2012 Ohio 4211
Ohio Ct. App.2012Background
- Fahey Banking sued for foreclosure on note and mortgage secured by 3405 Kiwatha Rd, Youngstown, Ohio, alleging default on a promissory note dated August 1995 for $115,000.
- Squires admitted loan existence but denied default.
- Fahey filed for default judgment and then summary judgment, claiming acceleration due to default.
- Squires sought an extension under Civ.R. 56(F) and filed discovery requests; trial court extended briefing deadlines.
- Fahey indicated discovery responses were hand-delivered on March 30, 2011, making the opposition deadline April 30, 2011.
- An oral hearing on the motions occurred June 22, 2011; Squires did not appear; court granted summary judgment and entered a decree of foreclosure.
- Squires later moved under Civ.R. 60(B) to vacate the judgment; trial court denied the motion; Squires appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the appeal from the summary judgment and foreclosure order | Fahey argued the appeal concerned the merits of summary judgment. | Squire argued for review of the summary judgment order. | Appellate jurisdiction lacked due to untimely notice of appeal from the summary judgment/foreclosure order. |
| Effect of Civ.R. 60(B) relief on the appeal | Squire challenged the summary judgment via 60(B) relief. | 60(B) relief did not rehabilitate an untimely appeal on the merits. | Ruling on Civ.R. 60(B) affirmed; however, arguments on the summary judgment were dismissed as untimely. |
Key Cases Cited
- PHH Mortgage Corp. v. Albus, 2011-Ohio-3370 (7th Dist. No. 09MO9, 2011) (final order disposed of all claims; timely appeal required)
- Second Nat. Bank of Warren v. Walling, 2002-Ohio-3852 (7th Dist. No.) (appeal timing governs review of foreclosure judgment)
- State v. Bell, 2007-Ohio-3276 (8th Dist.) (timeliness of notice of appeal provisions)
- Key v. Mitchell, 81 Ohio St.3d 89 (1998) (Civ.R. 60(B) relief limitations and no extension of appeal time)
- Burgess v. Safe Auto, 2005-Ohio-6829 (2d Dist.) (Civ.R. 60(B) relief does not resurrect untimely appeals)
- GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976) (established three-part test for Civ.R. 60(B) relief)