CITIMORTGAGE, INC., SUCCESSOR BY MERGER TO ABN AMRO MORTGAGE GROUP, INC., Plaintiff-Appellee, v. ROGER P. FANGMAN, et al., Defendants-Appellant.
CASE NO. CA2013-03-020
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
7/29/2013
[Cite as CitiMtge., Inc. v. Fangman, 2013-Ohio-3316.]
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2012 CVE 00169
Doucet & Associates, Inc., Troy J. Doucet, 4200 Regent Street, Suite 200, Columbus, Ohio 43219, for defendant-appellant, Roger P. Fangman
Eric W. Goering, 220 West Third Street, 3rd Floor, Cincinnati, Ohio 45202, for defendant, Ann F. Fangman
Tabitha M. Hochscheid, 250 East Fifth Street, Suite 1200, Cincinnati, Ohio 45202, for defendant, Ellenbee Leggett Company
Jackson T. Moyer, 471 East Broad Street, 12th Floor, Columbus, Ohio 43215, for defendant, Matrix Acquisition
Yale R. Levy, 4645 Executive Drive, Columbus, Ohio 43220, for defendant, Advantage Assets, II, Inc.
Sysco Food Service of Cincinnati, 10510 Evendale Drive, Cincinnati, Ohio 45241, defendant
Amex Centurion Bank, 100 Vasey Street, 44th Floor, New York, New York 10285, defendant
Citibank, 701 East 60th Street North, Sioux Falls, South Dakota 57104, defendant
O P I N I O N
M. POWELL, J.
{¶ 1} Defendant-appellant, Roger Fangman, appeals a decision of the Clermont County Court of Common Pleas granting plaintiff-appellee, CitiMortgage, Inc., a default judgment in a foreclosure action.
{¶ 2} On January 30, 2012, CitiMortgage filed a foreclosure complaint against Fangman and his wife.1 Fangman did not file an answer to the complaint. CitiMortgage moved for summary judgment on September 21, and for default judgment on October 5. On November 1, counsel for Fangman entered an appearance in the case and moved for leave to file an answer to CitiMortgage‘s motion for summary judgment out of time. Fangman‘s motion for leave was granted by the trial court. On November 21, Fangman filed an answer to CitiMortgage‘s motion for summary judgment. The record indicates a summary judgment hearing was held on December 17.
{¶ 3} On January 21, 2013, Fangman filed a motion for mediation which was denied by the trial court. On February 8, CitiMortgage once again moved for default judgment. Fangman was served with a copy of the motion by CitiMortgage via ordinary mail. On February 19, 2013, the trial court granted CitiMortgage‘s motion for default judgment, entered a judgment in favor of CitiMortgage in the amount of $139,701.94, and ordered the sale of the property.
{¶ 5} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ENTERED DEFAULT JUDGMENT AGAINST MR. FANGMAN, HOLDING HE WAS IN DEFAULT OF MOTION OR ANSWER.
{¶ 6} Fangman argues the trial court abused its discretion in entering a default judgment in favor of CitiMortgage. Specifically, Fangman argues the trial court entered the default judgment in violation of the hearing and notification procedures of
{¶ 7} An appellate court reviews a trial court‘s decision to grant or deny a motion for default judgment under an abuse of discretion standard. First Horizon Home Loans v. Sims, 12th Dist. Warren No. CA2009-08-117, 2010-Ohio-847, ¶ 11. An abuse of discretion is more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 8}
When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor * * *. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application.
{¶ 9} ”
{¶ 10} There is no question that Fangman appeared in the action for purposes of triggering the seven-day notice requirement of
{¶ 11} The certificate of service on CitiMortgage‘s motion for default judgment stated only it had served a copy of the motion upon Fangman. It contained no mention of a hearing. See Plant Equip., Inc. v. Nationwide Control Serv., Inc., 155 Ohio App.3d 46, 2003-Ohio-5395 (1st Dist.). More importantly, the trial court never provided Fangman with any notice of the default judgment hearing, and in fact, never actually held such hearing before entering a default judgment in favor of CitiMortgage. The trial court, therefore, entered a default judgment against Fangman and in favor of CitiMortgage in violation of
{¶ 12} “[A] defendant who has appeared in the action is entitled to service of an
{¶ 13} We emphasize that nothing in this opinion should be read as relieving Fangman of his obligation to show why default judgment should not be entered against him. We are remanding this matter merely because a default judgment cannot be entered against a party who has appeared in an action without holding a hearing on the application for default judgment, and without giving that party seven days’ notice of the hearing, as required by
{¶ 14} In light of our holding, we decline to address Fangman‘s claim he defended the foreclosure action under
{¶ 15} Judgment reversed and cause remanded for further proceedings consistent with this opinion and in accordance with law.
S. POWELL, P.J., and PIPER, J., concur.