Citizens Natl. Bank of SW Ohio v. Harrison
64 N.E.3d 315
Ohio Ct. App.2016Background
- In 1989 John Harrison took a mortgage from CitFed (later Fifth Third Mortgage) on property at 2222 Powers Lane; in 2002 the Harrisons executed an open-end mortgage in favor of Citizens Bank covering that property among others.
- In April 2011 the Harrisons executed a cognovit note to Citizens for $164,721.29; Citizens sued in foreclosure in May 2014, naming Fifth Third (which claimed an earlier mortgage) and the county treasurer.
- Fifth Third’s statutory agent was served May 29, 2014 but did not timely answer; Citizens moved for default judgment. Fifth Third moved on Sept. 16, 2014 for leave to file an untimely answer (attached) citing recent processing of the summons and recent retention of counsel.
- The trial court permitted Fifth Third to file its answer instanter (Oct. 24, 2014) but directed a copy be filed within 7 days; Fifth Third filed its pleading on Nov. 4, 2014 and explained it had not received the court e-filing notification. Citizens moved to strike and renewed for default judgment.
- The trial court denied default as to Fifth Third, later adjudged Fifth Third’s mortgage the first lien, Citizens junior, and entered foreclosure and monetary judgments. Citizens appealed limitations on default and the post-deadline filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in permitting Fifth Third to file an untimely answer under Civ.R. 6(B) (excusable neglect) | Citizens: Fifth Third’s multi-month delay and weak explanations do not meet the Civ.R. 6(B) excusable neglect standard; leave should be denied | Fifth Third: Delay was an innocent processing oversight, counsel was recently retained, no prejudice to Citizens, leave sought before judgment entered | Court: No abuse of discretion; under the less stringent Civ.R. 6(B) standard and given posture and equities, the trial court reasonably found excusable neglect and allowed the answer |
| Whether the court erred in denying Citizens’ motion to strike Fifth Third’s pleading filed after the court-directed seven-day filing | Citizens: Pleading was filed after the court-ordered deadline and should be stricken | Fifth Third: The answer was effective upon the court’s grant of leave (it was attached to the motion) and counsel did not receive e-filing notice of the court’s entry; filing occurred promptly once discovered | Court: Denial affirmed — the answer was effective when leave was granted and Fifth Third provided a reasonable explanation for missing the seven-day directive |
Key Cases Cited
- Miller v. Lint, 62 Ohio St.2d 209 (Ohio 1980) (trial court discretion on allowing untimely pleadings is not unlimited; some showing of excusable neglect is generally required)
- Davis v. Immediate Medical Servs., Inc., 80 Ohio St.3d 10 (Ohio 1997) (neglect under Civ.R. 6(B) means conduct substantially below reasonable under the circumstances)
- State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464 (Ohio 1995) (courts should decide cases on the merits when possible; surrounding facts and circumstances matter in excusable-neglect analysis)
- Marion Production Credit Assn. v. Cochran, 40 Ohio St.3d 265 (Ohio 1988) (admonition to prefer merits decisions over procedural dismissals)