[Cite as Huntington Natl. Bank. v. White, 2012-Ohio-807.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 96835

 HUNTINGTON NATIONAL BANK 

PLAINTIFF-APPELLEE 

vs. 

KENNETH A. WHITE, ET AL. 

DEFENDANTS-APPELLANTS 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

 Cuyahoga County Common Pleas Court 

Case No. CV-719673 

BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J. 

 

RELEASED AND JOURNALIZED: March 1, 2012 
2

ATTORNEY FOR APPELLANT

J. Reid Yoder 

Kaffen, Zimmerman, Dicaudo, and Yoder, LLC 

520 South Main Street 

Suite 500 

Akron, Ohio 44311 

ATTORNEYS FOR APPELLEE 

Robert H. Young 

Daniel A. Friedlander 

Weltman, Weinberg & Reis Co., LPA 

323 West Lakeside Avenue 

Suite 200 

Cleveland, Ohio 44113 
3

EILEEN A. GALLAGHER, J.: 

 

{¶1} Appellant, Kenneth A. White, appeals the trial court’s order denying his 

motion to vacate a sheriff’s sale. The property was the subject of a foreclosure action 

initiated by plaintiff-appellee, Huntington National Bank (“Huntington”). Appellant 

argues that the trial court was without jurisdiction because he had removed the case to 

federal court, thereby divesting the state court of jurisdiction. We affirm the decision of 

the trial court. 

{¶2} On February 26, 2010, Huntington filed a complaint in foreclosure against 

appellant in the Cuyahoga County Court of Common Pleas. Huntington filed a motion 

for summary judgment and a motion for default judgment on July 28, 2010. On 

December 15, 2010, the trial court adopted the magistrate’s decision that granted 

Huntington’s motions for summary judgment and default judgment and decreed 

foreclosure. Thereafter, the trial court issued an order for the sale of property and the 

sheriff’s sale was scheduled for February 22, 2011. 

{¶3} On February 7, 2011, appellant filed a notice of removal with the trial 

court, indicating that he had removed the case to the United States District Court for the 

Northern District of Ohio. Notwithstanding the notice of removal, the property was sold 

on February 22, 2011. On March 1, 2011, appellant filed a motion to stay proceedings 

arguing that the removal of the case to the federal court had divested the state court of 

jurisdiction. The trial court granted appellant’s motion and stayed the proceedings on 
4

March 7, 2011. 

{¶4} On April 11, 2011, the United States District Court dismissed appellant’s 

case, without prejudice, for failure to comply with a prior order requiring the appellant to 

pay the filing fee or submit a financial application and prisoner account. Appellant 

moved the district court to reinstate his claim on April 19, 2011, and on April 29, 2011, 

the district court reinstated the appellant’s claim. 

{¶5} Between the April 11 dismissal and the April 29 reinstatement in the 

district court, the trial court, upon motion by Huntington, reinstated its own proceedings. 

 On April 26, 2011, the trial court found that appellant had misrepresented that the 

original removal to the federal court had been effected and that the reinstatement had 

occurred when in fact, at that time, neither was true. The trial court then vacated the 

stay of proceedings and confirmed the sheriff’s sale. Appellant filed a motion to vacate 

the sheriff’s sale on May 2, 2011, which the trial court denied on May 4, 2011. 

Appellant brings the present appeal asserting the following assignment of error: “[t]he 

trial court erred in vacating the stay of proceedings and/or confirming the sheriff sale of 

the property.” 

{¶6} Appellant argues that he effected removal to the United States District 

Court and, because that court never remanded the case, the trial court was without 

jurisdiction to deny his motion to vacate the sheriff’s sale. 

{¶7} This is not a legal question of whether the appellant’s removal of the case 
5

to federal court divested the trial court of jurisdiction. Rather, we are presented with a 

procedural inquiry of whether appellant actually removed his case to the United States 

District Court. 

{¶8} Three procedural steps are required under 28 U.S.C. 1446 for a defendant 

to remove an action from state court to federal court. First, a defendant must file in the 

federal court “a notice of removal * * * containing a short and plain statement of the 

grounds for removal, together with a copy of all process, pleadings, and orders served 

upon such defendant or defendants.” Second, the defendant must give written notice to 

all adverse parties, and finally, the defendant must file a copy of the removal notice in 

state court. Removal is not complete until all three steps are taken. Luri v. Natl.Union 

Fire Ins. Co. of Pittsburgh, N.D.Ohio No. 1:09-CV-1664, 2010 WL 1254282 (Mar. 24, 

2010). Once the defendant has accomplished these three steps, the case is removed 

from state court and the state court shall proceed no further unless and until the case is 

remanded. 28 U.S.C. 1446(d); Borkowski v. Abood, 117 Ohio St.3d 347, 2008-Ohio-857, 

884 N.E.2d 7, at ¶ 11. 

{¶9} Although appellant filed what he captioned a “Notice of Removal” with 

the state court, the record reflects that the appellant never actually removed his case to 

the district court. What appellant actually filed was a separate action seeking to 

challenge the state court’s decision. 

{¶10} The civil cover sheet from the United States District Court, attached to 
6

appellant’s purported notice of removal that was filed with the trial court, specifically 

indicates that the case is an “Original Proceeding” rather than a case “Removed from 

State Court.” The cover sheet reflects that the appellant is the plaintiff and Huntington 

is the defendant in the federal action — this is distinct from the underlying state court 

action in which Huntington was the plaintiff. The cover sheet also reflects the cause of 

action to be truth in lending violations based upon 15 U.S.C. 1635. The federal 

complaint itself, also attached to appellant’s notice, is titled, “Complaint, Petition, 

Declaration for termination of SECURITY INTEREST / MORTGAGE * * *.” Finally, 

a copy of the United States District Court’s docket, attached to Huntington’s March 11, 

2011 motion to reconsider, reflects that a required notice of removal is absent from the 

record. 

{¶11} The case that appellant filed in the United States District Court was an 

amalgam of claims based upon statutory violations and an attempt to indirectly appeal a 

state court judgment in the federal court. Appellant’s federal filing was a separate and 

original action, not a removal of this case. Appellant failed to perfect the first of three 

procedural steps required by 28 U.S.C. 1446 that is, actually filing for removal of his 

case in federal court. We find nothing in the record that disputes the trial court’s 

conclusion that “defendant Kenneth A. White in his 3/1/11 motion for stay 

misrepresented that the U.S. District Court had granted removal.” Thus, removal was 

never effected and the trial court was never divested of jurisdiction. 
7

{¶12} We find that the trial court retained jurisdiction over the case and 

appellant’s sole assignment of error is without merit. 

{¶13} The judgment of the trial court is 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 said lower 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. 

 

EILEEN A. GALLAGHER, JUDGE 

COLLEEN CONWAY COONEY, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR