[Cite as BAC Home Loans Servicing, LP v. Henderson, 2013-Ohio-275.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98745 

BAC HOME LOANS SERVICING, LP

PLAINTIFF-APPELLANT 

vs. 

DWAYNE R. HENDERSON, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-703485 

BEFORE: Keough, J., Jones, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: January 31, 2013
ATTORNEYS FOR APPELLANT

Matthew T. Anderson 

Timothy M. Clayton, Jr. 

Brett M. Renzenbrink 

Luper Neidenthal & Logan 

50 West Broad Street 

Suite 1200 

Columbus, Ohio 43215 

ATTORNEYS FOR APPELLEES

For Dwayne R. Henderson

John Sherrod 

Laura Mills 

Paul Vincent 

Mills, Mills, Fiely & Lucas 

503 South Front Street 

Suite 240 

Columbus, Ohio 43215 

For Centurion Capital Corp. 

Centurion Capital Corp. 

700 King Farm Blvd. 

Rockville, Maryland 20850 

For Alishea T. Henderson

Alishea T. Henderson 

5188 Spencer Road 

Lyndhurst, Ohio 44124 

For St. Colman & Affiliates F.C.U. 

St. Colman & Affiliates F.C.U. 

6637 Lorain Avenue 

Cleveland, Ohio 44102 

For State of Ohio Department of Taxation 
Joseph T. Chapman 

Collections Enforcement 

150 E. Gay Street, 21st Floor 

Columbus, Ohio 43215 

For Unknown Tenant 

Unknown Tenant 

5188 Spencer Road 

Lyndhurst, Ohio 44124 

KATHLEEN ANN KEOUGH, J.: 
{¶1} Plaintiff-appellant, BAC Home Loans Servicing (“BAC”) appeals from the 

trial court’s judgment that vacated a prior foreclosure decree against defendant-appellee, 

Dwayne R. Henderson (“Henderson”), and dismissed BAC’s complaint without 

prejudice. For the reasons that follow, we reverse and remand. 

 I. Background 

{¶2} In September 2009, BAC filed its complaint in foreclosure alleging that it 

was the owner of a note secured by a mortgage on property located at 5188 Spencer Road, 

Lyndhurst, Ohio 44124, Henderson had defaulted on the note, and BAC was entitled to 

foreclose on the mortgage. Henderson did not answer the complaint 1

 and BAC 

subsequently filed a motion for default judgment. The matter was referred to a 

magistrate, who issued a decision entering judgment for BAC on its motion. On April 

15, 2010, the trial court issued a journal entry adopting the magistrate’s decision. The 

court ordered judgment for BAC against Henderson, entered a decree of foreclosure, and 

ordered that BAC could proceed to sheriff’s sale of the property. 

{¶3} A sale date was set for June 21, 2010, but two days prior to the sale, 

Henderson filed a Chapter 13 petition for bankruptcy. Accordingly, the sale was 

withdrawn and the proceedings were stayed. After Henderson’s bankruptcy case was 

dismissed, the property was again set for sheriff’s sale on June 11, 2012. 

 1

Defendant State of Ohio, Department of Taxation, was the only defendant 

that answered the complaint; the department disclaimed any interest in the 

property and was dismissed. 

 
{¶4} Henderson then filed a request for mediation. On May 30, 2012, the trial 

court denied Henderson’s request and ordered that BAC could proceed to execute on its 

judgment. 

{¶5} Henderson then filed another request for mediation. On June 7, 2012, the 

trial court entered an order finding that the case might be suitable for mediation and 

staying all discovery and motion practice pending the mediator’s final determination 

regarding suitability for mediation. The trial court ordered that the case would be set for 

a pre-mediation conference by separate order, and further ordered that “failure of 

plaintiff’s counsel to appear will result in the 04/15/10 judgment being vacated, and 

dismissal of all claims without prejudice.” The court ordered the property sale to 

proceed but stayed confirmation of the sale pending the results of mediation. 

{¶6} On June 12, 2012, the trial court issued a journal entry setting the 

pre-mediation conference for July 2, 2012 and again ordering that “failure of the 

plaintiff’s counsel to appear in person at the pre-mediation conference will result in 

dismissal of the plaintiff’s claims without prejudice.” 

{¶7} BAC’s counsel did not appear at the pre-mediation conference. On July 3, 

2012, the trial court issued a journal entry ordering that “pursuant to this court’s order 

dated June 7, 2012, the judgment and decree of foreclosure dated 4-15-10 and the 

sheriff’s sale of 6-11-12 are vacated.” The court ordered the sheriff to return the order 

of sale without execution and to mark as void any deed that had been prepared as a result 

of the sale. Finally, the trial court ordered that BAC’s claims were dismissed without 

prejudice. 
 II. Analysis 

{¶8} BAC raises three assignments of error, all of which challenge the trial 

court’s July 3, 2012 journal entry. In its first assignment of error, BAC argues that the 

trial court erred in sua sponte vacating its April 15, 2010 judgment and decree of 

foreclosure; in its second assignment, BAC contends that the trial court erred in sua 

sponte vacating the sheriff’s sale; and in its third assignment, BAC contends that the trial 

court erred in sua sponte dismissing its foreclosure action. We agree with all of BAC’s 

contentions. 

{¶9} The trial court’s April 15, 2010 judgment ordering foreclosure and sale of 

the property was a final, appealable order. Sky Bank v. Mamone, 182 Ohio App.3d 323, 

2009-Ohio-2265, 912 N.E.2d 668, ¶ 25 (8th Dist.), citing Smith v. Najjar, 163 Ohio 

App.3d 208, 2005-Ohio-4720, 837 N.E.2d 419, ¶ 10 (5th Dist.) (“An order of foreclosure 

and sale is a final appealable order, * * * and the later order confirming the sale * * * is a 

second, separate, final appealable order.”); see also Mtge. Elec. Reg. Sys., Inc. v. 

Harris-Gordon, 6th Dist. No. L-10-1176, 2011-Ohio-1970, ¶ 10 (both the order of 

foreclosure and the order confirming the sheriff’s sale are final, appealable orders). 

{¶10} A trial court has no authority to sua sponte vacate its own final orders. In 

re R.T.A., 8th Dist. No. 98498, 2012-Ohio-5080, ¶ 5, citing Dickerson v. Cleveland 

Metro. Hous. Auth., 8th Dist. No. 96726, 2011-Ohio-6437, ¶ 7. Since the adoption of 

the Civil Rules, Civ.R. 60(B) provides the exclusive means for a trial court to vacate a 

final judgment. In re R.T.A., supra, citing Rice v. Bethel Assoc., Inc., 35 Ohio App.3d 
133, 520 N.E.2d 26 (9th Dist.1987); In re D.R.M., 8th Dist. No. 98633, 2012-Ohio-5422, 

¶ 7. 

{¶11} Here, neither party filed a Civ.R. 60(B) motion for relief from judgment nor 

asked the court to vacate any of the provisions of the court’s April 15, 2010 judgment. 

Accordingly, the trial court erred in sua sponte vacating its judgment of foreclosure in 

favor of BAC and in sua sponte vacating the sheriff’s sale. 

{¶12} Henderson concedes that a court is without authority to sua sponte vacate its 

final judgments but argues that the trial court had authority in this case to dismiss the 

foreclosure action without prejudice because the court gave notice that the matter would 

be dismissed if the parties failed to appear at the pre-mediation conference. 

Henderson’s argument is without merit. Because the trial court had entered a judgment 

of foreclosure for BAC and ordered the property to be sold at sheriff’s sale — a final 

judgment — the court was without authority to sua sponte vacate its judgment and 

dismiss the case. Henderson’s remedy upon the trial court’s order of foreclosure and 

sale was to file an appeal or a Civ.R. 60(B) motion for relief from judgment in the trial 

court. Because he did not file a Civ.R. 60(B) motion, the trial court was without 

authority to sua sponte vacate its final judgment of foreclosure and sale and dismiss the 

case. 

{¶13} BAC’s assignments of error are therefore sustained. The trial court’s 

judgment entry dated July 3, 2012 is reversed, and the matter is remanded to the trial 

court with instructions to reinstate the April 15, 2010 judgment entry. 

{¶14} Reversed and remanded. 
It is, therefore, considered that said appellant recover of said appellee its costs 

herein. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, JUDGE 

LARRY A. JONES, SR., P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR