[Cite as Bank of New York Mellon Trust Co. v. Unknown Successor Trustee(s) of the Talmage, 2024-Ohio2457.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

BANK OF NEW YORK MELLON :

TRUST COMPANY, N.A.,

:

Plaintiff-Appellant,

: No. 113081 

v.

:

UNKNOWN SUCCESSOR TRUSTEE(S)

OF THE TALMAGE, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED, VACATED, AND REMANDED

RELEASED AND JOURNALIZED: June 27, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-952023

Appearances:

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, 

and Brian S. Jackson, for appellant. 

Carson Law Firm LLC, and Christian E. Carson, for 

appellee Jean Hribar, Co-Trustee of the Talmage Family

Trust. 

LISA B. FORBES, J.:

Bank of New York Mellon Trust Company, N.A. as Trustee for 

Mortgage Assets Management Series I Trust (“BONY”) appeals the trial court’s entry 
granting in part and denying in part its Civ.R. 60(B) motion for relief from 

judgment. After reviewing the facts of the case and the pertinent law, we reverse the 

trial court’s decision. 

I. Facts and Procedural History

On August 23, 2021, BONY filed a complaint for foreclosure, in rem, 

against a property located at 1409 Zaremba Dr., Brook Park, Ohio 44142 (the 

“Property”), alleging that it was due “the principal balance of $89,963.20, plus 

interest, as of July 3, 2021.” BONY further alleged that based on the terms of the 

note “all advances are added to the loan balance . . . . [A]s such, the principal balance 

continues to grow due to monthly servicing fees, mortgage insurance premiums, and 

other costs set forth under the terms of the note and mortgage.”

BONY filed for default judgment on January 4, 2022. The same day, 

BONY separately filed an affidavit of Carlene Reid (“Reid Affidavit”). The Reid

Affidavit stated that the total amount due upon the note and mortgage was 

$137,531.63, which included “corporate loan advances” totaling $14,693.84. On 

March 10, 2022, the trial court granted BONY default judgment (the “Foreclosure 

Order”) and found, in pertinent part, as follows:

Judgment is rendered in favor of [BONY] in the sum of $137,531.63, as 

of November 30, 2021, plus interest, court costs, advances, and other 

charges allowed by the Note, Mortgage, and Ohio Law. 

. . .

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there 

may be due [BONY] additional sums advanced by it under the terms of 

the note and mortgage to pay real estate taxes, hazard insurance 
premiums, and property protection, which sums are to be determined 

by further Order. 

. . .

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if a 

successful sale occurs, the parties are ordered to file any motions for 

reimbursement of advances pursuant to R.C. §5301.233 within 21 days 

from the sale. A party may move the court to extend this deadline for 

good cause shown. No party will be granted reimbursement for 

advances if such a motion is not filed before this deadline.

The Property sold on May 3, 2022, for $173,700.00. The trial court 

journalized a confirmation entry (the “Confirmation Entry”) on May 17, 2022.

On December 20, 2022, BONY filed a motion to amend the trial 

court’s May 17, 2022 Confirmation Entry pursuant to Civ.R. 60(B). In its motion, 

BONY requested additional advances and interest totaling $142,252.87. 

On June 5, 2023, the magistrate issued a decision granting in part and 

denying in part BONY’s Civ.R. 60(B) motion. The magistrate’s decision stated that 

BONY’s “advances will not be included in any distribution of funds it may receive as 

[BONY] failed to timely apply to the Court for reimbursement of its advances” per 

the trial court’s Foreclosure Order. The magistrate ordered “the Cuyahoga County 

Sheriff [to] distribute proceeds he currently holds, in the sum of $109,922.22.” In 

doing so the magistrate awarded BONY a lesser amount than what the trial court 

had awarded in its earlier Foreclosure Order. 

BONY filed timely objections to the magistrate’s decision, arguing the 

magistrate erred when it decreased the amount BONY was previously awarded in 

the Foreclosure Order. 
The trial court overruled BONY’s objections and adopted the 

magistrate’s decision on July 13, 2023. In its journal entry, the court found that 

BONY’s “motion to amend confirmation entry . . . sought to have the court’s May 17, 

2022 confirmation decree amended to reflect amounts advanced by [BONY] before 

and during this case. Plaintiff’s request for advances was, however, untimely,” citing 

Fid. Bank, N.A. v. Unknown Heirs at Law, 2023-Ohio-611, ¶ 4 (8th Dist.).

It is from this order that BONY appeals, raising the following 

assignment of error:

The Trial Court erred in the Judgment Entry Overruling Plaintiff’s 

Objections To, And Adopting Magistrate’s Decision On, Plaintiff’s 

Motion to Amend Confirmation Entry Pursuant to Civ.R. 60(B) by 

improperly removing advances from the in rem judgment granted in 

favor of Appellant in the Order and Entry Adopting Magistrate’s 

Decision entered on March 10, 2022.

II. Law and Analysis

A. Trial Court’s Improperly Amended Foreclosure Entry 

On appeal, BONY argues that the trial court erred when it

“improperly amended the [Foreclosure Entry] to prohibit any distribution of 

advancements for which judgment had already been entered.” We agree. 

A trial court may not modify a final order without a source of 

jurisdiction. Maxwell v. Univ. Hosps. Health Sys., 2016-Ohio-7401, ¶ 5 (8th Dist.). 

“As a general rule, a trial court has no authority to vacate or modify its final orders 

sua sponte.” N. Shore Auto Fin., Inc. v. Valentine, 2008-Ohio-4611, ¶ 12 (8th Dist.). 

Since the adoption of the Civil Rules, Civ.R. 60(B) provides the exclusive means for 
a trial court to vacate or modify a final judgment. Dickerson v. Cleveland Metro. 

Hous. Auth., 2011-Ohio-6437, ¶ 7 (8th Dist.). 

This court has held that a trial court commits error when it sua sponte 

vacates or modifies its own final orders when there is no evidence that the judgment 

was void or subject to a Civ.R. 60(B) order. Chomor v. Euclid Clinic Found., 1992 

Ohio App. LEXIS 1756, *4-5 (8th Dist. Apr. 2, 1992), citing Dickerson at ¶ 7. See 

also Perozeni v. Perozeni, 2023-Ohio-1140, ¶ 17 (8th Dist.).

In BAC Home Loans Servicing, LP v. Henderson, 2013-Ohio-275, 

¶ 10-11 (8th Dist.), this court held that because neither party filed a Civ.R. 60(B) 

motion for relief from judgment nor asked the court to vacate any provision from 

the court's judgment, the trial court erred by sua sponte vacating its judgment of 

foreclosure. Similarly, in In re D.R.M., 2012-Ohio-5422, ¶ 8 (8th Dist.), this court 

held that neither party filed a Civ.R. 60(B) motion for relief from judgment nor 

asked the court to vacate any provision of the court’s judgment and, as such, the trial 

court erred by sua sponte vacating its judgment. 

In this case, the trial court’s Foreclosure Entry was a final judgment

that ordered $137,531.63 be distributed to BONY from the foreclosure sale. The 

Foreclosure Entry is itself a final appealable order. Fid. Bank, N.A., 2023-Ohio-611,

at ¶ 9 (8th Dist.), citing CitiMortgage, Inc. v. Roznowski, 2014-Ohio-1984, ¶ 39 

(“Once the order of foreclosure is final and the appeals process has been completed, 

all rights and responsibilities of the parties have been determined and can no longer 

be challenged.”). Neither party argued and there is no evidence or indication from 
the record that the Foreclosure Entry is void. Further, no one appealed the 

Foreclosure Entry. 

Similarly, no party filed a Civ.R. 60(B) motion to modify the 

Foreclosure Entry. BONY’s Civ.R.60(B) motion specifically requested modification

only of the court’s Confirmation Entry. Here, the trial court granted in part BONY’s 

Civ.R. 60(B) motion and then sua sponte modified its Foreclosure Entry to change

the amount awarded to BONY from the foreclosure sale from $137,531.63 to 

$109,922.22. Under these circumstances, the trial court was without authority to 

sua sponte modify its Foreclosure Entry to change the judgment awarded to BONY.

See Chomor, 1992 Ohio App. LEXIS 1756, at *4-5 (8th Dist.), citing Dickerson, 2011-

Ohio-6437, at ¶ 7 (8th Dist.).

Accordingly, we find that the trial court erred when it sua sponte 

modified its Foreclosure Entry to lower the judgment awarded to BONY. Chomor

at *4-5. The Foreclosure Entry was final and appealable once it was entered on 

May 17, 2022. Fid. Bank, N.A. at ¶ 9. Therefore, the court had no jurisdiction to 

modify the amount awarded to BONY pursuant to BONY’s 60(B) motion, which was 

the only requested modification of the trial court’s Confirmation Entry. In re 

D.R.M., 2012-Ohio-5422, at ¶ 8 (8th Dist.).

BONY’s assignment of error is sustained. 

Judgment reversed. Journal entry is vacated and case is remanded to

the trial court to issue a new journal entry consistent with this opinion.

It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

LISA B. FORBES, JUDGE

MARY EILEEN KILBANE, P.J., and

ANITA LASTER MAYS, J., CONCUR