Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANTS Michael Aten
ATTORNEYS FOR APPELLEE Stephen J. Crawford Robert J.
Moderalli Eric J. Steiger Crawford Law, L.L.C.
Cuyahoga County Treasurer Michael C. O'Malley Cuyahoga
County Prosecutor, Judith Miles Assistant Prosecuting
Huntington National Bank Robert H. Young
BEFORE: Celebrezze, J., Boyle, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR, JUDGE
Appellants, Richard L. Berg and Rorie L. Berg (the
"Bergs"), appeal from an order confirming a
sheriffs sale. They argue that the trial court could not
confirm the sale because it could not reconsider its judgment
declining to confirm the sale, and because it had previously
vacated the judgment of foreclosure before the sale occurred.
After a thorough review of the record and law, this court
Factual and Procedural History
The Bergs obtained a home mortgage loan from appellee, Geauga
Savings Bank ("Geauga Bank"), on April 25, 2005, in
the amount of $252, 000. The Bergs were in default in 2010
when Geauga Bank filed a foreclosure action. After the Bergs
failed to file an answer, a default hearing was held where
Richard Berg appeared. The default hearing resulted in an
order from a magistrate that Geauga Bank would provide the
Bergs with documents to fill out and return regarding a
possible loan modification or settlement. However, the Bergs
did not return these documents to Geauga Bank and did not
file an answer. As a result, the magistrate issued a
magistrate's decision granting default judgment against
The trial court adopted the magistrate's decision on June
9, 2011, finding that the Bergs failed to answer the
complaint. A praecipe for an order of sale was issued, and
the sale was advertised and notice was issued to the Bergs.
However, the sale did not go forward because the Bergs filed
for bankruptcy. After Geauga Bank sought and received a
motion to lift the stay from the bankruptcy court, it filed a
motion to reinstate the case to the active docket of the
The court referred the case for mediation and required the
Bergs to again fill out a mediation questionnaire or loss
mitigation form. As a result of that mediation process, the
parties reached a loan modification agreement according to
the court's entry filed September 18, 2012. Geauga Bank
then filed a motion to voluntarily dismiss premised on Civ.R.
41(A)(2), which the court granted. When the Bergs again
defaulted, Geauga Bank filed a praecipe for order of sale on
September 11, 2014.
The court issued conflicting entries in October 2014. First,
the court issued a notice of sale on October 2, 2014,
approving the appraisal fees and scheduling a sale for
November 3, 2014. Notice of the pending sale was also issued
to the Bergs. On October 29, 2014, the court noted that
Geauga Bank had previously dismissed its case against the
Bergs, and the court attempted to change its previous journal
entry dismissing the case nunc pro tunc to indicate that the
dismissal was premised on Civ.R. 60(B) rather than Civ.R. 41
and again dismissing the case. The court issued essentially
the same order on November 5, 2014. Nevertheless, the sale
proceeded on November 3, 2014, with the property selling to
Geauga Bank for $120, 000. Geauga Bank filed a motion to
vacate the court's October 29, 2014 order attempting to
change the 2012 dismissal entry nunc pro tunc and again
dismissing the action. The court denied that motion and
Geauga Bank's motion to confirm the sheriffs sale on
November 25, 2014, after a notice of appeal was filed by
This court determined that the trial court could not use a
nunc pro tunc entry to modify the previous dismissal because
the earlier ruling was premised entirely on Civ.R. 41.
Geauga Savs. Bank v. Berg, 8th Dist. Cuyahoga No.
102255, 2016-Ohio-2829, ¶ 16-18 ("Berg I
"). This court also vacated orders issued by
the trial court ...