Natl. Collegiate Student Loan Trust 2007-2 v. TignerNatl. Collegiate Student Loan Trust 2007-2 v. Tigner
Rendered on the 2nd day of November, 2018.
ERIC WASSERMAN, Atty. Reg. No. 0020604 and EVANA CAROLYN DELON, Atty. Reg. No. 0077741, 30455 Solon Road, Solon, Ohio 44139 Attorneys for Plaintiff-Appellee
JONATHAN F. HUNG, Atty. Reg. No. 0082434, 800 Performance Place, 109 North Main Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 2} On May 2, 2007, David C. Tigner executed a student loan with plaintiff-appellee National Collegiate Student Loan Trust 2007-2 (hereinafter “National“). Flo Tigner (“Tigner“), David‘s mother, co-signed the student loan. The original loan amount was for $27,176 and was executed in order to finance David‘s education at Central State University, located in Wilberforce, Ohio.
{¶ 3} On October 30, 2017, National filed a complaint against Tigner to collect upon the defaulted student loan for which she co-signed. The record establishes that Tigner received successful service of the complaint via FedEx on November 7, 2017. Tigner failed to appear or respond to the complaint, and on December 8, 2017, National filed a motion for default judgment. On December 14, 2017, the trial court granted the motion for default judgment and entered judgment in favor of National in the amount $59,656.51, including principal, accrued interest, and fees. Tigner filed a pro se notice of appeal with this Court on December 22, 2017 (Montgomery App. No. 27841).
{¶ 4} On February 15, 2018, Tigner, acting pro se, filed a brief with this court wherein she admitted that she co-signed the student loan for her son in 2007. While admitting that she made payments towards the loan for an unspecified amount, Tigner argued that her current financial situation left her unable to make any further payments. Tigner‘s brief contained no legal arguments and failed to cite any legal authority in support
{¶ 5} Upon remand, Tigner filed her
In conclusion, although Defendant asserts in her Motion that the date payments ceased, potentially triggering a statute of limitations defense, Defendant‘s assertions were not made pursuant to a properly framed affidavit, the assertions are conclusory at best, Defendant failed to submit other proper evidence for the court‘s consideration, and Defendant has failed to demonstrate excusable neglect and has not properly assert[ed] that she has a meritorious defense to the claim. Defendant has failed to set forth any operative facts or provide any proper evidence entitling her to relief from judgment under one of the grounds delineated in
Civ.R. 60(B)(1) through (5), and, thus, Defendant has failed to satisfy the first prong of the GTE test [referencing GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976)]. Next, even if the court had found that Defendants [sic] set forth a reason entitling Defendants [sic] to relief from judgment, Defendant also failed to satisfy the second prong of the GTE test by failing to submit any proper evidence for the court‘s consideration as to whether Defendants [sic] had a meritorious defense or claim to present if relief was granted.
Decision, Order, and Entry, Montgomery C.P. No. 2017-CV-5075 (May 25, 2018) at 4-5.
{¶ 6} Tigner filed a timely notice of appeal from this judgment on June 19, 2018 (Montgomery App. No. 28035).
{¶ 7} Tigner‘s first assignment of error is as follows:
THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS WHEN IT GRANTED DEFAULT JUDGMENT IN APPELLEE‘S FAVOR BEFORE APPELLANT HAD THE OPPORTUNITY TO RESPOND PURSUANT TO THE TIME PROSCRIBED BY LOC.R. 2.05(B)(2)(b) OF THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, GENERAL DIVISION.
{¶ 8} In her first assignment, Tigner contends that, pursuant to Mont. Co. C.P.R. 2.05(B)(2)(b), she was entitled to 14 days in which to respond to National‘s motion for default judgment. Therefore, Tigner argues that the trial court erred when it granted default judgment in favor of National before 14 days had expired, thereby violating her due process rights.
{¶ 9} We review a trial court‘s decision to grant a default judgment for abuse of
{¶ 10} As previously stated, Tigner argues that, pursuant to Mont. Co. C.P.R. 2.05(B)(2)(b), she was entitled to 14 days in which to respond to National‘s motion for default judgment, and therefore, the trial court erred when it granted default judgment to National before 14 days had expired. Mont. Co. C.P.R. 2.05(B)(2)(b) provides that all memoranda opposing a motion shall “be filed and served within 14 days from the date on which the motion was served. If no memorandum is filed within this time limit, the motion may be decided forthwith.”
{¶ 11} Initially, we note that Mont. Co. C.P.R. 2.17(A)(2)(a) provides that a “proposed default judgment entry shall include a certificate of service” and that “the filing party, not the clerk” is responsible for “serving a copy of the default judgment entry” on the party against whom judgment is sought. Tigner has not alleged that National failed to fulfill those requirements. Additionally, Mont. Co. C.P.R. 2.01(B)(2)(a) specifically allows for the filing of a motion for default judgment in the event that the defendant fails to file an answer. As noted by the trial court in its decision overruling Tigner‘s motion for relief from judgment, nothing in Mont. Co. C.P.R. 2.01 affirmatively states that a non-answering defendant shall have an opportunity to respond to a motion for default judgment. Id. at 4.
{¶ 12} In support of her argument that Mont. Co. C.P.R. 2.05(B)(2)(b) applies in
{¶ 13} In our view, both Farmer and Wesley are clearly distinguishable from the facts in the instant case. Specifically, the motions at issue in Farmer and Wesley were motions for sanctions based upon discovery violations under Mont. Co. C.P.R. 2.05, not motions for default judgment filed after the defendant had failed to file an answer or otherwise enter an appearance in the action, as is the case here. Therefore, the 14-day time period set forth in Mont. Co. C.P.R. 2.05(B)(2)(b) is inapplicable to the instant case and does not act to bar the trial court from granting default judgment in favor of National.
{¶ 14} Rather,
(A) Entry of Judgment. 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; but no judgment by default shall be entered against a minor or an incompetent person unless represented in the action by a guardian or other such representative who has appeared therein. 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.
{¶ 15} “A party appears in an action for purposes of
{¶ 16} The Third Appellate District addressed an almost identical issue in a foreclosure action in Bank of Am., N.A. v. Sullivan, 3d Dist. Allen No. 1-15-09, 2015-Ohio-2736. Similar to Tigner, the appellant in Sullivan argued that he had not been properly afforded the 14-day response on motions, under the local rule, when default judgment was entered one day after the motion had been filed by the plaintiff. Id. at ¶ 4-7. The Sullivan court reasoned that, since the appellant had not filed an answer or otherwise appeared in the action, the local rule providing him with 14 days to respond to a motion did not apply. Id. at ¶ 12. Rather, the court held that the appellant‘s case was governed by
{¶ 17} In the instant case, the record establishes that Tigner failed to answer or otherwise appear prior to the filing of National‘s motion for default judgment. Therefore, Tigner effectively admitted the allegations in the complaint. As a result, Tigner was not entitled to the notice requirements of
{¶ 18} Tigner‘s first assignment of error is overruled.
{¶ 19} Tigner‘s second assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT‘S TIMELY MOTION FOR RELIEF FROM JUDGMENT BECAUSE THE EVIDENCE SHOWED THAT APPELLANT WAS ENTITLED TO RELIEF PURSUANT TO CIV.R. 60(B)(5), AND THAT SHE HAD A MERITORIOUS DEFENSE AGAINST APPELLEE‘S CLAIMS.
{¶ 20} In her second and final assignment, Tigner argues that the trial court erred when it overruled her
{¶ 22} In order to establish a meritorious claim or defense under
{¶ 23}
{¶ 24} Motions for relief from judgment under
{¶ 25} After reviewing the record, we find no abuse of discretion. As was noted, if any of the three requirements under
An act is one of “neglect” when it constitutes an omission or failure to do a thing that can be done, but it may also import a failure of care or attention in the doing or omission of a given act. ‘Excusable neglect’ in the context of a
Civ. R. 60(B)(1) motion generally means the failure to take the proper steps at the proper time, not in consequence of the party‘s own
carelessness, inattention, or willful disregard of the processes of the court, but in consequence of some unavoidable or unexpected hindrance or accident, or reliance on the care and vigilance of his counsel or on promises made by the adverse party.
Federal Natl. Mtge. Assn. v. Banks, 2d Dist. Montgomery No. 12692, 1991 WL 254652 (Dec. 6, 1991); accord Hai v. Flower Hosp., 6th Dist. Lucas No. L-07-1423, 2008-Ohio-5295, ¶ 21, and Vanest v. Pillsbury Co., 124 Ohio App.3d 525, 537, 706 N.E.2d 825 (4th Dist.1997).
{¶ 26} “Courts generally find excusable neglect in those instances where there are ‘unusual or special circumstances’ that justify the neglect of a party or her attorney.” Griffin v. Dream House Mtge. Corp., 2d Dist. Greene No. 08-CA-45, 2009-Ohio-2178, ¶ 30, citing Hai at 21. However, no such circumstances have been shown to exist in the present case. The trial court stated in its decision that Tigner established neglect, but not excusable neglect. Upon review, we agree with the trial court.
{¶ 27} In her motion for relief from judgment, Tigner argued that excusable neglect on her part should have satisfied the first prong of the GTE test. Specifically, Tigner stated that she was “a victim of circumstance and her inexperience with the law.” Tigner also argues on appeal that she did not disregard the judicial system, because she filed a timely notice of appeal with this Court after the default judgment was entered. However, the fact remains that Tigner did not file an answer to National‘s complaint, nor did she otherwise make an appearance in the action prior to the filing of the motion for default judgment. Additionally, Tigner did not respond to National‘s motion for default judgment.
{¶ 28} In Rayess v. McNamee, 2d Dist. Montgomery No. 26543, 2015-Ohio-3163,
A majority of cases addressing this type of claim [seeking relief from judgment] with regard to pro se litigants “conclude that lack of counsel and ignorance of the legal system [do] not constitute ‘excusable neglect.‘” Dayton Power & Light v. Holdren, 4th Dist. Highland No. 07CA21, 2008-Ohio-5121, ¶ 12. This is because “pro se litigants are presumed to have knowledge of the law and legal procedures and they are held to the same standard as litigants who are represented by counsel.” Id., citations omitted. “Courts should not generally use
Civ.R. 60(B)(1) to relieve pro se litigants who are careless or unfamiliar with the legal system.” Id., citation omitted. “Acting pro se * * * is neither excusable neglect nor any other reason justifying relief from judgment. A party has a right to represent himself, but if he does so, he is subject to the same rules and procedures as litigants with counsel. If the fact that a party chose not to be represented by counsel and was unsuccessful in pursuing his rights entitled that party to relief from judgment, every judgment adverse to a pro se litigant could be vacated to permit a second attempt.” Ragan v. Akron Police Dept., 9th Dist. [Summit] No. 16200, 1994 WL 18641, * 3 (Jan. 19, 1994).
{¶ 29} Despite the fact that Tigner proceeded without counsel, she is charged with knowledge of the law and legal procedure. Id. at ¶ 14. Tigner‘s failure to file an answer or to make an appearance in the action because of her alleged inexperience with the legal system did not constitute excusable neglect entitling her to relief from the trial court‘s
{¶ 30} Additionally, we note that Tigner alleges on appeal that she contacted counsel for National “at least three times” prior to the filing of the motion for default judgment and indicated that she intended to defend herself, thereby making an appearance for the purpose of
{¶ 31} As previously stated, failure to establish any of the three prongs outlined in GTE is fatal. Strack, 70 Ohio St.3d at 174. Because Tigner failed to establish excusable neglect, we are not required to consider whether she possessed a meritorious defense to National‘s complaint demanding repayment of the student loan.
{¶ 32} Tigner‘s second and final assignment of error is overruled.
{¶ 33} Both of Tigner‘s assignments having been overruled, the judgment of the trial court is affirmed.
FROELICH, J. and HALL, J., concur.
Eric Wasserman
Evana Carolyn Delon
Jonathan F. Hung
Daniel Pisani
Hon. Mary Katherine Huffman