[Cite as HSBC Bank USA, Natl. Assn. v. Banks, 2022-Ohio-3044.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

HSBC BANK USA,

NATIONAL ASSOCIATION, :

Plaintiff-Appellee, :

No. 111241

v. :

ANDERSON BANKS, ET AL. :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: September 1, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-15-856169

Appearances:

McGlinchey Stafford and Stefanie L. Deka, for appellee. 

Wendy S. Rosett, for appellant. 

CORNELIUS J. O’SULLIVAN, JR., J.:

Defendant-appellant Anderson Banks (“appellant”) appeals from the 

trial court’s February 1, 2022 decree of confirmation of sale entered in this 

foreclosure case filed in 2015 by plaintiff-appellee HSBC Bank USA, National 
Association (“appellee”). After a thorough review of the facts and pertinent law, we 

affirm the trial court’s judgment.

Factual and Procedural Background

Appellee initiated this foreclosure action in December 2015. In its 

complaint, appellee alleged that it was the party entitled to enforce the note and 

foreclose on the mortgage entered into by appellant for the real property located at 

29049 Harvard Road, Orange, Ohio.1 The record demonstrates that the original 

loan was modified by a Home Affordable Modification Program (“HAMP”) 

agreement, effective April 1, 2015. Appellee’s complaint alleged that appellant 

defaulted on the loan for payment due on April 1, 2015, and all subsequent 

payments. 

Appellant failed to answer appellee’s complaint and appellee filed a 

motion for default judgment. On February 17, 2016, the trial court set a default 

hearing for March 10, 2016. Appellee sent a notice of the hearing to appellant. The 

hearing went forward on March 10, and appellant’s son appeared on appellant’s 

behalf. The trial court denied appellee’s motion for default judgment as it related to 

appellant and referred the case to mediation. The parties participated in mediation 

but were unable to reach a settlement and a magistrate granted appellee’s motion 

for default judgment on January 20, 2017. On January 31, 2017, the trial court 

1 The unknown spouse, if any, of appellant and CIT Bank were also named as 

defendants.
adopted the magistrate’s decision and issued a final decree of foreclosure. Appellant 

neither appealed the trial court’s judgment nor sought a stay of the judgment.

Appellee’s judgment notwithstanding, the parties engaged in 

settlement negotiations that, along with bankruptcy stays, resulted in the prescribed 

sheriff’s sale being cancelled 11 times. The parties’ settlement efforts were 

unsuccessful, however, and the sheriff’s sale ultimately occurred on December 6, 

2021, six years after the case was initiated.

On December 21, 2021, appellant filed an “emergency motion to stay 

confirmation of sale.” In his motion, appellant alleged that confirmation of the sale 

would be in violation of 12 C.F.R. 1024.41, which governs loss mitigation procedures. 

The trial court denied appellant’s motion on January 31, 2022, and confirmed the 

sale on February 1, 2022. Appellant raises the following assignment of error for our 

review:

The trial court erred to the prejudice of the Appellant by entering the 

Decree of Confirmation confirming the Sheriff’s Sale or, in the 

alternative, not staying confirmation of the Sheriff’s Sale because such 

was unreasonable, arbitrary, and capricious due to failures to comply 

with statutory and common law requirements.

Law and Analysis

Appellant alleges the following in this appeal: (1) despite him providing 

a “complete loss mitigation request via email on September 15, 2021,” the trial court 

granted appellee’s motion for default judgment “without a notice, warning or 

hearing”; (2) appellee failed to abide by the regulations set forth in 12 C.F.R. 1024.41; 

(3) appellee was barred under the doctrine of promissory estoppel from executing 
the sheriff’s sale and confirming same; (4) appellee had unclean hands in this case; 

(5) appellant “was not given proper and reasonable opportunity to object to the 

appraisal”; and (6) the appraisal was not conducted according to law. 

Standard of Review

Appellant contends that the trial court abused its discretion in 

confirming the sale. In order to find an abuse of discretion, we must determine the 

trial court’s decision was unreasonable, arbitrary, or unconscionable and not merely 

an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 

N.E.2d 1140 (1983). 

With the exception of the alleged violations of 12 C.F.R. 1024.41, the 

grounds upon which appellant bases his request to reverse the confirmation of sale 

were not raised at the trial-court level. “[W]hen a sale is confirmed, ‘all irregularities 

are cured after the sale is made and confirmed,’ including ‘all such irregularities, 

misconduct, and unfairness in the making of the sale, departures from the 

provisions of the decree of sale, and errors in the decree and the proceedings under 

it.’” U.S. Bank, N.A. v. Sanders, 2017-Ohio-1160, 88 N.E.3d 445, ¶ 22 (8th Dist.), 

quoting Third Fed. S. & L. Assn. of Cleveland v. Rains, 8th Dist. Cuyahoga 

No. 98592, 2012-Ohio-5708, ¶ 11. Thus, “[a]t best, a party appealing a sale 

confirmation who did not raise objections to it in the trial court could obtain only 

‘plain error’ review of the sale confirmation.” Sanders at id., quoting Wells Fargo 

Home Mtge. v. Chun, 8th Dist. Cuyahoga No. 101722, 2015-Ohio-1827, ¶ 8. Notice 
of plain error is not favored and is only taken in extremely rare cases. Sanders at 

id., citing Chun at id.

Further, the Ohio Supreme Court has recognized that “two judgments 

are appealable in foreclosure actions: the order of foreclosure and sale and the order 

of confirmation of sale.” CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 

2014-Ohio-1984, 11 N.E.3d 1140, ¶ 35.

The order of foreclosure determines the extent of each lienholder’s 

interest, sets forth the priority of the liens, and determines the other 

rights and responsibilities of each party in the action. On appeal from 

the order of foreclosure, the parties may challenge the court’s decision 

to grant the decree of foreclosure. Once the order of foreclosure is final 

and the appeals process has been completed, all rights and 

responsibilities of the parties have been determined and can no longer 

be challenged.

Id. at ¶ 39. 

On the other hand,

[t]he confirmation process is an ancillary one in which the issues 

present are limited to whether the sale proceedings conformed to law. 

Because of this limited nature of the confirmation proceedings, the 

parties have a limited right to appeal the confirmation. For example, 

on appeal of the order confirming the sale, the parties may challenge 

the confirmation of the sale itself, including computation of the final 

total owed by the mortgagor, accrued interest, and actual amounts 

advanced by the mortgagee for inspections, appraisals, property 

protection, and maintenance. The issues appealed from confirmation 

are wholly distinct from the issues appealed from the order of 

foreclosure. In other words, if the parties appeal the confirmation 

proceedings, they do not get a second bite of the apple, but a first bite 

of a different fruit.

Id. at ¶ 40.

In the case at hand, the trial court issued a final decree of foreclosure 

on January 31, 2017. Appellant did not appeal from that judgment. Thus, the issues 
he now raises relative to the final decree of foreclosure are waived. Nonetheless, we 

briefly consider them and find them to be without merit.

Default Judgment

Appellant contends that his due process rights were violated because 

he “was not given a full opportunity to be heard on the matter or otherwise plead on 

the merits prior to the trial court entering default judgment against [him].” The 

record belies appellant’s contention.

Appellant failed to answer appellee’s complaint and appellee filed a 

motion for default judgment. On February 17, 2016, the trial court set a default 

hearing for March 10, 2016. Appellee sent a notice of the hearing to appellant. The 

hearing went forward on March 10, and appellant’s son appeared on appellant’s 

behalf. The trial court granted appellee’s motion for default judgment as it related 

to all nonanswering defendants, with the exception of appellant and referred 

appellant and appellee to mediation — a clear indication that appellant was afforded 

the opportunity to be heard. 

The parties participated in mediation, but it was unsuccessful, and a 

magistrate granted appellee’s motion for default judgment on January 20, 2017. On 

January 31, 2017, the trial court adopted the magistrate’s decision. 

The mere fact that a representative made an appearance on appellant’s 

behalf in the case is not dispositive of whether a default judgment was justified. A 

party who has appeared in a civil action can still be subject to a default judgment if 

he or she has otherwise failed to defend the case and received proper notice of the 
default judgment motion. See Rotatori, Bender, Gragel, Stoper, & Alexander, 

L.P.A. v. Signer, 8th Dist. Cuyahoga No. 86454, 2006-Ohio-1354, ¶ 12-15.

Appellant contends that he was denied a full opportunity to be heard 

prior to the trial court entering default judgment against him. However, in making 

this assertion, he has not contested the following: (1) at the outset of the action, he 

was served with a copy of appellee’s foreclosure complaint; (2) he did not file an 

answer to the complaint throughout the entire pendency of the action; (3) in filing 

its motion for a default judgment, appellee attached a proof of service stating that a 

copy of the motion was mailed to appellant; (4) a copy of the trial court’s judgment 

scheduling the default motion for a hearing was also mailed to appellant; and (5) 

notices of both the motion and judgment were given more than 14 days before the 

date of the hearing.

On this record we find no merit to appellant’s challenge relating to the 

trial court granting appellee’s motion for default judgment. 

12 C.F.R. 1024.41

12 C.F.R. 1024.41 is the federal regulation governing loss mitigation 

procedures in foreclosure actions and provides in relevant part as follows:

(g) Prohibition on foreclosure sale. If a borrower submits a complete 

loss mitigation application after a servicer has made the first notice or 

filing required by applicable law for any judicial or non-judicial 

foreclosure process but more than 37 days before a foreclosure sale, a 

servicer shall not move for foreclosure judgment or order of sale, or 

conduct a foreclosure sale, unless:

(1) The servicer has sent the borrower a notice pursuant to paragraph 

(c)(1)(ii) of this section that the borrower is not eligible for any loss 
mitigation option and the appeal process in paragraph (h) of this 

section is not applicable, the borrower has not requested an appeal 

within the applicable time period for requesting an appeal, or the 

borrower’s appeal has been denied;

(2) The borrower rejects all loss mitigation options offered by the 

servicer; or

(3) The borrower fails to perform under an agreement on a loss 

mitigation option.

12 C.F.R. 1024.41(g).

Appellant contends that the final sale violated 12 C.F.R. 1024.41(g)

because he submitted a complete loss mitigation report on September 15, 2021. 

Appellant cites three exhibits attached to his emergency motion to stay confirmation 

of sale as proof of his completed loss mitigation report. These exhibits are not proof 

that appellant timely submitted a completed loss mitigation report. The first exhibit

shows that an email from an address ostensibly belonging to appellant was sent to 

“ss@mortgagefamily.com” on September 16, 2021. The second exhibit is a “fax log” 

for a specific fax number and shows that a fax consisting of 12 pages was sent from 

that number by appellant on September 16, 2021, to another number, which is the 

fax number for “Mortgage Service Center.” The third exhibit is an email from 

“loansolutioncenter.com” to appellant, the sum and substance of which reads: “This 

notice is to inform you changes have been made to your application for assistance.”

None of the exhibits demonstrate that appellant submitted a 

completed loss mitigation application. However, attached to appellee’s complaint 

was the HAMP loan modification that appellant executed in March 2015, and was 

effective April 1, 2015. Appellee alleged in its complaint that the HAMP loan was 
offered to appellant after he submitted a complete loss mitigation application, and 

he has been in default since the loan’s April 1, 2015 effective date. See Complaint, 

¶ 5 and Exhibit B to Complaint. 

Thus, under 12 C.F.R. 1024.41(g)(3), appellant failed “to perform 

under an agreement on a loss mitigation option” and appellee did not violate the 

federal statute in pursuing foreclosure. 

Promissory Estoppel and Unclean Hands

Promissory estoppel is an affirmative defense. McCarthy, Lebit, 

Crystal & Haiman Co., L.P.A. v. First Union Mgt., Inc., 87 Ohio App.3d 613, 624, 

622 N.E.2d 1093 (8th Dist.1993). The doctrine of unclean hands is also an 

affirmative defense. Beneficial Fin. 1, Inc. v. Edwards, 7th Dist. Mahoning No. 13 

MA 106, 2014-Ohio-5514, ¶ 17. “An affirmative defense must be raised in the 

pleadings or in an amendment to the pleading, or it is waived.” Sharp v. Miller, 

2018-Ohio-4740, 114 N.E.3d 1285, ¶ 37 (7th Dist.). Appellant did not file an answer 

and assert these affirmative defenses at the trial-court level. It is well established 

that arguments a party fails to raise in the trial-court cannot be considered for the 

first time on appeal. Cawley JV, L.L.C. v. Wall St. Recycling L.L.C., 2015-Ohio1846, 35 N.E.3d 30, ¶ 17 (8th Dist.).

Appellant has waived consideration of any argument on appeal 

relative to promissory estoppel and unclean hands because he failed to raise the 

issues in the trial court.
Appraisal

Appellant contends that he “was not given proper and reasonable 

opportunity to object to the appraisal.” Appellant also contends that the appraisal 

was not conducted according to law because the appraiser failed to view the interior 

of the premise. 

The record demonstrates that appellant had ample opportunity to 

object to the appraisal. The appraisal was completed on November 2, 2021, and filed 

with the trial court the following day, November 3, 2021. The notice of the sale was 

docketed on November 8, 2021. The sale occurred on December 6, 2021. Appellant 

therefore had over one month to object to the appraisal and failed to do so. This 

court has held that a party who fails to object to an appraisal prior to the sale of 

property to be foreclosed on waives appellate review of the appraisal. CitiMortgage, 

Inc. v. Hoge, 8th Dist. Cuyahoga No. 98597, 2013-Ohio-698, ¶ 10; Polivchak v. 

Polivchak Co., 8th Dist. Cuyahoga No. 99560, 2013-Ohio-4918, ¶ 15.

In regard to appellant’s allegation that an interior view of the premises

did not occur, this court has held that an appraiser’s failure to view the inside of the 

premises will be a deviation from the statutory terms2 “only when ‘the condition of 

the house may have an impact on the value of the real estate.’” Hoge at ¶ 9, quoting 

Old Kent Mtge. Co. v. Stancik, 8th Dist. Cuyahoga No. 80548, 2002-Ohio-3436, 

¶ 11. Appellant bears the burden to show prejudice from an alleged failure to view 

2 R.C. 2329.17, governing foreclosure appraisals, states that an appraiser shall 

appraise property “upon actual view.” R.C. 2329.17(A).
the interior of the premises prior to issuing the appraisal. Hoge at id., citing Old 

Kent Mtge. Co. at id. “‘Naked assertions’ of a failure to view the interior of the 

premises prior to appraisal will not show that the appraisal itself is invalid.” Hoge

at id., quoting United Cos. Lending v. Greenberg, 8th Dist. Cuyahoga No. 80803, 

2002-Ohio-4919, ¶ 11.

Appellant’s contention regarding the alleged lack of an interior view of 

the premises is nothing more than a “naked assertion.” He has offered no evidence 

that the interior condition of the home would have impacted the appraised value to 

his prejudice. 

In light of the above, we find no error, plain or otherwise, nor do we 

find that the trial court’s judgment confirming the sale in this case was 

unreasonable, arbitrary, or unconscionable. Appellant’s sole assignment of error is 

overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the common pleas 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.

______________________________

CORNELIUS J. O’SULLIVAN, JR., JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and

EMANUELLA D. GROVES, J., CONCUR