[Cite as US Bank Natl. Assn. v. Avery, 2015-Ohio-3908.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

US BANK NATIONAL ASSOCIATION : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : 

JOHN E. AVERY, ET AL. : Case No. 14CA89 

 : 

 Defendants-Appellants : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

 Pleas, Case No. 12CV0533 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: September 23, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

SCOTT A. KING DANIEL L. MCGOOKEY 

TERRY W. POSEY, JR. KATHRYN M. EYSTER 

10050 Innovation Drive 225 Meigs Street 

Suite 400 Sandusky, OH 44870 

Miamisburg, OH 45342 
Richland County, Case No. 14CA89 2 

Farmer, J. 

{¶1} On May 8, 2012, appellee, U.S. Bank National Association, as Trustee for 

Credit Suisse First Boston Mortgage Securities Corp., Home Equity Asset Trust 2006-2, 

Home Equity Pass-Through Certificates, Series 2006-2, filed a foreclosure complaint 

against appellants, John and Florine Avery, and others, for money due and owing on a 

mortgage secured by a note. Appellant John Avery had received a Chapter 7 discharge 

in bankruptcy; therefore, his personal liability on the note had been extinguished. 

{¶2} On March 19, 2013, appellee filed a motion for summary judgment, 

claiming genuine issues of material fact did not exist. By in rem judgment entry filed 

May 6, 2013, the trial court granted the motion and ordered foreclosure. 

{¶3} On August 21, 2014, appellants filed a Civ.R. 60(B) motion for relief from 

judgment, claiming appellee did not establish that it was entitled to enforce the 

mortgage and note and met the conditions precedent prior to filing the foreclosure 

complaint, and did not act equitably in the case. By order filed October 16, 2014, the 

trial court denied the motion, finding appellants did not raise any meritorious claims 

and/or defenses and the motion was not made within a reasonable time. 

{¶4} Appellants filed an appeal and this matter is now before this court for 

consideration. Assignment of error is as follows: 

I 

{¶5} "THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO 

PLAINTIFF." 
Richland County, Case No. 14CA89 3 

I 

{¶6} Appellants claim the trial court erred in denying their Civ.R. 60(B) motion 

for relief from judgment. We disagree. 

{¶7} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's 

sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987). In order to find an abuse 

of that discretion, we must determine the trial court's decision was unreasonable, 

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. 

Blakemore, 5 Ohio St.3d 217 (1983). Appellants based their Civ.R. 60(B) motion on 

"any other reason justifying relief from the judgment." Civ.R. 60(B)(5). In GTE 

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

of the syllabus, the Supreme Court of Ohio held the following: 

To prevail on a motion brought under Civ.R. 60(B), the movant 

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. 

{¶8} Appellants argue they have meritorious claims to present: 1) appellee 

failed to establish it was the holder of the mortgage and note, 2) appellee did not 

establish it met the conditions precedent to filing the foreclosure complaint, 3) appellee 
Richland County, Case No. 14CA89 4 

did not act in accordance with a consent judgment executed on April 4, 2012 in United 

States v. Bank of America Corporation, Case No. 12CV0361, United States District 

Court for the District of Columbia, and 4) justice and equity require relief from judgment 

because of appellee's actions pre-suit and post-judgment. 

{¶9} On March 19, 2013, appellee filed a motion for summary judgment with 

attached affidavits and assignments of mortgage and note. In their response filed April 

26, 2013, appellants alleged the amounts due were incorrect and included an affidavit of 

appellant John Avery. On May 6, 2013, the trial court granted the summary judgment 

motion and filed an in rem judgment entry and decree of foreclosure. 

{¶10} Appellants did not file an appeal of the trial court's May 6, 2013 judgment 

entry. Also, appellants' response to the summary judgment motion did not raise any of 

the issues argued in their Civ.R. 60(B) motion. 

{¶11} In Bank of America, N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 

the Supreme Court of Ohio reviewed the issue of whether a party could collaterally 

attack a foreclosure order by attacking the issue of standing via a Civ.R. 60(B) motion. 

In finding a Civ.R. 60(B) motion cannot be used as a substitute for a timely appeal, the 

court found the Kuchtas did not allege intrinsic fraud, and stated the following at ¶ 15-

16: 

Further, because the issue of standing could have been and in fact 

was raised during the foreclosure proceedings, res judicata prevents the 

Kuchtas from using the issue to establish entitlement to relief. Ohio's 

Civ.R. 60(B) is substantially equivalent to Fed.R.Civ.P. 60(b), which 
Richland County, Case No. 14CA89 5 

codified the centuries-old "rule of equity to the effect that under certain 

circumstances, one of which is after-discovered fraud, relief will be 

granted against judgments" regardless of their finality. Hazel-Atlas Glass 

Co. v. Hartford-Empire Co., 322 U.S. 238, 244, 64 S.Ct. 997, 88 L.Ed. 

1250 (1944). Civ.R. 60(B) exists to resolve injustices that are so great 

that they demand a departure from the strict constraints of res judicata. 

Id. However, the rule does not exist to allow a party to obtain relief from 

his or her own choice to forgo an appeal from an adverse decision. 

Ackerman v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95 L.Ed. 207 

(1950). 

It is well established that a Civ.R. 60(B) motion cannot be used as a 

substitute for an appeal and that the doctrine of res judicata applies to 

such a motion. Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 

846 N.E.2d 43, ¶ 8-9. In this case, the Kuchtas filed a Civ.R. 60(B) motion 

in order to relitigate an issue that they had raised at the start of litigation 

and which they failed to appeal. Thus, the doctrine of res judicata bars 

their attempted collateral attack against the judgment in foreclosure. 

{¶12} In its October 16, 2014 order denying the Civ.R. 60(B) motion, the trial 

court correctly concluded that the time to challenge appellee's standing or status as the 

holder of the mortgage and note and conditions precedent was at the motion for 

summary judgment. Appellants did not do so; therefore, Civ.R. 60(B) relief is not 

appropriate or warranted. 
Richland County, Case No. 14CA89 6 

{¶13} As for the consent judgment claim, we concur with the trial court's analysis 

that the consent judgment in not enforceable by third-parties and appellants were not 

parties to the consent judgment, and it was without jurisdiction to enforce the consent 

agreement. 

{¶14} Appellants also argue the facts sub judice cry for equitable relief. 

Specifically, in their August 21, 2014 Civ.R. 60(B) motion, appellants argued appellee's 

pre-suit and post-judgment actions require relief: 

In February 2011, the Averys were advised by the lender's 

representatives to quit paying so they could apply for loan modification 

after being 3 months behind. As a result of this representation, they quit 

paying on the loan. The Averys were further informed they would qualify 

for a loan modification. Shortly thereafter, the Averys were informed the 

investor would not allow a second loan modification (their loan had a 

previous loan modification). The lender continued to accept financials, 

informing the Averys that there were certain facts and circumstances that 

would allow an exception to the investor's guideline. 

*** 

In November 2013, the Averys were approved for $25,000 

reinstatement money as long as the Averys contributed an additional 

$47,200. The Averys pulled from retirement and sent to the HUD agency 

the amount of $47,200. This money was sent in a timely manner. The 

HUD agency attempted to send the reinstatement money to the lender 
Richland County, Case No. 14CA89 7 

prior to the expiration of the reinstatement quote but the lender increased 

the reinstatement amount by another $9,000, unexpectedly and without 

explanation. The Averys did not have another $9,000. As a result, Ohio's 

Save the Dream program sent $47,200 back to the Averys and closed the 

file. 

*** 

The lender has continued to ask for financials and then deny based 

upon the investor guideline. It was apparent after the last submission and 

denial that the lender has no intent to help borrowers. As a result, the 

Averys immediately sought counsel. 

{¶15} We find any pre-suit claims appellants had against appellee were 

extinguished by the failure to raise those defenses in their answer or at the motion for 

summary judgment. Although appellants' May 18, 2012 answer claimed appellee was 

barred from bringing suit because appellants were pursuing a workout agreement, this 

claim or any facts to substantiate it were not presented in the defense for summary 

judgment. Therefore, we conclude any pre-suit action is barred under the doctrine of 

res judicata and failure to appeal the May 6, 2013 judgment entry. 

{¶16} As for appellants' post-judgment claims, post-judgment attempts to settle 

may very well mitigate on the issue of timeliness of a Civ.R. 60 motion, but do not attack 

the legality or sufficiency of the judgment. The delay caused by the attempts to resolve 

this "in rem only" action afforded appellants additional opportunities to keep their 

property. These delays do not demonstrate that appellants' were prejudiced. 
Richland County, Case No. 14CA89 8 

{¶17} Upon review, we find the trial court did not err nor abuse its discretion in 

denying appellants' Civ.R. 60(B) motion for relief from judgment. 

{¶18} The sole assignment of error is denied. 

{¶19} The judgment of the Court of Common Pleas of Richland County, Ohio is 

hereby affirmed. 

By Farmer, J. 

Gwin, P.J. and 

Delaney, J. concur. 

 

 

 

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