[Cite as Real Time Resolutions, Inc. v. Vogelpohl, 2021-Ohio-1270.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Real Time Resolutions, Inc., :
Plaintiff-Appellee, :
No. 20AP-241
v. : (C.P.C. No. 18CV-9179)
James P. Vogelpohl et al., : (REGULAR CALENDAR)
:
Defendants-Appellants.
:
D E C I S I O N
Rendered on April 13, 2021
On brief: Carlisle, McNellie, Rini, Kramer & Ulrich, Co., LPA,
and Eric T. Deighton, for appellee. Argued: Eric T. Deighton.
On brief: Strayer Legal, and Herbert N. Strayer, Jr., for
appellant. Argued: Herbert N. Strayer, Jr.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Defendants-appellants, James and Deborah Vogelpohl, appeal a judgment of
the Franklin County Court of Common Pleas granting the motion for summary judgment
of plaintiff-appellee, Real Time Resolutions, Inc. For the reasons that follow, we dismiss
the appeal because it does not present a final, appealable order.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On November 1, 2018, appellee brought a residential foreclosure action
naming appellants and HSBC Bank USA, N.A., as Trustee on behalf of Ace Securities Corp.,
Home Equity Loan Trust and for the Registered Holders of Ace Securities Corp., Home
Equity Loan Trust, Series 2006-ASAP3, Asset Backed Pass-Through Certificates ("HSBC")
as defendants. Appellee asserted that it is the holder of a promissory note that was modified
pursuant to a loan modification agreement. Appellee alleged appellants are in default on
No. 20AP-305 2
the note, which was secured by a mortgage on real property located at 6930 Shady Rock
Lane, Blacklick, Ohio 43004. Appellee sought foreclosure of the mortgage and monetary
judgment on the principal balance of $41,873.29 at an interest rate of 3.95 percent per
annum from April 1, 2009.
{¶ 3} On December 4, 2018, appellants filed an answer asserting a series of
affirmative defenses.1 HSBC filed an answer on December 19, 2018 claiming it has an
interest in the property, and it holds a first mortgage lien on the property that is the subject
of the foreclosure action. On January 3, 2019, appellee moved for summary judgment
against appellants. After the trial court permitted additional time to conduct discovery,
appellants filed a memorandum contra on July 12, 2019. In relevant part, appellants
asserted that summary judgment was not appropriate claiming there remains a genuine
issue of material fact regarding whether appellee's claims are barred under the doctrine of
laches. Appellants provided personal affidavits along with an affidavit by a real estate agent,
Richard Russo, as exhibits to their memorandum contra. A reply brief was filed on July 31,
2019.
{¶ 4} On March 10, 2020, the trial court issued a decision granting summary
judgment in favor of appellee. The trial court determined appellee had met its burden under
Civ.R. 56, and appellants failed to demonstrate there was a genuine issue of material fact
regarding whether appellee's claims were precluded under the doctrine of laches.
{¶ 5} On April 9, 2020, appellants filed a notice of appeal. On May 29, 2020, the
trial court filed an entry terminating the case and stated the entry constituted a final,
appealable order. On June 9, 2020, the trial court filed an order vacating the May 29, 2020
entry and reinstating the case to the court's active docket. On June 13, 2020, the trial court
stayed the case pending appeal.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellants assign the following as trial court error:
[I.] The Trial Court erred in holding that Appellants [sic]
affidavits did not directly address paragraph 10 of the
mortgage provision and therefore Appellants explanation as
to why they were under the assumption that the Mortgage
1 While appellants' December 4, 2018 filing was titled "Answer and Counterclaim," no counterclaims were
asserted in the body of the pleading. The trial court granted appellee's motion to dismiss appellants'
counterclaims on March 13, 2019. (Mar. 13, 2019 Decision & Entry.)
No. 20AP-305 3
Company had abandoned the loan was not acceptable to meet
the elements of laches.
[II.] The Trial Court Erred by failing to review the Affidavit of
Richard Russo.
III. LEGAL ANALYSIS
{¶ 7} Before this court can address the assignments of error, we must first consider
whether this appeal has appropriately invoked our jurisdiction. Pursuant to Ohio
Constitution, Article IV, Section 3(B)(2), courts of appeals have jurisdiction to "affirm,
modify, or reverse judgments or final orders of the courts of record inferior to the court of
appeals within the district." It is well-established law that an order or judgment must be
final before it is reviewed by an appellate court. Gehm v. Timberline Post & Frame, 112
Ohio St.3d 514, 2007-Ohio-607, ¶ 14, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44
Ohio St.3d 17, 20 (1989). "To properly lie within our jurisdiction, an appeal must arise
from a final appealable order." Leonard v. You Props., 10th Dist. No. 16AP-514, 2016-
Ohio-7877, ¶ 8, citing Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2505.03(A).
{¶ 8} An order is a final, appealable order if it meets the requirements of R.C.
2505.02. Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, ¶ 21, citing Gehm at ¶ 15.
If the order satisfies R.C. 2505.02, the court must then resolve whether Civ.R. 54(B) applies
and, if so, whether the order includes a certification that there is no just reason for delay.
Nnadi v. Nnadi, 10th Dist. No. 15AP-13, 2015-Ohio-3981, ¶ 12, citing Gen. Acc. Ins. Co. at
21.
{¶ 9} Pursuant to R.C. 2505.02(B):
An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of
the following:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3) An order that vacates or sets aside a judgment or grants a
new trial;
(4) An order that grants or denies a provisional remedy * * *;
No. 20AP-305 4
(5) An order that determines that an action may or may not be
maintained as a class action;
(6) An order determining the constitutionality of any changes
to the Revised Code made by Am.Sub.S.B. 281 of the 124th
general assembly * * *;
(7) An order in an appropriation proceeding that may be
appealed pursuant to division (B)(3) of section 163.09 of the
Revised Code.
{¶ 10} Civ.R. 54(B) states that "[w]hen more than one claim for relief is presented
in an action * * * or when multiple parties are involved, the court may enter final judgment
as to one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay." Civ.R. 54(B), however, is a procedural
device and does not affect the finality of an order. Gen. Acc. Ins. Co. at 21. If a trial court's
order is not final and appealable, then a reviewing court does not have jurisdiction to
consider the case and it must be dismissed. State v. Harvey, 10th Dist. No. 19AP-165, 2019-
Ohio-4022, ¶ 8, citing Gen. Acc. Ins. Co. at 20.
{¶ 11} In Farmers State Bank v. Sponaugle, 157 Ohio St.3d 151, 2019-Ohio-2518,
the Supreme Court of Ohio addressed what constitutes a final, appealable order in a
foreclosure action stating:
Foreclosure actions proceed in two stages, both of which end in
a final, appealable judgment: the order of foreclosure and the
confirmation of sale. CitiMortgage, Inc. v. Roznowski, 139
Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 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.
Sponaugle at ¶ 18.
{¶ 12} Accordingly, in order to constitute a final order under R.C. 2505.02(B)(1), a
foreclosure decree must address each lienholder's interest and examine each lienholder's
rights. Green Tree Servicing LLC v. Columbus & Cent. Ohio Children's Chorus Found., 10th
No. 20AP-305 5
Dist. No. 15AP-802, 2016-Ohio-3426, ¶ 9, citing CitiMortgage, Inc. v. Roznowski, 139 Ohio
St.3d 299, 2014-Ohio-1984, ¶ 20-21. " ' "[A] judgment entry ordering a foreclosure sale is
not final and appealable unless it resolves all of the issues involved in the foreclosure,
including the following: whether an order of sale is to be issued; what other liens must be
marshaled before distribution is ordered; the priority of any such liens; and the amounts
that are due the various claimants." ' " Green Tree Servicing LLC at ¶ 9, quoting Whipps v.
Ryan, 10th Dist. No. 07AP-231, 2008-Ohio-1216, ¶ 19, quoting Davilla v. Harman, 7th
Dist. No. 06 MA 89, 2007-Ohio-3146, ¶ 18.
{¶ 13} In the case sub judice, appellants have appealed from the trial court's
March 10, 2020 decision granting appellee's motion for summary judgment. The decision,
however, did not resolve what liens must be marshaled before distribution is ordered, the
priority of any such liens, the amounts that are due the various claimants, including HSBC,
determine the other rights and responsibilities of each party in the action, or whether an
order of sale is to be issued.2 As acknowledged by the parties during oral arguments, the
filing of this appeal was premature.
{¶ 14} Given these facts, we conclude that the trial court's decision is not a final
order under R.C. 2505.02(B), and we do not need to review the applicability of Civ.R. 54(B).
Green Tree Servicing LLC at ¶ 13, citing Noble v. Colwell, 44 Ohio St.3d 92, 96 (1989)
(finding that before Civ.R. 54(B) can apply, the order must meet the requirements of a final
order under R.C. 2505.02(B)).
{¶ 15} As such, this court lacks jurisdiction over this appeal and we must dismiss.
IV. CONCLUSION
{¶ 16} For the foregoing reasons, we conclude that we lack jurisdiction over the
March 10, 2020 decision. Accordingly, we dismiss this appeal.
Appeal dismissed.
BROWN and KLATT, JJ., concur.
_____________
2 We further observe that, although the trial court did enter a judgment entry for this case as a final, appealable
order on May 29, 2020, the trial court filed an order to vacate the entry and reinstated the case to the court's
active docket on June 9, 2020. The case was then stayed pending appeal on June 13, 2020.