Household Realty Corp. v. Kamar

2014 Ohio 508

• Court: Ohio Court of Appeals
• Decided: February 12, 2014
• Docket: 13 CAE 07 0054
• Status: Published

Opinion

[Cite as Household Realty Corp. v. Kamar, 2014-Ohio-508.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

HOUSEHOLD REALTY : JUDGES: CORPORATION : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : SHEKU KAMARA, ET AL. : Case No. 13 CAE 07 0054 : Defendants-Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 12 CVE 10 1186

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 12, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

CHRISTINE E. WATCHORN BRIAN K. DUNCAN 88 East Broad Street BRYAN D. THOMAS Suite 1600 155 East Broad Street, Suite 2200 Columbus, OH 43215-3506 Columbus, OH 43215 Delaware County, Case No. 13 CAE 07 0054 2

Farmer, J.

{¶1} On October 10, 2012, appellee, Household Realty Corporation, filed a

complaint in foreclosure against appellants, Sheku Kamara and Halimatou Souare

Kamara, for money due and owing on a note. On June 3, 2013, appellee filed a motion

for default judgment for appellants' failure to answer or otherwise defend. By judgment

entry filed June 5, 2013, the trial court granted the motion.

{¶2} Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶3} "THE TRIAL COURT ERRED WHEN IT GRANTED DEFAULT

JUDGMENT AS DEFENDANTS WERE NOT AFFORDED THE OPPORTUNITY TO

RESPOND, AS THE MOTION FOR DEFAULT JUDGMENT WAS GRANTED TWO

DAYS AFTER THE SAME WAS FILED AND SAID MOTION WAS FILED UNTIMELY

PURSUANT TO CIV. R. 5(D)."

II

{¶4} "THE TRIAL COURT ERRED WHEN IT HELD THAT THE DEFENDANTS

WERE IN DEFAULT OF ANSWER, AND PREVENTED DEFENDANTS FROM

PRESENTED (SIC) EVIDENCE THAT DEFENDANTS HAD MADE SIX (6)

CONSECUTIVE MORTGAGE PAYMENTS PURSUANT TO THE TERMS OF A LOAN

MODIFICATION AGREEMENT." Delaware County, Case No. 13 CAE 07 0054 3

I, II

{¶5} Appellants claim the trial court erred in granting default judgment without

giving them the opportunity to respond in violation of Civ.R. 55(A), and the motion for

default was untimely filed under Civ.R. 5(D).

{¶6} There is no dispute that appellants failed to answer or offer a defense;

however, with their various requests for extensions of time to respond (October 19 and

29, 2012 and two on November 5, 2012) which were denied, they made an appearance

in the case.

{¶7} Civ.R. 55 governs default. Subsections (A) and (B) state the following:

(A) Entry of judgment

When a party against whom a judgment for affirmative relief is

sought has failed to plead or otherwise defend as provided by these rules,

the party entitled to a judgment by default shall apply in writing or orally to

the court therefor; but no judgment by default shall be entered against a

minor or an incompetent person unless represented in the action by a

guardian or other such representative who has appeared therein. If the

party against whom judgment by default is sought has appeared in the

action, he (or, if appearing by representative, his representative) shall be

served with written notice of the application for judgment at least seven

days prior to the hearing on such application. If, in order to enable the

court to enter judgment or to carry it into effect, it is necessary to take an

account or to determine the amount of damages or to establish the truth of Delaware County, Case No. 13 CAE 07 0054 4

any averment by evidence or to make an investigation of any other matter,

the court may conduct such hearings or order such references as it deems

necessary and proper and shall when applicable accord a right of trial by

jury to the parties.

(B) Setting aside default judgment

If a judgment by default has been entered, the court may set it

aside in accordance with Rule 60(B).

{¶8} Civ.R. 5 governs service and filing of pleadings and other papers

subsequent to the original complaint. Subsection (D) states the following:

All documents, after the original complaint, required to be served

upon a party shall be filed with the court within three days after service,

but depositions upon oral examination, interrogatories, requests for

documents, requests for admission, and answers and responses thereto

shall not be filed unless on order of the court or for use as evidence or for

consideration of a motion in the proceeding.

{¶9} Appellee's June 3, 2013 motion for default contained the following proof of

service:

A copy of the foregoing Motion and Notice was mailed by Ordinary

U.S. Mail this 22 day of May, 2013, to the following: Delaware County, Case No. 13 CAE 07 0054 5

Sheku Kamara 597 Locust Court Westerville, Ohio 43082

Halimatou Souare Kamara 597 Locust Court Westerville, Ohio 43082

Citifinancial, Inc. 300 St. Paul Place Baltimore, Maryland 21202

Christopher D. Betts Asst. Prosecutor of Delaware County 140 North Sandusky Street Delaware, OH 43015

{¶10} Filed contemporaneously with the motion for default was an affidavit of

amount due as required by Loc.R. 31 of the Court of Common Pleas of Delaware

County and the final judicial report.

{¶11} From May 22, 2013 (proof of service) to June 5, 2013 (judgment entry

granting default), fourteen days had passed. Appellants argue Civ.R. 55(A) requires

that seven days must pass before the filing of a default judgment. We disagree with this

interpretation of the rule. The passage of seven days prior to judgment begins to run at

the time of the proof of service of the motion for default, not the filing date of the motion.

{¶12} The provisions of Loc.R. 31.01 and 31.04 of the Court of Common Pleas

of Delaware County and Civ.R. 55 are substantially similar:

31.01 When a party against whom a judgment for affirmative relief

is sought who has been served and has failed to plead or otherwise

defend as provided by the Civil Rules, the party entitled to a judgment by Delaware County, Case No. 13 CAE 07 0054 6

default shall promptly apply in writing to the trial judge within thirty days

after the date upon which the defaulting party should have pled or

otherwise defended. Service of the motion upon the defendant(s) is

required even if the defendant(s) has not made an appearance in the

case. The written motion shall include where appropriate, if not previously

submitted to the court, the following documents: proof of assignment from

the original creditor or original party in interest to the plaintiff and the last

billing statement from the original creditor sent to the defendant(s), or an

affidavit explaining why any of the required documents are not available.

31.04 Pursuant to Civ.R. 55, if the party against whom judgment by

default is sought has appeared in the action, written notice of the hearing

on the motion shall be served upon all parties.

{¶13} We find appellee complied with Civ.R. 55(A) and the default judgment was

timely filed. Any delay in filing the motion under Civ.R. 5 constitutes harmless error as it

did not "affect the substantial rights of the parties." Civ.R. 61.

{¶14} Appellants also argue they were entitled to a hearing on the motion for

default. Apart from a specific challenge to the amount of damages available only on

cross-examination, the hearing would have been a non-event. Further, Loc.R. 7.06 of

the Court of Common Pleas of Delaware County implies that all hearings on motions

are non-oral hearings: "Except as otherwise ordered by the judge or magistrate, all

motions are hereby set for a non-oral hearing to occur on the twenty-first day following

the filing of the motion." Delaware County, Case No. 13 CAE 07 0054 7

{¶15} Under Loc.R. 31.01, appellee was required to pursue its motion for default

and the trial court so ordered all parties to file any dispositive motions by June 10, 2013.

See, Judgment Entry filed March 8, 2013. Appellants were served this order.

Appellants never presented any evidence to the trial court of previous payments via

Civ.R. 60(B) as they now argue.

{¶16} Upon review, under these provisions and appellants' undisputed default,

we find the trial court did not err in granting default judgment to appellee.

{¶17} Assignments of Error I and II are denied.

{¶18} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.

SGF/sg 115