[Cite as LaSalle Bank Natl. Assn. v. Smith, 2012-Ohio-4040.]

STATE OF OHIO ) IN THE COURT OF APPEALS OF OHIO 

) 

MAHONING COUNTY ) SS: SEVENTH DISTRICT 

LaSALLE BANK NATIONAL ) 

ASSOCIATION, TRUSTEE, ) CASE NO. 11 MA 85 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) JUDGMENT ENTRY 

) 

RONALD SMITH, et al., ) 

) 

DEFENDANTS-APPELLANTS. ) 

For the reasons stated in the Opinion rendered herein, the assignments of 

error are without merit and are overruled. It is the final judgment and order of this 

Court that the judgment of the Common Pleas Court, Mahoning County, Ohio, is 

affirmed. Costs taxed against appellants. 

______________________________ 

______________________________ 

______________________________ 

JUDGES. 
[Cite as LaSalle Bank Natl. Assn. v. Smith, 2012-Ohio-4040.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

LaSALLE BANK NATIONAL ) 

ASSOCIATION, TRUSTEE, ) CASE NO. 11 MA 85 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) O P I N I O N 

) 

RONALD SMITH, et al., ) 

) 

DEFENDANTS-APPELLANTS. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

Case No. 05CV3869. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Anne Sferra 

Attorney Nelson Reid 

Attorney Justin Ristau 

100 South Third Street 

Columbus, Ohio 43215-4291 

For Defendant-Appellant: Attorney Bruce Broyles 

5815 Market Street, Suite 2 

Boardman, Ohio 44512 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

Dated: August 27, 2012
[Cite as LaSalle Bank Natl. Assn. v. Smith, 2012-Ohio-4040.]

VUKOVICH, J. 

{¶1} Defendants-appellants Ronald and Nancy Smith appeal the decisions 

of the Mahoning County Common Pleas Court that denied their motion for 

reconsideration and their Civ.R. 60(B) motion for relief from judgment. The Smiths 

contend that the January 12, 2007 judgment ordering foreclosure and sale of the real 

property and residence located at 1625 Gully Top Lane, Canfield Ohio, in Mahoning 

County was not a final order, and thus, the trial court could reconsider its order of 

foreclosure. In the alternative, they contend that even if the January 12, 2007 order 

was a final appealable order, the trial court erred when it denied their Civ.R. 60(B) 

motion. They assert that plaintiff-appellee LaSalle Bank National Association, As 

Trustee for Certificate Holders of Bear Stearns Asset-Backed Securities LLC Asset 

Back Certificates, Series 2004-HE5 (LaSalle) committed fraud on the court when it 

asserted in its complaint that it was a real party in interest, despite the fact that 

according to the Smiths, LaSalle is not the holder of the mortgage. The Smiths 

assert that this is a meritorious defense and that the motion was brought within a 

reasonable amount of time. 

{¶2} For the reasons expressed more fully below, the decision of the trial 

court is hereby affirmed. The January 12, 2007 order is a final order of foreclosure. 

As such, the motion for reconsideration is a nullity and the trial court did not abuse its 

discretion in denying the motion. As to the Civ.R. 60(B) motion, the action was not 

timely. 

STATEMENT OF THE CASE

{¶3} LaSalle filed a complaint and an amended complaint in foreclosure 

against the Smiths asserting that the Smiths defaulted on their mortgage for the real 

property and residence located at 1625 Gully Top Lane in Canfield, Ohio, and that 

LaSalle has the first lien on the property. 10/13/05 and 10/25/05 Complaints. 

LaSalle asserted that $525,023.67 plus interest was owed on the note. 

{¶4} From the record it appears that in October 2004, when the Smiths were 

five payments behind in their mortgage, they executed a forbearance agreement. 

The Smiths defaulted on that agreement and in April 2005, when they were seven 
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payments behind, and they executed a second forbearance agreement. They 

defaulted on this agreement too and in October 2005, they executed their third and 

final forbearance agreement. They only made one payment under that plan. On May 

1, 2006, LaSalle accelerated the loan, called it due and initiated foreclosure 

proceedings. 

{¶5} After the Smiths answered the complaint, LaSalle moved for summary 

judgment. 01/27/06 Motion. The Smiths filed motions in opposition to summary 

judgment approximately six months later. 07/19/06 Motions. LaSalle filed a 

response to the opposition motions in August 2006. Thereafter, in December 2006, 

LaSalle filed a detailed account of mortgage. 

{¶6} In January 2007, the trial court granted summary judgment in favor of 

LaSalle ordering foreclosure and the sale of the property. No appeal was filed from 

this order. 

{¶7} In July 2007, the property was set for sale. However, in August 2007, 

the case was stayed due to the Smiths filing bankruptcy. Thus, the order of sale was 

withdrawn. The bankruptcy stay was lifted in October 2007 after the bankruptcy case 

was dismissed. 

{¶8} The property was ordered to sale and a notice of sale was issued in 

May 2008. However, prior to the sale, the Smiths requested another stay because of 

an action they had pending in Federal District Court against LaSalle. In that case, 

the Smiths asserted that LaSalle violated the Truth in Lending Act. The trial court 

granted the stay request. 06/20/08 J.E. 

{¶9} In October 2009, the stay was lifted after the federal case had been 

dismissed. 10/19/09 J.E. One week later, the Smiths requested another stay. This 

request was based on a pending case in the Mahoning County Common Pleas Court 

that made claims against LaSalle that were similar in nature to the claims that were 

already asserted and dismissed by the federal court. 10/28/09 Motion. In March 

2010, prior to the court ruling on the request, the Smiths asked the trial court to 

reconsider its October 2009 order lifting the stay. The magistrate stayed the case. 
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06/23/10 J.E. However, in February 2011 the trial court vacated the magistrate’s 

stay. 

{¶10} On March 16, 2011, approximately 51 months after the initial 

foreclosure order, the Smiths filed a motion for reconsideration of the trial court’s 

January 12, 2007 order. That same day they also filed a Civ.R. 60(B) motion for relief 

from judgment. Both motions asserted that LaSalle is not the real party in interest, 

committed fraud on the court and violated the Pooling and Servicing Agreement 

(PSA) that governed how the mortgage was to be placed in the Bear Stearns Trust. 

LaSalle filed motions in opposition to both of the Smiths’ motions. 04/15/11 and 

04/26/11 Motions. On May 4, 2011, the trial court overruled the motions. It is from 

that order that the Smiths appeal. 

{¶11} During the pendency of the appeal, the Smith sought a stay of the 

January 12, 2007 order. The trial court denied the stay. We granted the stay and 

ordered a bond in the amount of $750,000. 06/29/11 J.E. Even though the Smiths 

did not file the required bond to stay the proceedings, on July 7, 2011, LaSalle 

moved to withdraw the order of sale. The trial court granted the motion and the order 

of sale was withdrawn. 07/07/11 J.E. 

JANUARY 12, 2007 JUDGMENT ENTRY

{¶12} The arguments presented in the assignments of error are alternatives to 

each other. The first assignment of error is premised on the position that the January 

12, 2007 order is not a final order since a trial court can only reconsider nonfinal 

orders. The second assignment of error is premised on the position that the January 

12, 2007 order is a final order since Civ.R. 60(B) only applies to final orders. Thus, 

before addressing the assignments of error, the initial question this court must decide 

is whether the January 12, 2007 Judgment Entry that ordered foreclosure and sale of 

the property was a final appealable order. 

{¶13} Our court has previously looked at the issue of what is needed in a 

foreclosure judgment to render that judgment final. Second Nat. Bank of Warren v. 

Walling, 7th Dist. No. 01CA62, 2002-Ohio-3852. We have stated that: 
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 [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. 

(Emphasis sic.) Id. ¶ 18. 

{¶14} Within the past year we have favorably cited our decision in Walling. 

PHH Mtge. Corp. v. Albus, 7th Dist. No. 09MO9, 2011-Ohio-3370, ¶ 18. In PHH we 

found that the judgment was not final even though the judgment entry did state the 

exact amount due on the promissory note, it included a demand to marshal liens and 

it did provide that there was a right to redemption. Id. This was because the 

judgment entry stated that the final decree of foreclosure is “to be submitted” at some 

point in the future. Id. Furthermore, the entry did not include the description and 

amount of other liens, the priority of the liens, and how the funds should be 

distributed to the various claimants. Id., citing Walling, ¶ 18. 

{¶15} In the case at hand, the January 12, 2007 judgment entry that granted 

summary judgment in favor of LaSalle acknowledged that defendants McHutchinson 

LLC and Sky Bank Successor to Citizens Banking Company “disclaimed any right, 

title claim or interest in the premises described herein.” The judgment then stated: 

 The Court finds that there is due the Treasurer of Mahoning 

County, taxes, accrued taxes, assessments and penalties on the 

premises described herein, as shown on the County Treasurer’s tax 

duplicate, the exact amount being unascertainable at the present time, 

but which amount will be ascertainable at the time of sale; which are a 

valid and subsisting first lien thereon for that amount so owing on the 

day of the timely transfer of deed. 

 * * * 
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 The Court finds on the evidence adduced that there is due 

Plaintiff on the promissory note set forth in the First Count of the 

Complaint, the sum of $525,023.67, plus interest thereon at the rate of 

8.25% per annum from February 1, 2005, plus all late charges due 

under the Note and Mortgage, all advances made for the payment of 

real estates taxes and assessments and insurance premiums, and all 

costs and expenses incurred for the enforcement of the Note and 

Mortgage, except to the extent the payment of one or more specific 

such items is prohibited by Ohio law, for which sum judgment is hereby 

rendered in favor of Plaintiff against the Defendants, Ronald J. Smith. 

 * * * 

 The Court finds that Plaintiff has and will from time to time 

advance sums for taxes, insurance and property protection. Plaintiff 

has the first and best lien for these amounts in addition to the amount 

set forth above. The Court makes no finding as to the amounts of the 

advances and continues same until the confirmation of sale. 

 * * * 

 It is therefore ORDERED, ADJUDGED AND DECREED that 

unless the sums found due herein, together with the costs of this action 

be fully paid within three (3) days from the date of the entry of this 

decree, the equity of redemption and dower of all defendants in and to 

said premises shall be foreclosed and that an order of sale may be 

issued to the Mahoning County Sheriff, directing him to appraise, 

advertise in a paper of general circulation within the County and sell 

said premises as upon execution and according to law free and clear of 

the interest of all parties to this action. 

1/12/07 J.E. 
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{¶16} The above clearly shows that any other lien holders have disclaimed 

their rights. Thus, here, we do not have the issue that we had in Walling where the 

number, priority and value of other outstanding liens was not determined. Likewise, 

the ability to redeem the property is also set forth. 

{¶17} The Smiths’ assertion that this judgment is not final is based on the fact 

that the judgment does not, in their opinion, determine the amounts due and leaves 

that determination for a later date. 

{¶18} The judgment entry clearly indicates that certain fees are not 

ascertainable at the time of the judgment entry. For instance, the accrued taxes that 

will be owing to the Mahoning County Treasurer at the time of the sale is not 

ascertainable at the order of foreclosure because it is unclear how long it will take to 

sell the property. Likewise, if LaSalle advances sums for taxes, insurance and 

property protection, that is also not ascertainable at the point that foreclosure is 

ordered. The court cannot compute those figures because their final amount is 

dependent on how quickly the property sells. However, what is clear from the 

judgment is that any money that is expended by LaSalle for those items constitutes a 

lien on the property. While the trial court did state that it is not making any “finding as 

to the amount of the advances and continues the same until the confirmation of the 

sale” that statement should not render the judgment nonfinal. 

{¶19} Our decision in PHH that the foreclosure order was not final was 

partially based on the statement in the trial court’s judgment of foreclosure that a final 

decree of foreclosure is “to be submitted” at some point in the future. PHH Mtge. 

Corp. v. Albus, 7th Dist. No. 09MO9, 2011-Ohio-3370, ¶ 18. The statement that the 

amount of the advances will be determined in the confirmation of the sale judgment is 

not the equivalent to the statement that a final decree of foreclosure is “to be 

submitted” at some point in the future. Thus, our case is distinguishable from PHH. 

{¶20} At this point, it is important to recognize that there are two judgments 

that are appealable in foreclosure actions. Emerson Tool, L.L.C. v. Emerson Family 

Ltd. P'ship, 9th Dist. No. 24673, 2009-Ohio-6617, ¶ 13, citing Citifinancial, Inc. v. 

Haller-Lynch, 9th Dist. No. 06CA008893, 2006-Ohio-6908, ¶ 5-6. See, also, Bankers 
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Trust Co. of California, N.A. v. Tutin, 9th Dist. No. 24329, 2009-Ohio-1333, ¶ 14; 

Triple F. Invests., Inc. v. Pacific Fin. Servs., Inc., 11th Dist. No. 2000-P-0090, 2001 

WL 589343 (June 2, 2001). The first is the order of foreclosure and sale. The 

second is the confirmation of the sale. 

{¶21} Thus, if the advances made for taxes, insurance and property 

protection are determined at the time of the confirmation of the sale, any amount in 

dispute is subject to an appeal of the confirmation of the sale order. The order of 

foreclosure clearly indicates that those advances are the first and best lien for those 

amounts in addition to the amounts set forth above. This is especially the case when 

the advances are future costs that have not occurred and potentially may not occur. 

To find that the judgment entry is nonfinal because it is does not compute future 

costs would mean that no judgment of foreclosure and sale would ever be final. 

{¶22} Consequently, after considering the entire January 12, 2007 judgment 

entry we find that it is a final appealable order. 

FIRST ASSIGNMENT OF ERROR

{¶23} “THE TRIAL COURT ERRED IN DENYING THE MOTION FOR 

RECONSIDERATION.” 

{¶24} It has been explained multiple times that motions for reconsideration of 

a final judgment in the trial court are a nullity. Pitts v. Ohio Dept. of Transp., 67 Ohio 

St.2d 378, 379, 423 N.E.2d 1105 (1981). As explained above, the January 12, 2007 

order of foreclosure is a final appealable order. Thus, considering Pitts and our 

holding regarding the finality of the January 12, 2007 order, this assignment of error 

lacks merit. 

SECOND ASSIGNMENT OF ERROR

{¶25} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE 

MOTION FOR RELIEF FROM JUDGMENT.” 

{¶26} Civ.R. 60(B) states that “[o]n motion and upon such terms as are just, 

the court may relieve a party or his legal representative from a final judgment, order 

or proceeding” when certain factors are met. Civ.R. 60(B) only applies to final orders. 
-8-

Therefore, since we have found that the January 12, 2007 order is a final order, 

Civ.R. 60(B) can be used as means to have that order vacated. 

{¶27} The standard of review used to evaluate the trial court’s decision to 

grant or deny a Civ.R. 60(B) motion is an abuse of discretion. State ex rel. Russo v. 

Deters, 80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997). An abuse of discretion 

connotes conduct which is unreasonable, arbitrary, or unconscionable. State ex rel. 

Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 107, 647 N.E.2d 

799 (1995). 

{¶28} We have continuously explained that Civ.R. 60(B) cannot be used as a 

substitute for appeal. John Soliday Fin. Group, L.L.C. v. Moncreace, 7th Dist. No. 09 

JE 11, 2011-Ohio-1471, ¶ 11, quoting Doe v. Trumbull Cty. Children Servs. Bd., 28 

Ohio St.3d 128, 502 N.E.2d 605 (1986). The movant's arguments cannot merely 

reiterate merit arguments that could have been raised on appeal. Manigault v. Ford 

Motor Co., 134 Ohio App.3d 402, 412, 731 N.E.2d 236 (8th Dist. 1999). 

{¶29} In order to prevail on a motion brought under Civ.R. 60(B), the movant 

must show that: 

{¶30} “(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 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 Elec., 

Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146, 549 N.E.2d 505 (1976), paragraph two 

of the syllabus. 

{¶31} The grounds for relief under the second GTE element are: 

 (1) [M]istake, 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 Rule 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 
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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. 

Civ.R. 60(B). 

{¶32} Our analysis will begin with the second and third GTE factors, grounds 

for relief and timeliness of the Civ.R. 60(B) motion. The Smiths contend that the 

catchall provision in Civ.R. 60(B)(5) applies, i.e. any other reason justifying relief from 

the judgment. Specifically, they contend that when counsel for LaSalle filed the 

complaint asserting LaSalle was the holder of the note and mortgage, counsel was 

committing a fraud on the court because counsel knew LaSalle was not the holder of 

the note. Therefore, according to the Smiths Civ.R. 60(B)(5) is applicable and since 

the motion for vacation was filed within a reasonable time, it complied with the 

timeliness requirement. 

{¶33} LaSalle disagrees and asserts that the allegation that LaSalle knew it 

was not the holder of the note is more akin to (B)(3), “fraud (whether heretofore 

denominated intrinsic or extrinsic), misrepresentation or other misconduct of an 

adverse party.” Thus, according to LaSalle, Civ.R. 60(B)’s one year filing requirement 

is applicable. Since the motion was filed approximately 4 years and 3 months after 

the foreclosure judgment, it was untimely. 

{¶34} As can be seen by the arguments, the determination of whether the 

vacation motion is timely is partially dependent upon what ground for relief is being 

claimed. The comments to Civ.R. 60(B) clearly indicate that fraud upon the court 

differs from Rule 60(B)(3), fraud or misrepresentation by an adverse party. Civ.R. 

60(B) (staff notes). “Fraud upon the court might include, for example, the bribing of a 

juror, not by the adverse party, but by some third person.” Id. 

{¶35} The Ohio Supreme Court has explained that “fraud on the court” occurs 

when an officer of the court (i.e. an attorney) actively participates in defrauding the 

court. Coulson v. Coulson, 5 Ohio St. 3d 12, 15, 448 N.E.2d 809 (1983). This type of 
-10-

fraud does not fall under Civ.R. 60(B)(3), but rather constitutes a ground for relief 

under Civ.R. 60(B)(5). Id.

{¶36} That said, our sister district has stated that the mere allegation that the 

party seeking foreclosure is not the holder of the note is not enough for it to constitute 

fraud on the court, rather in that case it merely falls under general fraud. U.S. Bank 

Natl. Assn. v. Spicer, 3d Dist. No. 9-11-01, 2011-Ohio-3128, ¶39, 41-42. However, in 

that case, there was not a clear allegation that counsel for the bank was involved in 

the fraud. Here, the Smiths take the allegation one step farther than Spicer did; the 

Smiths contend that the counsel for LaSalle was involved in the fraud and thus, it 

became fraud on the court. 

{¶37} Here, the Smiths’ allegation involves an officer of the court and thus, by 

mere definition the ground for relief is fraud on the court. Whether the Smiths can 

prove such allegation is a whole separate issue. However, it falls under Civ.R. 

60(B)(5) and thus, in order to meet the timeliness requirement, the motion was 

required to be filed within a reasonable time. 

{¶38} Thus, the issue before this court is whether the four year and three 

month delay was reasonable. It has been explained that the determination for Civ.R. 

60(B) as to what is a reasonable length of time is fact specific. Frantz v. Martin, 8th 

Dist. No. 92211, 2009-Ohio-2377, ¶14 (stating, “from a review of case law regarding 

timeliness of Civ.R. 60(B) motions, it is clear that each case must be decided upon its 

own facts as a delay of four years has been held to be reasonable, and a delay of 

four months has been held to be unreasonable”). 

{¶39} Given the facts of this case, we do not find that the length of the delay 

was reasonable. Admittedly, the Smiths have pursued multiple tactical maneuvers to 

stop the foreclosure, which included constant litigation that stayed the foreclosure 

action. However, stays do not prevent a party from filing a motion to vacate. While 

the trial court could not rule on the motion during the stays, the motion still could have 

been filed. 

{¶40} Likewise, it also acknowledged that the Smiths had to obtain the 

voluminous Pooling and Servicing Agreement (PSA) and its supplement, the 
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Prospectus Supplement, from the Securities and Exchange Commission to determine 

whether LaSalle complied with those requirements in those documents. The PSA 

and Prospectus Supplement were obtainable at the time the complaint was filed; the 

Prospectus Supplement is dated 2004. Thus, the alleged failure to follow the 

requirements could have been discovered shortly after filing of the 2005 complaint. 

{¶41} The Smiths assert that it was not until the November 2010 Federal 

Congressional Oversight Panel Report came out that they could fully comprehend the 

legal consequences of LaSalle’s failure to comply with the terms of the PSA. We 

disagree with the position that the failure to comply with the terms of the PSA could 

not be discovered until the congressional report was issued. The Federal Committee 

Report is merely a report, it is not law. Therefore, it does not indicate the legal 

consequences of the failure to comply with the terms of the PSA. Only through 

litigation can the consequences of failing to comply with the terms of the PSA be 

realized. The Smiths did not need the committee report to realize legal 

consequences, but rather needed to pursue the issue through the courts. 

{¶42} Furthermore, the congressional report does not indicate that there is a 

clear issue in the case at hand. The report indicates that mortgages may not have 

been properly conveyed to the trust that claims to own the note if the required 

documentation to transfer the note and mortgage to the trust was incomplete. Thus, 

the trust may not have the ability to enforce the lien through foreclosure because it 

may not be the owner of the note and mortgage. The report shows that for 

securitization of the mortgage there are multiple transfers. It shows the mortgage 

starting with the originator, who in this case would be Encore, then being transferred 

to a Securitization Sponsor and then to a Depositor and then to the Securitization 

Trust, which in this case would be LaSalle. In this case the middlemen were jumped 

and the mortgage was placed directly into the trust. Encore, the original lender 

assigned the note and mortgage to “LaSalle Bank National Association, as Trustee 

for certificateholders of Bear Stearns Asset Stacked Securities I LLC Asset Backed 

Certificates, Series 2004-HE5”. The report does not suggest whether such an action 

was right or wrong. 
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{¶43} Consequently, considering all the above the motion for relief from 

judgment was not filed within a reasonable time. Thus, as the third GTE requirement 

was not met, the trial court did not abuse its discretion in denying the Civ.R. 60 

motion. Rose Chevrolet, Inc., 36 Ohio St.3d at 20, 520 N.E.2d 564 (1988) (stating 

that the trial court should overrule a Civ.R. 60(B) motion if the movant fails to meet 

any one of the foregoing three requirements). Therefore, this assignment of error 

lacks merit.

CONCLUSION

{¶44} The trial court’s January 12, 2007 order of foreclosure is a final 

appealable order. The first assignment of error lacks merit because reconsideration 

of a final trial court order is a nullity. The second assignment of error also lacks merit 

because the Civ.R. 60(B) motion was not made within a reasonable time. Therefore, 

the trial court’s decisions to deny the motion for reconsideration and Civ.R. 60(B) 

motion to vacate are hereby affirmed. 

Waite, P.J., concurs. 

DeGenaro, J., concurs. 

APPROVED: 

_____________________________ 

JOSEPH J. VUKOVICH, JUDGE