[Cite as JP Morgan Chase Bank, NA v. Koontz, 2014-Ohio-3904.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JP MORGAN CHASE BANK, NA JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2014-CA-00013
PAUL E. KOONTS, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of
Common Pleas, Case No. 12-CV-00023
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 8, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS WYATT PALMER BRUCE M. BROYLES
MICHAEL L. DILLARD 5815 Market Street, Suite 2
Thompson Hine LLP Boardman, Ohio 44512
41 S. High St., Suite 1700
Columbus, Ohio 43215
STEPHEN D. WILLIGER
Thompson Hine LLP
127 Public Square
3900 Key Tower
Cleveland, Ohio 44114
[Cite as JP Morgan Chase Bank, NA v. Koontz, 2014-Ohio-3904.]
Hoffman, P.J.
{¶1} Defendant-appellant Paul E. Koonts, Jr. appeals the February 13, 2014
Judgment Entry entered by the Perry County Court of Common Pleas, which denied his
Civ. R. 60(B) motion for relief from judgment. Plaintiff-appellee is JP Morgan Chase
Bank, NA (“the Bank”).
STATEMENT OF THE CASE AND FACTS
{¶2} The Bank filed a Complaint for Foreclosure and Declaratory Judgment on
January 25, 2012. After retaining Attorney Mitchell Marczewski, Appellant filed a
Chapter 13 Petition for Bankruptcy on March 27, 2012. Attorney Marczewski filed a
Notice of Bankruptcy with the trial court on March 29, 2012. The trial court stayed the
matter. The Bankruptcy Court subsequently dismissed the petition. Attorney
Marczewski filed a Notice of Bankruptcy Dismissal on April 4, 2013. Via Entry filed April
8, 2013, the trial court lifted the stay and the matter was returned to the active docket.
On May 16, 2013, the Bank filed a motion for default judgment. A copy of the motion
was served upon Appellant. The trial court granted default judgment to the Bank via
judgment Entry filed June 25, 2013. The trial court issued an order of sale on July 8,
2013.
{¶3} Appellant filed motion for stay of execution and to cancel the sheriff’s sale
on September 10, 2013. Appellant filed a motion for relief from judgment on the same
day. Therein, Appellant argued he was entitled to relief from judgment under one of the
grounds set forth in Civ. R. 60(B)(1) – (5). In his Affidavit, Appellant averred he did not
understand it was necessary for him to do something to protect his interest in this matter
Perry County, Case No. 2014-CA-00013 3
following the bankruptcy dismissal. Appellant further stated he did not receive a notice
of default or notice of acceleration from the Bank.
{¶4} Via Entry filed February 13, 2014, the trial court denied Appellant’s motion
for relief from judgment. The trial court issued an order of sale on February 25, 2014.
{¶5} It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
{¶6} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
MOTION FOR RELIEF FROM JUDGMENT."
{¶7} The decision whether to grant a motion for relief from judgment under
Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan (1987), 33
Ohio St.3d 75, 514 N.E.2d 1122. In order to find abuse of discretion, we must determine
the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶8} Civ. R. 60(B) provides the basis upon which a party may obtain relief from
judgment, and states in pertinent part: “On motion and upon such terms as are just, the
court may relieve a party * * * from a final judgment, order or proceedings 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
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 or 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
Perry County, Case No. 2014-CA-00013 4
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 to taken.”
{¶9} To prevail on a motion made pursuant to Civ.R. 60(B), the movant must
demonstrate: (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. GTE Automatic Electric, Inc. v.
ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 150–151. 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. 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.
{¶10} In his Civ. R. 60(B) motion, Appellant argued he had a meritorious
defense as the Bank failed to satisfy a condition precedent before filing the foreclosure
action. Assuming, arguendo, the Bank’s failure to satisfy a condition precedent
constitutes a meritorious defense, we, nonetheless, find the trial court did not abuse its
discretion in denying Appellant's motion.
{¶11} Appellant cannot establish his failure to file an answer was due to
excusable neglect. The Bank served a copy of the complaint on Appellant. Appellant
Perry County, Case No. 2014-CA-00013 5
subsequently retained counsel and filed for bankruptcy protection. After the Bankruptcy
Court dismissed his petition and the matter reinstated to the active docket, the Bank
filed its motion for default judgment. The Bank served a copy of the motion on
Appellant. Appellant did not respond to the motion in any manner. Thus, on two
occasions, Appellant failed to respond to court pleadings. We cannot find the trial court
abused its discretion in denying Appellant’s motion for relief from judgment as Appellant
as not established excusable neglect.
{¶12} In his Brief to this Court, Appellant now claims he is entitled to relief
because he was abandoned by his [bankruptcy] attorney. Appellant did not assert this
argument to the trial court in his Civ. R. 60(B) motion. Appellant’s failure to raise this
issue in the trial court when he filed his Civ.R. 60(B) motion waived it for purposes of
appellate review. Gentile v. Ristas, 160 Ohio App.3d 765, 2005–Ohio–2197, 828
N.E.2d 1021, ¶ 74. We cannot find that the trial court abused its discretion in denying
Civ.R. 60(B) relief based upon arguments that were never presented to it.
{¶13} Appellant’s sole assignment of error is overruled.
Perry County, Case No. 2014-CA-00013 6
{¶14} The judgment of the Perry County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur