Natl. City Home Loan Servs. v. GilletteNatl. City Home Loan Servs. v. Gillette
{¶ 3} Gillette and her former husband, Scott Gillette1 ("Scott"), each owned a parcel of property in Scioto County. National City initiated proceedings to foreclose on its mortgage on Scott's parcel. National City also claimed that the court should reform the mortgage, which originated with another lender, to include both Scott's parcel and Gillette's parcel. National City filed a motion for summary judgment, contending that the original lender made a scrivener's error when it failed to include Gillette's property in the mortgage, arguing that it is entitled to reformation under the doctrine of mutual mistake, and seeking to foreclose on the mortgage.
{¶ 4} Gillette filed a response along with her own motion for summary judgment. She attached an affidavit in which she averred that the original lender created all mortgage documents, that she never intended to mortgage her property, and that she signed Scott's mortgage documents only in order to release her dower interest in Scott's property.
{¶ 5} The trial court issued a scheduling order mandating that National City file its response to Gillette's motion by June 25, 2004. Additionally, the court scheduled a non-oral hearing on the competing motions for summary judgment for July 6, 2004. National City did not file a response to Gillette's motion. On July 7, 2005, the trial court issued an order overruling National City's motion and sustaining Gillette's motion for summary judgment. The trial court determined pursuant to
{¶ 6} On July 9, 2004, National City filed a motion for leave to belatedly respond to Gillette's motion for summary judgment and a memorandum in opposition to Gillette's motion for summary judgment. In its memorandum, National City argued that Gillette's assertion that the mistake was unilateral, not mutual, was not supported by the evidence. In particular, National City argued that the documents surrounding the creation of the mortgage and the fact that the value of Scott's property was grossly inadequate to secure the mortgage indicate that Gillette intended to mortgage her property. Additionally, National City argued that if the court does not allow reformation of the mortgage, Gillette will be unjustly enriched because she used the proceeds of the loan to pay off the prior mortgage on her property.
{¶ 7} On July 27, 2004, the trial court overruled National City's motion to belatedly respond to Gillette's motion for summary judgment. National City did not appeal the trial court's decision granting summary judgment to Gillette or its decision denying National City's motion to belatedly respond to Gillette's motion.
{¶ 8} On November 7, 2004, National City filed a notification of an automatic stay after Scott filed for bankruptcy.2
On May 20, 2005, National City filed a notice with the court that the bankruptcy court had granted Scott a Chapter 7 discharge on March 4, 2005, which lifted the automatic stay. At the same time, National City filed a motion for relief from judgment pursuant to
{¶ 9} In its
{¶ 10} Gillette filed a memorandum opposing National City's motion for relief from judgment, and National City filed a response. The trial court overruled National City's motion without a hearing on August 10, 2005. In its ruling, the court noted that the appropriate route for National City to seek relief was not via a motion for relief from judgment filed ten months after it issued its final judgment, but rather via a timely direct appeal.
{¶ 11} National City appeals, asserting the following assignment of error: "The trial court abused its discretion in overruling appellant's Motion for Relief from Judgment." Within its assignment of error, National City presents five issues for our review. First, National City contends that the trial court erred in concluding that the issues it raised were more appropriate for an appeal than for a motion for relief from judgment. Additionally, National City contends that the trial court was required to hold a hearing on its motion for relief from judgment. Finally, National City contends that it is entitled to
{¶ 13}
{¶ 14} The Ohio Supreme Court has held that for a party to prevail under Rule 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 in
{¶ 15} A party who files a motion for relief from judgment under
{¶ 16} A movant cannot use
{¶ 19} Here, National City did not allege that its failure to file a response to Gillette's motion for summary judgment was due to any extenuating circumstances. Instead, National City simply relies upon its assertion that it did not exhibit dilatory conduct in the proceedings leading up to the motion for summary judgment. Because National City failed to set forth some operative facts to assist the trial court in determining whether its neglect was excusable, we cannot find that the trial court abused its discretion in declining to conduct a hearing or in denying the motion for relief from judgment.
{¶ 21} More importantly, all of the facts that National City relies upon to support its contention that the mortgage contains a mutual mistake were within its knowledge at the time Gillette filed its motion for summary judgment. To obtain relief under
{¶ 23} Likewise, the
{¶ 25} "[W]hile a party may have a possible right to file a motion to vacate a judgment up to one year after the entry of judgment, the motion is also subject to the `reasonable time' provision. Adomeit v. Baltimore (1974),
{¶ 26} Absent evidence explaining the reasons for a delay, a delay of as little as two and a half months may be unreasonable under
{¶ 27} Here, the record indicates that National City did not file its motion for relief from judgment until May 20, 2005, despite the fact that it was aware of all the grounds it presented in support for its motion for relief from judgment in July of 2004. The only evidence National City offers in support of its excusable neglect contention is the fact that it has not otherwise demonstrated a complete disregard for the judicial system. Such evidence was clearly within National City's knowledge in July of 2004. Thus, National City did not present factual materials to demonstrate the timeliness of its motion for relief from judgment on the grounds of excusable neglect.
{¶ 28} With regard to its fraud allegation, in its July 9, 2004 memorandum, National City indicated its belief that Gillette and the original lender both intended for the mortgage to encumber Gillette's property. In her affidavit in support of National City's motion for relief from judgment, National City's counsel, Pamela Petas, averred that National City suspected that Gillette's affidavit was fraudulent by July 21, 2004 at the latest. Thus, National City was aware of the alleged fraud ten months before it moved for relief from judgment. National City has not submitted facts to justify its delay in filing a motion for relief from judgment on the grounds of fraud.
{¶ 29} Finally, National City argued in the memorandum it filed on July 9, 2004 that, even if the mistake in the formation of the mortgage was unilateral on the part of the original lender, National City is entitled to reformation of the mortgage under principles of equity. National City has not presented any factual materials to justify its delay in bringing its motion for relief from judgment on the grounds of equity or unjust enrichment.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.