[Cite as OCWEN Loan Servicing v. Prater, 2012-Ohio-4879.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

OCWEN LOAN SERVICING, LLC, 

 PLAINTIFF-APPELLEE, CASE NO. 9-12-23 

 v. 

JAMES PRATER, AKA 

JIM PRATER, ET AL., O P I N I O N 

 DEFENDANTS-APPELLANTS. 

 

Appeal from Marion County Common Pleas Court 

Trial Court No. 2011 CV 0577 

Appeal Dismissed 

Date of Decision: October 22, 2012 

 

APPEARANCES: 

Brian K. Duncan and Bryan D. Thomas for Appellants 

David M. Gauntner and Antonio J. Scarlato for Appellee 
Case No. 9-12-23 

-2- 

SHAW, P.J. 

{¶1} Defendants-appellants, James and Deborah Prater (collectively 

referred to as the “Praters”), appeal the January 10, 2012 judgment of the Marion 

County Court of Common Pleas granting the motion for default judgment filed by 

plaintiff-appellee, Ocwen Loan Servicing, LLC (“Ocwen”), and ordering the 

foreclosure and sale of the property on which the Praters had executed a mortgage. 

{¶2} On August 22, 2011, Ocwen filed a complaint for foreclosure alleging 

the Praters to be in default on a mortgage they executed to purchase the property 

located at 816 Catalina Drive in Marion, Ohio. 

{¶3} On October 21, 2011, the Praters were successfully served with notice 

of the complaint. 

{¶4} On December 27, 2011, Ocwen filed a motion for default judgment. 

{¶5} On January 10, 2012, the trial court granted Ocwen’s motion for 

default judgment and ordered the foreclosure and sale of the property, which was 

scheduled to take place on May 18, 2012. However, the Clerk of Courts did not 

serve notice of the judgment on the parties pursuant to Civ.R. 58(B) until March 

15, 2012, which then began the time for appeal. See App.R. 4(A). 

{¶6} On March 26, 2012, counsel for the Praters filed a notice of 

appearance. 
Case No. 9-12-23 

-3- 

{¶7} On April 13, 2012, the Praters filed “Defendants’, James Prater and 

Deborah Prater, Combined Motion To Vacate This Court’s January 10, 2012 

Judgment Entry; Motion For Leave To Respond Or Plead To Plaintiff’s 

Complaint; and Motion For Stay Of Post Judgment Proceedings, Including But 

Not Limited To, The Sheriff’s Sale Set For Friday, May 18, 2012,” (referred to as 

“motion to vacate judgment”). In an attached memorandum, the Praters asserted 

that they were entitled to relief from judgment on the grounds enumerated in 

Civ.R. 60(B)(1) and (5). The Praters also requested that the trial court stay all 

post-judgment proceedings until the trial court ruled on their motion to vacate 

judgment. 

{¶8} On April 16, 2012, three days after filing their motion to vacate 

judgment, the Praters filed their notice of appeal in this case. The Praters attached 

to their notice of appeal the trial court’s January 10, 2012 judgment granting 

Ocwen’s motion for default judgment and ordering the foreclosure and sale of the 

property. 

{¶9} On April 26, 2012, the Clerk of Courts certified the record for our 

consideration on appeal. 

{¶10} The following assignments of error are now asserted by the Praters. 
Case No. 9-12-23 

-4- 

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED WHEN IT FAILED TO 

VACATE ITS JANUARY 10, 2012 JUDGMENT ENTRY 

BASED ON CIV.R. 60(B)(1) AND/OR (5), AS DEFENDANTS 

FILED THEIR MOTION TO VACATE ON APRIL 13, 2012. 

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED WHEN IT FAILED TO 

VACATE ITS JANUARY 10, 2012 JUDGMENT ENTRY 

PURSUANT TO THE TRIAL COURT’S POLICY AND 

“LONGSTANDING PRACTICE” WITH RESPECT TO 

ADJUDICATING MATTERS ON THEIR MERITS AS 

OPPOSED TO PROCEDURAL DEFECTS. 

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ABUSED ITS DISCRETION BY 

FAILING TO CONDUCT AN EVIDENTIARY HEARING ON 

DEFENDANTS’ MOTION TO VACATE FILED ON APRIL 

13, 2012. 

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ABUSED ITS DISCRETION BY 

FAILING TO ADDRESS, OR EVEN CONSIDER, 

ALLEGATIONS OF OPERATIVE FACTS WHICH 

DEMONSTRATE THAT DEFENDANTS WERE ENTITLED 

TO RELIEF UNDER CIV.R. 60(B) AND NOT ISSUING A 

JUDGMENT ENTRY ON DEFENDANTS’ MOTION TO 

VACATE FILED ON APRIL 13, 2012. 

First, Second, Third and Fourth Assignments of Error

{¶11} On appeal, the Praters’ assignments of error pertain to the trial 

court’s handling of their motion to vacate judgment. However, the docket reflects 
Case No. 9-12-23 

-5- 

that the trial court has not yet ruled on this motion. The notice of appeal filed in 

this case only references the trial court’s January 10, 2012 default judgment. 

Thus, the trial court’s judgment entry granting default judgment is the only 

judgment properly before us on appeal. Nevertheless, the Praters have not 

assigned any error to that judgment. The failure to provide any assignment of 

error relating to the judgment on appeal as required by App.R. 16(A)(3) is grounds 

for dismissal. See App.R. 12(A)(2); see also State v. Lovell, 157 Ohio App.3d 

227, 232, 2004-Ohio-2617, ¶ 17 (3d Dist. 2004). 

{¶12} Moreover, the filing of a notice of appeal deprives the trial court of 

jurisdiction to consider Civ.R. 60(B) motions for relief from judgment. Howard v. 

Catholic Soc. Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141 (1994). Jurisdiction 

may be conferred on the trial court only through an order by the reviewing court 

remanding the matter for consideration of the Civ.R. 60(B) motion. Id. No such 

remand was requested by the Praters in this case. Therefore, the trial court was 

divested of jurisdiction to rule on the Praters’ motion to vacate judgment because 

they filed their notice of appeal a mere three days after they filed the motion. 

Consequently, the trial court no longer retained jurisdiction to rule on the Praters’ 

motion to vacate judgment. Thus, the assignments of error raised by the Praters’ 

regarding this motion are premature and not ripe for our review. 
Case No. 9-12-23 

-6- 

{¶13} Accordingly, for all these reasons we are unable to find any grounds 

upon which an appellate decision can be issued regarding this matter and the 

appeal is therefore dismissed. 

 Appeal Dismissed

PRESTON and ROGERS, J.J., concur. 

/jlr