[Cite as Hughes v. Deutsche Bank Natl. Trust Co., 2018-Ohio-1041.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

DEUTSCHE BANK NATIONAL TRUST 

COMPANY 

 Appellee 

 v. 

STEVEN R. HUGHES, et al. 

 Appellants 

C.A. No. 28454 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV 2014-06-2844 

DECISION AND JOURNAL ENTRY 

Dated: March 21, 2018 

 

CARR, Presiding Judge. 

{¶1} Appellants, Steven and Ann Hughes, appeal the judgment of the Summit County 

Court of Common Pleas. This Court affirms. 

I. 

{¶2} On June 13, 2014, Deutsche Bank Nat’l Trust Co. (“Deutsche Bank”) filed a 

foreclosure action against Steven and Ann Hughes (“the Homeowners”) in the Summit County 

Court of Common Pleas. The action concerned the property located at 491 Wyoga Lake Blvd., 

Stow, Ohio. After the passage of several months, the Homeowners filed a pro se motion for 

leave to plead by September 12, 2014. Significantly, the Homeowners did not file an answer by 

that date. On September 23, 2014, Deutsche Bank filed a motion for default judgment on the 

basis that the Homeowners had failed to file a responsive pleading. Later that same day, the 

Homeowners, through counsel, filed a motion to dismiss on the basis that Deutsche Bank’s 

claims were barred pursuant to the double dismissal rule under Civ.R. 41(A). Deutsche Bank 
2 

 

filed a brief in opposition to the motion to dismiss. On October 2, 2014, the trial court issued a 

journal entry granting the motion for default judgment. The trial court issued a separate entry 

denying the motion to dismiss the same day. 

{¶3} On January 5, 2015, the Homeowners filed a combined motion to set aside the 

default judgment pursuant to Civ.R. 60(B) and motion for leave to plead instanter. The trial 

court denied the combined motion and ordered that the answer be stricken from the record. 

{¶4} The trial court later issued a nunc pro tunc entry that amended its October 2, 

2014 entry in regard to the amount due under the promissory note in accordance with the first 

count in the complaint. While the case was subsequently stayed for a brief period of time due to 

bankruptcy proceedings, the trial court issued an order vacating the stay on October 28, 2015. 

{¶5} Almost a year later, on October 25, 2016, the Homeowners filed a motion to set 

aside the decree of foreclosure on the basis that it was void due to Deutsche Bank’s failure to 

comply with federal law. In the alternative, the Homeowners moved the trial court to vacate the 

judgment pursuant to Civ.R. 60(B). The Homeowners also requested a hearing on their motion. 

Deutsche Bank filed a brief in opposition to the motion. The trial court denied the motion 

without a hearing. 

{¶6} The Homeowners filed a timely notice of appeal to this Court. On appeal, the 

Homeowners raise one assignment of error. 

II. 

ASSIGNMENT OF ERROR 

THE RECORD IS CLEAR AND CONVINCING THAT THE TRIAL COURT 

ERRED TO THE PREJUDICE OF APPELLANTS BY DENYING THE CIVIL 

RULE 60(B) MOTION TO SET ASIDE DECREE OF FORECLOSURE AS THE 

APPELLEE FAILED TO PROVE THE JURISDICTIONAL REQUIREMENT 

THAT ALL CONDITIONS PRECEDENT MANDATED BY THE NATIONAL 

HOUSING ACT OF 1934 (12 U.S.C. 1701 ET SEQ.) AND 42 U.S.C. 3534(A). 
3 

 

{¶7} In their sole assignment of error, the Homeowners argue that the trial court erred 

in denying their motion to vacate judgment because Deutsche Bank failed to demonstrate that it 

complied with the conditions precedent set forth in the National Housing Act prior to filing the 

action. This Court disagrees. 

{¶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). 

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} Civ.R. 60(B) states, in relevant part: 

On 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 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 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 or taken. 

{¶10} To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party 

must demonstrate that: 

(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. 
4 

 

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph 

two of the syllabus. 

{¶11} “The requirements of Civ.R. 60(B) are stated in the conjunctive; if one of the 

requirements [is] not met, relief from judgment cannot be granted.” Wolotsky v. Portage Path 

Community Mental Health Ctr., 9th Dist. Summit No. 16827, 1995 Ohio App. LEXIS 1544, *5-6 

(Apr. 12, 1995), citing Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994). 

{¶12} Prior to addressing the merits of a motion for relief from judgment, the trial court 

must determine if the motion is properly before the court. Thompson v. Summit Pain Specialists, 

Inc., 9th Dist. Summit Nos. 27635, 27638, 2016-Ohio-7030, ¶ 16. It is well-settled 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); Harris v. Anderson, 109 Ohio St.3d 101, 2006-

Ohio-1934, ¶ 9. “If the grounds for a party’s relief cannot satisfy the Civ.R. 60(B) language, ‘the 

argument is one properly reserved for a direct appeal.’” Summit Pain Specialists at ¶ 16, quoting 

Teamsters Local Union No. 507 v. Nasco Industries, Inc., 9th Dist. Medina No. 3064-M, 2000 

Ohio App. LEXIS 5438, *6 (Nov. 22, 2000). 

DISCUSSION 

{¶13} The Homeowners raise two arguments in support of their position that the trial 

court erred by denying their motion to vacate. Initially, the Homeowners contend that the 

underlying judgment in this case is void because Deutsche Bank failed to comply with several 

conditions precedent prior to initiating the foreclosure action. Specifically, the Homeowners 

argue that because Deutsche Bank failed to conform with regulations set forth by the U.S. 

Department of Housing and Urban Development (“H.U.D.”), the trial court was without subject 

matter jurisdiction to enter judgment in this case. In the alternative, the Homeowners maintain 
5 

 

that even if Deutsche Bank’s failure to comply with the H.U.D. regulations did not render the 

judgment void, the trial court nevertheless erred by denying their motion to vacate because they 

satisfied the requirements of Civ.R. 60(B). 

{¶14} The Homeowners’ jurisdictional argument is without merit. “A motion for relief 

from a void judgment is often used by a defendant who did not timely appeal the default 

judgment but wishes to have that judgment declared void later without resorting to the 

requirements of Civ.R. 60(B).” U.S. Bank v. Metzger, 7th Dist. Mahoning No. 14 MA 63, 2015-

Ohio-839, ¶ 14. With respect to jurisdiction, the Supreme Court has observed that “[t]he general 

term ‘jurisdiction’ can be used to connote several distinct concepts, including jurisdiction over 

the subject matter, jurisdiction over the person, and jurisdiction over a particular case. * * * 

Subject-matter jurisdiction is the power of a court to entertain and adjudicate a particular class of 

cases. * * * A court’s jurisdiction over a particular case refers to the court’s authority to 

proceed or rule on a case that is within the court’s subject-matter jurisdiction. * * * If a court 

possesses subject-matter jurisdiction, any error in the invocation or exercise of jurisdiction over a 

particular case causes a judgment to be voidable rather than void.” (Internal citations omitted.) 

Bank of America v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 18-19. While the 

Homeowners suggest that the trial court lacked subject matter jurisdiction over this matter, the 

Supreme Court of Ohio has “long held that actions in foreclosure are within the subject matter 

jurisdiction of a court of common pleas.” Kuchta at ¶ 20, citing Robinson v. Williams, 62 Ohio 

St. 401, 408 (1990). To the extent that the Homeowners argue that the trial court lacked 

jurisdiction over this particular case – the jurisdictional category that involves consideration of 

the rights of the parties – we note that “any error in the invocation or exercise of jurisdiction over 

a particular case causes a judgment to be voidable rather than void.” Kuchta at ¶ 19, citing 
6 

 

Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 12. It follows that the Homeowners 

cannot prevail on their claim that Deutsche Bank’s alleged failure to comply with federal 

regulations rendered the decree of foreclosure void. 

{¶15} The Homeowners’ Civ.R. 60(B) argument is also without merit. As noted above, 

a party cannot use a motion for relief from judgment under Civ.R. 60(B) as a substitute for a 

timely appeal. Key, 81 Ohio St.3d at 90-91; Kuchta at ¶ 16. While the issues raised in the 

Homeowners’ Civ.R. 60(B) motion could have been raised on direct appeal, the Homeowners 

did not file an appeal from the October 2, 2014 judgment entry. Civ.R. 60(B) “does not exist to 

allow a party to obtain relief from his or her own choice to forgo an appeal from an adverse 

decision.” Kutcha at ¶ 15, citing Ackerman v. United States, 340 U.S. 193, 198 (1950). Under 

these circumstances, the Homeowners are now barred from litigating issues in a Civ.R. 60(B) 

motion that could have been raised on appeal. Id. 

{¶16} The assignment of error is overruled. 

III. 

{¶17} The Homeowners’ assignment of error is overruled. The judgment of the Summit 

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 Summit, 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. 
7 

 

 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 

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 Appellants. 

 

 DONNA J. CARR 

 FOR THE COURT 

TEODOSIO, J. 

CALLAHAN, J. 

CONCUR. 

APPEARANCES: 

STEVEN AND ANN HUGHES, pro se, Appellants. 

KIMBERLY SMITH RIVERA, Attorney at Law, for Appellee.