2011 Ohio 3565
Ohio Ct. App.2011Background
- Ferguson defaulted on her mortgage in August 2008; Countrywide began foreclosure in February 2009 after assignment.
- Ferguson received service but did not file an appearance or respond; trial court granted default judgment in June 2009.
- From January 2009 Ferguson attempted to cure the default by sending certified payments despite the foreclosure proceeding.
- Sheriff’s sale occurred in March 2010 and the sale was confirmed in late April 2010.
- Approximately one month after sale confirmation, Ferguson moved for relief from judgment under Civ.R. 60(B).
- Trial court denied relief for timeliness and merits; this court affirmed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Civ.R. 60(B) relief from judgment | Ferguson contends motion timely, within one year of judgment and after sale | Countrywide argues motion not timely within reasonable time after foreclosure judgment | Motion not timely; no reasonable time shown |
Key Cases Cited
- GTE Automatic Elec. Inc. v. ARC Indus. Inc., 47 Ohio St. 2d 146 (1976) (establishes three-part test for Civ.R. 60(B) relief)
- Waldman Fin. v. Digital Color Imaging Inc., 9th Dist. No. 23101 (2006-Ohio-4077) (timeliness must be reasonable, not automatic within one year)
- Adomeit v. Baltimore, 39 Ohio App. 2d 97 (1974) (reasonable time standard for 60(B) motions)
- Emerson Tool L.L.C. v. Emerson Family Ltd. P’ship, 2009-Ohio-6617 (9th Dist. No. 24673) (foreclosure judgment and sale orders are separately appealable; timeliness for relief from foreclosure judgment)
- Rose Chevrolet Inc. v. Adams, 36 Ohio St. 3d 17 (1988) (timeliness considerations under Civ.R. 60(B))