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U.S. Bank, N.A. v. Kapitula

Court of Appeals of Ohio, Twelfth District

June 24, 2013

U.S. BANK, N.A., Plaintiff-Appellee,
v.
SERGEY A. KAPITULA, et al., Defendants-Appellants.

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2009-CVE-1101.

Lynn A. Busch-Heyman, Edward H. Cahill, for plaintiff-appellee.

Scott A. Hoberg, for defendants-appellants.

Jonathan T. Dever, for defendants-appellants.

D. Vincent Faris, Clermont County Prosecuting Attorney, James G. Nichols, for defendant, Clermont County Treasurer

OPINION

HENDRICKSON, P.J.

{¶ 1} Defendants-appellants, Sergey A. Kapitula and Svetlana V. Kapitula, appeal from a judgment of the Clermont County Common Pleas Court denying their Civ.R. 60(B) motion for relief from a 2009 judgment awarded in favor of plaintiff-appellee, U.S. Bank, on its foreclosure action against the Kapitulas. For the reasons that follow, we affirm the trial court's judgment.

{¶ 2} In 2009, U.S. Bank filed a foreclosure action against Sergey Kapitula and his wife, Sveltlana Kapitula, after they defaulted on their mortgage loan payment. U.S. Bank was awarded default judgment after the Kapitulas failed to answer its complaint. The Kapitulas did not file a direct appeal of the default judgment.

{¶ 3} In 2012, the Kapitulas filed a motion to vacate the 2009 default judgment on several grounds, including that (1) U.S. Bank lacked standing to bring the action; (2) U.S. Bank procured the default judgment "through a fraud upon the court, " and therefore the Kapitulas were entitled to have the default judgment vacated under Civ.R. 60(B)(5); and (3) the default judgment is void due to a lack of jurisdiction. The trial court denied the motion.

{¶ 4} The Kapitulas now appeal and assign the following as error:

{¶ 5} "IN A FORECLOSURE CASE, THE TRIAL COURT ERRED IN DENYING BOTH DEFENDANT-APPELLANT'S [sic] MOTION TO VACATE AND HIS [sic] MOTION FOR RELIEF FROM JUDGMENT UNDER CIV.R. 60(B) WHEN APPELLEE DID NOT HAVE STANDING TO BRING THE CAUSE OF ACTION."

{¶ 6} The Kapitulas argue the trial court erred in overruling their motion to vacate the default judgment due to the trial court's lack of subject matter jurisdiction to issue the judgment. They assert that, under Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, U.S. Bank lacked standing to bring a foreclosure action against them because it did not have the ability to enforce the note and mortgage at the time it filed its 2009 foreclosure action, and the trial court therefore lacked jurisdiction to issue a default judgment in favor of U.S. Bank. However, the Kapitulas failed to present any evidence in support of their motion to dismiss for lack of standing and thus for lack of jurisdiction, other than Sergey Kapitula's affidavit. In particular, the Kapitulas failed to present any evidence showing that U.S. Bank lacked standing to bring its foreclosure action against them; consequently, the trial court was not in a position to rule on the Kapitulas' claim that U.S. Bank lacked standing under Schwartzwald.

{¶ 7} The Kapitulas also argue the trial court erred in overruling their Civ.R. 60(B) motion for relief from the 2009 default judgment granted in favor of U.S. Bank. The Kapitulas assert that they are entitled to relief under Civ.R. 60(B)(5) on the ground that the conduct of U.S. Bank constituted a "fraud upon the court." We disagree with this argument.

{¶ 8} An appellate court reviews a trial court's decision on a Civ. R. 60(B) motion using the abuse-of-discretion standard. LNV Corp. v. Edgar, 12th Dist. No. CA2011-10-190, 2012-Ohio-1899, ΒΆ 16. A trial court's decision will not be deemed to be an abuse of discretion ...


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