[Cite as Wells Fargo Bank, N.A. v. Heimbaugh, 2014-Ohio-4637.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
Wells Fargo Bank, N.A. Court of Appeals No. S-13-019
Appellee Trial Court No. 12CV200
v.
Richard A. Heimbaugh, Jr., et al. DECISION AND JUDGMENT
Appellants Decided: October 17, 2014
*****
Scott A. King and Jessica E. Salisbury-Copper, for appellee.
Daniel L. McGookey and Kathryn M. Eyster, for appellants.
PIETRYKOWSKI, J.
I. Introduction
{¶ 1} Appellants, Richard Heimbaugh, Jr. and Roger Tea, Jr., appeal the judgment
of the Sandusky County Court of Common Pleas, granting default judgment to appellee,
Wells Fargo Bank, N.A. We affirm. A. Facts and Procedural Background
{¶ 2} On February 17, 2006, appellants executed a promissory note, payable to
appellee, in the amount of $104,176. Additionally, appellants executed a mortgage in
favor of appellee against property located at 316 Sixth Street in Fremont, Ohio. The
mortgage was subsequently recorded with the Sandusky County Recorder.
{¶ 3} As a result of appellants’ failure to meet their obligations under the terms of
the note and mortgage, appellee filed its complaint for foreclosure on February 21, 2012.
In its complaint, appellee alleged that the note and mortgage were in default, with the
note having an outstanding balance of $96,138.96, plus interest. Moreover, appellee
stated that it satisfied all conditions precedent and declared the entire balance due and
payable. Further, appellee alleged that it was “a person entitled to enforce the Note,
pursuant to Section 1303.31 of the Ohio Revised Code, and the Mortgage was given to
secure the Note.” Notably, a copy of the note and mortgage were attached to the
complaint.
{¶ 4} On March 27, 2012, appellants filed a motion with the trial court requesting
the case be transferred to the court’s foreclosure mediation program. That same day,
appellants filed an additional motion seeking a 30-day extension of time to answer or
otherwise plead. The trial court subsequently granted appellants’ motions.
{¶ 5} A mediation session was held between the parties on June 28, 2012.
Unfortunately, no agreement was reached at this meeting. Consequently, another
meeting was scheduled for July 5, 2012. Once again, the parties were unable to come to
2. an agreement. The parties were then ordered by the mediator to provide a status email
within two weeks. The status email was received by the mediator on February 13, 2013.
Because the parties failed to reach an agreement, no further mediation sessions were
scheduled and the case was referred back to the trial court. Appellants did not file an
answer during the course of the mediation proceedings, allegedly due to the fact that they
“believed that their case was going to be resolved” via mediation.
{¶ 6} One week later, appellee filed its motion for default judgment, alleging that
appellants had failed to plead or otherwise defend. A hearing on the motion was
scheduled for March 22, 2013. Appellants were in attendance at the hearing on
appellee’s motion for default judgment.
{¶ 7} On April 15, 2013, prior to the trial court’s ruling on the motion for default
judgment, appellants filed a motion for leave to file an answer instanter. Appellants
argued that they should be granted leave to file an answer because they “believed they
had adequately protected their interests by attending hearings and mediations and did not
realize more was needed until they received the Motion for Default Judgment and sought
the advice of counsel.” A proposed answer was filed along with the motion.
{¶ 8} On April 30, 2013, the trial court issued its decision on the outstanding
motions. In its decision, the trial court noted appellants’ failure to take any steps to
reinstate their loan within 30 days of the hearing on appellee’s motion for default
judgment, as promised by appellants at the hearing. The court found that appellants made
no communications to the court demonstrating any such efforts, opting instead to file a
3. motion for leave to file an answer. With regard to appellee’s motion for default
judgment, the court found that appellants had made no showing of excusable neglect that
would justify the denial of the motion. As a result, the trial court denied appellants’
motion for leave to file an answer, and granted appellee’s motion for default judgment.
{¶ 9} On May 20, 2013, appellants filed a motion for relief from judgment with
the trial court under Civ.R. 60(B), arguing, inter alia, that appellee failed to comply with
the face-to-face meeting requirement pursuant to 24 C.F.R. 203.604. Eight days later,
appellants filed a notice of appeal from the trial court’s grant of default judgment. At the
parties’ request, this court subsequently remanded this appeal to the trial court for
disposition of the Civ.R. 60(B) motion.
{¶ 10} On July 31, 2013, the trial court issued its decision on appellants’ Civ.R.
60(B) motion. In its decision, the trial court found that appellants could not establish
excusable neglect under Civ.R. 60(B)(1). The court reasoned that “[f]or over a year
[appellants] neglected to file a formal answer to the complaint, and never alleged an
affirmative defense to this foreclosure action. Their participation in the mediation
sessions, but failing to Answer, does not constitute excusable neglect.” With regard to
the face-to-face requirement, the trial court found that case law supported appellee’s
position that the mediation sessions constituted face-to-face meetings. Notwithstanding
this fact, the court concluded that appellants’ argument concerning the face-to-face
meeting requirement amounted to an affirmative defense that was not raised in a timely
responsive pleading. Finally, the court concluded that this case was not an “extraordinary
4. or unusual case” giving rise to relief under Civ.R. 60(B)(5). Thus, the trial court denied
appellants’ Civ.R. 60(B) motion for relief from judgment.
{¶ 11} Five days later, appellants filed an amended notice of appeal with this
court, seeking to include the trial court’s decision on the Civ.R. 60(B) motion. However,
because appellants failed to seek leave to amend their notice of appeal, we ordered the
amended notice of appeal stricken from the record.
{¶ 12} Thereafter, on October 18, 2013, appellants moved this court for leave to
amend their notice of appeal to include the trial court’s ruling on the Civ.R. 60(B)
motion. Appellee filed a memorandum in opposition to appellants’ motion, arguing that
the motion should be denied because it was filed more than 30 days after the trial court
issued its decision on the Civ.R. 60(B) motion, and was therefore untimely.
{¶ 13} On November 27, 2013, we issued our decision denying appellants’ motion
for leave to file an amended notice of appeal. In our decision, we agreed with appellee
that appellants’ motion was untimely insofar as it was filed beyond the time limits of
App.R. 4. Furthermore, we ordered appellants’ brief stricken from the record because it
referred to the trial court’s denial of appellants’ Civ.R. 60(B) motion, which we found
was “not part of this appeal.”
B. Assignment of Error
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[Cite as Wells Fargo Bank, N.A. v. Heimbaugh, 2014-Ohio-4637.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
Wells Fargo Bank, N.A. Court of Appeals No. S-13-019
Appellee Trial Court No. 12CV200
v.
Richard A. Heimbaugh, Jr., et al. DECISION AND JUDGMENT
Appellants Decided: October 17, 2014
*****
Scott A. King and Jessica E. Salisbury-Copper, for appellee.
Daniel L. McGookey and Kathryn M. Eyster, for appellants.
PIETRYKOWSKI, J.
I. Introduction
{¶ 1} Appellants, Richard Heimbaugh, Jr. and Roger Tea, Jr., appeal the judgment
of the Sandusky County Court of Common Pleas, granting default judgment to appellee,
Wells Fargo Bank, N.A. We affirm. A. Facts and Procedural Background
{¶ 2} On February 17, 2006, appellants executed a promissory note, payable to
appellee, in the amount of $104,176. Additionally, appellants executed a mortgage in
favor of appellee against property located at 316 Sixth Street in Fremont, Ohio. The
mortgage was subsequently recorded with the Sandusky County Recorder.
{¶ 3} As a result of appellants’ failure to meet their obligations under the terms of
the note and mortgage, appellee filed its complaint for foreclosure on February 21, 2012.
In its complaint, appellee alleged that the note and mortgage were in default, with the
note having an outstanding balance of $96,138.96, plus interest. Moreover, appellee
stated that it satisfied all conditions precedent and declared the entire balance due and
payable. Further, appellee alleged that it was “a person entitled to enforce the Note,
pursuant to Section 1303.31 of the Ohio Revised Code, and the Mortgage was given to
secure the Note.” Notably, a copy of the note and mortgage were attached to the
complaint.
{¶ 4} On March 27, 2012, appellants filed a motion with the trial court requesting
the case be transferred to the court’s foreclosure mediation program. That same day,
appellants filed an additional motion seeking a 30-day extension of time to answer or
otherwise plead. The trial court subsequently granted appellants’ motions.
{¶ 5} A mediation session was held between the parties on June 28, 2012.
Unfortunately, no agreement was reached at this meeting. Consequently, another
meeting was scheduled for July 5, 2012. Once again, the parties were unable to come to
2. an agreement. The parties were then ordered by the mediator to provide a status email
within two weeks. The status email was received by the mediator on February 13, 2013.
Because the parties failed to reach an agreement, no further mediation sessions were
scheduled and the case was referred back to the trial court. Appellants did not file an
answer during the course of the mediation proceedings, allegedly due to the fact that they
“believed that their case was going to be resolved” via mediation.
{¶ 6} One week later, appellee filed its motion for default judgment, alleging that
appellants had failed to plead or otherwise defend. A hearing on the motion was
scheduled for March 22, 2013. Appellants were in attendance at the hearing on
appellee’s motion for default judgment.
{¶ 7} On April 15, 2013, prior to the trial court’s ruling on the motion for default
judgment, appellants filed a motion for leave to file an answer instanter. Appellants
argued that they should be granted leave to file an answer because they “believed they
had adequately protected their interests by attending hearings and mediations and did not
realize more was needed until they received the Motion for Default Judgment and sought
the advice of counsel.” A proposed answer was filed along with the motion.
{¶ 8} On April 30, 2013, the trial court issued its decision on the outstanding
motions. In its decision, the trial court noted appellants’ failure to take any steps to
reinstate their loan within 30 days of the hearing on appellee’s motion for default
judgment, as promised by appellants at the hearing. The court found that appellants made
no communications to the court demonstrating any such efforts, opting instead to file a
3. motion for leave to file an answer. With regard to appellee’s motion for default
judgment, the court found that appellants had made no showing of excusable neglect that
would justify the denial of the motion. As a result, the trial court denied appellants’
motion for leave to file an answer, and granted appellee’s motion for default judgment.
{¶ 9} On May 20, 2013, appellants filed a motion for relief from judgment with
the trial court under Civ.R. 60(B), arguing, inter alia, that appellee failed to comply with
the face-to-face meeting requirement pursuant to 24 C.F.R. 203.604. Eight days later,
appellants filed a notice of appeal from the trial court’s grant of default judgment. At the
parties’ request, this court subsequently remanded this appeal to the trial court for
disposition of the Civ.R. 60(B) motion.
{¶ 10} On July 31, 2013, the trial court issued its decision on appellants’ Civ.R.
60(B) motion. In its decision, the trial court found that appellants could not establish
excusable neglect under Civ.R. 60(B)(1). The court reasoned that “[f]or over a year
[appellants] neglected to file a formal answer to the complaint, and never alleged an
affirmative defense to this foreclosure action. Their participation in the mediation
sessions, but failing to Answer, does not constitute excusable neglect.” With regard to
the face-to-face requirement, the trial court found that case law supported appellee’s
position that the mediation sessions constituted face-to-face meetings. Notwithstanding
this fact, the court concluded that appellants’ argument concerning the face-to-face
meeting requirement amounted to an affirmative defense that was not raised in a timely
responsive pleading. Finally, the court concluded that this case was not an “extraordinary
4. or unusual case” giving rise to relief under Civ.R. 60(B)(5). Thus, the trial court denied
appellants’ Civ.R. 60(B) motion for relief from judgment.
{¶ 11} Five days later, appellants filed an amended notice of appeal with this
court, seeking to include the trial court’s decision on the Civ.R. 60(B) motion. However,
because appellants failed to seek leave to amend their notice of appeal, we ordered the
amended notice of appeal stricken from the record.
{¶ 12} Thereafter, on October 18, 2013, appellants moved this court for leave to
amend their notice of appeal to include the trial court’s ruling on the Civ.R. 60(B)
motion. Appellee filed a memorandum in opposition to appellants’ motion, arguing that
the motion should be denied because it was filed more than 30 days after the trial court
issued its decision on the Civ.R. 60(B) motion, and was therefore untimely.
{¶ 13} On November 27, 2013, we issued our decision denying appellants’ motion
for leave to file an amended notice of appeal. In our decision, we agreed with appellee
that appellants’ motion was untimely insofar as it was filed beyond the time limits of
App.R. 4. Furthermore, we ordered appellants’ brief stricken from the record because it
referred to the trial court’s denial of appellants’ Civ.R. 60(B) motion, which we found
was “not part of this appeal.”
B. Assignment of Error
{¶ 14} On appeal, appellants assign the following error for our review:
The trial court erred in granting default judgment to Plaintiff.
5. II. Analysis
{¶ 15} In their sole assignment of error, appellants argue that the trial court erred
in granting appellee’s motion for default judgment.
{¶ 16} We review a trial court’s decision granting a motion for default judgment
for an abuse of discretion. Tikaradze v. Kenwood Garden Apts., 6th Dist. Lucas No. L-
11-1217, 2012-Ohio-3735, ¶ 6, citing Huffer v. Cicero, 107 Ohio App.3d 65, 74, 667
N.E.2d 1031 (4th Dist.1995). An abuse of discretion connotes that the trial court’s
attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 17} Civ.R. 55 sets forth the standard applicable to requests for default
judgment. Relevant to this appeal, Civ.R. 55(A) provides, in pertinent part:
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 * * *. 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 any averment by evidence or to make an investigation
6. 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.
{¶ 18} Here, appellants argue that the trial court abused its discretion by granting
appellee’s motion for default judgment. In support, appellants advance several
arguments that were set forth for the first time in appellants’ Civ.R. 60(B) motion. First,
appellants argue that the equities weigh in their favor in light of the efforts they made
towards loan modification. Next, appellants contend that default judgment should not
have been granted because appellee failed to satisfy all conditions precedent by not
holding a face-to-face meeting with appellants prior to filing suit, as required under 24
C.F.R. 203.604. Finally, appellants argue that default judgment was inappropriate
because appellee failed to establish that it was the holder of the note at the time the
complaint was filed.
{¶ 19} We note at the outset that appellants’ equitable argument was advanced for
the first time as grounds for appellants’ motion for relief from judgment under Civ.R.
60(B). As indicated above, appellants’ amended notice of appeal seeking to add the trial
court’s denial of the Civ.R. 60(B) motion was previously ordered stricken. Thus, the
equitable argument advanced by appellants is not before this court.
{¶ 20} As to appellants’ argument that appellee failed to satisfy all conditions
precedent prior to filing its complaint, Ohio courts are split on the issue of whether non-
compliance with the face-to-face meeting requirement under 24 C.F.R. 203.604 is an
7. affirmative defense that must be raised by the homeowner or a condition precedent that
must be satisfied by the bank. Compare Wells Fargo Bank, N.A. v. Goebel, 2014-Ohio-
472, 6 N.E.3d 1220, ¶ 20 (2d Dist.) (face-to-face meeting requirement is an affirmative
defense) with U.S. Bank, N.A. v. Detweiler, 191 Ohio App.3d 464, 2010-Ohio-6408, 946
N.E.2d 777, ¶ 53 (5th Dist.) (face-to-face meeting requirement is a condition precedent
that is subject to Civ.R. 9(C)). We need not reach this issue, however, because the
complaint specifically alleges that all conditions precedent were satisfied. Given
appellants’ failure to file a responsive pleading denying such allegation, it is deemed
admitted under Civ.R. 8(D). Alternatively, if the face-to-face meeting requirement were
construed as an affirmative defense, appellants’ argument would still fail since they failed
to raise the defense. Thus, appellants’ argument concerning the face-to-face meeting
requirement is without merit.
{¶ 21} We now turn to appellants’ contention that appellee failed to establish that
it had standing to bring this action as the holder of the note. Relevant to this argument,
appellee alleged in its complaint that it was “a person entitled to enforce the Note,
pursuant to Section 1303.31 of the Ohio Revised Code, and the Mortgage was given to
secure the Note.” Additionally, appellee attached copies of the note and mortgage to the
complaint. Appellee is named as the payee and mortgagee, respectively. Given
appellants’ admission of these facts under Civ.R. 8(D), we conclude that appellee has
established its standing to bring this action. Therefore, appellants’ final argument is
without merit.
8. {¶ 22} In light of the foregoing, we conclude that the trial court did not abuse its
discretion in granting default judgment in appellee’s favor.1
{¶ 23} Accordingly, appellants’ sole assignment of error is not well-taken.
III. Conclusion
{¶ 24} For the foregoing reasons, the judgment of the Sandusky County Court of
Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
1 Notably, appellants merely challenge the trial court’s decision granting appellee’s motion for default judgment; appellants do not argue that the trial court erred in denying their motion for leave to file an answer instanter.
9.