Deutsche Bank Trust Co. v. Barksdale Williams

Ann Dyke, Judge. ¶ 1 Appellant, Christopher S. Barksdale, appeals from the trial court’s denial of his motion for relief from judgment or an interim stay of foreclosure. For the reasons set forth below, we dismiss this appeal. ¶ 2 Plaintiff-appellee, Deutsche Bank Trust Company America, f.k.a. Bankers Trust Company, as trustee, was the holder of a promissory note executed by Jacqueline Barksdale Williams and Perry Williams, a.k.a. Perry Williams Jr. The promissory note was secured by a mortgage on the real estate located at 3451 East 149th Street, Cleveland, Ohio 44120. The mortgage was filed for *232 record on May 23, 2001, and subsequently assigned to appellee. Sometime thereafter, Barksdale Williams and Williams defaulted under the terms of the mortgage. Consequently, appellee declared the debt due and the mortgage foreclosed. ¶ 3 On November 17, 2004, appellee instituted an action for foreclosure and reformation of the mortgage against defendants, Barksdale Williams and Williams, jointly and severally. Both Barksdale Williams and Williams failed to answer appellee’s complaint. Consequently, appellee filed a motion for default judgment on April 29, 2005. The court scheduled the hearing for January 26, 2006. ¶ 4 On January 27, 2006, the magistrate issued a decision awarding judgment for appellee and against Barksdale Williams and Williams, jointly and severally, in the amount of $68,050.86 with interest. The trial court adopted the magistrate’s decision on March 2, 2006. ¶ 5 On May 4, 2006, the court issued a notice of the foreclosure sale and approval of the appraisal fee. The court scheduled the foreclosure sale for June 5, 2006. ¶ 6 On May 12, 2006, appellant filed a motion for relief from judgment or an interim stay of foreclosure. In his motion, appellant argued that his mother, Barksdale Williams, had not conveyed her property rights by quitclaim deed to Williams. Instead, the appellant contended, Williams had obtained a fraudulent conveyance from an ailing Barksdale Williams. Appellant further argued that the trial court lacked jurisdiction to sell the real estate at foreclosure as a result of the filing of the estate of Barksdale Williams. Appellant filed an application for authority to administer the estate on April 21, 2006, more than one month after the entry of default judgment. ¶ 7 On May 30, 3006, the trial court denied appellant’s motion. He now appeals and asserts the following assignments of error for our review. ¶ 8 “The trial court was incorrect in denying appellant as legal representative and heir of Jacqueline L. Barksdale Williams motion for relief of judgment as a matter of law.” ¶ 9 “I. The trial court committed reversible error by selling 3451 East 149th Street Cleveland, Ohio 44120, the real property at issue was conveyed fraudulently R.C. 1336.04(A), (1).” ¶ 10 “II. The mortgage used as a basis for sheriff sale 06/05/06 was not acknowledged R.C. 5301.01 by Jacqueline L. Barksdale Williams who held sole tenancy by the entireties until fraudulent conveyance 04/23/01.” *233 {¶ 11} “III. The trial court committed reversible error by allowing the Appellee’s defense of lack of knowledge of appellant’s allegations, as a basis for denial of relief of judgment.” ¶ 12 We decline to address appellant’s assignments of error and dismiss his appeal because he lacks standing to bring the appeal. Ohio law is well settled that in order to have standing to appeal, a person must be able to demonstrate that “he has a present interest in the subject matter of the litigation and that he has been prejudiced by the judgment of the lower court.” In re Guardianship of Love (1969), 19 Ohio St.2d 111, 113, 48 0.0.2d 107, 249 N.E.2d 794. “A future, contingent, or speculative interest is not sufficient to confer standing to appeal.” Midwest Fireworks Mfg. Co., Inc. v. Deerfield Twp. Bd. of Zoning Appeals (2001), 91 Ohio St.3d 174, 177, 743 N.E.2d 894. Furthermore, the party seeking appeal bears the burden of establishing standing. Jenkins v. Gallipolis (1998), 128 Ohio App.3d 376, 381, 715 N.E.2d 196. ¶ 13 Appellant lacks a present interest in the subject matter of the litigation and has not been prejudiced by the lower court’s ruling. It is clear to this court that appellant cannot bring this action and recover in his own name. He owned no interest in the real estate and is not charged with possession of it. Therefore, it follows that he had no authority to challenge the foreclosure sale. ¶ 14 Appellant argues that he is a representative of the estate of Barksdale Williams and therefore has an interest. Appellant, however, did not file his motion for reconsideration or this appeal as such. Instead, he filed in his own name on his own behalf in an attempt to attack the foreclosure sale. In his own assignments of error, appellant seems to assert injuries that appear to be personal to him as an heir, not as the administrator of the estate. Accordingly, appellant did not have a present interest in the foreclosure action and was not prejudiced by the trial court’s ruling. Therefore, we dismiss this appeal for lack of standing. Appeal dismissed. Kilbane, P.J., concurs. Stewart, J., dissents.