BANK OF NEW YORK v. NORMA STILWELL, et al.
Case No. 12 CA 3
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
September 7, 2012
2012-Ohio-4123
Hon. Patricia A. Delaney, P. J., Hon. Sheila G. Farmer, J., Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2008 CV 823; JUDGMENT: Affirmed
For Plaintiff-Appellee: GREGORY HALL MELICK, HEATHER LOGAN MELICK, LUPER NEIDENTHAL & LOGAN, 50 West Broad Street, Suite 1200, Columbus, Ohio 43215
For Defendants-Appellants: BRIAN K. DUNCAN, BRYAN D. THOMAS, DUNCAN SIMONETTE, INC., 155 East Broad Street, Suite 2200, Columbus, Ohio 43215
{¶1} Defendant-Appellant Norma Stilwell appeals the December 14, 2011, decision of the Court of Common Pleas of Fairfield County, Ohio, denying her 60(B) Motion from Relief from Judgment.
STATEMENT OF THE FACTS AND CASE
{¶2} This case arose from a residential foreclosure action initiated as a result of Appellant’s default under the terms of a Note and Mortgage. The relevant facts and procedural history are as follows:
{¶3} On June 25, 2008, Appellee Bank of New York filed its Complaint for Foreclosure in this matter, and service by certified mail upon Appellant Norma Stilwell was perfected on June 28, 2008.
{¶4} Appellant failed to answer the Complaint, and the trial court entered a default judgment against her and in favor of Plaintiff/Appellee, on August 11, 2008.
{¶5} The case has not yet proceeded to a judicial sale.
{¶6} On October 11, 2011, Appellant filed a
{¶7} By Judgment Entry dated December 14, 2011, the trial court denied Appellant’s motion.
{¶9} Appellant now appeals, assigning the following sole Assignment of Error.
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE ITS AUGUST 11, 2008 JUDGMENT ENTRY OR ANY SUBSEQUENT ENTRY GRANTING DEFAULT JUDGMENT BASED ON
{¶11} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE ITS AUGUST 11, 2008 JUDGMENT ENTRY OR ANY SUBSEQUENT ENTRY GRANTING DEFAULT JUDGMENT PURSUANT TO THE TRIAL COURT‘S POLICY AND “LONGSTANDING PRACTICE” WITH RESPECT TO ADJUDICATING MATTERS ON THEIR MERITS AS OPPOSED TO PROCEDURAL DEFECTS.
{¶12} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO TRANSFER THE UNDERLYING MATTER TO MEDIATION AS REQUESTED BY APPELLANT.
{¶13} “IV. THE TRIAL COURT ERRED WHEN IT FAILED TO SET FORTH A FINDING OF EXCUSABLE NEGLECT.
{¶14} “V. THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT‘S MOTION TO VACATE TO BE UNTIMELY.”
{¶15} In her First, Second, Fourth and Fifth Assignments of Error, Appellant argue that the trial court erred in denying her
{¶16} To prevail on a motion to vacate a judgment pursuant to
{¶17} The decision to grant or deny a
{¶18}
{¶19} “(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms that are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to
{¶20}
{¶21} Furthermore, it applies only where a more specific provision of
{¶22} Appellant herein filed her motion pursuant to
{¶23} As set forth above, under
{¶24} Appellant claims that she did not understand the Complaint for Foreclosure, Motion for Default Judgment and/or Notice of the Sheriff‘s Sale. Further, Appellant claims that she had a good faith belief that she was in ongoing negotiations with Appellee throughout the course of the foreclosure action. She claims Appellee
{¶25} Upon review, we find Appellant failed to present sufficient evidence of excusable neglect to warrant relief from judgment in the case sub judice. Appellant does not deny that she was properly served with the Complaint for Foreclosure in this matter and, as evidenced by the loan modification negotiations with Appellee, Appellant was clearly aware of the foreclosure action. Instead, Appellant argues that because she was involved in loan modification negotiations with Appellee, she believed she did not have to address the pending foreclosure action.
{¶26} This Court has previously found that such does not amount to excusable neglect under
{¶27} More importantly, since Appellant seeks relief through
{¶28} While not expressly stated as a
{¶29} Upon review, we find Appellant has failed to present clear and convincing evidence of fraud as to any alleged misrepresentations in this matter.
{¶30} A claim for common law fraud requires proof of the following elements: (1) a representation or, where there is a duty to disclose, concealment of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance. Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 169, 462 N.E.2d 407; Collins v. National City Bank, Montgomery App. No. 19884, 2003–Ohio–6893, ¶ 39.
{¶31} We further find no evidence that Appellee prevented Appellants from having a fair opportunity to present a defense.
{¶32} Appellant’s claims that she did not realize that she had to file an answer the complaint or that she did not know the foreclosure was still going forward are unpersuasive. “Litigants who choose to proceed pro se are presumed to know the law and correct procedure and are held to the same standard as other litigants.” Yocum v. Means, Darke App. No. 1576, 2002–Ohio–3803. A litigant proceeding pro se “cannot expect or demand special treatment from the judge, who is to sit as an impartial arbiter.” Id.
{¶34}
{¶35} Appellant in her brief has failed to allege operative facts to suggest that she was entitled to extraordinary relief under
{¶36} Furthermore, it is well settled that
{¶37} Appellant’s First, Second, Fourth and Fifth Assignments of Error are overruled.
III.
{¶38} In her Third Assignment of Error, Appellant argues that the trial court erred in failing to refer this matter to mediation. We disagree.
{¶40} Upon review, we find that the trial court was well within its discretion to deny the motion for mediation at this stage of the proceedings. The trial court was never obligated to grant a motion for mediation at any stage.
{¶41} Appellant’s Third Assignment of Error is overruled.
{¶42} For the foregoing reasons, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.
By: Wise, J.
Delaney, P. J., and
Farmer, J., concur.
JUDGES
JWW/d 0823
BANK OF NEW YORK v. NORMA STILWELL, et al.
Case No. 12 CA 3
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.
Costs assessed to Appellants.
JUDGES