2013 Ohio 5275
Ohio Ct. App.2013Background
- Note executed in 2006 for $340,000 secured by Westerville residence mortgage.
- Foreclosure filed September 24, 2012 due to default and alleged debt of about $311,110.32 plus interest.
- Service attempt: certified mail failed; ordinary mail served December 3, 2012; answer due December 31, 2012.
- Ettayem moved January 16, 2013 for leave to plead; denial February 12, 2013; motion for reconsideration February 15, 2013.
- Trial court denied reconsideration and granted default judgment on April 1, 2013; Ettayem appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly denied leave to plead | Provident argues timely service; Ettayem failed to show excusable neglect | Ettayem contends excusable neglect due to mail issues and lack of notice | No abuse of discretion; denial affirmed |
| Whether Civ.R. 6(B) excusable neglect standard was correctly applied | Provident relied on ordinary course and timeliness; Ettayem failed to show excusable neglect | Ettayem asserts his delays were due to mail-notice issues | No abuse of discretion; standard properly applied and not met by Ettayem |
| Whether the default judgment was proper | Provident entitled to judgment due to failure to answer | Ettayem argues no timely defense due to excusable neglect | Default judgment affirmed |
Key Cases Cited
- Grilli v. Smith, 2012-Ohio-6146 (5th Dist. Fairfield No. 2012-CA-12 (2012)) (abuse of discretion standard; excusable neglect analysis under Civ.R. 6(B)(2))
- Marion Production Credit Assn. v. Cochran, 40 Ohio St.3d 265 ((1988)) (excusable neglect framework under Civ.R. 6(B)(2))
- Ihenacho v. Ohio Inst. of Photography & Technology, 2011-Ohio-3730 (2nd Dist. Montgomery No. 24191) (consideration of surrounding facts in excusable neglect)
- Yoakam v. Boyd, 2009-Ohio-395 (6th Dist. OT-08-012) (motion for leave to plead pending; appellate review of default judgment context)
- Everbank v. Vanarnhem, 2013-Ohio-3872 (3rd Dist. Union No. 14-13-02) (illness as excusable neglect; chronic illness contrast with unexpected events)
- State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464 (1995-Ohio-49) (defining abuse of discretion; balanced consideration of circumstances)