NATIONSTAR MORTGAGE, LLC v. MARY PURNELL, ET AL.
Case No. 13-CA-74
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 25, 2014
2014-Ohio-2824
Hon. Sheila G. Farmer, P.J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2013 CV 00457; JUDGMENT: Reversed
For Plaintiff-Appellee
DAVID F. HANSON
MICHAEL E. CARLETON
CRAIG SPADAFORE
P.O. Box 16508
Columbus, OH 43216-5028
For Defendants-Appellants
ANDREW J. GERLING
TROY J. DOUCET
700 Stonehenge Parkway
Suite 2B
Dublin, OH 43017
{¶1} On May 24, 2013, appellee, Nationstar Mortgage, LLC, filed a complaint in foreclosure against appellant, Mary Purnell, and others, for money due and owing on a note secured by a mortgage. On August 14, 2013, appellee filed a motion for default judgment for appellant‘s failure to answer or otherwise defend. By judgment entry and decree in foreclosure filed same date, the trial court granted the motion and ordered the requested foreclosure.
{¶2} Thereafter, appellant filed an answer and counterclaim on August 22, 2013. On September 20, 2013, appellant filed a motion for relief from judgment pursuant to
{¶3} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶4} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MS. PURNELL‘S MOTION FOR RELIEF FROM JUDGMENT ON THE GROUNDS SHE DOES NOT HAVE A MERITORIOUS DEFENSE OR CLAIM.”
II
{¶5} “THE TRIAL COURT ABUSED ITS DISCRETION IN SUMMARILY CONCLUDING MS. PURNELL WAS NOT ENTITLED TO RELIEF UNDER
{¶6} Appellant claims the trial court abused its discretion in denying her
{¶7} A motion for relief from judgment under
To prevail on a motion brought under
Civ.R. 60(B) , the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated inCiv.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R. 60(B)(1) , (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.
{¶9} In its entry filed October 30, 2013, the trial court found the motion was made within a reasonable time, but appellant did not demonstrate that she was entitled to relief under
{¶10} Appellant presented an evidentiary quality affidavit with her motion. In her affidavit, appellant averred on October 12, 2012, she informed appellee of an emergency medical procedure and requested an extension of her monthly mortgage payment. Appellee agreed to accept the mortgage payments for November and December 2012 in December 2012. Appellant stated she made the payments on December 19, 2012 (four days after the due date for the December payment). Attached to the motion as Exhibit 2 is a copy of a “MoneyGram” directed to appellee and appellant‘s receipt for payment from Walmart. Appellant averred she then resumed her scheduled monthly mortgage payments. In May 2013, appellant contacted appellee for a new modification plan. In a letter dated May 22, 2013, attached to the motion as
{¶11} Based upon these evidentiary quality issues relative to appellant‘s claim of a meritorious defense, we find the trial court should have conducted an evidentiary hearing.
{¶12} Assignment of Error I is granted in part.
II
{¶13} Based upon our decision in Assignment of Error I, this assignment is moot.
{¶14} The judgment of the Court of Common Pleas of Fairfield County, Ohio is hereby reversed for an evidentiary hearing.
By Farmer, P.J.
Wise, J. and
Delaney, J. concur.
SGF/sg 602