[Cite as Richland Bank v. Winters, 2012-Ohio-1799.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
RICHLAND BANK JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 11 CA 66 MICHAEL R. WINTERS, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 09 CV 1703H
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: April 23, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant Mechanics
ERIC S. MILLER BENJAMIN D. KITZLER 13 Park Avenue West 3 North Main Street Suite 608 Suite 803 Mansfield, Ohio 44902 Mansfield, Ohio 44902
For Appellee BAC For Defendant Key Bank
ERIC T. DEIGHTON THOMAS J.KELLEY WILLIAM T. TINI 300 Madison Avenue 24755 Chagrin Blvd. Suite 200 Suite 110 Cleveland, Ohio 44122-5690 Mansfield, Ohio 44902 Richland County, Case No. 11 CA 66 2
Wise, J.
{¶1} Defendant-Appellant Mechanics Savings Bank appeals the May 11, 2011,
decision of the Court of Common Pleas of Richland County, Ohio, granting Appellee
BAC Home Loans Services, L.P.’s Civ.R. 60(B) Motion to Partially Vacate Judgment.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 20, 2009, Plaintiff-Appellee Richland Bank filed its
Complaint for Foreclosure in the instant matter against the real estate commonly known
as 690 Walnut Drive South, Lexington, Ohio 44904.
{¶3} On or about November 30, 2009, certified mail service was made on
Mortgage Electronic Registration Systems, Inc. ("MERS"). At that time, MERS was the
nominee for Key Bank pursuant to the Preliminary Evidence of Title filed
contemporaneously with the Complaint in this matter.
{¶4} Defendant-Appellant BAC Home Loans Servicing L.P., fka Countrywide
Home Loans Servicing L.P. ("BAC") as successor in interest to MERS admits valid
service of the Complaint. (T. at 15).
{¶5} Neither MERS nor BAC filed a timely Answer. (T. at 24).
{¶6} On or about January 5, 2010, Plaintiff-Appellee moved for Default
Judgment against some Defendants, including MERS. Neither MERS nor BAC were
aware of the Motion for Default Judgment and, as such, neither responded to the Motion
for Default Judgment.
{¶7} On April 19, 2010, and again on June 21, 2010, the trial court issued
judgment(s) finding MERS in default and ultimately Ordering the sale of the subject real
estate. Richland County, Case No. 11 CA 66 3
{¶8} On or about August 4, 2010, BAC moved to Partially Vacate the Judgment
Entry of Foreclosure and Order of Sale.
{¶9} On April 28, 2011, an oral hearing was held on BAC's Motion to Partially
Vacate the Judgment Entry of Foreclosure and Order of Sale. At the conclusion of the
hearing, the trial court held that BAC was entitled to relief from judgment pursuant to
Civ.R. 60(B) finding its failure to appear in the instant matter to be the result of
excusable neglect.
{¶10} By Judgment Entry filed May 11, 2011, the trial court issued specific
findings of fact and conclusions of law.
{¶11} Appellant Mechanics Savings Bank now appeals, assigning the following
sole assignment of error.
ASSIGNMENT OF ERROR
{¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED
BAC’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIV.R. 60(B)
WHEN BAC DEMONSTRATED THAT FOR UNKNOWN REASONS IT FAILED TO
RESPOND AFTER PROPER SERVICE.”
I.
{¶13} In its sole assignment, Appellant argues that the trial court erred in
granting Appellee BAC’s Civ.R. 60(B) motion for relief from judgment. We agree.
{¶14} The decision to grant or deny a motion for relief from judgment pursuant
to Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed
absent an abuse of the discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174, 637
N.E.2d 914. An abuse of discretion is more than an error of judgment; it means that the Richland County, Case No. 11 CA 66 4
trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. An abuse of discretion
demonstrates “perversity of will, passion, prejudice, partiality, or moral delinquency.”
Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. When
applying the abuse of discretion standard, this Court may not substitute its judgment for
that of the trial court. Id.
{¶15} Therefore, the only issue before this Court is whether the trial court
abused its discretion in denying Appellant's motion for relief from judgment under the
dictates of Civ.R. 60(B).
{¶16} Civ.R. 60(B) states, in relevant part:
{¶17} “On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment
has been satisfied, released or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (5) any other reason justifying relief from the
judgment. The motion shall be made within a reasonable time, and for reasons (1), (2)
and (3) not more than one year after the judgment, order or proceeding was entered or
taken.” Richland County, Case No. 11 CA 66 5
{¶18} To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving
party must demonstrate that:
{¶19} “(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)(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 Elec., Inc. v.
ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the
syllabus.
{¶20} Generally, the moving party's failure to satisfy any of the three
requirements will result in the motion being overruled. Rose Chevrolet, Inc. v.
Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564.
{¶21} In the instant case, Appellee argued that it was entitled to relief pursuant
to Civ.R. 60(B)(1). Upon review, however, this Court finds the reasons offered by
Appellee failed to justify relief from the trial court's judgment.
{¶22} As set forth above, under Civ.R. 60(B)(1), the trial court may “relieve a
party or his legal representative from a final judgment, order or proceeding for the
following reasons: (1) mistake, inadvertence, surprise or excusable neglect.”
{¶23} Here, in its motion for relief, Appellee BAC argued that its failure to
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[Cite as Richland Bank v. Winters, 2012-Ohio-1799.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
RICHLAND BANK JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 11 CA 66 MICHAEL R. WINTERS, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 09 CV 1703H
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: April 23, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant Mechanics
ERIC S. MILLER BENJAMIN D. KITZLER 13 Park Avenue West 3 North Main Street Suite 608 Suite 803 Mansfield, Ohio 44902 Mansfield, Ohio 44902
For Appellee BAC For Defendant Key Bank
ERIC T. DEIGHTON THOMAS J.KELLEY WILLIAM T. TINI 300 Madison Avenue 24755 Chagrin Blvd. Suite 200 Suite 110 Cleveland, Ohio 44122-5690 Mansfield, Ohio 44902 Richland County, Case No. 11 CA 66 2
Wise, J.
{¶1} Defendant-Appellant Mechanics Savings Bank appeals the May 11, 2011,
decision of the Court of Common Pleas of Richland County, Ohio, granting Appellee
BAC Home Loans Services, L.P.’s Civ.R. 60(B) Motion to Partially Vacate Judgment.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 20, 2009, Plaintiff-Appellee Richland Bank filed its
Complaint for Foreclosure in the instant matter against the real estate commonly known
as 690 Walnut Drive South, Lexington, Ohio 44904.
{¶3} On or about November 30, 2009, certified mail service was made on
Mortgage Electronic Registration Systems, Inc. ("MERS"). At that time, MERS was the
nominee for Key Bank pursuant to the Preliminary Evidence of Title filed
contemporaneously with the Complaint in this matter.
{¶4} Defendant-Appellant BAC Home Loans Servicing L.P., fka Countrywide
Home Loans Servicing L.P. ("BAC") as successor in interest to MERS admits valid
service of the Complaint. (T. at 15).
{¶5} Neither MERS nor BAC filed a timely Answer. (T. at 24).
{¶6} On or about January 5, 2010, Plaintiff-Appellee moved for Default
Judgment against some Defendants, including MERS. Neither MERS nor BAC were
aware of the Motion for Default Judgment and, as such, neither responded to the Motion
for Default Judgment.
{¶7} On April 19, 2010, and again on June 21, 2010, the trial court issued
judgment(s) finding MERS in default and ultimately Ordering the sale of the subject real
estate. Richland County, Case No. 11 CA 66 3
{¶8} On or about August 4, 2010, BAC moved to Partially Vacate the Judgment
Entry of Foreclosure and Order of Sale.
{¶9} On April 28, 2011, an oral hearing was held on BAC's Motion to Partially
Vacate the Judgment Entry of Foreclosure and Order of Sale. At the conclusion of the
hearing, the trial court held that BAC was entitled to relief from judgment pursuant to
Civ.R. 60(B) finding its failure to appear in the instant matter to be the result of
excusable neglect.
{¶10} By Judgment Entry filed May 11, 2011, the trial court issued specific
findings of fact and conclusions of law.
{¶11} Appellant Mechanics Savings Bank now appeals, assigning the following
sole assignment of error.
ASSIGNMENT OF ERROR
{¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED
BAC’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIV.R. 60(B)
WHEN BAC DEMONSTRATED THAT FOR UNKNOWN REASONS IT FAILED TO
RESPOND AFTER PROPER SERVICE.”
I.
{¶13} In its sole assignment, Appellant argues that the trial court erred in
granting Appellee BAC’s Civ.R. 60(B) motion for relief from judgment. We agree.
{¶14} The decision to grant or deny a motion for relief from judgment pursuant
to Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed
absent an abuse of the discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174, 637
N.E.2d 914. An abuse of discretion is more than an error of judgment; it means that the Richland County, Case No. 11 CA 66 4
trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. An abuse of discretion
demonstrates “perversity of will, passion, prejudice, partiality, or moral delinquency.”
Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. When
applying the abuse of discretion standard, this Court may not substitute its judgment for
that of the trial court. Id.
{¶15} Therefore, the only issue before this Court is whether the trial court
abused its discretion in denying Appellant's motion for relief from judgment under the
dictates of Civ.R. 60(B).
{¶16} Civ.R. 60(B) states, in relevant part:
{¶17} “On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment
has been satisfied, released or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (5) any other reason justifying relief from the
judgment. The motion shall be made within a reasonable time, and for reasons (1), (2)
and (3) not more than one year after the judgment, order or proceeding was entered or
taken.” Richland County, Case No. 11 CA 66 5
{¶18} To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving
party must demonstrate that:
{¶19} “(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)(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 Elec., Inc. v.
ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the
syllabus.
{¶20} Generally, the moving party's failure to satisfy any of the three
requirements will result in the motion being overruled. Rose Chevrolet, Inc. v.
Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564.
{¶21} In the instant case, Appellee argued that it was entitled to relief pursuant
to Civ.R. 60(B)(1). Upon review, however, this Court finds the reasons offered by
Appellee failed to justify relief from the trial court's judgment.
{¶22} As set forth above, under Civ.R. 60(B)(1), the trial court may “relieve a
party or his legal representative from a final judgment, order or proceeding for the
following reasons: (1) mistake, inadvertence, surprise or excusable neglect.”
{¶23} Here, in its motion for relief, Appellee BAC argued that its failure to
respond in the instant case was excusable “because there is a system in place at BAC
Home Loans Servicing, L.P., fka Countrywide Home Loans Servicing, L.P. to deal with
service of summons, but that this particular summons was not timely handled due to a
mistake by BAC Home Loans Servicing, fka Countrywide Home Loans Servicing, L.P. Richland County, Case No. 11 CA 66 6
{¶24} Upon review, we find that Appellee BAC failed to present sufficient
evidence of excusable neglect to warrant relief from judgment in the case sub judice.
Appellee was unable to articulate what event, action or inaction, caused BAC to fail to
answer the complaint in this matter. In explanation, BAC offered only that “It fell through
the cracks, something happened.” (T. at 25).
{¶25} As Appellee failed to offer any sufficient explanation for its failure to file an
answer in this matter, we find that the trial court abused its discretion in granting
Appellee’s motion for partial relief from judgment.
{¶26} The judgment of the Court of Common Pleas, Richland County, Ohio, is
reversed and remanded for further proceedings consistent with the law and this opinion.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
___________________________________
JUDGES
JWW/d 0326 Richland County, Case No. 11 CA 66 7
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
RICHLAND BANK : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MICHAEL R. WINTERS, et al. : : Defendants-Appellants : Case No. 11 CA 66
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio, is reversed and
remanded.
Costs assessed to Appellee.