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IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO

PNC BANK NATIONAL ASS’N, :

Plaintiff, : Case No. 12CV577

v. : Judge Berens

ANTHONY CLARK, ET AL., : ENTRY Denying Motion to Vacate Default Judgment

Defendants. :

This matter is before the Court upon Defendants Anthony and Anna Clark’s Motion to

Vacate Default Judgment, filed October 31, 2012. The Court subsequently requested additional

written memorandum, which both parties have provided. After reviewing the written arguments

of the parties, and for the following reasons, the Defendant’s motion is DENIED.

STATEMENT OF THE CASE

This is a mortgage foreclosure action. The Complaint in this matter was filed on May 30,

2012. The Fairfield County Sheriff’s Office effected personal service on Defendant Anthony

Clark on June 7, 2012. Defendant Anna Clark was served by residential service the same day.

Defendant failed to answer Plaintiff’s Complaint and the Court entered default judgment in favor

of Plaintiff on July 26, 2012. A notice of sheriff’s sale was filed on October 15, 2012. On

October 31, 2012, Defendants Anthony and Anna Clark (“Defendants”) filed the Motion to

Vacate Judgment now before the Court. The sheriff’s sale originally scheduled for November 9,

2012 has been stayed pending the Court’s ruling on Defendants’ motion. See Entry Sustaining

Defendants’ Motion to Stay Foreclosure Proceedings (Nov. 8, 2012).

LAW & ANALYSIS

A. Defendants are not entitled to relief under Civ. R. 60(B)(1).

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To prevail on a motion for relief from judgment under Civ. R. 60(B) a party 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.

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146, 150-51, 351 N.E.2d 113

(1976). Additionally, “[t]he movant must submit factual material with his motion which

demonstrates grounds which, if true, would constitute a defense to the action.” Bergmeyer v.

Delong, 5th Dist. No. 2005CA00079, 2005-Ohio-5400, at ¶ 29. The movant is not required to

prove he or she will ultimately prevail on the alleged defense; however, the movant must do

more than make bare assertions that he is entitled to relief. Rose Chevrolet, Inc. v. Adams, 36

Ohio St. 3d 17, 20, 520 N.E.2d 564 (1988); Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20,

665 N.E.2d 1102 (1996). Specifically, the movant must allege “operative facts to assist the trial

court in determining whether such grounds [warranting relief] exist.” Rose, at 21. Finally,

because Civ. R. 60(B) is a remedial rule, a Court should liberally construe the rule “with a view

toward effecting a just result.” Id.

Defendants argue that they have met all three prongs of the GTE test. First Defendants

allege that their motion was timely made. Second, Defendants argue that they have set forth

meritorious defenses, i.e. (1) lack of standing to foreclose and (2) failure to negotiate in good

faith and/or violation of the Home Affordable Modification Program. Third, Defendants assert

they have shown their failure to defend was a result of mistake, inadvertence, misrepresentation

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of an adverse party, and/or excusable neglect pursuant to Civ. R. 60(B)(1).

The Court finds the Defendants have not satisfied all of the GTE requirements and is

therefore not entitled to vacation of the Court’s previous judgment. Specifically, the Court finds

that the Defendants have not shown that their failure to defend was a result of excusable neglect

or misrepresentation as required by Civ. R. 60(B)(1).

The Court finds that precedent recently set by the Fifth District Court of Appeals controls

the issue of whether Defendants’ belief that they did not have to defend due to ongoing loan

modification constituted excusable neglect. See Bank of New York v. Stilwell, 5th Dist. No. 12

CA 3, 2012-Ohio-4123. In Stilwell, the Fifth District addressed a fact pattern nearly identical to

the circumstances now before the Court: The trial court issued default judgment in favor of

Plaintiff-bank. Stilwell filed a motion to vacate judgment asserting that her failure to answer the

Complaint was a result of excusable neglect. Stilwell argued that the standard set forth in Civ. R.

60(B)(1) was satisfied because “she did not understand the impact of her failure to respond” and

because Plaintiff-bank had “engaged in loss mitigation negotiations with her even after entry of

the default judgment.”

The Fifth District Court of Appeals disagreed with Stilwell’s contentions and affirmed

the trial court’s decision. The Court explained:

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 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.

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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. This Court has previously found that such does not amount to excusable neglect under Civ.R. 60(B)(1). . . .

Stilwell at ¶ 24-25. Defendants Anthony and Anna Clark argument centers on the same premise as

did Stilwell: Defendants thought that applying for a loan modification stalled judicial

proceedings. Contrary to Defendants’ argument that they, as non-lawyers, should “not be

held to as high a standard for excusable neglect as a lawyer,” the Fifth District has

expressly stated that a “litigant proceeding pro se ‘cannot expect or demand special

treatment from the judge, who is to sit as an impartial arbiter.’” Stilwell at ¶ 32 (quoting

Yocum v. Means, 2nd Dist. No. 1576, 2002–Ohio–3803).

Therefore, based on controlling precedent, the Court finds that Defendants have

not made a sufficient showing that they are “entitled to relief under one of the grounds

stated in Civ. R. 60(B)(1) through (5)” as required by the second prong of the GTE test.

Further analysis of Defendants arguments concerning timeliness and the presence of a

meritorious defense is thereby unnecessary.

B. Defendants Were Not Entitled to a Hearing Pursuant to Civ. R. 55(A).

Ohio Civ. R. 55(A) states in pertinent part:

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(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; . . . . 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. . . .

Ohio courts have held that in some circumstances, a party may “appear” in the action

absent the formal filing of documents with the court. See Miamisburg Motel v. Huntington Nat’l

Bank, 88 Ohio App.3d 117 (2nd Dist. 1993); AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d

88, 461 N.E.2d 1282 (1984). However, for an informal contact to constitute an “appearance”

within the scope of Ohio Civ. R. 55(A), the party must “clearly express[] to the opposing party

an intention and purpose to defend the suit.” Hyland Logistic Services, Inc. v. Ashcraft, No. 5-99-

40, 2000 WL 123794 (3rd Dist. Feb. 2, 2000). Ohio caselaw therefore does “not stand for the

principle that any [] conversation constitutes an appearance so long as the subject matter of the

pending litigation is discussed. . . .” Id. (emphasis added). Rather, as explained by the Second

District Court of Appeals, “[A] party appears in the action, and is thus entitled to notice of the

application for default judgment, when that party clearly expresses to the opposing party an

intention and purpose to defend the suit, regardless of whether a formal filing is made.”

Miamisburg at 126.

The Court finds that the Defendants did not express to Plaintiff a clear intention to defend

the foreclosure prior to the entry of default. The Judgment Decree and Entry in Foreclosure was

filed July 25, 2012. The Court recognizes that Defendants received a letter from Plaintiff’s

attorney in June, exchanged voicemails with Plaintiff’s agent shortly thereafter, and submitted

loan modification paperwork on July 18, 2012. However, the Court finds that at no point during

the aforementioned correspondence did Defendants make clear they intended to defend the suit.

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Instead, these interactions merely evince a desire to modify the loan and hope for a workout

alternative. At no time did the Defendants’ contest the right of Plaintiff to foreclose or deny that

they had defaulted under the terms of the Note and Mortgage. The Court therefore finds that

Defendants did not appear, formally or informally, in the action to warrant a hearing prior to

judgment pursuant to Civ. R. 55(A).

CONCLUSION

Because the Defendants has failed to meet the three factors set forth in GTE, and failed to

show they were entitled to a hearing pursuant to Civ. R. 55(a), the Defendants’ Motion to Vacate

Default Judgment is DENIED.

IT IS SO ORDERED.

________________________ Judge Richard E. Berens

Copies to:

Plaintiff c/o Counsel Defendants Anthony and Anna Clark c/o Counsel Jennifer Heller, Attorney for Plaintiff, PO Box 5480, Cincinnati, OH 45201 Michael O’Reilly, Attorney for Defendant, 30 Hill Road South, Ste. B, Pickerington, OH 43147 Donn Rosenblum, 150 E. Gay St., 21st Floor, Columbus, OH 43215