[Cite as One W. Bank, FSB v. Miller, 2011-Ohio-6467.]

COURT OF APPEALS 

 HOLMES COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ONE WEST BANK, FSB 

 Plaintiff-Appellee 

-vsJAMES MILLER, et al., 

 

 Defendants-Appellants 

: JUDGES: 

: William B. Hoffman, P.J. 

: Julie A. Edwards, J. 

: Patricia A. Delaney, J. 

: 

: Case No. 11CA013 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from Holmes County 

 Court of Common Pleas Case No. 

 2009CV142 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: December 13, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

RICHARD J. LOLLI PAUL HERVEY, ESQ. 

JUSTINE S. GREENFELDER FRANK J. ROSE, JR., ESQ. 

Buckingham, Doolitle & Fitzpatrick, Zimmerman & 

Burroughs, LLP Rose Co., Ltd. 

4518 Fulton Drive, N.W. 140 Fair Avenue, N.W. 

P.O. Box 35548 P.O. Box 1014 

Canton, Ohio 44735-5548 New Philadelphia, Ohio 44663 
For Plaintiff-Appellee For Defendants-Appellants 

KEVIN L. WILLIAMS, ESQ. EDWIN H. BREYFOGLE, ESQ. 

Manley Deas, Kochalski, LLC 108 – 3rd Street, N.E. 

P.O. Box 165028 Massillon, Ohio 44646 

Columbus, Ohio 43216-5028 

 For Defendant 

 STEVE KNOWLING, ESXQ. 

 Holmes County Prosecutor’s Office 

 164 E. Jackson Street 

 Millersburg, Ohio 44654 

 
[Cite as One W. Bank, FSB v. Miller, 2011-Ohio-6467.]

Edwards, J. 

{¶1} Appellant, The Commercial & Savings Bank, appeals a judgment of the 

Holmes County Common Pleas Court finding that their lien is secondary to that of 

appellee OneWest Bank, FSB. 

STATEMENT OF FACTS AND CASE

{¶2} In 2000, James and Rachel Miller purchased land in Sugarcreek, Ohio. 

Funding came in the form of a $140,000.00 loan from Farm Credit Services secured by 

a mortgage on the newly-purchased land. 

{¶3} In 2003 and 2005, the Millers obtained two loans from appellant, also 

secured by mortgages on the land. The 2003 loan was in the amount of $55,000 and 

the 2005 loan was for $95,000.00. The $95,000.00 loan was refinanced later in 2005 

through an agreement with appellant whereby the Millers’ roofing company also became 

liable for repayment. This refinanced loan was treated as a new loan and assigned a 

new number. 

{¶4} In 2006, the Millers sought a loan from Quicken, intending to refinance 

their existing loans. During a credit check, Quicken discovered the $140,000.00 loan 

from Farm Credit Services in addition to the two loans from appellant. Quicken 

requested information regarding the balance of these loans in order to pay the balances 

and have the lien on the property released, thus obtaining the first lien position. 

Appellant mistakenly informed Quicken that the $95,000.00 loan was completely paid 

off when in fact there was a balance. Quicken was informed that the $55,000.00 loan 

had a remaining balance of $30,000.00. 
Holmes County App. Case No. 11CA013 3 

{¶5} Quicken had approved the Millers for $264,000.00. Quicken paid the 

remaining balance on the Farm Credit Services loan and the $30,000.00 remaining on 

the one loan with appellant. The remaining balance was given to the Millers. The 

Millers defaulted on their loan with Quicken and Quicken assigned the loan to appellee. 

{¶6} On August 17, 2009, appellee filed the instant complaint in foreclosure 

against the Millers, appellant, National Association, and the Holmes County Treasurer. 

Appellant claimed they have the primary mortgage on the sale of the property and are 

first in line when the proceeds are distributed, as approximately $58,000.00 remains on 

the 2005 loan for $95,000.00. 

{¶7} Appellee filed a motion for summary judgment on the issue of lien 

priorities. The trial court issued a summary judgment on May 26, 2010, finding appellee 

to hold priority over appellant pursuant to the doctrine of equitable estoppel. Appellant 

assigns a single error: 

{¶8} “THE TRIAL COURT ERRED IN APPLYING THE THEORY OF 

EQUITABLE SUBROGATION IN ADVANCING THE LIEN PRIORITY OF THE 

PLAINTIFF-APPELLEE.” 

{¶9} This case comes before this Court on the accelerated calendar. App. R. 

11.1, which governs cases on the accelerated calendar, provides in pertinent part: 

{¶10} “(E) Determination and judgment on appeal. 

{¶11} “The appeal will be determined as provided by App.R. 11.1. It shall be 

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's 

decision as to each error to be in brief and conclusionary form. 
Holmes County App. Case No. 11CA013 4 

{¶12} As a preliminary matter, appellant argues that this case is a final, 

appealable order despite the fact that no order of foreclosure has issued. We agree. 

The Ohio Supreme Court has stated that in a mortgage foreclosure action, a journalized 

order determining that a mortgage constitutes the first and best lien upon the subject 

real estate is a judgment or final order from which an appeal may be perfected, and a 

lien holder who is a party to a mortgage foreclosure action but who fails to appeal from 

a judgment determining the mortgage to be the first and best lien on the subject 

premises cannot thereafter in an appeal from a subsequent judgment confirming such 

priority attack the correctness of such earlier judgment. Queen City Sav. & Loan Co. v. 

Foley (1960), 170 Ohio St. 383, 165 N.E.2d 633, paragraphs one and three of the 

syllabus. 

{¶13} Appellant’s assignment of error and argument in its brief claim the trial 

court erred in applying the doctrine of equitable subrogation. However, the trial court 

did not apply the doctrine of equitable subrogation. The trial court decided the issue of 

lien priority solely on the basis of equitable estoppel. Equitable subrogation and 

equitable estoppel are separate legal concepts, and one or both may apply in a given 

case. See, e.g., Blue View Corporation v. Rhynes, Summit App. No. 23034, 2006-Ohio4084. 
Holmes County App. Case No. 11CA013 5 

{¶14} Because appellant’s only claim of error relates to a legal doctrine which 

the court did not apply in the instant case, the assignment of error is overruled. 

{¶15} The judgment of the Holmes County Common Pleas Court is affirmed. 

By: Edwards, J. 

Hoffman, P.J. and 

Delaney, J. concur 

______________________________ 

______________________________ 

______________________________ 

 JUDGES 

JAE/r0914 
[Cite as One W. Bank, FSB v. Miller, 2011-Ohio-6467.]

IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ONE WEST BANK, FSB : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JAMES MILLER, et al., : 

 : 

 Defendants-Appellants : CASE NO. 11CA013 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Holmes County Court of Common Pleas is affirmed. Costs assessed to 

appellant. 

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 JUDGES