2012 Ohio 1684
Ohio Ct. App.2012Background
- Deutsche Bank filed foreclosure against Lagowski and others over a deed and mortgage on 55643 High Ridge Road, Bellaire, Ohio; Lagowski was later added as a defendant following service efforts.
- Deutsche Bank obtained a summary judgment against Sochor and his wife and a default against Lagowski for failure to answer; Lagowski later appeared and asserted defenses.
- Lagowski filed an answer on May 26, 2009 without a certificate of service; Sochor later filed bankruptcy causing stay.
- Deutsche Bank served Lagowski again in 2009 and sought to default; Lagowski later sought to be heard and filed motions including a reconsideration and a Civ.R. 60(B) relief bid.
- The trial court entered default judgment March 31, 2010; Lagowski subsequently moved to vacate under Civ.R. 60(B) and the court denied relief, leading to this appeal.
- The Seventh District held that Lagowski’s answer was not properly considered due to Civ.R. 5/D, but Lagowski appeared triggering Civ.R. 55(A) notices; the default judgment was voidable, and Lagowski could obtain relief under Civ.R. 60(B) if three prongs (GTE) were satisfied.]
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the May 26, 2009 answer could be considered despite lack of proof of service | Deutsche Bank | Lagowski | Meritless; Civ.R. 5(D) required proof of service to consider the filing, which was missing at default entry. |
| Whether the default judgment was void or voidable for lack of Civ.R. 55(A) notice when Lagowski appeared | Deutsche Bank | Lagowski | Voidable, not void; appearance triggers notice requirements, but judgment was not void ab initio. |
| Whether Lagowski satisfied Civ.R. 60(B) requirements (GTE test) for relief from judgment | Deutsche Bank | Lagowski | Milestone met: meritorious defense alleged, timely motion, excusable neglect and notice deficiencies supported relief. |
| Whether Lagowski had a meritorious defense to the foreclosure | Deutsche Bank | Lagowski | Yes; alleged forged deed and ownership dispute between Sochor and Lagowski warranted consideration. |
| Whether Lagowski’s excusable neglect and lack of counsel justified relief under Civ.R. 60(B)(1) and (5) | Deutsche Bank | Lagowski | Yes; conduct and lack of timely counsel, combined with defective service proof, supported relief. |
Key Cases Cited
- CitiMortgage, Inc. v. Bumphus, 2011-Ohio-4858 (6th Dist., 2011) (notice under Civ.R. 55(A) when defendant appears required for default)
- Johnson v. Romeo, 2006-Ohio-7073 (7th Dist., 2006) (appearance sufficient to trigger Civ.R. 55(A) notice)
- Northland Ins. Co. v. Poulos, 2007-Ohio-7208 (7th Dist., 2007) (default judgment voidable when no prior notice to appearing defendant)
- Hartman v. Ohio Crime Victims Reparation Fund, 138 Ohio App.3d 235 (10th Dist., 2000) (due process and notice issues central to void/voidable judgments)
- GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976) (three-part test for relief from judgment under Civ.R. 60(B))
- Schmuck v. Schmuck, 2005-Ohio-6357 (8th Dist., 2005) (absence of proof of service prevents consideration of an answer)
- Phh Mortgage Corp. v. Albus, 2011-Ohio-3370 (7th Dist., 2011) (Civ.R. 5(D) strict adherence governs pleadings with proof of service)