[Cite as Bank of New York v. Stilwell, 2012-Ohio-4123.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BANK OF NEW YORK JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 12 CA 3
NORMA STILWELL, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2008 CV 823
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 7, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
GREGORY HALL MELICK BRIAN K. DUNCAN
HEATHER LOGAN MELICK BRYAN D. THOMAS
LUPER NEIDENTHAL & LOGAN DUNCAN SIMONETTE, INC.
50 West Broad Street, Suite 1200 155 East Broad Street, Suite 2200
Columbus, Ohio 43215 Columbus, Ohio 43215
Fairfield County, Case No. 12 CA 3 2
Wise, J.
{¶1} Defendant-Appellant Norma Stilwell appeals the December 14, 2011,
decision of the Court of Common Pleas of Fairfield County, Ohio, denying her 60(B)
Motion from Relief from Judgment.
STATEMENT OF THE FACTS AND CASE
{¶2} This case arose from a residential foreclosure action initiated as a result
of Appellant’s default under the terms of a Note and Mortgage. The relevant facts and
procedural history are as follows:
{¶3} On June 25, 2008, Appellee Bank of New York filed its Complaint for
Foreclosure in this matter, and service by certified mail upon Appellant Norma Stilwell
was perfected on June 28, 2008.
{¶4} Appellant failed to answer the Complaint, and the trial court entered a
default judgment against her and in favor of Plaintiff/Appellee, on August 11, 2008.
{¶5} The case has not yet proceeded to a judicial sale.
{¶6} On October 11, 2011, Appellant filed a Civ.R. 60(B) motion to vacate the
default judgment, asserting that her failure to answer Appellee's Complaint or to
respond to Appellee's motion for default judgment was excusable neglect (1) because
she did not understand the impact of her failure to respond; (2) because Appellee
engaged in loss mitigation negotiations with her even after entry of the default judgment;
and (3) because she suffered ill health and the death of her mother during the pendency
of the foreclosure action.
{¶7} By Judgment Entry dated December 14, 2011, the trial court denied
Appellant’s motion.
Fairfield County, Case No. 12 CA 3 3
{¶8} In rejecting Appellant's arguments, the trial court found Appellant’s
"excusable neglect" argument to be untimely because it was brought within one year, as
required by Rule 60(B)(3). The trial court also found Appellant’s Civ.R. 60(B)(5)
argument to be a de facto substitute for the grounds provided in Civ.R. 60(B)(1)-(4), and
thus untimely as well.
{¶9} Appellant now appeals, assigning the following sole Assignment of Error.
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE ITS
AUGUST 11, 2008 JUDGMENT ENTRY OR ANY SUBSEQUENT ENTRY GRANTING
DEFAULT JUDGMENT BASED ON CIV.R. 60(B)(1) AND/OR (5).
{¶11} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE ITS
AUGUST 11, 2008 JUDGMENT ENTRY OR ANY SUBSEQUENT ENTRY GRANTING
DEFAULT JUDGMENT PURSUANT TO THE TRIAL COURT'S POLICY AND
"LONGSTANDING PRACTICE" WITH RESPECT TO ADJUDICATING MATTERS ON
THEIR MERITS AS OPPOSED TO PROCEDURAL DEFECTS.
{¶12} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO TRANSFER THE
UNDERLYING MATTER TO MEDIATION AS REQUESTED BY APPELLANT.
{¶13} “IV. THE TRIAL COURT ERRED WHEN IT FAILED TO SET FORTH A
FINDING OF EXCUSABLE NEGLECT.
{¶14} “V. THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT'S
MOTION TO VACATE TO BE UNTIMELY.”
Fairfield County, Case No. 12 CA 3 4
I., II., IV., V.
{¶15} In her First, Second, Fourth and Fifth Assignments of Error, Appellant
argue that the trial court erred in denying her Civ.R. 60(B) Motion for Relief from
Judgment. We disagree.
{¶16} To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B),
the movant must demonstrate that: (1) the party has a meritorious defense 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. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc., 47 Ohio
St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus (1976).
{¶17} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial
court's discretion, and the decision will be reversed only for an abuse of discretion.
Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122(1987). The phrase “abuse of
discretion” connotes 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, 450 N.E.2d 1140(1983).
{¶18} Civ.R. 60(B) sets forth the manner in which relief may be granted:
{¶19} “(B) Mistakes; inadvertence; excusable neglect; newly discovered
evidence; fraud; etc. On motion and upon such terms that are just, the court may relieve
a party or his legal representative from a final judgment, order or proceeding for the
following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been discovered in time to
Fairfield County, Case No. 12 CA 3 5
move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the
judgment has been satisfied, released, discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (5) any other reason justifying relief
from the judgment. The motion shall be made within a reasonable time, and for reasons
(1), (2) and (3) not more than one year after the judgment, order or proceeding was
entered or taken.”
{¶20} Civ. R. 60(B)(5) permits the trial court to vacate a judgment for any other
reason justifying relief from judgment. However, the catchall provision of Civ.R. 60(B)(5)
should only be used in extraordinary or unusual cases where substantial grounds exist
to justify relief. Wiley v. Gibson, 125 Ohio App.3d 77, 707 N.E.2d 1151(1997), Adomeit
v. Baltimore, 39 Ohio App.2d 07, 39 Ohio App.2d 97, 316 N.E.2d 469 (1974).
{¶21} Furthermore, it applies only where a more specific provision of Civ.R.
60(B) does not apply. Strack v. Pelton, 70 Ohio St.3d 172, 637 N.E.2d 914 (1997).
{¶22} Appellant herein filed her motion pursuant to Civ. R. 60(B)(1) and/or (5).
{¶23} As set forth above, under Civ.R. 60(B)(1), the trial court may “relieve a
party or his legal representative from a final judgment, order or proceeding for the
following reasons: (1) mistake, inadvertence, surprise or excusable neglect.”
{¶24} Appellant claims that she did not understand the Complaint for
Foreclosure, Motion for Default Judgment and/or Notice of the Sheriff's Sale. Further,
Appellant claims that she had a good faith belief that she was in ongoing negotiations
with Appellee throughout the course of the foreclosure action. She claims Appellee
Fairfield County, Case No. 12 CA 3 6
informed her that she qualified for a loan modification, and that she was led to believe
the parties had resolved this matter through a modification agreement. Additionally,
Appellant claims Appellee advised her that she did not need to retain counsel in order to
resolve the foreclosure matter.
{¶25} Upon review, we find Appellant failed to present sufficient evidence of
excusable neglect to warrant relief from judgment in the case sub judice. Appellant does
not deny that she was properly served with the Complaint for Foreclosure in this matter
and, as evidenced by the loan modification negotiations with Appellee, Appellant was
clearly aware of the foreclosure action. Instead, Appellant argues that because she was
involved in loan modification negotiations with Appellee, she believed she did not have
to address the pending foreclosure action.
{¶26} This Court has previously found that such does not amount to excusable
neglect under Civ.R. 60(B)(1). See PNC Mortgage v. Oyortey, Delaware App. No. 11
CAE00093, 2012-Ohio-3237; Bank of NY Mellon v. Flack, Stark App. 2010CA153,
2011-Ohio-890, Wells Fargo Bank, NA v. Neal, Fairfield App. Nos. 11CA16, 17, 19,
2011-Ohio-3952.
{¶27} More importantly, since Appellant seeks relief through Civ.R. 60(B)(1), her
motion was required to be made not more than one year after the final judgment. As
Appellant’s motion was filed three years after the default judgment in this matter, it is
untimely.
{¶28} While not expressly stated as a Civ.R. 60(B)(3) claim, Appellant also
asserts that she is entitled to relief because Appellee and/or its agents misrepresented
Fairfield County, Case No. 12 CA 3 7
to her that she did not have to be concerned with the foreclosure action due to the
ongoing loan modification negotiations.
{¶29} Upon review, we find Appellant has failed to present clear and convincing
evidence of fraud as to any alleged misrepresentations in this matter.
{¶30} A claim for common law fraud requires proof of the following elements: (1)
a representation or, where there is a duty to disclose, concealment of a fact, (2) which is
material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with
such utter disregard and recklessness as to whether it is true or false that knowledge
may be inferred, (4) with the intent of misleading another into relying upon it, (5)
justifiable reliance upon the representation or concealment, and (6) a resulting injury
proximately caused by the reliance. Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167,
169, 462 N.E.2d 407; Collins v. National City Bank, Montgomery App. No. 19884, 2003–
Ohio–6893, ¶ 39.
{¶31} We further find no evidence that Appellee prevented Appellants from
having a fair opportunity to present a defense.
{¶32} Appellant’s claims that she did not realize that she had to file an answer
the complaint or that she did not know the foreclosure was still going forward are
unpersuasive. “Litigants who choose to proceed pro se are presumed to know the law
and correct procedure and are held to the same standard as other litigants.” Yocum v.
Means, Darke App. No. 1576, 2002–Ohio–3803. A litigant proceeding pro se “cannot
expect or demand special treatment from the judge, who is to sit as an impartial arbiter.”
Id.
Fairfield County, Case No. 12 CA 3 8
{¶33} Finally, Appellant argues that she is entitled to relief pursuant to Civ.R.
60(B)(5).
{¶34} Civ.R. 60(B)(5) permits relief from judgment for “any other reason
justifying relief from the judgment.” Civ.R. 60(B)(5) is intended as a catch-all provision
reflecting the inherent power of a court to relieve a person from the unjust operation of a
judgment, but it is not to be used as a substitute for any of the more specific provisions
of Civ.R. 60(B). Caruso–Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, paragraphs one
and two of the syllabus. “Relief on this ground is to be granted only in extraordinary
situations, where the interests of justice call for it.” Salem v. Salem (1988), 61 Ohio
App.3d 243. Appellant has not produced any “extraordinary circumstances” in this case
to warrant the use of Civ.R. 60(B)(5).
{¶35} Appellant in her brief has failed to allege operative facts to suggest that
she was entitled to extraordinary relief under Civ.R. 60(B)(5).
{¶36} Furthermore, it is well settled that Civ.R. 60(B) “is not available as a
substitute for a timely appeal * * * nor can the rule be used to circumvent or extend the
time requirements for an appeal.” Blasco v. Mislik (1982), 69 Ohio St.2d 684, 686.
{¶37} Appellant’s First, Second, Fourth and Fifth Assignments of Error are
overruled.
III.
{¶38} In her Third Assignment of Error, Appellant argues that the trial court erred
in failing to refer this matter to mediation. We disagree.
Fairfield County, Case No. 12 CA 3 9
{¶39} In this matter, Appellant requested that the trial court transfer this matter
to mediation three years after a default judgment had been granted in the foreclosure
action.
{¶40} Upon review, we find that the trial court was well within its discretion to
deny the motion for mediation at this stage of the proceedings. The trial court was never
obligated to grant a motion for mediation at any stage.
{¶41} Appellant’s Third Assignment of Error is overruled.
{¶42} For the foregoing reasons, the judgment of the Court of Common Pleas of
Fairfield County, Ohio, is affirmed.
By: Wise, J.
Delaney, P. J., and
Farmer, J., concur.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 0823
Fairfield County, Case No. 12 CA 3 10
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BANK OF NEW YORK :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
NORMA STILWELL, et al. :
:
Defendants-Appellants : Case No. 12 CA 3
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.
Costs assessed to Appellants.
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___________________________________
___________________________________
JUDGES
Bank of New York v. Stilwell
Combined Opinion