Citizens Bank, N.A.
v.
David

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGASep 13, 2018
2018 Ohio 3676 (Ohio Ct. App. 2018)

No. 106575

09-13-2018

CITIZENS BANK, N.A., ETC. PLAINTIFF -APPELLEE v. ABRAHAM DAVID, ET AL. DEFENDANTS-APPELLEES [Appeal by Frederick Harris]

ATTORNEY FOR APPELLANT Antonio Nicholson 1220 West 6th Street, Suite 203 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE For Citizens Bank, N.A. Johna M. Bella Christopher F. Parker Goranson, Parker & Bella 405 Madison Avenue, Suite 2200 Toledo, Ohio 43604 For Cuyahoga County Clerk of Courts Michael C. O'Malley Cuyahoga County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Abraham David Abraham David, pro se 140 Jackson Drive Chagrin Falls, Ohio 44022 For First Merit Bank, N.A. Brian J. Green Shapero & Green L.L.C. Signature Square 11, Suite 220 25101 Chagrin Boulevard Beachwood, Ohio 44122 For Jane Doe and John Doe, Tenants Jane Doe and John Doe, pro se 23804 Cedar Road Beachwood, Ohio 44122


JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-15-855258 BEFORE: Keough, J., E.T. Gallagher, P.J., and S. Gallagher, J.

ATTORNEY FOR APPELLANT

Antonio Nicholson
1220 West 6th Street, Suite 203
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

For Citizens Bank, N.A. Johna M. Bella
Christopher F. Parker
Goranson, Parker & Bella
405 Madison Avenue, Suite 2200
Toledo, Ohio 43604

For Cuyahoga County Clerk of Courts

Michael C. O'Malley
Cuyahoga County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

For Abraham David

Abraham David, pro se
140 Jackson Drive
Chagrin Falls, Ohio 44022 For First Merit Bank, N.A. Brian J. Green
Shapero & Green L.L.C.
Signature Square 11, Suite 220
25101 Chagrin Boulevard
Beachwood, Ohio 44122 For Jane Doe and John Doe, Tenants Jane Doe and John Doe, pro se
23804 Cedar Road
Beachwood, Ohio 44122 KATHLEEN ANN KEOUGH, J.:

{¶1} Appellant Frederick Harris appeals the trial court's decision denying his motion to intervene. For the following reasons, we affirm.

{¶2} In 2006, Abraham David executed a home equity line of credit agreement that was secured by a mortgage on real property located on Cedar Road in Beachwood, Ohio. David defaulted on the credit line agreement when he stopped making payments. In December 2015, Citizens Bank filed a complaint against David seeking judgment on the balance due and an order of foreclosure on the property.

{¶3} Harris was also named as a defendant in the foreclosure complaint because he "[has] or may claim to have an interest in the real property described." The complaint was served on Harris by regular U.S. Mail after service by Federal Express and certified mail were returned as "unclaimed." He did not respond to the complaint, and as a result, a default judgment was entered against Harris in May 2017. No appeal was taken from that decision.

{¶4} On June 16, 2017, however, Harris filed a Civ.R. 60(B) motion for relief from judgment contending that he did not receive service of the complaint and that he had an interest in the property. He also sought leave to plead. Both motions were subsequently denied. Again, no appeal was taken.

{¶5} Instead, Harris sought a stay of the sheriff's sale of the property and filed a joint motion to reconsider and an amended Civ.R. 60(B) request for relief from judgment. The trial court again denied Harris's motions finding that (1) Harris "was never joined as a defendant," and "[b]efore filing motions he must first move to intervene in this case"; (2) his proper relief was to appeal the trial court's denial of his original Civ.R. 60(B) motion; and (3) he failed to allege operative facts showing that he had a meritorious defense or an interest in the subject property. In response to the court's journal entry, Harris filed a motion to intervene pursuant to Civ.R. 24. The trial court subsequently denied this request.

{¶6} Harris now appeals, raising as his sole assignment of error that the trial court abused its discretion when it denied his motion to intervene.

{¶7} Civ.R. 24 governs a nonparty's right to intervene in an action. See Huntington Natl. Bank v. Mortgage Zone, Inc., 8th Dist. Cuyahoga No. 93840, 2010-Ohio-3316; see also Whitehall v. Olander, 10th Dist. Franklin No. 14AP-6, 2014-Ohio-4066; Chase Bank USA, N.A. v. Jacobs, 10th Dist. Franklin No. 11AP-343-2012-Ohio-64; 1970 Staff Note, Civ.R. 24 ("Intervention under Rule 24 'rounds out' joinder of parties theories of the rules of procedure. Thus, a potential party who is not a party to the action may, under certain circumstances and by his own initiative, intervene in the action as a party.").

{¶8} In this case, Harris moved to intervene in an action in which he was already a named party defendant who was subject to a default judgment entered in May 2017. Admittedly, the trial court incorrectly stated that Harris was not a "defendant" in its journal entry denying Harris's second motion for relief from the judgment. However, this misstatement does not warrant this court reversing the trial court's subsequent decision denying Harris's motion to intervene. If Harris wished to defend his interest in this matter, he should have appealed to this court after the trial court denied his first Civ.R. 60(B) motion for relief from judgment.

{¶9} Accordingly, because Harris was already named a party defendant, the trial court did not abuse its discretion denying his Civ.R. 24 motion to intervene. The assignment of error is overruled.

{¶10} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed. It is ordered that a special mandate be sent to said court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
KATHLEEN ANN KEOUGH, JUDGE EILEEN T. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR