US Bank Natl. Assn. v. Marino
2012 Ohio 1487
Ohio Ct. App.2012Background
- Plaintiff-appellee filed a foreclosure complaint on May 27, 2010 in Delaware County Court of Common Pleas.
- Defendant Marino did not answer; default judgment was entered on September 1, 2010.
- Plaintiff filed a notice of filing note with allonge and an assignment of mortgage on July 2, 2010; mortgage assignment followed on July 8, 2010.
- Marino moved for relief from judgment under Civ.R. 60(B) on November 5, 2010, supplemented February 28, 2011; relief denied.
- Marino challenged standing, arguing plaintiff was not the holder of the note when suit was filed; court found plaintiff was current holder and owner.
- Trial court held Civ.R. 60(B)(5) fraud claims insufficient and declined to permit a hearing; motion under Civ.R. 60(B)(3) required clear and convincing evidence of fraud, which was not shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there an abuse of discretion under Civ.R. 60(B)(5)? | Marino asserts plaintiff misrepresented itself as holder of the note. | Marino contends the filing constitutes fraud on the court. | No abuse; no clear and convincing fraud evidence; Civ.R. 60(B)(3) governs fraud claims. |
| Did the court abuse its discretion by not holding a hearing on the Civ.R. 60(B) motion? | A hearing was not necessary if facts provided no meritorious defense. | A hearing was needed to develop facts supporting relief. | No abuse; movant failed to present meritorious defenses; no hearing required. |
Key Cases Cited
- Deutsche Bank Natl. Trust Co. v. Pagani, 5th Dist. No. 09CA000013, 2009-Ohio-5665 (Del. 2009) (affirms standing with sufficient evidence of current holder)
- Griffey v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122 (1987) (Ohio) (trial court discretion for Civ.R. 60(B) relief)
- Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983) (Ohio) (abuse of discretion standard for appellate review)
- GTE Auto. Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976) (Ohio) (three-part test for Civ.R. 60(B) relief)
- Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 665 N.E.2d 1102 (1996) (Ohio) (hearing required only if operative facts warrant relief)