[Cite as Citimortgage, Inc. v. Lehner, 2014-Ohio-2859.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

CITIMORTGAGE, INC. 

 Appellee 

 v. 

CATHY LEHNER, et al. 

 Appellants 

C.A. No. 12CA0103-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF MEDINA, OHIO 

CASE No. 11CIV0522 

DECISION AND JOURNAL ENTRY

Dated: June 30, 2014 

 

CARR, Judge. 

{¶1} Appellant, Cathy Lehner, appeals from the judgment of the Medina County Court 

of Common Pleas. This court affirms. 

I. 

{¶2} On November 1, 2010, Cathy Lehner executed a note for $484,000 in favor of 

Citimortgage Inc., for the property located at 6760 Riverstyx Rd. in Montville Township, 

Medina County, Ohio. The note was secured by a mortgage. Lehner’s mortgage was assigned to 

Citimortgage on March 21, 2011, by Mortgage Electronic Registration Systems, Inc., as nominee 

for Citimortgage. The assignment was recorded on April 5, 2011. 

{¶3} Citimortgage filed this foreclosure action on March 30, 2011. The named 

defendants in the complaint were Cathy Lehner, John Doe, the unknown spouse of Cathy 

Lehner, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for 

Citimortgage, N.A., and the Medina County Treasurer. Citimortgage filed an amended 
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complaint, adding Dewayne A. Coltz as a defendant. The complaint alleged that all conditions 

precedent in the note and mortgage were satisfied. One of the conditions precedent required was 

notice of acceleration. However, no acceleration letter was attached to the complaint. After 

receiving an extension of time, Lehner filed a pro se answer. The answer denied that all 

conditions precedent were met. The trial court referred the matter to mediation. After mediation 

proved unsuccessful, the matter returned to the trial court’s docket. Subsequently, Citimortgage 

moved for summary judgment. 

{¶4} The trial court scheduled the plaintiff’s motion for summary judgment for a nonoral hearing. Lehner did not respond to the motion for summary judgment. The trial court 

granted summary judgment and issued a decree of foreclosure on November 1, 2011. Two days 

later, Lehner obtained counsel and filed a motion for extension of time to respond to the motion 

for summary judgment and a motion to return the issue to mediation. The trial court denied 

Lehner’s motion for extension of time, but it granted her motion to return the issue to mediation. 

{¶5} The second attempt at mediation was also unsuccessful, and the matter returned to 

the trial court’s docket. Lehner then filed a Civ. R. 60(B) motion to vacate the judgment. 

Citimortgage filed a memorandum in opposition to Lehner’s motion. With the trial court’s 

permission, both parties filed supplemental briefs. Citimortgage attached the affidavit of Gerry 

Cady to its supplemental brief. The affidavit included the acceleration letter Citimortgage sent to 

Lehner on January 3, 2011. On November 19, 2012, the trial court denied Lehner’s motion to 

vacate. Lehner filed a timely notice of appeal. 

II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY DENYING APPELLANT CATHY 

LEHNER’S 60(B) MOTION TO VACATE WITHOUT A HEARING WHEN 
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APPELLEE’S AFFIDAVIT FILED IN SUPPORT OF SUMMARY JUDGMENT 

DID NOT STATE THAT AN ACCELERATION NOTICE WAS MAILED, 

APPELLANT CATHY LEHNER FILED AN ANSWER DENYING ALL 

CONDITIONS PRECEDENT WERE MET BECAUSE NO ACCELERATION 

LETTER WAS SENT, APPELLEE’S OPPOSITION DID NOT INCLUDE AN 

AFFIDAVIT, AND APPELLEE’S SUBSEQUENT FILING OF AN 

AFFIDAVIT WITH ACCELERATION LETTER PRIOR TO THE NON-ORAL 

HEARING DID NOT ALLOW APPELLANT TIME TO REFUTE THIS 

ALLEGATION[.] 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY RELYING ON THE AFFIDAVIT OF 

GERRY CADY FILED IN SUPPORT OF APPELLEE’S SUPPLEMENTAL 

BRIEF OPPOSING APPELLANT’S MOTION TO VACATE BECAUSE THE 

AFFIDAVIT WAS NOT MADE UPON PERSONAL KNOWLEDGE[.] 

{¶6} In her first assignment of error, Lehner argues that the trial court erred by denying 

her motion for relief from judgment under Civ.R. 60(B) because Citimortgage failed to 

demonstrate that it had complied with a condition precedent upon which Citimortgage bore the 

initial burden of proof. In her second assignment of error, Lehner argues that the trial court erred 

by relying on the affidavit of Gerry Cady because the affidavit was not made upon personal 

knowledge. 

{¶7} “A judgment entry ordering a foreclosure sale is a final, appealable order pursuant 

to R.C. 2505.02(B) if it resolves all remaining issues involved in the foreclosure.” Mtge. Elec. 

Registration Sys., Inc. v. Green Tree Servicing, LLC, 9th Dist. Summit No. 23723, 2007-Ohio6295, ¶ 9. 

{¶8} “The decision to grant or deny a motion to vacate pursuant to Civ.R. 60(B) lies in 

the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.” 

Kowalski v. Smith, 9th Dist. Wayne No. 11CA0056, 2012-Ohio-2974, ¶ 9. An abuse of 

discretion is more than an error of judgment; it means that the trial court was unreasonable, 

arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 
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When applying the abuse of discretion standard, this Court may not substitute its judgment for 

that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). 

{¶9} Before a trial court can reach the merits of a motion for relief from judgment 

under Civ.R. 60(B), the court must determine if the motion is properly before the court. The 

Supreme Court of Ohio has held that a motion for relief from judgment under Civ.R. 60(B) 

cannot be used as a substitute for a timely appeal. Key v. Mitchell, 81 Ohio St.3d 89, 90-91 

(1998). This Court has recognized that “it is within the trial court’s discretion to deny a motion 

for relief from judgment that is based entirely upon issues that could have been raised on direct 

appeal.” Jizco Ents., Inc. v. Hehmeyer, 9th Dist. Summit No. 24803, 2010-Ohio-349, ¶ 9. “[I]f 

the grounds for relief cannot satisfy the Civ.R. 60(B) language, the argument is one properly 

reserved for a direct appeal.” Teamsters Local Union No. 507 v. Nasco Industries, Inc. 9th Dist. 

Medina No. 3064-M, 2000 WL 1729481, *2 (Nov. 22, 2000). 

{¶10} All claims in this matter were resolved in the final judgment entry on November 

1, 2011. Citimortgage raised two issues in its amended complaint. In the first count, 

Citimortgage alleged that it was the holder of a promissory note, and the balance of $483, 315.42 

plus interest was due because of Lehner’s default. The second count alleged that the promissory 

note was secured by a mortgage on the property. The decree of foreclosure addressed both of 

these issues. The trial court found that Lehner owed Citimortgage $483,315.42. The trial court 

further found that Lehner executed a mortgage securing the promissory note, and that the 

conditions in the mortgage were broken, entitling Citimortgage to redemption of the property. 

Because all claims were resolved, the decree of foreclosure was a final, appealable order. Thus, 

nothing prevented Lehner from making a direct appeal. Consequently, Lehner cannot raise 

issues that could have been raised on appeal in her motion filed pursuant to Civ.R. 60(B). “A 
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motion for relief from judgment is not a substitute for an appeal, and errors which could have 

been corrected by a timely appeal cannot be the predicate for a Civ.R. 60(B) motion for relief 

from judgment.” Ward v. Hengle, 134 Ohio App.3d 347, 350 (9th Dist.1999). 

{¶11} Because Lehner could have raised these issues on appeal, her Civ.R. 60(B) 

motion is an improper substitute for a timely appeal. The failure to demonstrate compliance with 

a condition precedent could have been raised in opposition to the motion for summary judgment. 

However, Lehner failed to respond to the motion for summary judgment. After failing to oppose 

the motion for summary judgment, Lehner failed to file a timely appeal. There were no 

substantive issues which could not have been raised on appeal. Accordingly, the assignments of 

error are overruled. 

III. 

{¶12} Lehner’s assignments of error are overruled. The judgment of the Medina County 

Court of Common Pleas is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Medina, State of 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 constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 DONNA J. CARR 

 FOR THE COURT 

HENSAL, P. J. 

MOORE, J. 

CONCUR.

APPEARANCES:

MARC E. DANN, and GRACE DOBERDRUK, Attorneys at Law, for Appellant. 

HARRY J. FINKE IV, Attorney at Law, for Appellee.