[Cite as CitiMortgage, Inc. v. Fishel, 2012-Ohio-4117.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

CITIMORTGAGE, INC. SUCCESSOR ) CASE NO. 11 MA 97 

BY MERGER TO ABN AMRO ) 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

W. DANIEL FISHEL, et al. ) 

) 

DEFENDANTS-APPELLANTS ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 09 CV 1424 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Thomas L. Henderson 

Lerner, Sampson & Rothfuss 

120 East Fourth Street, Eighth Floor 

Cincinnati, Ohio 45202 

For Defendant-Appellant: W. Daniel Fishel, Pro se 

Lorraine Fishel, Pro se 

P.O. Box 5051 

Poland, Ohio 44514-5480 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: September 5, 2012
[Cite as CitiMortgage, Inc. v. Fishel, 2012-Ohio-4117.]

WAITE, P.J. 

{¶1} Appellants W. Daniel and Loraine Fishel appeal the Mahoning County 

Court of Common Pleas’ magistrate’s decision recommending judgment in favor of 

Appellee, CitiMortgage, Inc. (“CitiMortgage”). The appeal arises out of a default 

judgment and decree in foreclosure entered on August 11, 2009 in favor of Appellee. 

That judgment was not appealed. Instead, Appellants filed a Civ.R. 60(B) motion to 

vacate judgment on February 4, 2011, which was denied because it was not filed on 

time. Appellants argued that CitiMortgage had no standing to litigate the foreclosure 

action and that the judgment against them was void. They claimed that since the 

judgment was void, the timeliness of their Civ.R. 60(B) motion was not an issue. 

Appellants are mistaken that a question concerning a party’s standing to litigate 

renders a judgment void. Since Appellants cannot establish that the default 

judgment was void, they had to satisfy the usual requirements of Civ.R. 60(B) to 

challenge the judgment. Appellants’ Civ.R. 60(B) was not filed in a timely fashion, 

and therefore, the decision of the trial court is affirmed. 

Statement of the Case

{¶2} CitiMortgage is the holder of a note, loan modification agreement and 

mortgage executed by W. Daniel and Lorraine M. Fishel. The mortgage is a lien on 

Appellants’ real property, located at 3082 Highland Avenue, Poland, Ohio 44514 

(“Property”). The mortgage was recorded in volume 5242 of the Mahoning County 

Recorder’s office on August 26, 2002. CitiMortgage is the successor by merger to 

ABN AMRO Mortgage Group Inc. In 2008, Appellants fell behind on their mortgage 

payments as well as on a loan modification agreement with CitiMortgage. The loan 

account went into default due to nonpayment. 
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Procedural History

{¶3} On April 20, 2009, CitiMortgage filed a complaint in foreclosure against 

Appellants. Shortly after, on April 29, 2009, a summons was issued to a process 

server to obtain service on the Appellants. The summons was returned and filed as 

served on May 7, 2009. Appellants failed to plead or respond to the complaint. On 

June 5, 2009, CitiMortgage filed a motion for default judgment. On June 26, 2009, a 

copy of the hearing notice was sent from the court by mail to the parties. On August 

11, 2009, the trial court entered a judgment and decree in foreclosure in favor of 

CitiMortgage. 

{¶4} On February 4, 2011, almost eighteen months after the foreclosure 

judgment, Appellants filed a Civ.R. 60(B) motion to vacate judgment. The magistrate 

denied the motion on March 21, 2011. Appellants filed an objection to the 

magistrate’s decision on March 25, 2011. A judgment entry overruling Appellants’ 

objection was entered on May 31, 2011. It is from this judgment entry that Appellants 

filed a notice of appeal on June 16, 2011. 

{¶5} Appellants’ two assignments of error will be addressed together 

because the legal issues presented are identical. 

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

OVERRULED AS “UNREASONABLY UNTIMELY” THE APPELLANTS 

[SIC] MOTION TO VACATE. 

ASSIGNMENT OF ERROR NO. 2
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THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND 

THAT THE APPELLANT’S [SIC] MOTION FOR RELIEF PURSUANT 

TO CIV.R. 60(B)(5) WAS “UNREASONABLY UNTIMELY.” 

CitiMortgage’s Standing to Sue

{¶6} Appellants contend that CitiMortgage had no standing to prosecute a 

foreclosure action, and for that reason they contend that the trial court’s judgment is 

void. The implication of this argument is that Appellants believe they did not need to 

comply with Civ.R. 60(B) to attack the judgment, since it was void. Although part of 

Appellants’ argument is correct, their ultimate conclusions are not. Appellants 

correctly state that where a court lacks subject matter jurisdiction, a judgment is void. 

Carter-Jones Lumber Co. v. Willard, 6th Dist. No. L-06-1096, 2006-Ohio-6629, ¶8. 

Courts have the inherent authority to vacate a void judgment at any time. 

Westmoreland v. Valley Homes Corp., 42 Ohio St.2d 291, 294, 328 N.E.2d 406 

(1975). A party does not need to abide by the filing requirements of Civ.R. 60(B) to 

challenge a void judgment. CompuServe, Inc. v. Trionfo, 91 Ohio App.3d 157, 631 

N.E.2d 1120 (10th Dist.1993). Unfortunately for Appellants, lack of standing to 

initiate a foreclosure action does not raise a question of subject matter jurisdiction 

and does not void an otherwise valid judgment. Washington Mutual Bank, F.A. v. 

Wallace, 194 Ohio App.3d 549, 2011-Ohio-4174, 957 N.E.2d 92 (12th Dist.); Wells 

Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 

(1st Dist.); In re Anderson, 7th Dist. No. 05 MO 14, 2007-Ohio-1107, ¶6. Therefore, 

Appellants cannot avoid the procedural requirements of Civ.R. 60(B) by framing their 

issue on appeal as a question of standing. 
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Elements of a Civ.R. 60(B) Motion to Vacate

{¶7} According to Civ.R. 60(B), a court may relieve a party or legal 

representative from a final judgment, order or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered 

evidence which by due diligence could not have been discovered in time to move for 

a new trial under Civ.R. 59(B); (3) fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation or other misconduct of an adverse party; (4) the 

judgment has been satisfied, released or discharged, or a prior judgment upon which 

it is based has been reversed or otherwise vacated, or it is no longer equitable that 

the judgment should have prospective application; or (5) any other reason justifying 

relief from the judgment. 

{¶8} In order to prevail on a motion for relief from judgment, pursuant to 

Civ.R. 60(B), the appellant must demonstrate that: (1) the party has a meritorious 

defense or claim to present if relief is granted; (2) the party is entitled to relief under 

one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made 

within a reasonable amount of time, and, where the grounds of relief are Civ.R. 60 

(B)(1), (2), or (3), not more than one year after the judgment, order or proceeding 

was entered or taken. GTE Automatic Electric, Inc. v. ARC Industries, 47 Ohio St.2d 

146, 351 N.E.2d 113 (1976). 

Timeliness of the Civ.R. 60(B) Motion

{¶9} The Civ.R. 60(B) motion must be made within a reasonable time, and 

for reasons (1), (2), and (3) stated above, not more than one year after the judgment, 

order or proceeding was entered or taken. A Civ.R. 60(B) motion does not affect the 
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finality of a judgment or suspend its operation. Adomeit v. Baltimore, 39 Ohio App.2d 

97, 101, 316 N.E.2d 469 (1974). 

{¶10} A party has up to one year after the judgment entry is filed to file a 

motion to vacate judgment, when the basis for relief arises out of Civ.R. 60(B)(1-3). 

For cases arising from Civ.R. 60(B)(4-5), the only requirement for the timing of the 

filing of the motion is that it was done within a reasonable amount of time. Every 

Civ.R. 60(B) motion is subject to a “reasonable time” requirement. Id. at 106. In the 

absence of any explanation or justification for the delay in filing a Civ.R. 60(B) 

motion, the motion to vacate should be denied. Dunn v. Marthers, 9th Dist. No. 

05CA008838, 2006-Ohio-4923. 

{¶11} Appellants argued that CitiMortgage committed a fraud on the court and 

asked for relief under Civ.R. 60(B)(5). Under Civ.R. 60(B)(5), the motion to vacate 

must be filed within a reasonable amount of time. 

{¶12} A 72-day delay can render a Civ.R. 60(B) motion untimely, as seen in 

Larson v. Umoh, 33 Ohio App.3d 14, 17, 514 N.E.2d 145 (8th Dist.1986). Here, the 

defendant filed a motion to vacate judgment in a forcible entry and detainer action. 

Defendant waited 72 days after the entry of judgment against him to file the motion. 

The trial court denied the motion as untimely, and the Eighth District Court of Appeals 

affirmed the ruling. 

{¶13} Where there is no explanation for the delay, a four-month delay in filing 

the Civ.R. 60(B) motion has been found to be untimely. Mount Olive Baptist Church 

v. Pipkins Paints, 64 Ohio App.2d 285, 413 N.E.2d 850 (8th Dist.1979). In Mount 

Olive Baptist Church, the church brought action against a home improvement 

company for breach of contract. The company failed to answer and shortly 
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thereafter, the church was granted default judgment. The company filed a motion for 

relief from judgment four months later and the trial court vacated the judgment. The 

church appealed. The Eighth District Court of Appeals held that the more than fourmonth delay was not a reasonable time within which to file the motion pursuant to 

Civ.R. 60(B)(5). Further, there was no evidence to explain the delay in filing the 

motion to vacate, thus the movant failed to demonstrate the timeliness of the motion. 

{¶14} As seen in Mount Olive Baptist Church and Larson, a trial court has 

wide discretion to deny a Civ.R. 60(B) motion for an untimely delay. In this case, 

Appellants waited well over year to file their motion. Appellants took no action to 

vacate the August 11, 2009, judgment entry until February 4, 2011. This is true 

despite the fact that Appellants were served with the motion for default judgment, 

judgment entry, and notice of sheriff’s sale. There is no explanation in the record 

justifying the delay. This is clearly a much longer delay than cases reviewed by other 

courts, and there exists very strong grounds for denying Appellants’ Civ.R. 60(B) 

motion. If a 72-day delay warrants denial of a Civ.R. 60(B) motion, it follows that an 

eighteen-month delay may also be denied. Appellants failed to meet their burden in 

establishing the timeliness of their Civ.R. 60(B) motion to vacate and provided no 

operative facts explaining their delay. It was well within the trial court’s discretion to 

deny Appellants’ Civ.R. 60(B) motion. Thus, we find no error in the trial court’s 

judgment. 

{¶15} Although Appellants filed their Civ.R. 60(B)(5) motion under the catchall provision of section 60(B)(5), their fraud argument is more akin to a Civ.R. 

60(B)(3) motion because Civ.R. 60(B)(3) specifically mentions fraud. Appellants’ 

allegation of fraud is based on the alleged misrepresentation of CitiMortgage 
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regarding its standing to initiate and litigate the foreclosure action. Their assertion 

stems from their belief that Federal Home Loan Mortgage Corporation (“Freddie 

Mac”) owns their mortgage loan, and that CitiMortgage does not have standing. This 

type of claim is usually raised under Civ.R. (60)(B)(3). See, e.g., Washington Mut. 

Bank, F. A. v. Wallace, supra. Had Appellants filed a more appropriate 60(B)(3) 

motion, it would still be denied, as the time limit is one year for filing that type of 

claim. 

Conclusion

{¶16} The trial court’s judgment entry was not void. Thus, Appellants were 

required to establish a right to relief under Civ.R. 60(B), and they failed to do so. 

Civ.R. 60(B) provides that the motion to vacate be made within reasonable time. 

Appellants waited eighteen months to file the motion, and since an untimely filing of a 

Civ.R. 60(B) is reason enough for denial, it was well within the trial court’s discretion 

to dismiss the motion. Therefore, the judgment of the trial court is affirmed. 

Vukovich, J., concurs. 

DeGenaro, J., concurs.