[Cite as Wells Fargo Bank, N.A. v. Cogar, 2013-Ohio-311.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WELLS FARGO BANK, N.A. : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
ROBERT E. COGAR, ET AL : Case No. 12-COA-022
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 09CFR010
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 31, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
BRADLEY P. TOMAN TIMOTHY B. PETTORINI
24755 Chagrin Boulevard 225 North Market Street
Suite 200 P.O. Box 599
Cleveland, OH 44122 Wooster, OH 44691
Ashland County, Case No. 12-COA-022 2
Farmer, J.
{¶1} On January 7, 2009, appellee, Wells Fargo Bank, NA, filed a foreclosure
action against Robert Cogar and his wife, appellant herein, Rosalie Cogar, for failure to
pay on a promissory note secured by a mortgage.
{¶2} On March 2, 2009, appellee filed a motion for summary judgment. By
entry filed January 28, 2010, the trial court granted the motion and awarded appellee as
against appellant $227,066.05 plus interest.
{¶3} On February 1, 2010, appellant filed an emergency motion to vacate the
judgment and to stay the foreclosure. The trial court stayed its decision on February 4,
2010. Mr. Cogar died on March 27, 2010. The trial court vacated the stay on
November 18, 2011.
{¶4} On January 13, 2012, appellant filed a second motion to vacate the
judgment, claiming newly discovered evidence and fraud pursuant to Civ.R. 60(B)(2)
and (3). A hearing was held on April 27, 2012. By judgment entry filed May 16, 2012,
the trial court denied the motion.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶6} "THE TRIAL COURT ERRED IN DENYING ROSALIE COGAR'S MOTION
FOR RELIEF FROM JUDGMENT."
I
{¶7} Appellant claims the trial court erred in denying her motion for relief from
judgment pursuant to Civ.R. 60(B)(2) and (3) as her motion was timely, she presented a
Ashland County, Case No. 12-COA-022 3
meritorious defense, and she presented grounds for vacating the judgment based on
newly discovered evidence. We disagree.
{¶8} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's
sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987). In order to find an abuse
of that discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217 (1983). Appellant based its Civ.R. 60(B) motion on "newly
discovered evidence, which by due diligence could not have been discovered in time to
move for a new trial under Rule 59(B)" and "fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party."
Civ.R. 60(B)(2) and (3). In GTE Automatic Electric Inc. v. ARC Industries, Inc., 47 Ohio
St.2d 146 (1976), paragraph two of the syllabus, the Supreme Court of Ohio held the
following:
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 in Civ.R. 60(B)(1) through (5); and (3) the motion is made
within a reasonable time, and, where the grounds of relief are Civ.R.
60(B)(1), (2) or (3), not more than one year after the judgment, order or
proceeding was entered or taken.
Ashland County, Case No. 12-COA-022 4
{¶9} In its judgment entry filed May 16, 2012, the trial court found no "factual
basis" for appellant's assertion that she did not sign the promissory note:
This example is but one of many inconsistencies in the witness
testimony that suggest the Defendant's witnesses were untruthful in their
testimony. Rosalie Cogar testified on cross examination to a number of
documents that she claimed bore her forged signature, inferring that
Robert Cogar had signed her name without her knowledge. Yet, when
confronted with her denial that is was her signature situated on documents
that were signed well after Mr. Cogar's death, including pro se pleadings
filed in this matter, she could not explain how her signature could have
gotten on the documents. Again, the Court finds the testimony of Rosalie
Cogar to be untruthful.
Notwithstanding the legal authority asserted by the parties as to
whether this Court has the legal authority to grant Defendant's motion, the
Court specifically finds that there is no factual basis which justifies relief
pursuant to Civ.R. 60(B). Defendant has failed to establish any fraud in
the execution of the mortgage and loan documents.
{¶10} We note the trial court did not address the timeliness of the motion, filed
some two years after the final judgment. The issue of timeliness is critical to our
discussion. The "newly discovered evidence" was appellant questioning the validity of
her signature. This issue was an affirmative defense that should have been raised in
Ashland County, Case No. 12-COA-022 5
the pleadings. R.C. 1303.36 governs proof of signatures and status of holder in due
course. Subsection (A) states the following:
Unless specifically denied in the pleadings, in an action with
respect to an instrument, the authenticity of, and authority to make, each
signature on an instrument is admitted. If the validity of a signature is
denied in the pleadings, the burden of establishing validity is on the party
claiming validity but the signature is presumed to be authentic and
authorized unless the action is to enforce the liability of the purported
signer and the signer is dead or becomes incompetent at the time of the
trial on the issue of the validity of the signature. If an action to enforce the
instrument is brought against a person as the undisclosed principal of a
person who signed the instrument as a party to the instrument, the plaintiff
has the burden of establishing that the defendant is liable on the
instrument as a represented person under section 1303.42 of the Revised
Code.
{¶11} Appellant did not raise the issue of the validity of her signature in her
pleadings. In her February 4, 2009 answer to the complaint, appellant admitted to the
validity of the mortgage, and that she had an interest in the subject property as a
titleholder.
{¶12} The trial court entered final judgment on January 28, 2010 by granting
summary judgment to appellee. Appellee had filed a motion for summary judgment on
Ashland County, Case No. 12-COA-022 6
March 2, 2009. The basis of the motion was the mortgage and the note, attached to the
motion as Exhibits A and B. In response, appellant and her husband filed separate pro
se objections on March 9, 2009, claiming "fraud and predatory lending" and requesting
discovery and a trial. No claim relative to the validity of appellant's signature on the
note was made. Numerous other filings (motions for stay of judgment, injunction, and to
dismiss) were filed pro se raising bare allegations of fraud and dower interests, all
unsupported by evidentiary quality materials as required by Civ.R. 56. Cogswell v.
Cardio Clinic of Stark County, Inc., 5th Dist. No. CA-8553 (October 21, 1991).
{¶13} As previously noted, final judgment was granted on January 28, 2010, and
appellant did not raise the issue of the validity of her signature until the filing of her
Civ.R. 60(B) motion on January 13, 2012.1 In her affidavit attached to her motion as
Exhibit A, appellant averred: "I do not recall ever attending a closing around May of
2005" and "I could not say for certain that the signature on the mortgage was my
signature."
{¶14} Also attached to the motion is the affidavit of the closing agent, Benjamin
T. Lackey (Exhibit C). Mr. Lackey averred appellant was not present at the closing, but
the documents contained her notarized signature. Appellant's counsel, Timothy B.
Pettorini, stated he did not know of Mr. Lackey's involvement until December 1, 2011
(Exhibit B). What is curiously lacking in Mr. Pettorini's affidavit is his knowledge of
appellant's assertion that she could not say "for certain" that the signature on the
mortgage was her signature.
1
We note appellant had filed a motion to vacate on February 1, 2010, but the motion
focused on the assignment of the note and mortgage and requested mediation.
Ashland County, Case No. 12-COA-022 7
{¶15} During the evidentiary hearing held on April 27, 2012, appellant stated on
direct that she could not tell if it was her signature on the mortgage (Exhibit A). T. at 66.
She claimed her husband could have signed her name, but she was not sure. T. at 68-
69. At the time of the hearing, appellant's husband was deceased. Appellant claimed
no knowledge of the subject foreclosure action prior to Mr. Cogar's death on March 27,
2010. T. at 65.
{¶16} Given the statements in the affidavits, we conclude to dismiss the motion
outright on timeliness would have been in error. Although the timeline is suspect, we
cannot say the trial court erred in proceeding to a hearing.
{¶17} Appellant argues once she presented testimony, the trial court should
have granted her Civ.R. 60(B) motion and should not have addressed the issue of
credibility. Appellant argues determinations on credibility are not within the scope of a
trial court's authority in a Civ.R. 60(B) motion. In support of this claim, appellant cites
the cases of Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (1996), and Deutsche Bank
National Trust Co. v. Lagowski, 7th Dist. No. 10 BE 28, 2012-Ohio-1684.
{¶18} We disagree with this assertion. The Kay case cited by appellant is
distinguishable from the facts sub judice because in that case, the trial court did not
conduct a hearing after being presented with affidavits therefore, testimony was not
presented testing the truthfulness of the affidavits. Our decision in Cogswell, supra, is
consistent with the Supreme Court of Ohio's reasoning.
{¶19} In Deutsche Bank, at ¶63, our brethren from the Seventh District stated
that credibility was not an issue at a Civ.R. 60(B) motion hearing:
Ashland County, Case No. 12-COA-022 8
However, the trial court found Lagowski's credibility to be lacking,
and on that basis determined that he failed to allege a meritorious
defense. It is error to make this kind of credibility determination at this
stage of the proceedings; rather, these determinations are reserved for a
trial on the merits, to be made by the trier of fact. In essence, the trial
court made Lagowski do more than state a meritorious defense; it went
further and put Lagowski in the position of proving the defense. And when
Lagowski failed to do so, the trial court denied the motion to vacate. Thus,
the trial court abused its discretion in finding that Lagowski failed to allege
operative facts to support a meritorious defense to the judgment.
{¶20} We find this conclusion to totally emasculate the purpose of a hearing.
What purpose is the placing of a witness under oath if it is not to test the witness's
credibility? An evidentiary hearing by its very nature revolves around truthfulness and
believability. The very nature of a Civ.R. 60(B) hearing places the burden of proof upon
the movant. To totally disregard the issue of credibility at a Civ.R. 60(B) hearing is to
ignore the purpose of the hearing.
{¶21} On the issue of credibility sub judice, we find it involves two basic
questions. The first question was timeliness of the motion and whether there was newly
discovered evidence and secondly, whether the claim of fraud was a valid defense.
{¶22} The trial court's decision is unclear as to which issue it was addressing. In
reviewing the transcript and the lengthy docket spanning some three years, we find
appellant's testimony that she did not know about the foreclosure action until March of
Ashland County, Case No. 12-COA-022 9
2010 to be incredible. Appellant stated her husband usually collected the mail prior to
his death and it was "laying on my countertop in the house" when she returned from
work. T. at 73. After her husband died in March of 2010, she collected the mail and
worked up until July 2010. T. at 72. Appellant's affidavit did not specifically assert that
the signature was not hers, and she testified during the hearing that she could not tell if
the signature was hers. These facts, along with her previous motion to vacate on
February 1, 2010, numerous hearings after the death of her husband, and the fact that
the trial court's decision would have been mailed to her address prior to the entry of
appearance by her trial counsel on September 9, 2010, belie appellant's assertion that
the validity of her signature was "newly discovered evidence" and negate her claim that
the motion was timely.
{¶23} Upon review, we find the trial court did not err in denying appellant's Civ.R.
60(B) motion for relief from judgment.
{¶24} The sole assignment of error is denied.
Ashland County, Case No. 12-COA-022 10
{¶25} The judgment of the Court of Common Pleas of Ashland County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Hoffman, J. concur.
s/ Sheila G. Farmer________________
s/ Patricia A. Delaney______________
_s/ William B. Hoffman_____________
JUDGES
SGF/sg 110
[Cite as Wells Fargo Bank, N.A. v. Cogar, 2013-Ohio-311.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WELLS FARGO BANK, N.A. :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ROBERT E. COGAR, ET AL. :
:
Defendants-Appellants : CASE NO. 12-COA-022
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Ashland County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer________________
s/ Patricia A. Delaney______________
_s/ William B. Hoffman_____________
JUDGES
Wells Fargo Bank, N.A. v. Cogar
Combined Opinion