COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67115 FIRST BANK NATIONAL : ASSOCIATION : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KIM FUDGE, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: March 9, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-78838 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: JULIE E. RABIN, ESQ. KIM FUDGE, PRO SE DEBORAH S. LOUGHNER, ESQ. 2069 East 77th Street RABIN & RABIN CO., L.P.A. Cleveland, Ohio 44103-1933 2000 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 - 2 - DYKE, J.: On June 11, 1993 appellant filed several motions with the trial court, contesting a judgment filed on November 29, 1985. Appellant filed a motion to redeem; a motion for an accounting; a Civ.R. 60(B)(3) motion to vacate; a motion for declaratory judgment; a motion requesting an injunction on any further action as to the property in question; and, a motion to certify that the proceedings had been properly transferred from the docket of Judge Stephanie Tubbs-Jones to Judge Paul Matia. Each of the motions was overruled with the exception of the motion to certify, which was granted. Appellant appeals from the trial court's judgment overruling her motions and also appeals from the court's decision to grant her motion to certify. The original judgment from November 1985 was rendered pursuant to a complaint against appellant by First National Bank ("Bank"). Appellant had defaulted on her loan with the Bank. The loan was secured by her property, located at 1902 East 89th Street. The Bank had filed five separate complaints on properties owned by different parties, but each subject to a consolidated promissory note, dated December 1, 1982 in the amount of $351,633.00. After appellant failed to respond to the initial complaint, the Bank filed for a default judgment. This was granted, then subsequently vacated pursuant to appellant's motion for leave to plead and assertion of inadequate service. A Stipulated Journal Entry for Consolidation of the separate complaints was filed, signed by appellant's attorney, Sherman - 3 - Hollander, and dated September 29, 1986. This date was later corrected by the court upon the Bank's motion to June 7, 1985. After consolidation of the separately filed complaints, the case went before a referee. The referee's report was filed on November 15, 1985. The report recommended that the properties be sold as one sale, the debt to the Bank totalling $351,633.00. The trial court accepted the referee's report and filed its judgment entry on November 29, 1985. A Decree of Confirmation was filed by the court on February 10, 1986, effectively sanctioning the sale of the properties to the Bank as the highest bidder at the Sheriff's Sale. Subsequent to the final judgment, several party-defendants have filed appeals. Juanita Fudge and Willie Brooks pursued an appeal on March 21, 1988. The joint association of the property owners, 10546 Euclid Ave., Inc., filed a motion to vacate and void the judgment. A Federal Court appeal was also pursued concerning the Constitutional issues of due process pertaining to the foreclosure proceeding. The parties have clearly had ample opportunities to argue their positions against the judgment entered November 1985. Appellant's asserted errors are as follows: I THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE APPELLANT DUE PROCESS OF LAW BY OVERRULING THE "60(B)(3) COMMON LAW MOTION TO VACATE VOID AND FRAUDULENT FORECLOSURE, SHERIFF'S SALE, AND CONFIRMATION DECREE, FOR DECLARATORY JUDGMENT AND FOR INJUNCTION RESTRAINING ANY AND ALL FURTHER ENFORCEMENT OF SAID VOID JUDGMENT" WITHOUT FIRST CONDUCTING THE REQUIRED EVIDENTIARY HEARING. - 4 - Appellant asserts that her right to an evidentiary hearing was violated by the trial court. This argument is without merit. A party is not entitled to an evidentiary hearing on a Civ.R. 60(B) motion unless that party has alleged operative facts to establish that they are entitled to relief. Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223. The trial court exercises its discretion as to whether to hold a hearing or not. Bates & Springer, Inc. v. Stallworth, supra. To establish that she is entitled to relief appellant would be required to allege facts to demonstrate that: (1) [She] has a meritorious defense or claim to present if relief is granted; (2) [she] 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. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. Appellant failed to allege facts to support her assertion that fraud existed on the part of the Bank, to maintain the second prong under Civ.R. 60(B)(3). She alleged that the Bank fraudulently lumped together the sale of the properties. Several courts, including this one have examined the procedure by which the court granted the Bank's complaint against the consolidated properties. Thus far, all allegations of fraud or lack of due process have been rejected. Appellant does not raise any issue which is supported by the record below to establish fraud in the - 5 - original proceedings. Appellant has also failed to meet the third requirement of the GTE test. Appellant's motion to vacate was filed over seven years after the final judgment was rendered in November of 1985. This amount of time is patently unreasonable. Without being able to allege operative facts to establish that appellant was entitled to relief under Civ.R. 60(B)(3), we can not find that the trial court abused its discretion in ruling on appellant's motion without an evidentiary hearing. Appellant's first assignment of error is overruled. II THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE APPELLANT DUE PROCESS OF LAW AND FUNDAMENTALLY FAIR TREATMENT BY FAILING TO GRANT APPELLANT'S MOTIONS. Appellant argues that her motions should have been granted where she was not in default; the Bank sold more property than necessary to cover the debt; the Bank recovered both from the sale and the insurance after the property was destroyed by fire; and finally, that she was deprived of her redemption rights. Appellant's arguments are not well taken. Each of these arguments are formulated to support appellant's primary theory of fraud perpetuated by the Bank to deprive her of her property. These arguments, besides not being supported by the record, are not appropriate for a motion to vacate, motion for declaratory judgment, or for injunction. Appellant should have raised these arguments on a direct appeal from the original judgment, within thirty days of the final - 6 - judgment. These arguments are not legitimately brought seven and a half years later. Civ. R. 60(B) relief is not available as a substitute for appeal, nor can the rule be used to circumvent or extend the time requirement for filing an appeal. Dahl v. Kelling (1986), 34 Ohio App.3d 258, at paragraph four of the syllabus. Appellant's second assignment of error is overruled. III THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE APPELLANT DUE PROCESS OF LAW AND FUNDAMENTALLY FAIR TREATMENT BY COMPLETELY IGNORING APPELLANT'S MOTION FOR INJUNCTIVE RELIEF. Appellant has not shown how her motion for injunctive relief was ignored by the court. The presumption of regularity supports the opposite assertion, that the motion was considered. The court overruled the motion for an injunction against any further action pertaining to the property on February 25, 1994. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ABUSED ITS DISCRETION, DENIED THE APPELLANT DUE PROCESS OF LAW, AND COMMITTED REVERSIBLE ERROR BY OVERRULING APPELLANT'S MOTION TO REDEEM AND FOR AN ACCOUNTING OF RENTS AND PROFITS. Without the vacation of the court's November 1985 decision in favor of the Bank's right to sell the property, appellant no longer has any right of redemption or any right to an accounting on the property. The right of redemption has long since expired, the court having given the defendants a period of eight days to - 7 - pay the debt owed to the Bank. Appellant's fourth assignment of error is overruled. V THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE APPELLANT DUE PROCESS OF LAW BY, IN ESSENCE, ARRIVING AT AND ENTERING AN ERRONEOUS FINDING IN OVERRULING APPELLANT'S MOTION TO CERTIFY THAT THE SUBJECT COMPLAINT WAS PROPERLY ASSIGNED TO THE DOCKET OF THE HONORABLE PAUL R. MATIA. Appellant's argument is not well taken. Appellant's motion actually requested that the trial court certify that the case was properly transferred from Judge Stephanie Tubbs-Jones to Judge Paul Matia. This motion was granted, not overruled on February 25, 1994. Appellant's fifth assignment of error is overruled. VI THE HONORABLE JUDITH KILBANE KOCH ABUSED HER DISCRETION AND COMMITTED REVERSIBLE ERROR BY HER CONDUCT IN ENTERING THE SUBJECT JUDGMENT ON APPELLANT'S MOTIONS WHEN THE MOTIONS WERE PENDING ON THE DOCKET OF THE HONORABLE DANIEL GAUL. Appellant has failed to assert how she has been prejudiced by Judge Kilbane Koch's actions in deciding the motions. Appellant has not asserted any evidence of bias or prejudice on the part of the judge to justify disqualification. This argument is completely meritless and the sixth assignment of error is overruled. The trial court's rulings overruling appellant's motions to redeem, for accounting, to vacate, for declaratory judgment and for injunctive relief are all affirmed. The court's ruling granting appellant's motion to certify is also affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. PORTER, P.J., AND NAHRA, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court .