[Cite as Bank of New York Mellon Trust Co., Natl. Assn. v. Loudermilk, 2014-Ohio-2546.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE BANK OF NEW YORK JUDGES:
MELLON TRUST COMPANY, Hon. William B. Hoffman, P.J.
NATIONAL ASSOCIATION Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
Plaintiff-Appellee
Case No. 13-CA-75
-vs-
CHARLES H. LOUDERMILK, OPINION
DECEASED, ET AL.
Defendants-Appellants
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Appeals, Case No. 10 CV 106
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 12, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
AMELIA BOWER THOMAS JAMES CORBIN
300 East Broad Street 842 North Columbus Street
Suite 590 Lancaster, Ohio 43130
Columbus, Ohio 43215
Fairfield County, Case No. 13-CA-75 2
Hoffman, P.J.
{¶1} Defendants-appellants Charles H. Loudermilk, Deceased, Et Al.
(“Appellants") appeal the October 14, 2013 Entry entered by the Fairfield County Court
of Common Pleas, which overruled their Motion for Relief from Judgment pursuant to
Civ. R. 60(B). Plaintiff-appellee is The Bank of New York Mellon Trust Co. (“the Bank”).
STATEMENT OF THE FACTS AND CASE
{¶2} Charles Loudermilk (“Loudermilk”) purchased the real property known as
4105 Lancaster–Chillicothe Road S.W., Lancaster, Ohio, in 1968. When he purchased
the property, it consisted of 184 total acres. Loudermilk sold 80.5 acres to third parties
in 1999, and conveyed another 14.3 acres to a third party in 2001. In October, 2001,
Loudermilk mortgaged the remaining 89 acres to Washtenaw Mortgage (“Washtenaw”).
He refinanced one year later with a mortgage to CIT Consumer Finance (“CIT
Consumer”). With the funds from the CIT Consumer refinance, he paid off the
Washtenaw mortgage. In December of 2004, Loudermilk had a survey performed to
split off ten acres from the 89 acre parcel. The ten acre parcel (“the Parcel”) included
the land on which Loudermilk's three-bedroom home was located. In January of 2005,
Loudermilk refinanced with First Magnus Financial (“First Magnus”), securing the
Parcel. Funds received from the First Magnus mortgage went to pay the CIT Consumer
mortgage, taxes, credit card bills, and the costs of surveying the property. The
description of the Parcel was prepared by a surveyor hired by Vantage Land Title, the
title agency closing both the 2005 and 2006 transactions.
Fairfield County, Case No. 13-CA-75 3
{¶3} Loudermilk again refinanced in May, 2006, executing a note in favor of
LoanCity in the amount of $171,000. Loudermilk secured the note with a mortgage to
Mortgage Electronic Registration Systems (“MERS”) as nominee for LoanCity. LoanCity
subsequently endorsed the note in blank and transferred it to Residential Funding
Corporation (“Residential Funding”). Residential Funding then endorsed the note in
blank and transferred it to JPMorgan Chase Bank, N.A. (“JPMorgan Chase”) as
Trustee for RAMP 2006RS5. Attached to the note is an allonge endorsing the note from
JPMorgan Chase as Trustee for RAMP 2006RS5 to The Bank of New York Mellon Trust
Co. (“the Bank”) as successor to JPMorgan Chase as Trustee for RAMP 2006RS5. At
the time of the refinance, the lender appraised the Parcel. Loudermilk used the funds
from the refinancing to pay off the 2005 mortgage and unsecured debt. The mortgage
contained no legal description, but included the 4105 Lancaster–Chillicothe Road S.W.,
Lancaster, Ohio street address and the auditor's permanent parcel number. The
mortgage was not recorded. At the closing, Loudermilk executed a quit-claim deed to
split the Parcel from the remainder of the 89 acres. While the lot split was approved by
the Fairfield County Engineer, the split was not concluded because the deed process
was not finished.
{¶4} Subsequent to the execution of the 2006 mortgage, Loudermilk conveyed
22 acres to a third party, leaving a balance of approximately 67 acres. Loudermilk died
intestate on December 22, 2008. On February 13, 2009, Dale Loudermilk was
appointed administrator of Charles H. Loudermilk's estate. Dale Loudermilk previously
lived in a mobile home on the property, but which was not part of the Parcel. After
Loudermilk's death, Dale Loudermilk moved into the house located on the Parcel, which
Fairfield County, Case No. 13-CA-75 4
had been mortgaged in 2005. Dale Loudermilk testified he had not paid the mortgage,
real estate taxes, rent, or insurance on the property since moving into the house in
2009.
{¶5} Appellants defaulted under the terms of the note and mortgage and the
Bank accelerated the debt. On January 27, 2010, the Bank filed a Complaint for
Foreclosure against Loudermilk and Unknown Spouse of Charles H. Loudermilk;
Thomas Corbin; Dale Loudermilk as heir of the Estate of Charles Loudermilk; Pamela
Rupp as heir of the Estate of Charles Loudermilk; and Dale Loudermilk as Administrator
of the Estate of Charles Loudermilk. Copies of the note, allonge to note, and mortgage
were attached as exhibits to the Complaint.
{¶6} The Bank filed a motion for summary judgment seeking foreclosure of the
Parcel. Appellants filed a response and a motion for summary judgment. On May 15,
2012, the trial court entered an order granting the Bank's motion for summary judgment.
The trial court instructed the Bank to submit a foreclosure decree. Appellants filed an
appeal of the trial court's May 15, 2012 judgment entry. This Court affirmed the trial
court’s grant of summary judgment in favor of the Bank via Opinion and Entry filed June
3, 2013. Bank of New York Mellon v. Loudermilk, 5th Dist. Fairfield No.2012–CA–30,
2013–Ohio–2296, ¶ 43. Appellants filed a motion for reconsideration which this Court
denied. The Ohio Supreme Court declined jurisdiction.
{¶7} The Bank filed a Praecipe for Order of Sale on July 2, 2013. The property
was appraised. After the appraisement was filed and the sale date set, Appellants
moved the trial court to postpone the sale and requested a hearing on the issue of
ingress and egress to the Parcel, which issue had come to light on June 26, 2013. The
Fairfield County, Case No. 13-CA-75 5
trial court postponed the sale via entry dated September 6, 2013. On September 23,
2013, Appellants filed a motion for relief from judgment. The trial court vacated the
postponement of the sale on September 24, 2013. Via entry dated October 14, 2013,
the trial court overruled Appellants' 60(B) motion.
{¶8} It is from the October 14, 2013 judgment entry, Appellants prosecute this
appeal, raising the following as alleged errors:
{¶9} "I. THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S
MOTION FOR RELIEF JUDGMENT PURSUANT TO CIVIL RULE 60(B).
{¶10} "II. THE TRIAL COURT ERRED IN ORDERING THE APPELLANT TO
REIMBURSE THE PLAINTIFF THE COSTS TO RE-ADVERTISE THE SUBJECT
PREMISES FOR SALE."
I
{¶11} In the first assignment of error, Appellants maintain the trial court erred in
failing to grant the Civ. R. 60(B) motion for relief from judgment.
{¶12} Civ. R. 60(B) provides the basis upon which a party may obtain relief from
judgment, and states in pertinent part: “On motion and upon such terms as are just, the
court may relieve a party * * * from a final judgment, order or proceedings 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 (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
Fairfield County, Case No. 13-CA-75 6
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 to taken.”
{¶13} To prevail on a motion made pursuant to Civ.R. 60(B), the movant 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 (5); and (3) the motion is made within a reasonable time, and, where
the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the
judgment, order or proceeding was entered or taken. GTE Automatic Electric, Inc. v.
ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 150–151. Where timely relief is sought
from a default judgment, and the movant has a meritorious defense, doubt should be
resolved in favor of the motion to set aside the judgment so that cases may be decided
on their merits. Id. at paragraph three of the syllabus. Our standard of review of a
court's decision as to whether to grant a Civ. R. 60(B) motion is abuse of discretion. Id.
at 148, 351 N.E.2d 113. The GTE Automatic factors are “independent and conjunctive,
not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App. No. 12–CA–86.
“[F]ailing to meet one is fatal, for all three must be satisfied in order to gain relief.” Id.
{¶14} For purposes of our review, we shall find, as the trial court did, Appellants'
Civ. R. 60(B) motion was timely filed. We now must determine whether Appellants
established a meritorious defense
{¶15} Appellants submit the decree of foreclosure must be vacated as the result
of the Ohio Department of Transportation “plac[ing] a condition upon its approval of the
Fairfield County, Case No. 13-CA-75 7
subdivision.”1 Appellants contend, although ODOT permitted the subdivision, such
approval was “only upon condition that access to the remaining acreage be through the
said ten acre tract.” Defendant’s Motion for Relief from Judgment. We disagree.
{¶16} We do not find ODOT’s statement, “No new points of access shall be
given for this or future lot split” to be a condition for ODOT’s approval of the subdivision.
ODOT expressly approved the split, but noted it would not allow any new points of
access. Even if ODOT’s statement is a condition of approval, we do not find such
requires vacation of the foreclosure decree. The fact the remainder of the Loudermilk
property is left without access and the sale of the Parcel makes no provision for ingress
and egress does not invalidate the mortgage or the Bank’s rights thereunder.
Appellants have adequate remedies at law should access become an issue following
the sale of the Parcel.
{¶17} Appellants' first assignment of error is overruled.
II
{¶18} In the second assignment of error, Appellants contend the trial court erred
in ordering them to reimburse the Bank the costs to re-advertise the subject premises
for sale.
1
The splitting of the Parcel from the remaining acreage is considered a “subdivision”
within the meaning of the Fairfield County Subdivision Regulations. Therefore, the Bank
needed approval from the Regional Planning Commission in order to complete the
process. The Regional Planning Commission was required to submit the proposed
subdivision to the Ohio Department of Transportation because the subject property
fronts a state highway. ODOT stated it had “no issues with lot split”, but noted,
“however, both the split (10 acres) and the remainder (57.55 acres) utilize existing point
of access as a shared point of access for both parcels.” ODOT then indicated, “No new
points of access shall be given for this or future lot splits.” See, Exhibit “A”, Appellant’s
Motion to Postpone Sale”.
Fairfield County, Case No. 13-CA-75 8
{¶19} Civ.R. 54(D) permits a trial court to award a prevailing party the costs of
litigating that party's claim, and provides:
Except when express provision therefore is made either in a statute
or in these rules, costs shall be allowed to the prevailing party unless the
court otherwise directs.
{¶20} This rule gives the trial court broad discretion to assess costs, and the
court's ruling will not be reversed absent an abuse of that discretion. Vance v.
Roedersheimer, 64 Ohio St.3d 552, 597 N.E.2d 153 (1992).
{¶21} Upon review of the record, we cannot say the trial court abused its
discretion in ordering Appellants to pay costs associated with re-advertising the subject
property for sale
{¶22} Appellants' second assignment of error is overruled.
{¶23} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, J. and
Delaney, J. concur