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Geauga Savings Bank v. Berg

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

GEAUGA SAVINGS BANK PLAINTIFF-APPELLEE
v.
RICHARD L. BERG, ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-10-725484

          ATTORNEY FOR APPELLANTS Michael Aten

          ATTORNEYS FOR APPELLEE Stephen J. Crawford Robert J. Moderalli Eric J. Steiger Crawford Law, L.L.C.

          For Cuyahoga County Treasurer Michael C. O'Malley Cuyahoga County Prosecutor, Judith Miles Assistant Prosecuting Attorney

          For Huntington National Bank Robert H. Young

          BEFORE: Celebrezze, J., Boyle, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR, JUDGE

         {¶1} 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 affirms.

         I. Factual and Procedural History

         {¶2} 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 them.

         {¶3} 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 trial court.

         {¶4} 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.

         {¶5} 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 Geauga Bank.

         {¶6} 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 ...


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