Court of Appeals of Ohio, Seventh District, Mahoning
U.S. BANK, NATIONAL ASSOCIATION, Plaintiff-Appellee,
RONALD J. SMITH, et al., Defendants-Appellants.
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 05 CV 3869.
David A. Wallace and Atty. Karen M. Cadieux, Carpenter, Lipps
& Leland LLP, Atty. Matthew J. Richardson, Manley, Deas,
Kochalski LLC, for Plaintiff-Appellee
J. and Nancy L. Smith, Pro se Appellants
BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb,
OPINION AND JUDGMENT ENTRY
Pro se Defendants-Appellants, Ronald and Nancy
Smith, appeal two judgment entries of the Mahoning County
Court of Common Pleas, the first overruling their motion to
vacate summary judgment and the resulting decree in
foreclosure entered January 12, 2007 and the second seeking
to vacate a "dormant" judgment also entered January
12, 2007. Appellants contend that Plaintiff-Appellee, U.S.
Bank National Association as Trustee for Certificate Holders
of Bear Stearns ("U.S. Bank") and their counsel
committed a fraud on the court by seeking an order of sale
because U.S. Bank was not the owner of the note and mortgage
at the time U.S. Bank's complaint was filed. Appellants
further contend that the initial order of foreclosure entered
January 12, 2007 became dormant when five years passed
between orders of sale. For the following reasons,
Appellants' issues on appeal are not well-taken and the
judgment of the trial court is affirmed.
and Procedural History
Appellants executed an adjustable rate note in favor of
Encore Credit Corporation on March 5, 2004 in the original
amount of $528, 500.00, which was secured by a mortgage on
real property located at 1625 Gully Top Lane, Canfield, Ohio.
The note and mortgage were transferred through assignment to
LaSalle Bank National Association, as Trustee for Certificate
Holders of Bear Stearns Asset Backed Securities I LLC Asset
Back Certificates, Series 2004-HE5 ("LaSalle") on
March 22, 2004.
Within three months of the execution of the note and
mortgage, Appellants stopped making monthly payments on the
note. In October of 2004, with five payments in arrears, they
executed a forbearance agreement, however, they defaulted on
that agreement. In April of 2005, with seven payments in
arrears, they executed a second forbearance agreement and
again defaulted. In October of 2005, they executed their
third and final forbearance agreement, but made only one
payment under that plan.
As trustee for Bear Stearns, LaSalle initiated foreclosure
proceedings against Appellants on October 13, 2005. On
January 12, 2007, the trial court granted summary judgment in
favor of LaSalle, ordering foreclosure and the sale of the
property ("foreclosure order). No direct appeal of the
foreclosure order was ever taken.
In the eleven and a half years that have followed, no less
than seven proposed sales of the property have been avoided,
largely based on unsuccessful legal actions undertaken by
Appellants. The property was first scheduled for sheriffs
sale on August 3, 2007 (proposed sale #1). On that day,
Appellants filed a Chapter 13 petition in bankruptcy court,
which automatically stayed the sale of the property.
Consequently, the order of sale was withdrawn. The bankruptcy
stay was lifted on October 15, 2007 after the bankruptcy case
was dismissed. In October of 2007, Bank of America
Corporation acquired ABN Amro North America Holding Company,
the parent company of LaSalle. (3/15/17 Mot. To Vacate, Def.
The property was ordered to sheriffs sale a second time and a
notice of sale was issued on May 16, 2008 (proposed sale #2).
Prior to the sale, Appellants were granted a second stay
based on a Truth in Lending Act complaint they had filed
against LaSalle in federal court. On October 10, 2009, the
stay was lifted after this federal case was dismissed.
Thereafter, a praecipe for an order of sale was filed
(proposed sale #3), but Appellants filed yet another motion
to stay the sheriffs sale based on a case they had initiated
against LaSalle in the common pleas court. In this case
Appellants asserted claims similar to those advanced in their
earlier federal complaint. In March of 2010, prior to the
court ruling on the motion to stay, Appellants asked the
trial court to reconsider its October 10, 2009 order lifting
the stay. While the magistrate stayed the sheriffs sale until
September 1, 2010, in February of 2011 the trial court
vacated the magistrate's order.
A praecipe for order of sale was filed on March 8, 2011
(proposed sale #4). On March 16, 2011, Appellants filed a
motion for reconsideration of the original foreclosure order.
That same day they also filed a Civ.R. 60(B) motion for
relief from judgment. An order of sale was issued to the
sheriff on April 12, 2011.
In both 2011 motions Appellants argued that LaSalle was not
the real party in interest. Therefore, they alleged LaSalle
had committed fraud on the court. They also claimed that
LaSalle violated the Pooling and Servicing Agreement
("PSA") that governed the manner in which the
mortgage was to be placed in the Bear Stearns Trust. On May
4, 2011, the trial court overruled the motions. This decision
prompted Appellants' first appeal.
During the pendency of the appeal, Appellants sought a stay
of the foreclosure order. The trial court denied the stay,
but we granted a stay conditioned on a bond being posted in
the amount of $750, 000.00. Although Appellants did not file
the required bond, LaSalle moved to withdraw the pending
order of sale because the parties were engaging in ongoing
settlement negotiations. On July 7, 2011, the trial court
granted the motion to stay and the order of sale was
On August 27, 2012, we held that the judgment entry of
foreclosure was a final order. Consequently, Appellants'
motion for reconsideration was a nullity. We also held that
the Civ.R. 60(B)(5) motion, filed four years and three months
after the foreclosure order was issued, was untimely.
LaSalle Bank Natl. Assoc. v. Smith, 7th Dist. No. 11
MA 85, 2012-Ohio-4040 ("Smith I ").
On April 15, 2013, Appellants filed another motion in the
trial court seeking to vacate the foreclosure order, as well
as a motion to stay any sale of the property pending
resolution of the motion to vacate. Appellants' common
law motion was based on their theory that LaSalle lacked
standing to bring the foreclosure action. Appellants argued
that LaSalle did not possess the promissory note or an
interest in the mortgage at the time the complaint in
foreclosure was filed because the note was obtained in a
manner which violated the PSA. They also claimed that the
trial court did not have subject matter jurisdiction in the
foreclosure action because LaSalle lacked standing and,
hence, the judgment in foreclosure was void.
The motion to vacate the foreclosure order was overruled by
the trial court on July 30, 2013, and Appellants' motion
to stay was overruled as moot. Appellants' second appeal
After Appellants' notice of appeal was filed, the Supreme
Court of Ohio resolved a conflict between appellate districts
regarding the issue of standing and subject matter
jurisdiction as they relate to foreclosure actions. In
Bank of America, N.A. v. Kuchta,141 Ohio St.3d 75,
2014-Ohio-4275, 21 N.E.3d 1040, the Court held an allegation
that a plaintiff fraudulently claimed to have standing may
not be asserted as a basis to vacate the judgment in
foreclosure pursuant to Civ.R. 60(B)(3). As lack of standing
is an issue cognizable on appeal, it cannot be used to
collaterally attack a judgment in foreclosure. The Court also
held that, although standing is required in order ...