[Cite as US Bank Trust, N.A. v. Osborne, 2021-Ohio-2898.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

US BANK TRUST, N.A. AS : Case No. 20CA3930 

TRUSTEE FOR LSF10 : 

MASTER PARTICIPATION : 

TRUST : 

 : 

 Plaintiff-Appellee, : 

 : DECISION AND JUDGMENT 

 v. : ENTRY 

 : 

DONALD OSBORNE, JR. ET AL., : 

 : 

 Defendants-Appellants. : 

APPEARANCES: 

Tyler E. Cantrell, Young & Caldwell, LLC, West Union, Ohio, for Appellants. 

David T. Brady, Suzanne M. Godenswager, Austin B. Barnes, III, Mark M. 

Schonhut, Jeffrey A. Panehal, Sandhu Law Group, LLC, Cleveland, Ohio, for 

Appellee. 

 

Smith, P.J. 

{¶1} Donald Osborne, Jr. and Oma Osborne, “Appellants,” have appealed 

two judgment entries of the Scioto County Court of Common Pleas: (1) Judgment 

Entry and Order of the Court on Motion for Clarification of the Court’s June 9, 

2020 Entry on Summary Judgment; and, (2) Judgment Entry and Order of the 

Court on Motion for Summary Judgment as to Count Three. For the reasons which 
Scioto App. No. 20CA3930 2 

follow, we find we do not have jurisdiction to consider this appeal. Accordingly, 

we dismiss the appeal for lack of a final appealable order. 

FACTUAL AND PROCEDURAL BACKGROUND 

{¶2} On July 12, 2019, U.S. Bank Trust, N.A. as Trustee for LSF10 Master 

Participation Trust, “Appellee,” filed a complaint in foreclosure and other 

equitable relief against Appellants. Along with Appellants, Appellee named 

several additional defendants: the State of Ohio Department of Taxation; the Third 

Will Co., LLC; and the Scioto County Treasurer. The foreclosure complaint 

alleged as follows: 

FIRST COUNT 

1. Plaintiff is in possession and entitled to enforce a note 

 executed by the Defendant, Donald W. Osborne Jr. aka 

 Donald W. Osborne, a copy of which is attached hereto as 

 Exhibit “A.” By reason of default under the terms of the 

 note and the mortgage securing same, plaintiff has declared 

 the debt evidenced by said note due, and there is due hereon 

 $47,611.19, together with interest at the rate of 6.000% per 

 year from June 1, 2014, plus court costs, advances and other 

 charges, as allowed by law. All conditions precedent 

 required under the note, mortgage and other loan documents 

 have been satisfied. 

2. Plaintiff further states that Defendant, Donald W. Osborne, 

 Jr. aka Donald W. Osborne, filed a petition commencing a 

 case under Title 11 of the Bankruptcy Code, Chapter 7, in 

 the United States Court, Southern District of Ohio, Western 

 Division, and being Case No. 03-18518, and that Defendant 

 was subsequently discharged and released from the 
Scioto App. No. 20CA3930 3 

 indebtedness due and owing Plaintiff on its promissory note 

 as set forth in its Complaint as defendant Donald W. 

 Osborne, Jr. aka Donald W. Osborne has been discharged in 

 bankruptcy, that no personal judgment is sought herein 

 against the Defendant. 

SECOND COUNT 

3. Plaintiff incorporates the allegation of Count One and 

 further states that it is the holder of a mortgage, a copy of 

 which is attached hereto as Exhibit “B.” The mortgage was 

 given to secure payment of the above-described note, and 

 said mortgage constitutes a valid first lien upon the real 

 estate described in the correct legal description which is 

 attached hereto as Exhibit “C.” 

 

4. The mortgage was filed for record on September 24, 2003, 

 in Volume 1040, Page 170 of the county recorder’s records 

 and assigned to Plaintiff on November 1, 2018, and 

 recorded on December 12, 2018, in Volume 617, Page 738 

 of the Scioto County Records. The conditions of 

 defeasance contained therein have been broken, and 

 plaintiff is entitled to have said mortgage foreclosed. 

5. Plaintiff says that the defendants herein may claim an 

 interest in the subject property described in the subject 

 mortgage. 

6. Plaintiff states that the conditions of said Mortgage Deed 

 have been broken, by reason of default in payment, and that 

 the Mortgage Deed has therefore become absolute; Plaintiff 

 has fulfilled all applicable conditions precedent; and 

 Plaintiff is entitled to have the equity of redemption, if any, 

 of the Defendants named herein foreclosed, and to have the 

 subject real property appraised, advertised and sold, and the 

 proceeds arising therefrom applied to the judgment of 

 Plaintiff. 
Scioto App. No. 20CA3930 4 

THIRD COUNT 

7. Plaintiff incorporates herein by reference all of the 

 allegations contained in the foregoing counts as though 

 fully rewritten, herein. 

8. This claim is brought pursuant to R.C. 5721.01 et seq., and 

 a real controversy exists in that there is a genuine dispute, a 

 judgment is sought that is not merely advisory in nature or 

 based upon a hypothetical statement of facts, the issue 

 tendered is appropriate for judicial resolution because it has 

 an effect on a valuable property right, Plaintiff will suffer 

 hardship if declaratory relief is denied, and speedy relief is 

 in order to preserve the property rights. 

9. Upon the property secured by the mortgage sits a 

 manufactured home (hereinafter, “Manufactured Home”). 

 

10. According to the County Auditor, the Manufactured Home 

 is not taxed as part of the real property. See Auditor’s 

 Property Information Printout, Exhibit “D.” 

 

11. The certificate of title to the Manufactured Home has not 

 been surrendered to the Clerk of Court, meaning the 

 Manufactured Home has not been converted to real property 

 in the records of the Scioto County Auditor. 

12. The Manufactured Home has had the wheels removed, is 

 physically affixed to the ground by a cinder block base, and 

 it [sic] attached to city water. See Picture attached to 

 Exhibit “E.” 

13. It was the intent of the parties to the mortgage that the 

 Manufactured Home be affixed to the real property secured 
Scioto App. No. 20CA3930 5 

 by the mortgage, and Plaintiff would not have granted the 

 mortgage would not have been granted [sic] had the 

 Manufactured Home not been intended to be part of the real 

 property. 

 

14. Plaintiff is entitled to a declaratory judgment ordering that 

 the Manufactured Home be declared affixed to the real 

 property and deemed a part of the real property, and that the 

 Manufactured Home may be sold as part of the real 

 property pursuant to execution on any judgment Plaintiff 

 may obtain in this case. 

{¶3} The complaint requested judgment in favor of plaintiff in the aboverequested amount and also requested that the real estate be ordered sold according 

to law. The complaint also requested that all other defendants be required to set up 

their liens or interests in said real estate or be forever barred from asserting the 

same. On July 15, 2019, the county treasurer filed an answer. On August 13, by 

fax, and on August 15, 2019, Appellants filed their answer. 

 {¶4} On September 30, 2019, Appellee filed a motion for summary 

judgment, asserting there were no genuine issues of material fact and Appellee was 

entitled to judgment as a matter of law. Also on that date, Appellee filed a motion 

for default judgment against defendant Third Will Co., LLC. On October 29, 2019, 

Appellants filed a memorandum contra to the motion for summary judgment. 

 {¶5} Appellants asserted a genuine issue of material fact as to the specific 

property subject to the mortgage. Appellants argued the original mortgage 
Scioto App. No. 20CA3930 6 

attached to the complaint and motion for summary judgment contained a legal 

description for two parcels of land, not three. Furthermore, a mobile home located 

on the property subject to the mortgage also extended slightly onto a third parcel. 

However, Appellants claimed that the mobile home was not subject to the 

mortgage. Appellants supported their argument by attaching their responses to 

discovery submitted in a prior attempted foreclosure of the subject property which 

had been dismissed. 

 {¶6} Appellee filed a sur-reply in support of the motion for summary 

judgment. Appellee did not address Appellant’s substantive argument. Appellee 

argued the evidence submitted with the memorandum contra, the discovery 

responses attached from the prior foreclosure proceedings but not properly 

attached to an affidavit, did not comply with Civ.R. 56(E). Therefore, Appellee 

claimed entitlement to judgment as a matter of law. 

 {¶7} The trial court conducted a telephonic status conference. The court 

subsequently ordered the parties to investigate the issue of the mobile home’s 

pertinence to the foreclosure proceeding and to supplement the record within 45 

days. On April 7, 2020, Appellee provided a supplemental filing. Appellants 

subsequently filed a memorandum in response to plaintiff’s supplement. 
Scioto App. No. 20CA3930 7 

 {¶8} On June 9, 2020, the trial court issued a judgment entry and order of 

the court on motion for summary judgment. Specifically, the court ordered: 

1. Summary judgment is granted as to the default on the 

mortgage and note as to the two parcel numbers * * *. 

Judgment is granted in the amount of $47,611.19 with 6.0% 

interest from the date of default in June 2014. 

2. Summary judgment does not apply as to the mobile home on 

the parcels involved. As the mortgage never attached to the 

mobile home, it is not part of these proceedings. 

3. Plaintiff shall prepare such documentation required to 

allow the property to proceed to foreclosure sale. 

4. Costs to Defendants. 

{¶9} On June 26, 2020, Appellee filed Plaintiff’s Motion for Clarification of 

the Court’s June 9, 2020 Journal Entry With Regard to Count III of Plaintiff’s 

Complaint and Whether Judgment Encompasses Parcel No. 23-0075.000. On 

August 13, 2020, Appellee filed Plaintiff’s Motion for Nunc Pro Tunc Correction 

of the Court’s June 9, 2020 Judgment Entry to Include Parcel No. 23-0075.000. 

Contemporaneously, Appellee a filed Motion for Summary Judgment on Count III 

of the Complaint. 

 {¶10} On October 6, 2020, the trial court filed the two entries currently 

being appealed. In both entries, the trial court noted that Appellants had not 

replied to Appellee’s motions. As to the Judgment Entry and Order of the Court 
Scioto App. No. 20CA3930 8 

on Motion for Clarification of the Court’s June 9, 2020 Entry on Summary 

Judgment, the court granted the motion. The Court ordered as follows: 

1. Summary judgment as previously granted in the June 9, 

2020 Entry and Judgment as to the default on the mortgage 

and note is for the two parcels described in the mortgage and 

note. These two parcels are comprised of three tax ID 

numbers: 23-0073.000, 23-0075.000, and 23-0076.000. 

Judgment is granted in the amount of $47,611.19 with 6.0% 

interest from the date of default in June 2014. 

2. Plaintiff shall prepare such documentation required to allow 

the property to proceed to foreclosure sale. 

3. Costs to the Defendants. 

{¶11} As to the Judgment Entry and Order of the Court on Motion for 

Summary Judgment as to Count Three, the court ordered: 

1. Summary judgment is granted as to Count Three of the 

Complaint. The mobile (manufactured) home on the 

property is a fixture and as such the mortgage and note as to 

the two parcels with tax ID Parcel numbers 23-

0073.000(Parcel 1) 23-0075.000 and 23-0076.000 attach to 

and encumber the mobile home. 

2. Defendants are ordered to surrender title to the mobile 

home, or have a duplicate title issued and surrendered to 

Plaintiff. 

3. Plaintiff shall prepare such documentation required to allow 

the property to proceed to foreclosure sale. 

4. Costs to the Defendants. 
Scioto App. No. 20CA3930 9 

{¶12} This timely appeal followed. 

LEGAL ANALYSIS 

{¶13} Appellants contend that genuine issues of material fact are in 

contention. First, Appellants contend that Appellee does not have a lien on the 

mobile home. Second, Appellants contend that it is also unclear that the mobile 

home is even partially upon the mortgaged real estate. Appellants conclude 

Appellee is not entitled to judgment as a matter of law. 

 {¶14} Appellee contends that the trial court did not err in granting summary 

judgment in its favor. First, Appellee asserts that Appellants failed to present 

evidence in motion practice which complies with Civ. R. 56(E). Second, Appellee 

contends that Appellants have raised on appeal arguments which they failed to 

raise before the trial court. As indicated above, we do not reach the merits of the 

arguments raised as we have no jurisdiction to consider the appeal. 

 {¶15} “ ‘Appellate courts “have such jurisdiction as may be provided by law 

to review and affirm, modify, or reverse judgments or final orders of the courts of 

record inferior to the court of appeals within the district[.]” ’ ” Milford Banking v. 

Adkins, 4th Dist. Jackson No. 19CA07, 2020-Ohio-1481, at ¶ 8, quoting Partners 

for Payment Relief DE L.L.C. v. Jarvis, 4th Dist. Scioto No. 15CA3723, 2016-
Scioto App. No. 20CA3930 10 

Ohio-7562, ¶ 6, quoting Ohio Constitution, Article IV, Section 3(B)(2); see R.C. 

2505.03(A). If a court's order is not final and appealable, we have no jurisdiction 

to review the matter and must dismiss the appeal. Jarvis, supra; Eddie v. 

Saunders, 4th Dist. Gallia No. 07CA7, 2008-Ohio-4755, ¶ 11. 

{¶16} An order must meet the requirements of R.C. 2505.02 to constitute a 

final appealable order. See Adkins, supra at ¶ 9; Jarvis, supra, at ¶ 7, citing Chef 

Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). 

Under R.C. 2505.02(B)(1), an order is a final order if it “affects a substantial right 

in an action that in effect determines the action and prevents a judgment[.]” To 

determine the action and prevent a judgment for the party appealing, the order “ 

‘must dispose of the whole merits of the cause or some separate and distinct branch 

thereof and leave nothing for the determination of the court.’ ” Jarvis, supra,

quoting Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. 

Professionals Guild of Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989). 

{¶17} “ ‘Foreclosure actions proceed in two stages, both of which end in a 

final appealable judgment: the order of foreclosure and the confirmation of sale.’ ” 

Adkins, supra, at ¶ 10, quoting Farmers State Bank v. Sponaugle, 157 Ohio St. 3d 

151, 2019-Ohio-2518, at ¶ 18. A judgment decree in foreclosure fully disposes of 

liability if it “ ‘determines the extent of each lienholder's interest, sets forth the 
Scioto App. No. 20CA3930 11 

priority of the liens, and determines the other rights and responsibilities of each 

party in the action.’ ” Jarvis, supra, at ¶ 8, quoting CitiMortgage, Inc. v. 

Roznowski,139 Ohio St.3d 299, 2014-Ohio-1984, ¶ 39. Thus, to qualify as a final 

order under R.C. 2505.02(B)(1), a foreclosure decree must account for each 

lienholder's interest and delineate each lienholder's rights. Id. at ¶ 20-21; Second 

Natl. Bank of Warren v. Walling, 7th Dist. No. 01-CA-62, 2002-Ohio-3852, ¶ 18 

(“a judgment entry ordering a foreclosure sale is not final and appealable unless it 

resolves all of the issues involved in the foreclosure, including the following: 

whether an order of sale is to be issued; what other liens must be marshaled before 

distribution is ordered; the priority of any such liens; and the amounts that are due 

the various claimants”); See also Green Tree Servicing L.L.C. v. Columbus & Cent. 

Ohio Children's Chorus Found., 10th Dist. Franklin No. 15AP-802, 2016-Ohio3426, ¶ 9. 

{¶18} Appellants have not appealed a decree in foreclosure but have 

appealed the trial court’s decisions on summary judgment. This case involves 

multiple parties and claims. Appellee initially named Appellants, the State of Ohio 

Department of Taxation, Third Will Co., LLC, and the Scioto County Treasurer as 

defendants in the foreclosure complaint. Presently, Appellee, Appellants, and 

Defendant Scioto County Treasurer are active parties. 
Scioto App. No. 20CA3930 12 

{¶19} The Ohio Department of Taxation also did not participate in the 

underlying proceedings and has not participated in this appeal. The final judicial 

report indicates the Department filed a state tax lien on December 26, 2009, in the 

amount of $307.89. 

{¶20} Defendant Third Will Co. LLC did not participate in the underlying 

proceedings and has not participated in the appellate proceedings. Appellee filed a 

motion for default judgment against the entity. As the record does not reflect the 

trial court’s decision on the motion, we presume the motion to be overruled. See 

Caterpillar Financial Services Corporation v. Tatman, 2019-Ohio-2110, 137 

N.E.3d 512 at ¶ 26 (4th Dist.). Nevertheless, the final judicial report filed 

September 30, 2019, indicates the mortgaged property herein is subject to a UCC 

financing statement filed against Appellant Donald W. Osborne, Jr. on August 12, 

2014, in the Scioto County Recorder’s Office. Other than this, the status of Third 

Will Co. LLC’s claim cannot be gleaned from the record. 

{¶21} The Scioto County Treasurer filed an answer admitting it had an 

interest in the real property identified in the complaint. The Treasurer requested 

that its interest in the subject property be declared a lien against the property and 

that it be paid in its priority. Nothing in the trial court’s October 6, 2020 judgment 

entry addresses the Scioto County Treasurer’s interest in this action. 
Scioto App. No. 20CA3930 13 

{¶21} If a case involves multiple parties or multiple claims, the court's order 

must also meet the requirements of Civ.R. 54(B) to qualify as a final appealable 

order. See Jarvis, supra, at ¶ 9; Chef Italiano Corp. at 88. Under Civ.R. 54(B), 

“[w]hen more than one claim for relief is presented in an action whether as a claim, 

counterclaim, cross-claim, or third-party claim, and whether arising out of the 

same or separate transactions, or when multiple parties are involved, the court may 

enter final judgment as to one or more but fewer than all of the claims or parties 

only upon an express determination that there is no just reason for delay.” Absent 

the mandatory language that “there is no just reason for delay,” an order that does 

not dispose of all claims is subject to modification and is not final and appealable. 

See Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989); See Civ.R. 

54(B). The purpose of Civ.R. 54(B) is “ ‘to make a reasonable accommodation of 

the policy against piecemeal appeals with the possible injustice sometimes created 

by the delay of appeals[,]’ * * * as well as to insure that parties to such actions may 

know when an order or decree has become final for purposes of appeal * * *.” 

Pokorny v. Tilby Dev. Co., 52 Ohio St.2d 183, 186, 370 N.E.2d 738 (1977), 

quoting Alexander v. Buckeye Pipeline, 49 Ohio St.2d 158, 160, 359 N.E.2d 702 

(1977). In this case, the appealed-from judgment entries do not utilize the Civ.R. 

54(B) language indicating there is “no just reason for delay.” 
Scioto App. No. 20CA3930 14 

{¶22} While the appealed-from judgment entries do direct Appellee to 

prepare “such documentation required to allow the property to proceed to 

foreclosure sale,” the entries do not address the Scioto County Treasurer’s interest 

in the matter. The entries do not address the amount of the Treasurer’s interest. 

Nor do the entries address the priority of the Treasurer’s interest or the Ohio 

Department of Taxation’s lien. Thus, we are without a final appealable order in 

this matter and we lack jurisdiction to consider this appeal. Accordingly, we 

dismiss the appeal for lack of a final appealable order. 

 APPEAL DISMISSED. 
Scioto App. No. 20CA3930 15 

JUDGMENT ENTRY 

It is ordered that the APPEAL BE DISMISSED and that Appellant pay any 

costs herein. 

The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the 

Scioto County Common Pleas Court to carry this judgment into execution. 

 Any stay previously granted by this Court is hereby terminated as of the date 

of this entry. 

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

27 of the Rules of Appellate Procedure. 

Abele, J. and Hess, J., Concur in Judgment and Opinion. 

 For the Court, 

 _______________________________ 

 Jason P. Smith 

Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.