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Dover West Condominium Unit Owners' Association v. Carandang

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017

DOVER WEST CONDOMINIUM UNIT OWNERS' ASSOCIATION PLAINTIFF-APPELLEE
v.
JOCELYN T. CARANDANG, ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-861887

          ATTORNEY FOR APPELLANTS L. Bryan Carr

          ATTORNEYS FOR APPELLEE Shannon M. McCormick Joseph E. Dibaggio Darcy Mehling Good Kaman & Cusimano, L.L.C.

          BEFORE: Blackmon, J., Kilbane, P.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE.

         {¶1} Defendant-appellant Jocelyn T. Carandang ("Carandang") appeals the trial court's order denying her motion for relief from the judgment in the foreclosure action filed by Dover West Condominium Unit Owners' Association ("Dover West"). Carandang assigns the following error for our review:

The trial court erred in granting default judgment to the appellee and in denying the [Carandang's] motion for relief from judgment /motion to vacate judgment.

         {¶2} Having reviewed the record and relevant law, we affirm the decision of the trial court. The apposite facts follow.

         {¶3} The record indicates that in February 2015, Dover West filed Case No. CV-15-840434 against Carandang alleging that her behavior was disruptive and created a nuisance at the condominium complex. In February 2016, Dover West was eventually granted injunctive relief that ordered Carandang to abate the nuisance, and was also awarded attorneys fees and costs. This matter is the subject of a separate appeal in Dover W. v. Carandang, 8th Dist. Cuyahoga No. 105730, 2017-Ohio-9023.

         {¶4} Several months later, Dover West filed this action against Carandang to foreclose upon a lien from the 2016 judgment, alleging that $11, 347 remained unpaid, and that it also has a condominium lien on the property in the amount of $6, 881.18, plus interest and fees, for unpaid maintenance fees, and common expenses and assessments.

         {¶5} By August 2016, Carandang had not filed an answer. A default hearing was held on September 2, 2016. Carandang appeared pro se at the default hearing. Carandang did not submit an answer and on September 6, 2016, the magistrate granted Dover West a default judgment. The court concluded that the $11, 347 judgment lien is a valid lien upon the premises, and that Dover West is also entitled to $7, 487 on its condominium lien (including legal fees and costs). On October 4, 2016, the trial court adopted the magistrate's decision.

         {¶6} The premises were sold on November 28, 2016. On December 20, 2016, the trial court approved and confirmed the sale and ordered the sheriff to deliver a deed to the purchaser. On January 6, 2017, Carandang sent handwritten correspondence to the court indicating that she had been sick during the earlier proceedings. Three weeks later, on January 31, 2017, Carandang, through counsel, filed a motion for relief from judgment and a motion for restraining order and injunction. In relevant part, she asserted that she had failed to answer through inadvertence as a pro se litigant, and that the default judgment was not equitable because she is entitled to protect up to $135, 000 in equity under the homestead exemption, R.C. 2319.66. In opposition, Dover West asserted that the motion was untimely because the unit had been sold. Dover West also maintained that under R.C. 2329.661, the homestead exemption does not extend to a "judgment rendered on a mortgage extended or security interest given on real or personal property by the debtor, " and that Carandang consented to the lien under the terms of her mortgage and condominium association agreement.

         {¶7} On February 17, 2017, the trial court denied Carandang's motion for relief from judgment, concluding:

[The] order confirming sale "bars the filing of any further motions to set aside the sale of the lands and tenements." R.C. 2329.27(B)(3)(b). Thus, this court lacks jurisdiction to grant Defendant Carandang the relief she seeks. Assuming that the court had jurisdiction, Defendant Carandang fails to assert the ...

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