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Bank of New York Mellon v. Slover

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 24, 2017

BANK OF NEW YORK MELLON PLAINTIFF-APPELLEE
v.
BRIAN M. SLOVER, SR., ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-834605

          APPELLANT Brian M. Slover, Sr., pro se.

          ATTORNEYS FOR APPELLEE John E. Codrea Matthew P. Curry Ann M. Johnson Matthew J. Richardson Justin M. Rich Manley, Deas & Kochalski, L.L.C.

          For Cuyahoga County Clerk of Courts Nora Hurley Cuyahoga County Law Department.

          BEFORE: Keough, A.J., Boyle, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE.

         {¶1} Defendant-appellant, Brian M. Slover, Sr., appeals the trial court's decision denying his motion to vacate judgment. Finding no merit to the appeal, we affirm the trial court's decision.

         {¶2} In 2004, Slover and his wife, Celina, executed a mortgage on their property at 6463 West 130th Street, Parma, Ohio, to secure amounts due on a promissory note signed by Slover and in favor of GreenPoint Mortgage Funding, Inc., as lender, and Mortgage Electronic Registration Systems, Inc. ("MERS"), as mortgagee and nominee for the lender. The mortgage and note were subsequently assigned to plaintiff-appellee, Bank of New York Mellon ("Mellon") in May 2012. In May 2014, a corrective assignment of mortgage was recorded.

         {¶3} In October 2014, Mellon commenced this foreclosure action as a result of Slover's default under the terms of the note and mortgage due to nonpayment. The complaint did not seek a personal judgment against Slover because the note was discharged in bankruptcy proceedings. Rather, Mellon sought to enforce its security interest and recover from the sale of the property the remaining principal amount due of $107, 000, plus interest, applicable charges, and allowable expenses.

         {¶4} Although properly served with a copy of the complaint, Slover did not file an answer. Accordingly, Mellon moved for default judgment, and the motion was assigned to a magistrate for consideration. Again, although properly served with notice of the magistrate's hearing, Slover failed to appear. Following a hearing, the magistrate entered an order of foreclosure and sale of the property.

         {¶5} Slover did not file objections to the magistrate's decision, and on February 10, 2016, the trial court issued an order adopting the magistrate's decision and entering an order of foreclosure and sale. In August 2016, Slover filed a "claim for relief from judgment/motion to vacate judgment" contending that the judgment is void because Mellon had no standing to bring the action, and there was no contractual agreement between him and Mellon. Specifically, Slover maintained that he never received notice of the assignment from Green Point to Mellon and thus, the assignment was obtained by fraud.

         {¶6} The trial court treated Slover's motion as a Civ.R. 60(B) motion to vacate and denied the motion, finding that Slover failed to satisfy his burden of demonstrating that he is entitled to relief. The court further noted that his motion was untimely.

         {¶7} Slover now appeals, [1] raising the following four ...


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