Bank of America in 2007. U.S. Bank became the successor
trustee to Bank of America in 2016.

Case No. 22 MA 0111
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and its attorneys to secure [the April 29, 2020 judgment entry confirming that sale and the
June 9, 2020 judgment entry overruling Appellants’ objection to the
Confirmation/Distribution order.]” (9/20/22 Am. Mot., p. 1.) On September 26, 2022, the
trial court summarily overruled the motion, without allowing the full measure of time for a
response from the trust. This timely appeal followed.

ANALYSIS

{¶18} In CitiMortgage, Inc. v. Roznowski, 138 Ohio St.3d 299, 2014-Ohio-1984,
11 N.E.3d 1140, the Supreme Court of Ohio opined that foreclosure actions proceed in
two stages, each of which ends in a final, appealable judgment: the order of foreclosure
and the confirmation of sale. Id. at ¶ 39. The order of foreclosure determines the extent
of each lienholder’s interest, sets out the priority of the liens, determines the other rights
and responsibilities of each party, and orders the property to be sold by sheriff’s sale. Id.;
R.C. 2323.07. On appeal, parties may challenge the court’s decision to grant the decree
of foreclosure. Roznowski at ¶ 39. Once the foreclosure decree is final and upon
completion of the appeals process, the rights and responsibilities of the parties under the
foreclosure decree may no longer be challenged. Id.
{¶19} The confirmation of sale is an ancillary proceeding limited to whether the
sheriff's sale conformed to law. Id. at ¶ 40. Under R.C. 2329.31(A), if the trial court, “on
careful examination of the proceedings,” finds that the sale conformed with R.C. 2329.01
through 2329.61, inclusive, then the court enters an order confirming the sale and orders
the dispersal of the proceeds.
{¶20} Rather than asserting a statutory conformance challenge to the
Confirmation/Distribution order, Appellants instead appealed two successive 60(B)
motions. Rule 60(B), captioned “Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud; Etc.,” reads:

On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment, order or proceeding for the
following reasons: (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

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(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 the judgment. The motion shall be made within a
reasonable time, and for reasons (1), (2) and (3) not more than one year
after the judgment, order or proceeding was entered or taken. A motion
under this subdivision (B) does not affect the finality of a judgment or
suspend its operation.

{¶21} “The standard of review used to evaluate the trial court’s decision to deny
or grant a Civ.R. 60(B) motion is abuse of discretion.” Paczewski v. Antero Resources
Corp., 7th Dist. Monroe No. 18 MO 0016, 2019-Ohio-2641, 2019 WL 2722600, ¶ 27.
“Abuse of discretion connotes more than an error of judgment; it implies that the court's
attitude was unreasonable, arbitrary, or unconscionable.” Allstate Ins. Co. v. Wilburn, 7th
Dist. Mahoning 21 MA 0079, 2022-Ohio-2026, 2022 WL 2161431, ¶ 8.
{¶22} The doctrine of res judicata “prevents the successive filings of Civ.R. 60(B)
motions [for] relief from a valid, final judgment when based upon the same facts and same
grounds or based upon facts that could have been raised in the prior motion.” Harris v.
Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 8, citing Beck-Durell
Creative Dept., Inc. v. Imaging Power, Inc., 10th Dist. Franklin No. 02AP-281, 2002-Ohio-
5908, 2002 WL 31417757, ¶ 25. When a successive Civ.R. 60(B) motion is based on the
same grounds and either the same facts or facts that could have been raised in the first
Civ.R. 60(B) motion, the second motion is procedurally barred.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN ON APRIL
29, 2020, IT SIGNED THE CONFIRMATION OF SALE AND
DISTRIBUTION OF PROCEEDS ORDER BECAUSE THE COURT
IMPROPERLY PERMITTED U.S. BANK NATIONAL ASSOCIATION TO
MISREPRESENT THAT IT WAS THE PLAINTIFF AND THEREFORE THE

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PARTY ENTITLED TO RECEIVE PROCEEDS FROM THE SALE OF THE
SMITH’S [SIC] HOME INSTEAD OF REQUIRING THE BANK TO FILE A
MOTION 60(B) TO CHANGE THE UNDERLYING JUDGMENT.

ASSIGNMENT OF ERROR NO. 2

THE COURT OF COMMON PLEAS ERRED IN DENYING THE MOTION
OF THE SMITH’S [SIC] FOR RELIEF FROM JUDGMENT PURSUANT TO
RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE BECAUSE
THE MOTION WAS MADE WITHIN A REASONABLE TIME AND LESS
THAN ONE YEAR AFTER THE ENTRY OF THE TRIAL COURT’S
DECISION WHEN TOLLING IS FACTORED IN. THE SMITHS HAVE A
MERITORIOUS DEFENSE AS CONTEMPLATED BY CIV.R. 60(B)(1)
BECAUSE OF MULTIPLE MISTAKES BY THE TRIAL COURT.

ASSIGNMENT OF ERROR NO. 3

THE COURT OF COMMON PLEAS ERRED IN DENYING THE MOTION
OF THE SMITH’S [SIC] FOR RELIEF FROM JUDGMENT PURSUANT TO
RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE BECAUSE
THAT MOTION WAS MADE WITHIN A REASONABLE TIME AND LESS
THAN ONE YEAR AFTER THE ENTRY OF THE TRIAL COURT’S
DECISION WHEN TOLLING IS FACTORED IN. THE SMITHS HAVE A
MERITORIOUS DEFENSE AS CONTEMPLATED BY CIV.R. 60(B)(3)
BECAUSE FRAUD WAS COMMITTED BY AN ADVERSE PARTY WHEN
U.S. BANK INSERTED ITSELF AS THE PLAINTIFF SO THAT IT COULD
IMPERMISSIBLY CLAIM TO BE ONE OF THE PARTIES TO RECEIVE A
DISTRIBUTION OF PROCEEDS FROM THE FORECLOSURE SALE.

ASSIGNMENT OF ERROR NO. 4

THE COURT OF COMMON PLEAS ERRED IN DENYING THE MOTION
OF THE SMITH’S [SIC] FOR RELIEF FROM JUDGMENT PURSUANT TO
RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE BECAUSE

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THAT MOTION WAS MADE WITHIN A REASONABLE TIME AFTER THE
ENTRY OF THE TRIAL COURT’S DECISION WHEN TOLLING IS
FACTORED IN. THE SMITHS HAVE A MERITORIOUS DEFENSE AS
CONTEMPLATED BY CIV.R. 60(B)(5) BECAUSE FRAUD WAS
COMMITTED BY ATTORNEYS OF U.S. BANK WHEN THE ATTORNEYS
REPRESENTING U.S BANK INSERTED ITSELF AS THE PLAINTIFF SO
THAT IT COULD IMPERMISSIBLY CLAIM TO BE ONE OF THE PARTIES
TO RECEIVE A DISTRIBUTION OF PROCEEDS FROM THE
FORECLOSURE SALE.

ASSIGNMENT OF ERROR NO. 5

THE TRIAL COURT ERRED WHEN IT FAILED TO EXERCISE ITS
INHERENT POWER PURSUANT TO CIV.R. 60(B)(5) — “ANY OTHER
REASON JUSTIFYING RELIEF” TO REVERSE A CLEARLY
ERRONEOUS DECISION.

{¶23} In their second 60(B) motion challenging the Confirmation/Distribution
order, Appellants argue that U.S. Bank was not the named trustee in the foreclosure
order, and therefore the trial court erred in distributing the sale proceeds to the trust. In
its appellate brief, the trust argues that Appellants’ second 60(B) motion is barred by res
judicata. Appellees do not address the substantive arguments made therein. Moreover,
the trial court overruled the 60(B) motion without allowing time for the trust to file a brief
in opposition. As a result, Appellants assert (as they have in previous appeals) that the
argument raised by the trust is raised for the first time on appeal and should not be
considered.
{¶24} Specifically, Appellants argue that the Confirmation/Distribution order
directs the remaining proceeds of the sale to:

U.S. National Bank Association, as Trustee, successor in interest to Bank
of America, National Association, as Trustee, successor by merger to
LaSalle Bank National Association, as Trustee for Bear Stearns Asset

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Backed Securities I Trust 2004-HE5, Asset Backed Certificates, Series
2004-HE5;

whereas the foreclosure order was entered in favor of:

LaSalle Bank National Association, as Trustee for Bear Stearns Asset
Backed Securities I Trust 2004-HE5, Asset Backed Certificates, Series
2004-HE5.

{¶25} Appellants cite Governors Place Condominium Owners Assn., Inc. v.
Unknown Heirs of Polson, 11th Dist. Lake No. 2016-L-070, 2017-Ohio-885 for the
proposition that the trial court was without authority to distribute the sale proceeds to U.S.
Bank, who is not named in the foreclosure order. The Eleventh District in Governors held
that a non-party to a foreclosure order must file a 60(B) motion in order to: (1) establish
its interest in the property; and (2) amend the order of foreclosure to reflect that interest,
before the trial court may distribute the proceeds of the sale to the non-party.
{¶26} In Governors, the foreclosure action was instituted by a condominium
association to collect overdue fees from the condominium owner. U.S. Bank was named
as a defendant acting as trustee for the holders of the CSFB Mortgage Securities, Corp.,
Adjustable Rate Mortgage Trust 2005-8, Adjustable Rate Mortgage Backed Pass-
Through Certificates, Series 2005-8.
{¶27} Before the foreclosure order was entered, Governors filed a motion to
substitute Nationstar Mortgage, LLC (“Nationstar”) as a party defendant, following the
assignment of the mortgage (and presumably the note) to Nationstar.
{¶28} After the issuance of the foreclosure order, which recognized Nationstar’s
interest in the property, and the sale, Nationstar filed a motion to substitute U.S. Bank as
a party-defendant. Nationstar attached to its motion a “Corporate Assignment of
Mortgage,” dated March 19, 2015, which stated “the assignment is being recorded to
correct the assignee name in the assignment recorded 07/05/2011.”
{¶29} Nationstar asserted that U.S. Bank was the actual holder of the note and
mortgage, as was originally alleged in the complaint. The trial court granted the motion to
substitute, and U.S. Bank filed an answer and a motion for distribution of the proceeds

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from the sale. After satisfying the priority liens, the trial court distributed the remainder of
the proceeds to U.S. Bank.
{¶30} The Eleventh District concluded that U.S. Bank, which was not named in
the foreclosure order, was required to file a 60(B) motion to amend the foreclosure order
in order to accurately reflect U.S. Bank’s interest in the property. Because U.S. Bank was
not named in the foreclosure order, the Eleventh District vacated the trial court’s order
distributing the proceeds of the sale to U.S. Bank.
{¶31} The Governors panel explained:

The foreclosure decree was a final, appealable order because it set forth
the rights of all lienholders. CitiMortgage[, Inc. v. Roznowski, 139 Ohio St.3d
299, 2014-Ohio-1984] at ¶ 39. “Accordingly, if an individual or entity
believes that the order of foreclosure fails to accurately reflect an interest in
the property, the proper means to challenge the court’s determination is by
appealing the order of foreclosure.” Id. at ¶ 38. Otherwise, although a
motion for relief from judgment cannot be used as a substitute for an appeal,
“ ‘Civ.R. 60(B) provides the exclusive means for a trial court to vacate a final
judgment’ ” if the proper criteria is set forth. Fed. Natl. Mtge. Assn. v. Day,
158 Ohio App.3d 349, 2004-Ohio-4514, ¶ 21 (2d Dist.), quoting Soc. Natl.
Bank v. Repasky, 7th Dist. Mahoning No. 99 C.A. 193, 2000 WL 1486767,
*3 (Sept. 21, 2000) (citations omitted). Either way, “the proper time to
challenge the existence and extent of mortgage liens is in the foreclosure
action.” Id. at ¶ 15 (citation omitted).

Nationstar did not appeal the order prior to U.S. Bank’s substitution. U.S.
Bank could not have appealed the foreclosure decree because it was not a
party at the time the judgment was entered. U.S. Bank was subsequently
granted leave to file an answer instanter. The filing of this answer did not
have the effect of vacating the decree of foreclosure. U.S. Bank did not file
a cross-claim or otherwise attempt to prosecute its claim against the co-
defendants. Thus, U.S. Bank’s sole remedy to obtain relief from the default

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judgment entered against it in the foreclosure action was a Civ.R. 60(B)
motion.

U.S. Bank did not file a Civ.R. 60(B) motion. Instead, U.S. Bank filed a
motion for distribution of proceeds from the sale. The amount claimed by
U.S. Bank in this motion had never been reduced to judgment. While it
claimed it had a first lien on the property, the record is clear that almost eight
months prior, the Clerk of Courts, pursuant to the trial court’s foreclosure
decree and order confirming sale, released U.S. Bank’s mortgage on
September 9, 2015.

The trial court issued an order stating U.S. Bank established that it is owed
money on the note and mortgage based on the affidavit U.S. Bank attached
to its motion for distribution of proceeds. By issuing this order, the trial court
“improperly attempted to alter the effect of the previous foreclosure
judgment, which should have been appealed or been the subject of a Civ.R.
60(B) motion.” Day, supra, at ¶ 29.

Because the trial court improperly modified the final and appealable
foreclosure decree, the trial court did not have authority to distribute any
proceeds of the sale to U.S. Bank.

Governors, supra, at ¶ 23-27.

{¶32} The trust asserts that res judicata bars the foregoing argument because it
could have been raised in the original 60(B) motion. Appellants counter that the
Governors argument was not raised in their original 60(B) motion because the argument
is predicated upon a factual finding made for the first time in Smith IV (incorrectly
attributed in Smith IV to Smith III), that U.S. Bank’s role as trustee is the result of a merger
with LaSalle. To the contrary, no such finding was made in Smith III. In fact, previous
trustee Bank of America’s role as trustee was the result of Bank of America’s merger with
LaSalle Bank. U.S. Bank is a successor in interest to Bank of America.
{¶33} Moreover, Appellants could have asserted their Governors argument in the
original 60(B) motion filed after the issuance of the Confirmation/Distribution order. The

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argument is predicated upon U.S. Bank’s failure to file a 60(B) motion to amend the
foreclosure order to reflect U.S. Bank’s interest in the property prior to the issuance of the
Confirmation/Distribution order. Even assuming arguendo that the misstatement in Smith
IV is correct, that fact would not have given rise for the first time to Appellants’ Governors
argument. Accordingly, we find that Appellant’s successive 60(B) motion is barred by res
judicata.
{¶34} Even assuming arguendo that Appellants’ Governors challenge is not
procedurally barred, we have repeatedly held that the real party in interest in this case,
from the filing of the complaint to the present date, is the trust. Insofar as the interest
holder has remained the same, we find on the merits that the trial court did not err in
distributing the proceeds to the trust. In Governors, the foreclosure order established
Nationstar’s interest in the property. It is not clear from the Eleventh District’s opinion in
Governors that Nationstar was acting as a trustee. Accordingly, the facts in Governors
are distinguishable from the facts in this appeal.

CONCLUSION

{¶35} Because Appellants could have asserted their Governors challenge in their
original 60(B) motion following the issuance of the Confirmation/Distribution order, we find
that the second 60(B) motion is procedurally barred. Even assuming arguendo that the
second 60(B) motion is properly before us, we find that the trial court had the authority to
distribute the sale proceeds to U.S. Bank, despite the fact that LaSalle was the trustee
named in the foreclosure order, because the foreclosure order recognizes the trust’s
interest in the property. Accordingly, the judgment entry of the trial court overruling the
second 60(B) motion is affirmed.

Waite, J., concurs.

Robb, J., concurs.

Case No. 22 MA 0111
[Cite as U.S. Bank Natl. Assn. v. Smith, 2023-Ohio-1940.]

For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellants.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.