[Cite as Bank of New York Mellon v. Flack, 2011-Ohio-890.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BANK OF NEW YORK MELLON JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellees Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2010CA00153
CHARLENE M. FLACK, ET AL.
Defendant-Appellants OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2009CV00723
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 22, 2011
APPEARANCES:
For Appellees For Appellant Charlene Flack
CHARLES V. GASIOR DANIEL J. FUNK
JASON A. WHITACRE Baker, Dublikar, Beck, Wiley & Mathews
KATHRYN M. EYSTER 400 South Main Street
The Law Offices of John D. Clunk, North Canton, Ohio 44720
Co., L.P.A
4500 Courthouse Blvd., Ste. 400
Stow, Ohio 44224 And
For Treasurer of Stark County
JOHN F. ANTHONY, II
Assistant Prosecuting Attorney
110 Central Plaza South, Ste. 510
Canton, Ohio 44702
Stark County, Case No. 2010CA00153 2
Hoffman, P.J.
{¶1} Defendant-appellant Charlene M. Flack appeals the May 27, 2010
Judgment Entry entered by the Stark County Court of Common Pleas, which denied her
Civ. R. 60(B) Motion to Vacate Default Judgment. Plaintiff-appellee is The Bank of New
York Mellon.1
STATEMENT OF THE CASE AND FACTS
{¶2} On July 28, 1997, Appellant executed a note and mortgage in favor of
Multi-Fund, Inc. The mortgage was recorded on July 31, 1997. Multiple assignments of
the mortgage were given, with Appellee eventually receiving an assignment in
November, 2008.
{¶3} On February 20, 2009, Appellee filed a foreclosure action, seeking
judgment on its note and to foreclose on its mortgage. Service was perfected on
Appellant on February 26, 2009. After Appellant failed to answer, Appellee filed for
default. The trial court entered default judgment and issued a Decree in Foreclosure on
April 22, 2009. Appellee filed a Praecipe for Order of Sale with the trial court on April
29, 2009. The sheriff sale was scheduled for July 13, 2009. However, Appellee filed an
Order to Withdraw Sale on July 10, 2009, due to the fact it was engaging in loss
mitigation efforts with Appellant. Appellee attempted to work with Appellant for an
additional two months.
{¶4} When it became obvious the loss mitigation efforts would not be
successful, Appellee filed a second Praecipe for Order of Sale on September 9, 2009.
1
The Bank of New York Mellon fka The Bank of New York as successor to JPMorgan
Chase Bank, NA, as Trustee for the C-BASS Mortgage Loan Asset-Back Certificates,
Series 2005-RPI.
Stark County, Case No. 2010CA00153 3
Appellee purchased the property at a sheriff’s sale on November 2, 2009. Appellee
again attempted to resolve the default with Appellant. After Appellee determined
Appellant did not have the financial means to support the mortgage payment, Appellee
filed a Motion to Confirm Sheriff’s Sale on December 7, 2009. The trial court confirmed
the sale on December 9, 2009. A sheriff’s deed was recorded on February 10, 2010.
{¶5} On March 25, 2010, Appellant filed a Motion to Vacate Default Judgment
pursuant to Civ. R. 60(B)(1-3). Therein, Appellant asserted her failure to answer was
the result of excusable neglect. In an Affidavit attached to her motion, Appellant averred
she had been in contact with Appellee’s loan servicing agent and was pursuing a loan
modification. Appellant added the loan servicing agent advised her she would be able to
keep her residence upon completion of a loan modification program.
{¶6} Appellee filed a motion in opposition, arguing Appellant’s failure to answer
was not due to excusable neglect, and the loan modification had never been completed.
Appellee added the default giving rise to the foreclosure remained uncontested;
therefore, Appellant did not have a meritorious defense.
{¶7} Via Judgment Entry filed May 27, 2010, the trial court denied Appellant
request for relief from judgment. The trial court found Appellant failed to establish she
was entitled to relief under Civ. R. 60(B). The trial court noted Appellant never alleged
Appellee’s representative advised her not to file an Answer.
{¶8} It is from this judgment entry Appellant appeals, raising as her sole
assignment of error:
Stark County, Case No. 2010CA00153 4
{¶9} “I. THE TRIAL COURT’S REFUSAL TO VACATE AND SET ASIDE THE
DEFAULT JUDGMENT ENTERED AGAINST DEFENDANT-APPELLANT FLACK WAS
AN ABUSE OF DISCRETION.
I
{¶10} In her sole assignment of error, Appellant maintains the trial court abused
its discretion in denying her motion to vacate default judgment. We disagree.
{¶11} 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. (1976), 47
Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus. Where timely relief is
sought from a default judgment, and the movant has a meritorious defense, doubt
should be resolved in favor of the motion to set aside the judgment so that cases may
be decided on their merits. Id. at paragraph three of the syllabus. Our standard of
review of a court's decision as to whether to grant a Civ. R. 60(B) motion is abuse of
discretion. Id. at 148, 351 N.E.2d 113. The GTE Automatic factors are “independent and
conjunctive, not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986), Fairfield App. No. 12-
CA-86. “[F]ailing to meet one is fatal, for all three must be satisfied in order to gain
relief.” Id. at 5.
{¶12} Upon review of the entire record in this matter, we find the trial court did
not abuse its discretion in overruling Appellant's Civ.R. 60(B) Motion. Appellant failed to
Stark County, Case No. 2010CA00153 5
establish excusable neglect. Appellant was aware Appellee had filed the foreclosure
action and had received default judgment against her. There is no evidence Appellee
advised or otherwise indicated she did not have to file an Answer. Having failed to
satisfy the second prong of the GTE Automatic test, Appellant was not entitled to relief.
Further, the trial court was not required to consider the other two prongs.
{¶13} Appellant’s sole assignment of error is overruled.
{¶14} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
JULIE A. EDWARDS
Stark County, Case No. 2010CA00153 6
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BANK OF NEW YORK MELLON :
:
Plaintiff-Appellees :
:
-vs- : JUDGMENT ENTRY
:
CHARLENE M. FLACK, ET AL. :
:
Defendant-Appellants : Case No. 2010CA00153
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS