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Deutsche Bank National Trust Company v. Harvey

Court of Appeals of Ohio, Eighth District

July 3, 2013

DEUTSCHE BANK NATIONAL TRUST COMPANY PLAINTIFF-APPELLANT
v.
MICHELLE L. HARVEY, ET AL. DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-766188

ATTORNEY FOR APPELLANTS Darryl E. Gormley Reimer, Arnovitz, Chernek,

FOR APPELLEE, MICHELLE L. HARVEY Michelle L. Harvey, pro se

BEFORE: EA. Gallagher, J., Stewart, A.J., and S. Gallagher, J.

JUDGMENT:

EILEEN A. GALLAGHER, J.:

{¶l} In this accelerated appeal, appellant Deutsche Bank National Trust Company, etc., appeals from the decision of the trial court denying its motion for relief from judgment. Deutsche Bank argues the trial court abused its discretion when it failed to correct an error in the legal description contained in the decree of confirmation, the judgment and the magistrate's decision. We find that the legal description attached to all three entries does contain an error and remand the matter for correction.

{¶2} Deutsche Bank filed a foreclosure complaint against Michelle L. Harvey for breach of a note and mortgage for nonpayment. The trial court issued its judgment of foreclosure and an order to the Cuyahoga County Sheriff to sell the property. Deutsche Bank successfully purchased the home and the trial court granted a decree of confirmation of the purchase through a journal entry signed on June 15, 2012.

{¶3} After the foreclosure sale, a representative from the sheriff's department notified counsel for Deutsche Bank that there was an error in the sublot number in the real estate description contained in the judgment. Specifically, the legal description in the judgment contained "sublot number 194" when the correct sublot number for the foreclosed property is 193. This error was also reflected in both the magistrate and trial court's decisions. Deutsche Bank's counsel confirmed this error with the title company and filed a motion to vacate decree of confirmation, judgment and magistrate's decision and to re-enter judgment containing the correct sublot number. The trial court denied the motion as moot in that the property was sold and the sale confirmed.

{¶ 4} Deutsche Bank appeals, raising the following assignment of error:

The trial court abused its discretion by not granting plaintiff/apellant's motion to vacate decree of confirmation, judgment and magistrate's decision and to re-enter judgment.

{¶ 5} To be entitled to relief from judgment under Civ.R. 60(B), the movant must demonstrate that:

(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 Elec. v. ARC Industries, Al Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.

{ΒΆ 6} In the present case, we find that Deutsche Bank is entitled to relief from judgment. Upon review of the record, it is clear that the supplemental preliminary judicial report, which was issued and submitted to the court by the Chicago Title Insurance Company, contained a mistake. The report mistakenly identified the property at issue as "being Sublot No. 194" when, in fact, the property upon which appellant was seeking to foreclose is Sublot No. 193. Subsequent to that judicial report, each of Deutsche Bank's filings as well as the decrees of foreclosure ...


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