[Cite as Urban v. Folan , 2021-Ohio-3452.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) JOHN URBAN, Administrator of the Estate of Thomas A. Collin Appellee

v. JOEANNA ELAINE FOLAN, et al.

Defendant

and PENNYMAC LOAN SERVICES, LLC Appellant C.A. No. 29826

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2019 CV 00057

DECISION AND JOURNAL ENTRY Dated: September 30, 2021

SUTTON, Judge. {¶1} Defendant-Appellant, PennyMac Loan Services, LLC (“PennyMac”), appeals the judgment of the Summit County Cour t of Common Pleas, Probate Di vision. For the reasons that follow, this Court affirms.

I. Relevant Background {¶2} The present appeal arises from the private sale of real propert y owned by decedent, Thomas A. Collin, at 9281 North Bedford Road, Macedon ia, Ohio. John Urban, as Administrator of Mr. Collin’s estate, filed a complaint for aut hority to sell the real property, and

listed the value of the rea l property as $100,000.00. The cour t appointed appraiser also valued2

the real property at $100,000.00. Further, Top Elite Financial , Inc., the holder of the mortgage on the real property, was served with a copy of the complaint f or authority to sell the real property. Subsequent to Mr. Urban filing the complaint, Top El ite Financial, Inc., through Mortgage Electronic Registrati on Systems, Inc., assigned the mo rtgage to PennyMac. {¶3} PennyMac filed a foreclosure action on the real property in the Summit County Court of Common Pleas, General Division, and also moved to inte rvene as a party in the civil land sale pending in p robate court. PennyMac’s motion to inter vene was granted and it filed an answer to the complaint for authority to sell the real property , as well as an amended foreclosure complaint naming Mr. Urban, in his capacity as administrator of Mr. Collin’s estate, as a defendant. In response, Mr. Urban filed a motion to dismiss th e foreclosure action, which was granted. {¶4} Mr. Urban then filed, in the probate court, a motion to accept the inventory appraisal and an application for an order of private sale for t he real property. The probate court issued a judgment entry granting the private sale which accepte d the appraisal value of $100,000.00 for the real property. A fter the sale of the real property, Mr. Urban filed form CV.15, indicating the real property sold for $105,000.00 1 on December 23, 2019. The record reveals Mr. Urban did not serve PennyMac with copies of: (1) th e motion to accept the inventory appraisal; (2) the application for an order of private sale for the real property; or (3) form CV.15 indicating the real property had sold. Further, the record doe s not show PennyMac was served with the probate court’s Decem ber 20, 2019 judgment entry grant ing the private sale and accepting the appraised val ue of $100,000.00 for the real prope rty.

1 Although the real property actually sold for $115,000.00, in a ccordance with the closing documents, form CV.15 incorrec tly indicates it sold for $105,00 0.00.3

{¶5} On January 22, 2020, PennyMac received net proceeds from the sa le of the real property in the amount of $91,166.23, below the amount of $126, 139.60, which was due and owing on the mortgage at that time.

Motion to Vacate {¶6} Pursuant to Civ.R. 60(B)(1) and (5), PennyMac filed a motion to vacate the December 20, 2019 judgment entry granting the private sale and the December 31, 2019 judgment entry confirming the sa le and ordering the deed and di stribution of the proceeds of the sale due to a lack of service and notice. In support of its Ci v.R. 60(B) motion, PennyMac attached: (1) the affidavit of Attorney Glenn Algie, PennyMac’s counsel; (2) the affidavit of Johnny Morton, Foreclosure Opera tions Specialist for PennyMac; (3) PennyMac’s broker’s price opinion (“BPO”) dated January 27, 2020; and (4) payoff demand s tatements for the mortgage on the property. The BPO, which sp ecifically indicates, “[t]his i s a BPO market analysis. This is not an appraisal [,]” v alued the “probable s ale price” of the r eal property at $155,000.00. {¶7} Mr. Urban, in response to PennyM ac’s Civ.R. 60(B) motion, filed a brief in opposition which included, among other things, the affidavit of Armand Rossi, a realtor with ERA Lentz Associates, Inc. In hi s affidavit, Mr. Rossi averred he is the realtor who represented Mr. Urban in the sale of Mr. Collin’s real property at 9281 Nor th Bedford Road. In selling the real property, Mr. Rossi looked at five comparable properties w ith average values of $86,307.00. Mr. Rossi also indicated Summit County had assessed the value o f the real property at $86,490.00. Further, Mr. Rossi averred the real property was a ppraised at $100,000.00, by the real estate appraiser appointed by the probate court, and the C ity of Macedonia had found a total of six violations relating to t he real property. Lastly, Mr. R ossi averred, based upon forty-eight years as a realtor, the pur chase price of $115,000.00, was “goo d and acceptable.”4

The Judgment Entry {¶8} ln its August 3, 2020 judgment entry, the probate court found: (1) PennyMac’s Civ.R. 60(B) motion was timely f iled; and (2) PennyMac demonstr ated it was entitled to relief pursuant to Civ.R. 60(B)(1) for “ mistake, inadvertence, surpris e or excusable neglect.” In so doing, the probate court reasone d, “[c]learly, PennyMac’s failu re to object to [Mr. Urban’s] [motion and application regardi ng the inventory appraisal and p rivate sale] was due to excusable neglect as [Mr. Urban] failed to serve a copy of both the [m]ot ion and [a]pplication upon PennyMac.” {¶9} The probate court, however, dete rmined that PennyMac failed to demonstrate a

meritorious defense or claim, stating:

* * *

In order to demonstrate that it has a meritorious defense or cl aim to present if relief is granted, PennyMac relie s on an appraisal that it obta ined on January 27, 2020, to assert that the market value of the property was actua lly $155,000.00, well above the amount accepted by [Mr. Urban]. However, the [c ]ourt finds that the appraisal that PennyMac attached as Exhibit A to its [Civ.R . 60(B) motion] is actually a BPO, known as a broker’s price opinion, and not [a] full appraisal of the North Bedford Road property. The brokers price opinion has a number of misstatement[s] of [fact] and flaws on its face. First, the BPO incorrectly states that the borrower is Thomas Collin, fails to take into consideration that the North Bedford Road property was listed for sale within the last [twelve] months, and that it was actually sold within the last twelve months to the named owners of the property, Justin Jachna and Caitlin Connick. Further, the BPO was based only on an inspection of the exterior of the property and failed to take into consideration the numerous property violati ons that had been cited by the City of Macedonia. Additionally, the BPO was bas ed on only 3 out of 26 comparable sales in the property’s neighborhood within the past twelve months. Finally, the 5 competitive listings in the prope rty’s neighborhood currently o n the market were all listed in the price range from $99,000.00 to $154,900.00. The North Bedford Road property sold for $115,000.00, an amount greater than the appraised value set by the a ppraiser appointed by this [c]o urt in the estate. A review of the [a]ffidavit of Arm and Rossi, attached as Exhibit E to [Mr. Urban’s brief in opposition], shows [Mr.] Rossi has been a licensed rea ltor in the State of Ohio for over forty-eight years. [Mr.] Rossi was hired by [Mr. Urban] to list and5

sell the [North] Bedford Road property. [Mr. Rossi] used five comparable sales, one of which was directly across the street from the subject pr operty, to arrive at an average of [$87.71] per square foot. Using the same valuati on per square foot, [Mr.] Rossi determined the subject property would have a value of $86,307.00, nearly the same as the S ummit County Auditor’s value.

* * * To say that the value of the North Bedford Road Property was ac tually $155,000.00 and that it would have s old for that amount is purely speculative.

* * * (Emphasis added.) Thus, based upon the above-stated reasoning, the probate court denied PennyMac’s Civ.R. 60(B) motion. {¶10} It is from this judgment entry PennyMac appeals, citing two ass ignments of error

for our review.

Mootness {¶11} As a preliminary matter, we address the issue of whether Penny Mac’s assignments of error are moot because it failed to seek a stay of the distribution of the proceeds from the sale of the real property and, thus, has no remedy if the judgment entry approving the sale is vacated. It is well settled that, “[a]ppellate courts will not review questions that do not

involve live controversies.” Summit Servicing Agency, LLC v. Hunt , 9th Dist. Summit No. 28699, 2018-Ohio-2494, ¶ 10, quoting Bankers Trust Co. of California, N.A. v. Tutin , 9th Dist. Summit No. 24329, 2009-Ohio-1333, ¶ 6, citing Tschantz v. Ferguson , 57 Ohio St.3d 131, 133 (1991). “When no live controversy exists, the appeal must be d ismissed as moot.” Id. at ¶ 10, citing Tutin at ¶ 6, citing Lorain Cty. Bd. of Commrs. v. U.S. Fire Ins. Co ., 81 Ohio App.3d 263, 266-267 (9th Dist.1992). {¶12} “Where * * * [a] judgment is voluntarily paid and satisfied, su ch payment puts an end to the controversy, and take s away from the defendant the r ight to appeal or prosecute error6

or even to move for vacation of the judgment.” Summit Servicing Agency, LLC at ¶ 12. “A judgment is voluntarily satisfied ‘where the party fails to seek a stay prior to the satisfactio n of judgment.’” Id . at ¶ 13, citing CommuniCare Health Servs. v. Murvine , 9th Dist. Summit No. 23557, 2007-Ohio-4651, ¶ 20. (Em phasis added.) {¶13} Here, although PennyMac did not seek a stay of the distribution of proceeds from the sale of the real property, the record reveals PennyMac had no knowledge of the December 23, 2019 sale until it received $91,166.23 in sale proceeds on January 22, 2020. Specifically, in his affidavit, Attorney Glenn A lgie averred, “I only learned ab out the above-referenced pleadings in the third week of January 2020 when I received the proceeds of the already-completed sale of the property. I immediately ove rnighted the funds to PennyMac for handling on January 21, 2020.” (Emphasis added.) Under these circumstances, it was no t actually possible for PennyMac to seek a timely stay of t he distribution of proceeds from the sale of the real property. Moreover, PennyMac contends, if t he judgment entry granting the private sale and accepting the appraised value of $100,000.00 for the real property is vacated , PennyMac could seek relief against Tom Collin’s estate itself, pursuant to R.C. 2127.27, b ecause Mr. Urban, as administrator of the estate, did not faithfully discharge his duties by faili ng to serve notice to PennyMac of the sale and appraisal value of the real property. 2 Indeed, this type of remedy, against the estate

2 R.C. 2127.27 states, in relevant part: “[u]pon the return and approv al of the appraisement * * * the court sha ll require the executor, admini strator, or guardian to execute a bond with two or more personal sureties, or one or more corpora te sureties, whose qualifications shall be those provided by s ection 2109.17 of the Revised Code. The bond shall be payable to the state in an amount that the court considers sufficient, having regard to the amount of real property to be sold, its appraise d value, the amount of the ori ginal bond given by the executor, administrator, or guardian, and the distribution to be made of the proceeds arising from the sale. The bond shall be conditioned for the faithful discharge of the executor's, administrator's, or guardian's duties and the paymen t of, and accounting for, all m oneys arising from the sale according to law.”7

itself, would not implicate the title of the real property pass ed to the third-party purchasers. See R.C. 2325.03 (“The title to propert y, which title is the subjec t of a final judgment or order sought to be vacated, modified, or set aside by any type of proceeding or attack and which title has, by, in consequence of, or in relian ce upon the final judgment or or der, passed to a purchaser in good faith, shall not be affected by the proceeding or attack; nor s hall the title to property that is sold before judgment under an attachme nt be affected by the proceedi ng or attack.”) {¶14} Thus, because there remains a live controversy, PennyMac’s appe al is not moot.

II.

ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN DENYING [PENNYMAC’S] CIV.R. 60(B) MOTION [] TO VACATE THE ORDER CONFIRMING SALE [] WHEN IT REACHED THE ULTIMATE MERITS OF THE CASE INSTEAD OF DECIDING WHETHER A MERITORIOUS DEFENSE WAS PRESENTED BY [PENNYMAC]. {¶15} In its first assignment of error, PennyMac argues the trial cou rt erred in denying its Civ.R. 60(B) motion. For the reasons that follow, PennyMac ’s argument is not well-taken. {¶16} “The decision to grant or deny a motion for relief from judgmen t pursuant to Civ.R. 60(B) lies in the sound di scretion of the trial court an d will not be disturbed absent an

abuse of discretion.” State v. Hulgin , 9th Dist. Summit No. 26719, 2013-Ohio-2794, ¶ 7, citing

Strack v. Pelton , 70 Ohio St.3d 172, 174 (1994). An abuse of discretion indica tes the trial

court’s decision was unreasonabl e, arbitrary, or unconscionable

. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶17} Civ.R. 60(B) allows a court to relieve a party from a final jud gment, order, or proceeding under certain circumsta nces. Such circumstances inc lude: “(1) mistake,8

inadvertence, surprise or excusa ble neglect; * * * or (5) any o ther reason justifying relief from the judgment.” Civ.R. 60(B). T o prevail on a 60(B) motion, th e movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relie f under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable tim e, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more tha n one year after the judgment, order or proceedi ng was entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc ., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. “Civ.R. 60(B) relief is improper if any one of t he foregoing requirements is not

satisfied.” State ex rel. Richard v. Seidner , 76 Ohio St.3d 149, 151 (1996). {¶18} Further, “[u]nder Civ.R. 60(B), a movant’s burden is only to al lege a meritorious defense, not to prove that he will prevail on that defense.” Rose Chevrolet, Inc. v. Adams , 36 Ohio St.3d 17, 20 (1988). However, “[i]n order to present a me ritorious defense, a [movant]

must introduce credible eviden ce from which reasonable minds mi ght reach different conclusions upon the issue involved.” Cook Family Invests. v. Billings, 9th Dist. Lorain Nos. 05CA008689, 05CA008691, 2006-Ohio-764, ¶ 18. Indeed, a m ovant must “allege supporting operative facts with enough specifi city to allow the court to d ecide that the movant has a defense he could have successfully argued at trial.” Climbing Higher Ent., Inc. v. Forney , 9th Dist. Summit No. 21142, 2002-Ohio-6295, ¶ 13. {¶19} In the present matter, the trial court reviewed the BPO attache d to PennyMac’s Civ.R. 60(B) motion and due to several errors on its face and o ther noted deficiencies, determined PennyMac did not have a meritorious defense to prese nt if the requested relief was granted. Specifically, the tria l court took issue with the fol lowing: (1) the BPO was not a full appraisal, as it was only based upon an inspection of the prope rty’s exterior; (2) the BPO contained errors regarding the borrower’s name, the fact the pr operty had been listed for sale in9

the past 12 months, and the fact the property had actually sold ; (3) the BPO did not take into account any of the property viola tions cited by the City of Mac edonia; and (4) the BPO was only based upon 3 out of 26 comparable sales in the past 12 months. In essence, the BPO was not

credible evidence of a meritorious defense, i.e., that the prop erty was valued at a higher amount than it actually sold for in the private sale. As such, in rev iewing this record, we cannot say the trial court acted unreasonably, arbitrarily, or unconscionably in denying PennyMac’s Civ.R. 60(B) motion. {¶20} Accordingly, PennyMac’s first a ssignment of error is overruled.

ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN DENYING [PENNYMAC’S] CIV.R. 60(B) MOTION [] TO VACATE THE ORDER CONFIRMING SALE [] WHEN IT DENIED THE MOTION WITHOUT FIRST CONDUCTING A HEARING TO DETERMINE WHETHER A MERITORIOUS DEFENSE WAS PRESENTED BY [PENNYMAC]. {¶21} In its second assignment of error, PennyMac argues the trial co urt erred in failing to conduct a hearing on whether a meritorious defense was prese nted in the Civ.R. 60(B) motion. We disagree. {¶22} This Court has previously sta ted, “a party moving for relief from judgment under Civ.R. 60(B) is not automatically entitled to an evidentiary he aring.” Miller v. Miller , 9th Dist. Summit No. 21770, 2004-Ohio-1989, ¶ 9. In so doing, we explain ed: If * * * the material submitted by the movant contains allegati ons of operative facts demonstrating that relief is warranted, the trial court s hould grant the movant a hearing to take evidence and either verify or discredit the a sserted facts. If, on the other hand, the material submitted by the movant does not p rovide operative facts which demonstrate that relief is warranted, the trial cou rt may deny the motion without holding a hear ing. (Citations omitted.)

Id . Further, “[t]he party reque sting relief from judgment bears the burden of asserting operative facts that demonstrate [] a meritorious defense that justifies relief from judgment.” Id

.10

Importantly, “[a]ll operative facts must be presented with the motion; the movant cannot wait to present operative facts at a hearing.” Id

. {¶23} As discussed above, the trial court determined the BPO attached to PennyMac’s Civ.R. 60(B) motion did not constitute credible evidence of a m eritorious defense because of

numerous misstatements and deficiencies which are identified in the trial court’s judgment entry, as well as the speculative natu re of PennyMac’s valuation of th e real property. Thus, because the BPO did not contain allegations o f operative facts demonstratin g that relief is warranted, the trial court’s denial of the Civ.R. 60( B) motion, without a hearing, d oes not constitute an abuse of

discretion. {¶24} Accordingly, PennyMac’s second a ssignment of error is overruled

. III. {¶25} For the reasons stated above, PennyMac’s two assignments of e rror are overruled. The Judgment of the S ummit County Court of Common P leas, Probate Division, is

affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State o f Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the11

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

B ETTY SUTTON FOR THE COURT

CARR, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: WILLIAM L. PURTELL and JOHN R. WIRTHLIN, Attorneys at Law, for Appellant. JAMES L. NABORS and RANDY TAYLOR, A ttorneys at Law, for Appelle e.