Bank of New York v. Stilwell
2012 Ohio 4123
Ohio Ct. App.2012Background
- Foreclosure action filed June 25, 2008; service on Stilwell by certified mail completed June 28, 2008.
- Default judgment for plaintiff Bank of New York entered August 11, 2008; no answer by Stilwell.
- Case has not proceeded to a judicial sale as of the decision.
- Stilwell moved for relief from judgment under Civ.R. 60(B) on October 11, 2011, alleging excusable neglect, ongoing loan modification negotiations, and health issues.
- Trial court denied the Civ.R. 60(B) motion on December 14, 2011 as untimely and unmeritorious; Stilwell appeals the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(B) relief was timely and merited. | Stilwell’s motion was untimely and lack of excusable neglect defeats relief. | Stilwell contends excusable neglect and ongoing negotiations justified relief. | No, the motion was untimely and no meritorious excusable negligence shown. |
| Whether 60(B)(5) catchall supports relief in extraordinary circumstances. | Stilwell seeks relief under catchall due to alleged fraud and extraordinary circumstances. | There were no extraordinary circumstances shown. | No, 60(B)(5) relief not shown. |
| Whether the court should have referred the matter to mediation. | Stilwell requested mediation to resolve the foreclosure. | Bank argues mediation was inappropriate at this stage. | Within court discretion to deny mediation at this stage; affirmed. |
Key Cases Cited
- GTE Automatic Elec. v. ARC Indus., Inc., 47 Ohio St.2d 146 (Ohio 1976) (establishes timeliness and meritorious defense prerequisites for Civ.R. 60(B) relief)
- Griffey v. Rajan, 33 Ohio St.3d 75 (Ohio 1987) (abuse of discretion standard for Civ.R. 60(B) decisions)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (definition of abuse of discretion; strict standard)
- Wiley v. Gibson, 125 Ohio App.3d 77 (Ohio App.3d 1997) (Civ.R. 60(B) catchall applies only in extraordinary cases)
- Strack v. Pelton, 70 Ohio St.3d 172 (Ohio 1997) (catchall context; precedence over 60(B) subsets when appropriate)
- Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (Ohio 1983) (Civ.R. 60(B) not a substitute for timely appeal)