U.S. Bank Trust Nat'l Ass'n v. Janossy
U.S. Bank Trust Nat'l Ass'n v. Janossy
Opinion of the Court
*669{¶ 1} Ferenc and Agnes Janossy appeal the decree of foreclosure entered against their interest in a property located in Cleveland Heights, Ohio. We dismiss the appeal.
{¶ 2} The Janossys executed a promissory note in the amount of $96,224 in order to purchase a residential property. The property was encumbered by a recorded mortgage. Both the note and mortgage were assigned to various entities, ending with U.S. Bank Trust National Association ("U.S. Bank"). Sometime in 2015, the Janossys defaulted on the note; but before U.S. Bank initiated foreclosure proceedings, Agnes filed a breach of contract and quiet title action, claiming that U.S. Bank breached the terms of the promissory note and title to the property should be in the Janossys' name.
{¶ 3} U.S. Bank initiated the foreclosure proceeding, and the two cases were consolidated. The magistrate in the civil action granted U.S. Bank's motion to dismiss several months before the trial court entered a decision in the foreclosure proceeding.
{¶ 4} In the foreclosure proceeding, the trial court granted judgment on the note and mortgage in favor of U.S. Bank upon an unopposed motion filed under Civ.R. 56. Although the Janossys were granted a stay of execution from the decree of foreclosure, which was certified as final under Civ.R. 54(B) for the purposes of this appeal, no bond was posted in order to obtain the stay. The sale of the property proceeded, and the $48,000 purchase price was confirmed.
{¶ 5} In the appellate briefing, the Janossys claim the trial court erred with respect to granting the decree of foreclosure on their property, which was used as indemnification to partially satisfy the judgment entered upon the note,
{¶ 6} Under Loc. App.R. 3(B)(2) of the Eighth District Court of Appeals, a party is required to file one notice of appeal from a judgment entered in cases consolidated in the trial court, but that notice of appeal must list all consolidated case numbers. The act of consolidating cases is a procedural tool advancing judicial efficiency, but consolidation does not merge the two cases. State ex rel. Shumaker v. Nichols ,
{¶ 7} With respect to the foreclosure action, it has generally been concluded that an appeal from a decree of foreclosure is moot in instances where the debtors fail to obtain a stay from the distribution of proceeds or the confirmation of sale by posting the required bond. Provident Funding Assocs., L.P. v. Turner , 8th Dist. Cuyahoga No. 100153,
"Where the court rendering judgment has jurisdiction of the subject-matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment."
Blodgett v. Blodgett ,
{¶ 8} The Janossys were granted a stay of execution on the foreclosure decree, but failed to post the required bond to prevent the sale or the distribution of the proceeds, and therefore, their appeal is moot. Turner ; Blisswood Village ; Cooper v. Westerville , 5th Dist. Delaware No. 13 CAE 02 0011,
{¶ 9} In accordance with the weight of authority from this district, the appeal is dismissed. See, e.g., *671Wells Fargo Bank N.A. v. Cuevas , 8th Dist. Cuyahoga No. 99921,
{¶ 10} Despite our disposition, we acknowledge that some courts have concluded that an appeal from the judgment of foreclosure is viable despite the failure to obtain a stay of the confirmation of the sale or the distribution of the proceeds by posting the required bond. See, e.g., Ditech Fin. L.L.C. v. McCurry, 8th Dist. Cuyahoga No. 105005,
{¶ 11} Asterino-Starcher concluded that posting the required bond was unnecessary for the purposes of determining whether the debtor was voluntarily satisfying the judgment under the mootness doctrine. Id. at ¶ 16, citing U.S. Bank Natl. Assn. v. Mobile Assocs. Natl. Network Sys., Inc. ,
{¶ 12} Further, Asterino-Starcher reiterated the Tenth District's conclusion that R.C. 2329.45 fashions a remedy for debtors following the irrevocable sale of the property irrespective of the stay issue. " R.C. 2329.45 expressly provides for recovery in restitution in the event of reversal of the foreclosure judgment" following the distribution of proceeds of the sale.
{¶ 13} In Turner , this same principle was recognized, but with the added caveat that a stay of the distribution of proceeds must first be obtained for a defendant to avail himself of R.C. 2329.45. Turner , 8th Dist. Cuyahoga No. 100153,
{¶ 14} In addition, and despite the similarities, we cannot read McCurry in accordance with Asterino-Starcher . McCurry is a narrow exception to the general concept applied in Turner and Blisswood Village, 8th Dist. Cuyahoga Nos. 105312 and 105575,
*672
{¶ 15} If the distribution of the proceeds following the sale of the property has not occurred, in other words, the judgment creditor has not successfully collected on the money judgment, there is no satisfaction of the judgment for the purposes of the mootness doctrine. Thus, the situation in which the proceeds of sale have not been distributed at the time of the foreclosure appeal ( McCurry ), is no different from the situation in which the debtor obtains a stay to prevent the distribution ( Turner and Blisswood Village ) . In both cases, the mootness doctrine would not apply because there was no voluntary satisfaction of the judgment debt.
{¶ 16} In this case, the distribution of the proceeds has occurred, and therefore, the limited exception from McCurry is inapplicable. Further, the Janossys have not challenged U.S. Bank's contention that the appeal is moot, nor have they provided any analysis for us to conclude otherwise. App.R. 16(A)(7) ; Cooper , 5th Dist. Delaware No. 13 CAE 02 0011,
{¶ 17} We also acknowledge division among Ohio courts on whether R.C. 2329.45 authorizes a remedy after the property has been sold and the proceeds have been distributed for the purposes of resolving the mootness inquiry. Turner , 8th Dist. Cuyahoga No. 100153,
{¶ 18} And finally, we are compelled to note the extremely limited nature of the arguments presented for appellate review. The judgment entered in favor of U.S. Bank under Civ.R. 56 was unopposed, and the Janossys failed to file objections to the magistrate's decision. Under Civ.R. 53(D)(3)(b)(iv), the Janossys waived all but plain error; but beyond that, appellate courts do not consider arguments raised for the first time on appeal because the trial court was never afforded the opportunity to consider the arguments. Roper v. Univ. of Cincinnati Med. Ctr. , 1st Dist. Hamilton No. C-170106,
{¶ 19} In light of the foregoing, the issues presented for review with respect to the decree of foreclosure are moot. The appeal is dismissed.
MARY EILEEN KILBANE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR
Janossy v. U.S. Bank Natl. Assoc. Individually & as alleged Owner Trustee for Queen's Park Oval Asset Holding Trust, Cuyahoga C.P. No. CV-16-864523.
U.S. Bank's motion to supplement the record with the postdispositive proceedings in the underlying action is unopposed and granted.
Mid Am. Mtge., Inc. v. Scott , 8th Dist. Cuyahoga No. 106099,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.