Court of Appeals of Ohio, Eleventh District, Trumbull
Civil
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2007 CV 109.
Robert
K. McIntyre, Dinn, Hochman & Potter, LLC, (For
Defendant-Appellant).
Thomas
H. Sanborn, Thomas H. Sanborn, LLC, (For Defendant-Appellee).
OPINION
MATT
LYNCH, J.
{¶1}
Defendant-appellant, Beverly W. Ross, appeals from the
Judgment Entry of the Trumbull County Court of Common Pleas,
denying her Motion to Vacate the court's judgment
confirming the sale of real property following foreclosure
proceedings. The issue to be determined by this court is
whether there are grounds to find the existence of fraud for
the purposes of Civ.R. 60(B) when the appellant argues that
the opposing party should have been aware that a mortgage
deed presented to the court and parties as valid was actually
void. For the following reasons, we affirm the judgment of
the lower court.
{¶2}
On January 12, 2007, Christ Michelakis, the Trumbull County
Treasurer, filed a foreclosure action on real property owned
by Big Little Farms (BLF), due to BLF's delinquency in
the payment of property taxes. BLF operated a horse farm on
the subject property. In addition to BLF, the complaint named
Dale (the owner of BLF), his ex-wife Audrey Ross, Dale's
brother, Gene Ross, and Gene's wife, Beverly Ross,
[1] as
defendants having an interest in the property.
{¶3}
Beverly filed a Cross-Claim on March 27, 2007, subsequently
amended, in which she raised claims arising from
BLF/Dale's failure to make payments on a promissory note
in the amount of $103, 385, which had been executed by Dale
as president of BLF in December 2003. Beverly requested a
judgment for the amount owed under the promissory note and
that the mortgage securing the loan be foreclosed.
{¶4}
On April 6, 2007, the Treasurer filed a voluntary dismissal
of the foreclosure action since BLF satisfied the delinquent
tax obligation.
{¶5}
Audrey Ross filed an Answer and Cross-Claim on May 3, 2007,
in which she asserted that BLF had executed and delivered to
her a mortgage deed in the sum of $9, 253 to secure a
judgment awarded against Dale in their divorce proceedings.
Pursuant to the March 20, 1986 Judgment Entry - Decree of
Divorce of the Trumbull County Court of Common Pleas,
Domestic Relations Division, Dale was ordered to cause a
mortgage to be filed as a lien in favor of Audrey on the BLF
property. Attached to Audrey's Answer was a copy of the
mortgage deed, recorded on March 19, 1986, which stated it
"is being filed to grant Audrey R. Ross a lien on the
aforedescribed premises," the BLF property. On behalf of
BLF, the mortgage was signed by Audrey Ross, described as its
"secretary."
{¶6}
On October 14, 2009, BLF, Dale, Beverly, and Audrey, through
their counsel, filed written stipulations. In pertinent part,
they stipulated that "Big Little Farms, Inc. executed
and delivered to Audrey R. Ross a Mortgage Deed in the
principal sum of $9, 253.00 to secure the judgment awarded to
her" in the domestic relations case, the mortgage deed
was recorded, no payments satisfying the debt were made, and
Audrey was owed $35, 414.88 in principal and interest. The
parties also stipulated that Audrey's mortgage "is
the first and best lien against the premises" following
tax obligations.
{¶7}
Following summary judgment proceedings, on February 25, 2015,
an Agreed Judgment Entry of Settlement and Dismissal was
filed, in which the parties agreed and it was ordered that
Audrey's mortgage was the first and best lien (after
taxes and costs) and payment in the amount of $41, 974.49 was
due. Judgment was also rendered in favor of Beverly Ross
against BLF. The parties agreed they would enter a consent
foreclosure decree.
{¶8}
The court issued a November 6, 2017 Judgment Entry Decree of
Foreclosure, which was signed by counsel for Beverly, the
estates of Dale and Audrey, and the Trumbull County
Treasurer. It ordered the sale of the property and included
Audrey's lien. The court subsequently issued a June 7,
2018 Judgment Entry confirming the sale of the property for
$200, 000 and distributing the proceeds.
{¶9}
On June 11, 2018, Beverly filed a "Motion to Enter
Order," in which she contended that her counsel
discovered Audrey's 1986 mortgage was fraudulent because
Audrey had executed the mortgage on behalf of BLF although
Dale was its sole officer. She alleged that counsel and
Audrey falsely represented the mortgage as being lawfully
executed and led opposing parties to presume it was executed
by Dale.
{¶10}
The court characterized this as a Civ.R. 60(B) motion and
ruled, on June 21, 2018, that "it cannot be said that
the issue of the potential invalidity of the mortgage was
timely brought to the attention of the Court," since the
mortgage was ...