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Aurora Loan Servs., L.L.C. v. Phillips
Citation: 2012 Ohio 5377Docket: 12-CA-04
Court: Ohio Court of Appeals; November 14, 2012; Ohio; State Appellate Court
Original Court Document: View Document
Aurora Loan Services, LLC v. Phillips, 2012-Ohio-5377 is an appeal case from the Knox County Court of Common Pleas, where defendants Suzanna and Charles Phillips challenge the January 23, 2012 judgment denying their motion to vacate the confirmation of a sheriff’s sale of their property. The property in question is a 33.066-acre parcel located at 21543 Shadley Valley Road. Aurora Loan Services initiated foreclosure proceedings on November 17, 2008, while Farmers and Savings Bank asserted an interest in 4.299 acres of this parcel and filed a cross-claim for a $150,000 promissory note. Aurora agreed to release its mortgage on the 4.299 acres but intended to foreclose on the remaining land. The trial court granted a request for a survey to create a new legal description and subsequently issued a default judgment of foreclosure on May 28, 2010, after overruling the Phillips' motions for leave to plead and to dismiss for lack of standing. On the eve of the sheriff's sale, the Phillips filed an emergency motion to stay the sale, which was denied, and the sale was confirmed on October 27, 2010. The Phillips then filed a motion to vacate this confirmation, which led to an appeal. The appellate court affirmed the lower court’s judgment, concluding that issues related to the foreclosure process could not be raised in the appeal concerning the confirmation of the sale. The Phillips later argued that the property sold was different from the one under their mortgage, and that the court lacked in rem jurisdiction over it, but these contentions were opposed by Aurora. A motion for summary judgment was also filed by Farmers and Savings Bank on its cross-claim against the Phillips. On January 23, 2012, the trial court denied Appellants' motion to vacate the confirmation of a sheriff's sale, noting that the Tax Map Department had rejected the legal description attached to Appellee’s Complaint and approved a new description included with the sale documents. That same day, the court granted summary judgment in favor of Farmers and Savings Bank. Appellants appealed, asserting that the trial court erred by selling property not described in the foreclosure deed and failing to vacate the confirmation of the sheriff's sale, as the foreclosed property differed from that secured by the mortgage. The court highlighted that a decree of foreclosure is a final appealable order and that the Appellants did not appeal the initial foreclosure judgment. Their current appeal was based solely on the denial of their motion to vacate, which the court deemed barred by res judicata since the legal description issues could have been addressed in the previous confirmation appeal. The court found no prejudice to Appellants as the entire parcel was subject to foreclosure. Consequently, the Appellants' assignment of error was overruled, and the judgment of the Knox County Court of Common Pleas was affirmed, with costs assigned to the Appellants.