2015 Ohio 4212
Ohio Ct. App.2015Background
- In 2003 the Myers executed a mortgage; Wells Fargo later became holder and filed a foreclosure complaint on November 19, 2012; the Myers were served November 20, 2012.
- The Myers did not file an answer; Wells Fargo moved for default judgment January 7, 2013; the court entered a judgment and decree of foreclosure January 10, 2013; the property was sold at sheriff’s sale July 11, 2013.
- The Myers later sought relief, alleging (among other things) they had a pending loan-modification application and that Mrs. Myers phoned Wells Fargo’s counsel after being served to report the pending modification.
- The Myers argued that the phone call constituted an "appearance" under Civ.R. 55(A), triggering a seven-day written-notice requirement before the bank could obtain a default judgment; they also sought to vacate the judgment.
- At an evidentiary hearing, Mrs. Myers testified about the loan-modification efforts and the November phone call; Wells Fargo’s counsel denied remembering the call and had no file note of it. The trial court found the single phone call did not constitute an appearance and denied relief; the Myers appealed.
Issues
| Issue | Plaintiff's Argument (Wells Fargo) | Defendant's Argument (Myers) | Held |
|---|---|---|---|
| Whether Mrs. Myers’ single phone call to bank counsel after service constituted an "appearance" under Civ.R. 55(A) requiring seven days’ written notice before default judgment | The call did not express intent to defend; no formal appearance, no file note, so no notice required | The call informed counsel of a pending loan-modification application and thus manifested intent to defend, invoking Civ.R. 55(A) notice | The call did not constitute an appearance; seven-day notice was not required |
| Whether evidence (consent decree between bank and Comptroller) could alter the appearance analysis or excuse failing to respond | The consent decree was not properly admitted and, in any event, does not substitute for a defendant's duty to respond to a complaint | The consent decree (and bank practices) meant the bank should have known not to foreclose when a modification was pending, supporting that the call notified counsel | Court excluded the decree as unauthenticated and held it did not relieve Myers of their duty to timely respond |
| Whether failure to give notice (if appearance occurred) would render the judgment void such that Civ.R. 60(B) was unnecessary | Not reached (court concluded no appearance) | If judgment were void, it could be vacated at any time without Civ.R. 60(B) constraints | Court declined to decide because it held no appearance occurred |
| Whether the Myers were entitled to vacation of judgment or relief under Civ.R. 60(B) based on alleged fraud, new evidence, or excusable neglect | Argued res judicata and timeliness bars; no fraud or new evidence to justify relief | Myers claimed timeliness, fraud, and at least one meritorious defense (failure of conditions precedent) | Court denied relief; did not reach substantive Civ.R. 60(B) analysis after finding no appearance |
Key Cases Cited
- AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d 88 (Ohio 1984) (telephone contact can, in some circumstances, constitute an appearance for Civ.R. 55(A))
- Patton v. Diemer, 35 Ohio St.3d 68 (Ohio 1988) (trial court may vacate a void judgment at any time)
- Miamisburg Motel v. Huntington Natl. Bank, 88 Ohio App.3d 117 (2d Dist. 1993) (appearance for Civ.R. 55(A) need not be a formal court filing; requires clear expression of intent to defend)
- BancOhio Natl. Bank v. Mager, 47 Ohio App.3d 97 (10th Dist. 1988) (liberal construction of "appeared" under Civ.R. 55(A))