CitiMtge., Inc. v. Fangman
2013 Ohio 3316
Ohio Ct. App.2013Background
- CitiMortgage filed a foreclosure complaint against Roger P. Fangman (and his wife) on January 30, 2012; Fangman initially did not answer.
- CitiMortgage moved for summary judgment (Sept. 21) and later moved for default judgment (Oct. 5 and again Feb. 8).
- Fangman’s counsel entered an appearance on Nov. 1, 2012; the court granted leave to file an out-of-time response and Fangman filed an answer to the summary-judgment motion on Nov. 21.
- A summary-judgment hearing occurred Dec. 17; Fangman later moved for mediation (denied).
- CitiMortgage served Fangman by ordinary mail with its Feb. 8, 2013 motion for default judgment; the trial court entered default judgment Feb. 19, 2013 for $139,701.94 and ordered sale of the property.
- On appeal, the Twelfth District held the trial court violated Civ.R. 55(A) because Fangman had appeared and was not given seven days’ written notice of a default-judgment hearing nor was a hearing actually held; the court reversed and remanded for compliance with Civ.R. 55(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment could be entered without complying with Civ.R. 55(A) notice/hearing when defendant had appeared | Default judgment validly entered after service of motion | Court must give seven days' written notice and hold hearing if defendant appeared | Court reversed: where defendant appeared, Civ.R. 55(A) requires notice and a hearing before default judgment |
| Whether Fangman had “otherwise defended” under Civ.R. 55(A) by filing an answer to the summary-judgment motion | Default should still stand; appearance did not preclude default | Filing the answer constituted defense entitling him to judgment on the merits | Declined to decide on appeal; remanded for trial court to determine at the required default-judgment hearing |
Key Cases Cited
- Alliance Group, Inc. v. Rosenfield, 115 Ohio App.3d 380 (1st Dist. 1996) (appearance occurs when a party or counsel takes an overt court action submitting a presentation to the court)
- Hartmann v. Ohio Crime Victims Reparations Fund, 138 Ohio App.3d 235 (10th Dist. 2000) (where a party has appeared, notice and hearing under Civ.R. 55(A) are required before default)
- AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d 88 (Ohio 1984) (if service of notice is required, a default judgment entered without it must be vacated or reversed)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard described)
- Plant Equip., Inc. v. Nationwide Control Serv., Inc., 155 Ohio App.3d 46 (1st Dist. 2003) (certificate of service must indicate required notice; mere service of motion without hearing notice is insufficient)