[Cite as Natl. Collegiate Student Loan Trust 2007-2 v. Tigner, 2018-Ohio-4442.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
NATIONAL COLLEGIATE STUDENT : LOAN TRUST 2007-2 : : Appellate Case Nos. 27841, 28035 Plaintiff-Appellee : : Trial Court Case No. 2017-CV-5075 v. : : (Civil Appeal from FLO A. TIGNER : Common Pleas Court) : Defendant-Appellant :
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OPINION
Rendered on the 2nd day of November, 2018.
ERIC WASSERMAN, Atty. Reg. No. 0020604 and EVANA CAROLYN DELON, Atty. Reg. No. 0077741, 30455 Solon Road, Solon, Ohio 44139 Attorneys for Plaintiff-Appellee
JONATHAN F. HUNG, Atty. Reg. No. 0082434, 800 Performance Place, 109 North Main Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
DONOVAN, J. -2-
{¶ 1} Defendant-appellant Flo A. Tigner appeals from two judgments of the
Montgomery County Court of Common Pleas, granting default judgment against her and
denying her Civ.R. 60(B) motion for relief from judgment. Tigner filed a timely notice of
appeal with this Court.
{¶ 2} On May 2, 2007, David C. Tigner executed a student loan with plaintiff-
appellee National Collegiate Student Loan Trust 2007-2 (hereinafter “National”). Flo
Tigner (“Tigner”), David’s mother, co-signed the student loan. The original loan amount
was for $27,176 and was executed in order to finance David’s education at Central State
University, located in Wilberforce, Ohio.
{¶ 3} On October 30, 2017, National filed a complaint against Tigner to collect
upon the defaulted student loan for which she co-signed. The record establishes that
Tigner received successful service of the complaint via FedEx on November 7, 2017.
Tigner failed to appear or respond to the complaint, and on December 8, 2017, National
filed a motion for default judgment. On December 14, 2017, the trial court granted the
motion for default judgment and entered judgment in favor of National in the amount
$59,656.51, including principal, accrued interest, and fees. Tigner filed a pro se notice
of appeal with this Court on December 22, 2017 (Montgomery App. No. 27841).
{¶ 4} On February 15, 2018, Tigner, acting pro se, filed a brief with this court
wherein she admitted that she co-signed the student loan for her son in 2007. While
admitting that she made payments towards the loan for an unspecified amount, Tigner
argued that her current financial situation left her unable to make any further payments.
Tigner’s brief contained no legal arguments and failed to cite any legal authority in support -3-
of her position. National filed a responsive brief on March 7, 2018. On March 20, 2018,
Tigner, now represented by counsel, filed a motion for leave to file an amended brief. In
the alternative, Tigner requested that the matter be remanded to the trial court to consider
granting relief from the default judgment. In a decision and entry issued on April 16,
2018, we sustained Tigner’s motion in part and remanded the matter to the trial court “for
the limited purpose of resolving a motion to seek relief from judgment.”
{¶ 5} Upon remand, Tigner filed her Civ.R. 60(B) motion for relief from judgment
on April 24, 2018. In her motion, Tigner set forth the following arguments: 1) she was
denied due process when the trial court failed to afford her 14 days in which to respond
to National’s motion for default judgment, as required by Montgomery County’s local rule,
Mont. Co. C.P.R. 2.05(B)(2)(b); 2) she may have a meritorious defense based upon a six-
year statute of limitations for promissory notes; and 3) her failure to file an answer was
due to excusable neglect. On May 25, 2018, the trial court issued a decision overruling
Tigner’s motion for relief from judgment, in which it stated the following:
In conclusion, although Defendant asserts in her Motion that the date
payments ceased, potentially triggering a statute of limitations defense,
Defendant’s assertions were not made pursuant to a properly framed
affidavit, the assertions are conclusory at best, Defendant failed to submit
other proper evidence for the court’s consideration, and Defendant has
failed to demonstrate excusable neglect and has not properly assert[ed] that
she has a meritorious defense to the claim. Defendant has failed to set
forth any operative facts or provide any proper evidence entitling her to relief
from judgment under one of the grounds delineated in Civ.R. 60(B)(1) -4-
through (5), and, thus, Defendant has failed to satisfy the first prong of the
GTE test [referencing GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47
Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976)]. Next, even if the court
had found that Defendants [sic] set forth a reason entitling Defendants [sic]
to relief from judgment, Defendant also failed to satisfy the second prong of
the GTE test by failing to submit any proper evidence for the court’s
consideration as to whether Defendants [sic] had a meritorious defense or
claim to present if relief was granted.
Decision, Order, and Entry, Montgomery C.P. No. 2017-CV-5075 (May 25, 2018) at 4-5.
{¶ 6} Tigner filed a timely notice of appeal from this judgment on June 19, 2018
(Montgomery App. No. 28035).
{¶ 7} Tigner’s first assignment of error is as follows:
THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS WHEN
IT GRANTED DEFAULT JUDGMENT IN APPELLEE’S FAVOR BEFORE
APPELLANT HAD THE OPPORTUNITY TO RESPOND PURSUANT TO
THE TIME PROSCRIBED BY LOC.R. 2.05(B)(2)(b) OF THE COURT OF
COMMON PLEAS OF MONTGOMERY COUNTY, GENERAL DIVISION.
{¶ 8} In her first assignment, Tigner contends that, pursuant to Mont. Co. C.P.R.
2.05(B)(2)(b), she was entitled to 14 days in which to respond to National’s motion for
default judgment. Therefore, Tigner argues that the trial court erred when it granted
default judgment in favor of National before 14 days had expired, thereby violating her
due process rights.
{¶ 9} We review a trial court's decision to grant a default judgment for abuse of -5-
discretion. See, e.g., Mueller v. Hammann, 1st Dist. Hamilton Nos. C-120799, C-130231,
2013-Ohio-5098, ¶ 7, citing Zuljevic v. Midland-Ross Corp. Unicast Div., 62 Ohio St.2d
116, 403 N.E.2d 986 (1980). An abuse of discretion suggests the trial court's decision
is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶ 10} As previously stated, Tigner argues that, pursuant to Mont. Co. C.P.R.
2.05(B)(2)(b), she was entitled to 14 days in which to respond to National’s motion for
default judgment, and therefore, the trial court erred when it granted default judgment to
National before 14 days had expired. Mont. Co. C.P.R. 2.05(B)(2)(b) provides that all
memoranda opposing a motion shall “be filed and served within 14 days from the date on
which the motion was served. If no memorandum is filed within this time limit, the motion
may be decided forthwith.”
{¶ 11} Initially, we note that Mont. Co. C.P.R. 2.17(A)(2)(a) provides that a
“proposed default judgment entry shall include a certificate of service” and that “the filing
party, not the clerk” is responsible for “serving a copy of the default judgment entry” on
the party against whom judgment is sought. Tigner has not alleged that National failed
to fulfill those requirements. Additionally, Mont. Co. C.P.R. 2.01(B)(2)(a) specifically
allows for the filing of a motion for default judgment in the event that the defendant fails
to file an answer. As noted by the trial court in its decision overruling Tigner’s motion for
relief from judgment, nothing in Mont. Co. C.P.R. 2.01 affirmatively states that a non-
answering defendant shall have an opportunity to respond to a motion for default
judgment. Id. at 4.
{¶ 12} In support of her argument that Mont. Co. C.P.R. 2.05(B)(2)(b) applies in -6-
the instant case, Tigner relies on two of our prior cases, Farmer v. PNC Bank, N.A., 92
N.E.2d 218, 2017-Ohio-4203 (2d Dist.), and Bank One, N.A. v. Wesley, 2d Dist.
Montgomery No. 20259, 2004-Ohio-6051. In Farmer, the trial court granted default
judgment against the defendants and dismissed their counterclaim without allowing them
the 14-day period that Mont. Co. C.P.R. 2.05(B)(2)(b) allotted for responding to a motion
for discovery sanctions. Id. at ¶ 37-38. We held that this constituted prejudicial error.
As we noted in Wesley, “[t]he determination of what sanction to impose upon a party as
a result of its failure to comply with discovery is confided to the sound discretion of the
trial court. Due process requires that both parties have an opportunity to present
arguments addressed to the trial court's exercise of this discretion before it makes a
decision. By making the decision to impose the extreme sanction of default judgment
before the time had run out under the trial court's own local rule, the trial court deprived
the [defendants] of their opportunity to attempt to persuade the trial court that a lesser
sanction was warranted in this case.” Wesley at ¶ 21.
{¶ 13} In our view, both Farmer and Wesley are clearly distinguishable from the
facts in the instant case. Specifically, the motions at issue in Farmer and Wesley were
motions for sanctions based upon discovery violations under Mont. Co. C.P.R. 2.05, not
motions for default judgment filed after the defendant had failed to file an answer or
otherwise enter an appearance in the action, as is the case here. Therefore, the 14-day
time period set forth in Mont. Co. C.P.R. 2.05(B)(2)(b) is inapplicable to the instant case
and does not act to bar the trial court from granting default judgment in favor of National.
{¶ 14} Rather, Civ.R. 55 governs the entry of default judgments and provides in
pertinent part: -7-
(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.
{¶ 15} “A party appears in an action for purposes of Civ.R. 55(A) when that party
‘clearly expresses to the opposing party an intention and purpose to defend the suit,
regardless of whether a formal filing is made.’ ” Allstate Ins. Co. v. Hunt, 2d Dist.
Montgomery No. 20991, 2006-Ohio-238, ¶ 13, citing Miamisburg Motel v. Huntington
National Bank, 88 Ohio App.3d 117, 126, 623 N.E.2d 163 (2d Dist.1993), and Dayton
Modulars, Inc. v. Dayton View Community Dev. Corp., 2d Dist. Montgomery No. 20894,
2005-Ohio-6257, ¶ 15. “Relying upon AMCA Internatl. Corp. v. Carlton (1984), 10 Ohio
St.3d 88, 461 N.E.2d 1282, we have stated that ‘a party, or his counsel, who is aware of
a communication by the opposing party in which that party has expressed a clear purpose
to defend the suit has a duty to inform the trial court of this fact when seeking a default
judgment against that party, and has an obligation under Civ.R. 55(A) to inform that party
that application for a default judgment has been made.’ ” Id. Accordingly, only an
appearance triggers the seven-day opportunity to respond delineated in Civ.R. 55(A). It -8-
follows, therefore, that if no appearance is made by a defendant, then no response period
is required.
{¶ 16} The Third Appellate District addressed an almost identical issue in a
foreclosure action in Bank of Am., N.A. v. Sullivan, 3d Dist. Allen No. 1-15-09, 2015-Ohio-
2736. Similar to Tigner, the appellant in Sullivan argued that he had not been properly
afforded the 14-day response on motions, under the local rule, when default judgment
was entered one day after the motion had been filed by the plaintiff. Id. at ¶ 4-7. The
Sullivan court reasoned that, since the appellant had not filed an answer or otherwise
appeared in the action, the local rule providing him with 14 days to respond to a motion
did not apply. Id. at ¶ 12. Rather, the court held that the appellant’s case was governed
by Civ.R. 55(A). The Sullivan court further stated that, because a defendant who does
not appear in an action admits the allegations in a complaint, that defendant is not
protected by the notice and hearing requirements of Civ.R. 55(A). Id. at ¶ 13, citing Ohio
Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 121, 502
N.E.2d 599 (1986); see also Hover v. O'Hara, 12th Dist. Warren No. CA2006-06-077,
2007-Ohio-3614, ¶ 12 (under Civ.R. 55(A), a party who has not appeared prior to the filing
of a motion for default judgment is not entitled to the seven-day notice of the application);
L.S. Industries v. Coe, 9th Dist. Summit No. 22603, 2005-Ohio-6736, ¶ 17 (the notice and
hearing requirements of Civ.R. 55(A) were not applicable to the defendant because the
defendant failed to answer or appear prior to the filing of the plaintiff's motion for default
judgment). These courts reasoned that default judgment without notice is appropriate
because “no response can reasonably be anticipated,” and waiting for a party who has
not appeared in an action to respond circumvents the canons of justice and judicial -9-
economy. See L.S. Industries at ¶ 14, 17; see also Hover at ¶ 13.
{¶ 17} In the instant case, the record establishes that Tigner failed to answer or
otherwise appear prior to the filing of National’s motion for default judgment. Therefore,
Tigner effectively admitted the allegations in the complaint. As a result, Tigner was not
entitled to the notice requirements of Civ.R. 55(A), and the trial court properly entered
default judgment against her without notice. Moreover, the 14-day period provided in
Mont. Co. C.P.R. 2.05(B)(2)(b) is not applicable to Tigner, and the trial court was not
required to allow her 14 days to respond to National's motion for default judgment prior to
ruling on that motion.
{¶ 18} Tigner’s first assignment of error is overruled.
{¶ 19} Tigner’s second assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S TIMELY
MOTION FOR RELIEF FROM JUDGMENT BECAUSE THE EVIDENCE
SHOWED THAT APPELLANT WAS ENTITLED TO RELIEF PURSUANT
TO CIV.R. 60(B)(5), AND THAT SHE HAD A MERITORIOUS DEFENSE
AGAINST APPELLEE’S CLAIMS.
{¶ 20} In her second and final assignment, Tigner argues that the trial court erred
when it overruled her Civ.R. 60(B) motion for relief from judgment. Specifically, Tigner
contends that the trial court erred when it concluded that she was required to submit
relevant evidentiary materials, such as affidavits, in support of her motion for relief from
judgment. Tigner also argues that the trial court erred when it found that she had failed
to set forth any operative facts establishing that she was entitled to relief or that she had
a meritorious defense. -10-
{¶ 21} “Civ.R. 60(B) represents an attempt to strike a balance between conflicting
principles that litigation must be brought to an end and that justice should be done.”
Chapman v. Chapman, 2d Dist. Montgomery No. 21244, 2006-Ohio-2328, ¶ 13. To
prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that (1) the
party has a meritorious defense or claim to present if relief is granted, (2) the party is
entitled to relief under one of the grounds stated in Civ.R. 60(B), and (3) the motion is
made within a reasonable time. GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio
St.2d 146, 150-151, 351 N.E.2d 113 (1976). All of these requirements must be satisfied,
and they “are independent and in the conjunctive; thus the test is not fulfilled if any one
of the requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914
(1994); Cincinnati Ins. Co. v. Schaub, 2d Dist. Montgomery No. 22419, 2008-Ohio-4729,
¶ 15.
{¶ 22} In order to establish a meritorious claim or defense under Civ.R. 60(B), the
movant is required to allege a meritorious claim or defense, not to prove that she will
prevail on that claim or defense. See State v. Yount, 175 Ohio App.3d 733, 2008-Ohio-
1155, 889 N.E.2d 162, ¶ 10 (2d Dist.). A “meritorious defense” means a defense “going
to the merits, substance, or essentials of the case.” Black's Law Dictionary, 420 (6th
Ed.1990). “Relief from a final judgment should not be granted unless the party seeking
such relief makes at least a prima facie showing that the ends of justice will be better
served by setting the judgment aside.” Wayne Mut. Ins. Co. v. Marlow, 2d Dist.
Montgomery No. 16882, 1998 WL 288912, *3 (June 5, 1998), quoting Rose Chevrolet,
Inc. v. Adams, 36 Ohio St.3d 17, 520 N.E.2d 564 (1988). Broad, conclusory statements
do not satisfy the requirement that a Civ.R. 60(B) motion must be supported by operative -11-
facts that would warrant relief from judgment. Cunningham v. Ohio Dept. of Transp., 10th
Dist. Franklin No. 08AP-330, 2008-Ohio-6911, ¶ 37; Bennitt v. Bennitt, 8th Dist.
Cuyahoga Nos. 65094 and 66055, 1994 WL 236295 (May 26, 1994).
{¶ 23} Civ.R. 60(B) permits trial courts to relieve parties from a final judgment for
the following reasons: (1) “mistake, inadvertence, surprise or excusable neglect,” (2)
newly discovered evidence, (3) fraud, misrepresentation or other misconduct of an
adverse party, (4) the judgment has been satisfied, released or discharged, or (5) any
other reason justifying relief from the judgment.
{¶ 24} Motions for relief from judgment under Civ.R. 60(B) are addressed to the
sound discretion of the trial court, and the court's ruling “will not be disturbed on appeal
absent a showing of abuse of discretion.” Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514
N.E.2d 1122 (1987). An abuse of discretion occurs when a trial court “makes a decision
that is unreasonable, arbitrary, or unconscionable.” Huntington Natl. Bank v. Burch, 157
Ohio App.3d 71, 75, 2004-Ohio-2046, 809 N.E.2d 55, at ¶ 14 (2d Dist.).
{¶ 25} After reviewing the record, we find no abuse of discretion. As was noted,
if any of the three requirements under Civ. R. 60(B) is not met, the motion to vacate is
properly denied. For purposes of convenience, we will first consider the issue of
excusable neglect. We have previously held that:
An act is one of “neglect” when it constitutes an omission or failure to do a
thing that can be done, but it may also import a failure of care or attention
in the doing or omission of a given act. ‘Excusable neglect’ in the context
of a Civ. R. 60(B)(1) motion generally means the failure to take the proper
steps at the proper time, not in consequence of the party's own -12-
carelessness, inattention, or willful disregard of the processes of the court,
but in consequence of some unavoidable or unexpected hindrance or
accident, or reliance on the care and vigilance of his counsel or on promises
made by the adverse party.
Federal Natl. Mtge. Assn. v. Banks, 2d Dist. Montgomery No. 12692, 1991 WL 254652
(Dec. 6, 1991); accord Hai v. Flower Hosp., 6th Dist. Lucas No. L-07-1423, 2008-Ohio-
5295, ¶ 21, and Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 537, 706 N.E.2d 825 (4th
Dist.1997).
{¶ 26} “Courts generally find excusable neglect in those instances where there are
‘unusual or special circumstances’ that justify the neglect of a party or her attorney.” Griffin
v. Dream House Mtge. Corp., 2d Dist. Greene No. 08-CA-45, 2009-Ohio-2178, ¶ 30, citing
Hai at ¶ 21. However, no such circumstances have been shown to exist in the present
case. The trial court stated in its decision that Tigner established neglect, but not
excusable neglect. Upon review, we agree with the trial court.
{¶ 27} In her motion for relief from judgment, Tigner argued that excusable neglect
on her part should have satisfied the first prong of the GTE test. Specifically, Tigner
stated that she was “a victim of circumstance and her inexperience with the law.” Tigner
also argues on appeal that she did not disregard the judicial system, because she filed a
timely notice of appeal with this Court after the default judgment was entered. However,
the fact remains that Tigner did not file an answer to National’s complaint, nor did she
otherwise make an appearance in the action prior to the filing of the motion for default
judgment. Additionally, Tigner did not respond to National’s motion for default judgment.
{¶ 28} In Rayess v. McNamee, 2d Dist. Montgomery No. 26543, 2015-Ohio-3163, -13-
we recently stated the following:
A majority of cases addressing this type of claim [seeking relief from
judgment] with regard to pro se litigants “conclude that lack of counsel and
ignorance of the legal system [do] not constitute ‘excusable neglect.’ ”
Dayton Power & Light v. Holdren, 4th Dist. Highland No. 07CA21, 2008-
Ohio-5121, ¶ 12. This is because “pro se litigants are presumed to have
knowledge of the law and legal procedures and they are held to the same
standard as litigants who are represented by counsel.” Id., citations omitted.
“Courts should not generally use Civ.R. 60(B)(1) to relieve pro se litigants
who are careless or unfamiliar with the legal system.” Id., citation omitted.
“Acting pro se * * * is neither excusable neglect nor any other reason
justifying relief from judgment. A party has a right to represent himself, but
if he does so, he is subject to the same rules and procedures as litigants
with counsel. If the fact that a party chose not to be represented by counsel
and was unsuccessful in pursuing his rights entitled that party to relief from
judgment, every judgment adverse to a pro se litigant could be vacated to
permit a second attempt.” Ragan v. Akron Police Dept., 9th Dist. [Summit]
No. 16200, 1994 WL 18641, * 3 (Jan. 19, 1994).
Id. at ¶ 13.
{¶ 29} Despite the fact that Tigner proceeded without counsel, she is charged with
knowledge of the law and legal procedure. Id. at ¶ 14. Tigner’s failure to file an answer
or to make an appearance in the action because of her alleged inexperience with the legal
system did not constitute excusable neglect entitling her to relief from the trial court’s -14-
grant of default judgment to National.
{¶ 30} Additionally, we note that Tigner alleges on appeal that she contacted
counsel for National “at least three times” prior to the filing of the motion for default
judgment and indicated that she intended to defend herself, thereby making an
appearance for the purpose of Civ.R. 55(A). However, Tigner did not raise this argument
in her motion for relief from judgment that she submitted to the trial court, but only raises
it for the first time on appeal. It is well settled that issues raised for the first time on
appeal and not having been raised in the trial court are not properly before this court and
will not be addressed. Birch v. Castrucci, 2d Dist. Montgomery No. 14065, 1995 WL
461290, *5 (March 2, 1994). “Litigants must not be permitted to hold their arguments in
reserve for appeal, thus evading the trial court process.” Mark v. Mellott Mfg. Co., Inc.,
106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th Dist.1995). Since Tigner did not raise
this issue in her motion for relief from judgment, she has waived the argument for the
purposes of the instant appeal.
{¶ 31} As previously stated, failure to establish any of the three prongs outlined in
GTE is fatal. Strack, 70 Ohio St.3d at 174, 637 N.E.2d 914. Because Tigner failed to
establish excusable neglect, we are not required to consider whether she possessed a
meritorious defense to National’s complaint demanding repayment of the student loan.
{¶ 32} Tigner’s second and final assignment of error is overruled.
{¶ 33} Both of Tigner’s assignments having been overruled, the judgment of the
trial court is affirmed.
FROELICH, J. and HALL, J., concur. -15-
Copies sent to:
Eric Wasserman Evana Carolyn Delon Jonathan F. Hung Daniel Pisani Hon. Mary Katherine Huffman