[Cite as Bank of New York Mellon Trust Co., Natl. Assn. v. Loudermilk, 2014-Ohio-2546.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

THE BANK OF NEW YORK 

MELLON TRUST COMPANY, 

NATIONAL ASSOCIATION 

 Plaintiff-Appellee 

-vsCHARLES H. LOUDERMILK, 

DECEASED, ET AL. 

 Defendants-Appellants 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 13-CA-75 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of 

Appeals, Case No. 10 CV 106 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: June 12, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

AMELIA BOWER THOMAS JAMES CORBIN 

300 East Broad Street 842 North Columbus Street 

Suite 590 Lancaster, Ohio 43130 

Columbus, Ohio 43215 
Fairfield County, Case No. 13-CA-75 2

Hoffman, P.J. 

{¶1} Defendants-appellants Charles H. Loudermilk, Deceased, Et Al. 

(“Appellants") appeal the October 14, 2013 Entry entered by the Fairfield County Court 

of Common Pleas, which overruled their Motion for Relief from Judgment pursuant to 

Civ. R. 60(B). Plaintiff-appellee is The Bank of New York Mellon Trust Co. (“the Bank”). 

STATEMENT OF THE FACTS AND CASE 

{¶2} Charles Loudermilk (“Loudermilk”) purchased the real property known as 

4105 Lancaster–Chillicothe Road S.W., Lancaster, Ohio, in 1968. When he purchased 

the property, it consisted of 184 total acres. Loudermilk sold 80.5 acres to third parties 

in 1999, and conveyed another 14.3 acres to a third party in 2001. In October, 2001, 

Loudermilk mortgaged the remaining 89 acres to Washtenaw Mortgage (“Washtenaw”). 

He refinanced one year later with a mortgage to CIT Consumer Finance (“CIT 

Consumer”). With the funds from the CIT Consumer refinance, he paid off the 

Washtenaw mortgage. In December of 2004, Loudermilk had a survey performed to 

split off ten acres from the 89 acre parcel. The ten acre parcel (“the Parcel”) included 

the land on which Loudermilk's three-bedroom home was located. In January of 2005, 

Loudermilk refinanced with First Magnus Financial (“First Magnus”), securing the 

Parcel. Funds received from the First Magnus mortgage went to pay the CIT Consumer 

mortgage, taxes, credit card bills, and the costs of surveying the property. The 

description of the Parcel was prepared by a surveyor hired by Vantage Land Title, the 

title agency closing both the 2005 and 2006 transactions. 
Fairfield County, Case No. 13-CA-75 3

{¶3} Loudermilk again refinanced in May, 2006, executing a note in favor of 

LoanCity in the amount of $171,000. Loudermilk secured the note with a mortgage to 

Mortgage Electronic Registration Systems (“MERS”) as nominee for LoanCity. LoanCity 

subsequently endorsed the note in blank and transferred it to Residential Funding 

Corporation (“Residential Funding”). Residential Funding then endorsed the note in 

blank and transferred it to JPMorgan Chase Bank, N.A. (“JPMorgan Chase”) as 

Trustee for RAMP 2006RS5. Attached to the note is an allonge endorsing the note from 

JPMorgan Chase as Trustee for RAMP 2006RS5 to The Bank of New York Mellon Trust 

Co. (“the Bank”) as successor to JPMorgan Chase as Trustee for RAMP 2006RS5. At 

the time of the refinance, the lender appraised the Parcel. Loudermilk used the funds 

from the refinancing to pay off the 2005 mortgage and unsecured debt. The mortgage 

contained no legal description, but included the 4105 Lancaster–Chillicothe Road S.W., 

Lancaster, Ohio street address and the auditor's permanent parcel number. The 

mortgage was not recorded. At the closing, Loudermilk executed a quit-claim deed to 

split the Parcel from the remainder of the 89 acres. While the lot split was approved by 

the Fairfield County Engineer, the split was not concluded because the deed process 

was not finished. 

{¶4} Subsequent to the execution of the 2006 mortgage, Loudermilk conveyed 

22 acres to a third party, leaving a balance of approximately 67 acres. Loudermilk died 

intestate on December 22, 2008. On February 13, 2009, Dale Loudermilk was 

appointed administrator of Charles H. Loudermilk's estate. Dale Loudermilk previously 

lived in a mobile home on the property, but which was not part of the Parcel. After 

Loudermilk's death, Dale Loudermilk moved into the house located on the Parcel, which 
Fairfield County, Case No. 13-CA-75 4

had been mortgaged in 2005. Dale Loudermilk testified he had not paid the mortgage, 

real estate taxes, rent, or insurance on the property since moving into the house in 

2009. 

{¶5} Appellants defaulted under the terms of the note and mortgage and the 

Bank accelerated the debt. On January 27, 2010, the Bank filed a Complaint for 

Foreclosure against Loudermilk and Unknown Spouse of Charles H. Loudermilk; 

Thomas Corbin; Dale Loudermilk as heir of the Estate of Charles Loudermilk; Pamela 

Rupp as heir of the Estate of Charles Loudermilk; and Dale Loudermilk as Administrator 

of the Estate of Charles Loudermilk. Copies of the note, allonge to note, and mortgage 

were attached as exhibits to the Complaint. 

{¶6} The Bank filed a motion for summary judgment seeking foreclosure of the 

Parcel. Appellants filed a response and a motion for summary judgment. On May 15, 

2012, the trial court entered an order granting the Bank's motion for summary judgment. 

The trial court instructed the Bank to submit a foreclosure decree. Appellants filed an 

appeal of the trial court's May 15, 2012 judgment entry. This Court affirmed the trial 

court’s grant of summary judgment in favor of the Bank via Opinion and Entry filed June 

3, 2013. Bank of New York Mellon v. Loudermilk, 5th Dist. Fairfield No.2012–CA–30, 

2013–Ohio–2296, ¶ 43. Appellants filed a motion for reconsideration which this Court 

denied. The Ohio Supreme Court declined jurisdiction. 

{¶7} The Bank filed a Praecipe for Order of Sale on July 2, 2013. The property 

was appraised. After the appraisement was filed and the sale date set, Appellants 

moved the trial court to postpone the sale and requested a hearing on the issue of 

ingress and egress to the Parcel, which issue had come to light on June 26, 2013. The 
Fairfield County, Case No. 13-CA-75 5

trial court postponed the sale via entry dated September 6, 2013. On September 23, 

2013, Appellants filed a motion for relief from judgment. The trial court vacated the 

postponement of the sale on September 24, 2013. Via entry dated October 14, 2013, 

the trial court overruled Appellants' 60(B) motion. 

{¶8} It is from the October 14, 2013 judgment entry, Appellants prosecute this 

appeal, raising the following as alleged errors: 

{¶9} "I. THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S 

MOTION FOR RELIEF JUDGMENT PURSUANT TO CIVIL RULE 60(B). 

{¶10} "II. THE TRIAL COURT ERRED IN ORDERING THE APPELLANT TO 

REIMBURSE THE PLAINTIFF THE COSTS TO RE-ADVERTISE THE SUBJECT 

PREMISES FOR SALE." 

I 

{¶11} In the first assignment of error, Appellants maintain the trial court erred in 

failing to grant the Civ. R. 60(B) motion for relief from judgment. 

{¶12} Civ. R. 60(B) provides the basis upon which a party may obtain relief from 

judgment, and states in pertinent part: “On motion and upon such terms as are just, the 

court may relieve a party * * * from a final judgment, order or proceedings for the 

following reasons: (1) mistake, 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 judgment upon which it 

is based has been reversed or otherwise vacated, or it is no longer equitable that the 
Fairfield County, Case No. 13-CA-75 6

judgment should have prospective application; or (5) any other reason justifying relief 

from the judgment. The motion shall be made within a reasonable time, and for reasons 

(1), (2), and (3) not more than one year after the judgment, order, or proceeding was 

entered to taken.” 

{¶13} To prevail on a motion made pursuant to Civ.R. 60(B), the movant must 

demonstrate: (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 Electric, Inc. v. 

ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 150–151. Where timely relief is sought 

from a default judgment, and the movant has a meritorious defense, doubt should be 

resolved in favor of the motion to set aside the judgment so that cases may be decided 

on their merits. Id. at paragraph three of the syllabus. Our standard of review of a 

court's decision as to whether to grant a Civ. R. 60(B) motion is abuse of discretion. Id.

at 148, 351 N.E.2d 113. The GTE Automatic factors are “independent and conjunctive, 

not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App. No. 12–CA–86. 

“[F]ailing to meet one is fatal, for all three must be satisfied in order to gain relief.” Id. 

{¶14} For purposes of our review, we shall find, as the trial court did, Appellants' 

Civ. R. 60(B) motion was timely filed. We now must determine whether Appellants 

established a meritorious defense 

{¶15} Appellants submit the decree of foreclosure must be vacated as the result 

of the Ohio Department of Transportation “plac[ing] a condition upon its approval of the 
Fairfield County, Case No. 13-CA-75 7

subdivision.”1 Appellants contend, although ODOT permitted the subdivision, such 

approval was “only upon condition that access to the remaining acreage be through the 

said ten acre tract.” Defendant’s Motion for Relief from Judgment. We disagree. 

{¶16} We do not find ODOT’s statement, “No new points of access shall be 

given for this or future lot split” to be a condition for ODOT’s approval of the subdivision. 

ODOT expressly approved the split, but noted it would not allow any new points of 

access. Even if ODOT’s statement is a condition of approval, we do not find such 

requires vacation of the foreclosure decree. The fact the remainder of the Loudermilk 

property is left without access and the sale of the Parcel makes no provision for ingress 

and egress does not invalidate the mortgage or the Bank’s rights thereunder. 

Appellants have adequate remedies at law should access become an issue following 

the sale of the Parcel. 

{¶17} Appellants' first assignment of error is overruled. 

II 

{¶18} In the second assignment of error, Appellants contend the trial court erred 

in ordering them to reimburse the Bank the costs to re-advertise the subject premises 

for sale. 

 

1

 The splitting of the Parcel from the remaining acreage is considered a “subdivision” 

within the meaning of the Fairfield County Subdivision Regulations. Therefore, the Bank 

needed approval from the Regional Planning Commission in order to complete the 

process. The Regional Planning Commission was required to submit the proposed 

subdivision to the Ohio Department of Transportation because the subject property 

fronts a state highway. ODOT stated it had “no issues with lot split”, but noted, 

“however, both the split (10 acres) and the remainder (57.55 acres) utilize existing point 

of access as a shared point of access for both parcels.” ODOT then indicated, “No new 

points of access shall be given for this or future lot splits.” See, Exhibit “A”, Appellant’s 

Motion to Postpone Sale”. 
Fairfield County, Case No. 13-CA-75 8

{¶19} Civ.R. 54(D) permits a trial court to award a prevailing party the costs of 

litigating that party's claim, and provides: 

 Except when express provision therefore is made either in a statute 

or in these rules, costs shall be allowed to the prevailing party unless the 

court otherwise directs. 

{¶20} This rule gives the trial court broad discretion to assess costs, and the 

court's ruling will not be reversed absent an abuse of that discretion. Vance v. 

Roedersheimer, 64 Ohio St.3d 552, 597 N.E.2d 153 (1992). 

{¶21} Upon review of the record, we cannot say the trial court abused its 

discretion in ordering Appellants to pay costs associated with re-advertising the subject 

property for sale 

{¶22} Appellants' second assignment of error is overruled. 

{¶23} The judgment of the Fairfield County Court of Common Pleas is affirmed. 

By: Hoffman, P.J. 

Wise, J. and 

Delaney, J. concur