2011 Ohio 5791
Ohio Ct. App.2011Background
- Deutsche Bank filed a foreclosure action against Davis in Delaware County, Ohio, service of process completed July 7, 2009.
- Davis timely moved for extension to answer on July 30, 2009; court granted 30 days for mediation and answer on August 5, 2009.
- No answer was filed by Davis within 30 days of August 5, 2009 order; case progressed with mediation and status conferences.
- Default judgment was sought and granted after a June 22, 2010 hearing; default judgment entered June 23, 2010 and decree of foreclosure on July 1, 2010.
- Davis did not appeal the 2010 entries; a sale was confirmed April 19, 2011.
- Davis, through counsel, moved for relief from judgment under Civ.R. 60(B) on May 5, 2011; trial court denied without a hearing on June 7, 2011; appellate review followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction via service and appearance | service proper and appearance waived lack of jurisdiction | service defective and lacked personal jurisdiction | Service proper; appearance waived lack of jurisdiction |
| Civ.R. 60(B) grounds and timeliness | no meritorious defense and untimely relief; relief denied | Civ.R. 60(B)(5) extraordinary relief applies due to efforts to remedy foreclosure | Relief denied; three-part test not satisfied; no abuse of discretion |
| Requirement of an evidentiary hearing under Civ.R. 60(B) | hearing unnecessary; evidence insufficient for meritorious defense | hearing only if evidentiary affidavits raise meritorious issues | No evidentiary hearing required |
| Civ.R. 60(B) not a substitute for timely appeal | 60(B) relief justified given circumstances | 60(B) cannot bypass appeal deadlines | Civ.R. 60(B) not substitute for timely appeal; affirmed denial |
Key Cases Cited
- GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (Ohio 1976) (three-part Civ.R. 60(B) test)
- Griffey v. Rajan, 33 Ohio St.3d 75 (Ohio 1987) (discretion in Civ.R. 60(B) decisions)
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (Ohio 1988) (timeliness and procedural requirements for Civ.R. 60(B))
- Argo Plastic Prod. Co. v. Cleveland, 15 Ohio St.3d 389 (Ohio 1984) (meritorious defense requirement)
- Cogswell v. Cardio Clinic of Stark County, Inc., No. CA-8553, 1991 (Fifth Dist. 1991) (when an evidentiary hearing is necessary in Civ.R. 60(B))
- Blasco v. Mislik, 69 Ohio St.2d 684 (Ohio 1982) (Civ.R. 60(B) not to circumvent appeal time)
- Sinsky v. Matthews, 9th Dist. No. 20499 (2001) (litigant bound by procedural rules)
- Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357 (1996) (pro se status does not grant extra rights)
- Carskadon v. Avakian, 5th Dist. No. 11CAG020018 (2011) (pro se litigant subject to same rules as represented parties)
- Medina v. Davis, 9th Dist. No. 11CA009953 (Ohio 2011) (voidness of judgments when service is not perfected)