PNC Mtge. v. Oyortey
2012 Ohio 3237
Ohio Ct. App.2012Background
- Appellants Michele and Benjamin Oyortey appeal after a foreclosure judgment against them in Delaware County, Ohio.
- They acquired the property in 2006, executed a promissory note for $208,000 and granted a mortgage to National City; the mortgage was recorded in 2007.
- A 2009 loan modification amended the Note and Mortgage terms with National City Mortgage Co.
- Default occurred; PNC Mortgage filed foreclosure on July 15, 2010; service was effectuated July 21, 2010; a default judgment was entered September 13, 2010; a sheriff's sale was scheduled and later withdrawn.
- Appellants filed Civ.R.60(B) relief from judgment on January 20, 2011; an evidentiary hearing occurred May 5, 2011; the magistrate denied relief on June 14, 2011.
- The trial court overruled objections and adopted the magistrate’s decision on September 14, 2011; the court also struck Appellants’ May 18, 2011 supplemental memorandum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R.60(B) relief from judgment was properly denied. | Oyortey argued excusable neglect, new evidence, or fraud warranted relief. | PNC contends no excusable neglect, fraud, or other grounds established sufficient for relief. | No abuse; relief denied; affirmed. |
Key Cases Cited
- Strack v. Pelton, 70 Ohio St.3d 172 (1994) (abuse of discretion standard for Civ.R. 60(B))
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
- GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976) (three-prong test for Civ.R. 60(B) relief)
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (1988) (timeliness and meritorious defense requirements for Civ.R. 60(B))
- Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983) (Civ.R. 60(B) catch-all provision guidance)
- Salem v. Salem, 61 Ohio App.3d 243 (1988) (extraordinary circumstances standard for Civ.R. 60(B)(5))