Villas at East Pointe Condominium Association, Plaintiff-Appellee,
Melissa L. Strawser et al., Defendants-Appellees, Carrington Mortgage Services, LLC, Defendant-Appellant.
from the Franklin County Court of Common Pleas No. 16CV-222
Graydon, Head & Ritchey LLP, and Kara A. Czanik, for
Jeffrey M. Hendricks.
1} Defendant-appellant Carrington Mortgage Services,
LLC ("Carrington") appeals from a decision of the
Franklin County Court of Common Pleas denying
Carrington's motion for distribution of sale proceeds.
Because we determine the trial court erred in failing to
consider whether to exercise its inherent discretion, we
reverse and remand.
2} The Villas at East Pointe Condominium
Association ("East Pointe") initiated this
foreclosure action against defendant-appellee Melissa L.
Strawser pursuant to a lien for unpaid condominium dues on
January 8, 2016. The complaint involved Strawser's
property at 81 Villa Pointe Drive in Columbus, Ohio
("property"). The complaint named Carrington as a
defendant because Carrington held the first mortgage on the
property. Carrington's lien was senior to East
3} Carrington was served with the complaint via
certified mail on January 19, 2016 but failed to answer.
Strawser was also served and likewise failed to answer. On
October 11, 2016, East Pointe filed a motion for default
judgment against all parties, seeking both default and a
"bar to any equitable interest" those parties may
have had in the property. The trial court granted the motion
and issued the judgment entry of foreclosure on October 31,
2016 ("judgment entry"). The judgment entry noted
that Carrington had been served and failed to answer. It
further explicitly stated "IT IS THEREFORE ORDERED
ADJUDGED AND DECREED that all claims of [Carrington], having
failed to appear herein, be and the same are hereby forever
barred against the premises * * *."
4} An investor purchased the property at the July 7,
2017 sheriffs sale. The September 6, 2017 confirmation entry
followed. The confirmation entry relevantly ordered the clerk
to deem as satisfied and cancel Carrington's mortgage.
The confirmation entry further directed the clerk to retain
the $67, 121 balance pending further court order. The
confirmation entry's certificate of service indicated it
was submitted to Carrington via ordinary mail.
5} Carrington filed a Civ.R. 60(B) motion on
November 30, 2017, two months after the confirmation entry
lodged. Therein, Carrington noted the account was current at
the time the foreclosure case began. Carrington further
alleged Strawser, the borrower, owed Carrington $95, 104.39
plus interest at the rate of 4.375 percent from June 2017 due
to her default on the note for the property. Carrington next
asserted relief was proper under the "catch-all"
provision found in Civ.R. 60(B)(5), because Carrington was
simply moving to protect its interest in its lien and the
funds left over after confirmation. (Def.'s Mot. at 5.)
Carrington argued no prejudice would result should its motion
be granted, as the clerks costs, the property's taxes,
and East Pointe's condominium dues had all been paid.
Carrington continued by summarily stating its motion was
filed within a reasonable time, even though the judgment
entry was lodged more than one year prior. Carrington failed
to offer any explanation for the delay. No opposition was
6} The trial court denied Carrington's Civ.R.
60(B) motion on February 26, 2018. It held Carrington had
alleged a meritorious defense via Carrington's status as
the note and mortgage holder for the property. The trial
court, however, disagreed with Carrington's contention
that the $67, 121 funds left over from confirmation were
sufficient to invoke Civ.R. 60(B)(5), holding instead that
the stated reason-the mere existence of the funds-was not
"extraordinary" and did not shift the matter into
the requisite "unusual case" realm. (Feb. 26, 2018
Entry at 3.) Lastly, the court rejected Carrington's
unsubstantiated claim that the motion was timely, noting that
the motion was filed more than one year after the judgment
entry lodged and provided no reason for the delay. As such,
the trial court denied Carrington's Civ.R. 60(B) motion.
7} Two months later, Carrington filed its motion for
distribution of sale proceeds in order to partially satisfy
the mortgage's $95, 104.39 balance, arguing that equity
demanded such a result. In support of its motion, Carrington
provided the affidavit of Elizabeth Ostermann, a vice
president at Carrington. Carrington attached Strawser's
note, amended note, mortgage, mortgage assignments, notice of
default, FHA face-to-face letter, and payment history to
Ostermann's affidavit. The amended note was for $105,
287.93 at 4.375 percent interest for a new 30-year term and