[Cite as OneWest Bank, FSB v. Carol Stoner,

.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

ONEWEST BANK, FSB :

Plaintiff-Appellee : C.A. CASE NO. 2011 CA 13

v. : T.C. NO. 09CV1566

CAROL STONER, et al. : (Civil appeal from Common Pleas Court) Defendant-Appellant :

:

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OPINION

Rendered on the 16th day of September , 2011.

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CHARLES R. JANES, Atty. Reg. No. 0013138, P. O. Box 165028, Columbus, Ohio 43216 Attorney for Plaintiff-Appellee

CAROL STONER, Atty. Reg. No. 0031084, 88 High Street, P. O. Box 179, Clifton, Ohio 45316 Defendant-Appellant

WILLIAM HOFFMAN, Atty. Reg. No. 0047109, 50 E. Columbia Street, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Clark County Treasurer

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Carol

Stoner, filed March 4, 2011. On December 9, 2009, OneWest Bank filed a Complaint for 2

Foreclosure against Stoner, alleging that she defaulted on a loan secured by a mortgage on

her home at 88 High Street in Clifton, Ohio. Attached to the Complaint is a copy of a Note

dated June 19, 2007, in which Stoner promised to pay Quicken Loans, Inc., the principal

amount of $259,000.00, plus interest; a copy of the Mortgage between Stoner and Quicken

Loans; an “Assignment,” dated November 30, 2009, which provides that Quicken Loans’

interest in the mortgage is assigned to OneWest Bank, FSB; and a preliminary judicial report

indicating that title to the property at issue is vested in Stoner.

{¶ 2} On March 3, 2010, Stoner filed an Answer which “denies that Plaintiff is the

mortgage holder of my loan, and thus lacks standing to foreclose,” and further asserts

thirteen “Affirmative Defenses.”

{¶ 3} On July 22, 2010, OneWest Bank filed a motion for summary judgment.

One West Bank also filed on the same date the affidavit of Brian Burnett, an “authorized

representative” of OneWest Bank, who averred that he “has personal knowledge and access

to records related to the promissory note and mortgage that are subject of this foreclosure

action,” and that the Note and Mortgage are in default. The Note, Mortgage, Assignment,

and a Military Status Report are attached to Burnett’s affidavit. Stoner did not respond to

the motion for summary judgment.

{¶ 4} On August 16, 2010, without setting a hearing date for the submission of the

summary judgment motion 1 , the trial court issued a Judgment Entry and Decree in

1 “[A]n oral hearing is not required for every summary judgment motion. (Citations omitted). However, if the trial court does not set an oral hearing date, the trial court must give the nonmoving party notice of the date on which the motion will be deemed submitted for decision.” Anania v. Daubenspeck Chiropractic (1998),

. While Clark County Local Rule 3

Foreclosure, and an order of sale was issued.

{¶ 5} On September 17, 2010, OneWest Bank filed a Motion to Vacate Judgment

and Order of Sale, asserting that its motion for summary judgment was served at the wrong

address and Stoner was denied an opportunity to respond. The trial court granted the

motion and vacated the judgment and order of sale.

{¶ 6} On October 5, 2010, OneWest Bank again filed a Motion for Summary

Judgment, asserting in part that Stoner was in default for failure to file an Answer. The

attached supporting memorandum further provided that Stoner executed the Note and

Mortgage, that OneWest Bank is the holder of the Note and Mortgage, and that Stoner is in

default, and that the amount due is $252,556.17, plus interest. There were no evidentiary

materials attached to the second motion for summary judgment, but the memorandum

provided, “Plaintiff has submitted evidence in the form of an affidavit establishing its right

to judgment under Ohio law.” OneWest Bank also filed, on October 5, 2010, a “Notice of

Filing Assignment of Mortgage,” attached to which is the Assignment. Stoner did not

respond.

{¶ 7} On October 25, 2010, again without setting a hearing date for the submission

of the summary judgment motion, the trial court issued a Judgment Entry and Decree in

Foreclosure. The Judgment Entry provides in part, “the Court has reviewed the Complaint,

the Answer filed by Carol Stoner, and all evidence submitted, including the affidavit

10 provides in part that “[e]ach party opposing [a] motion shall serve and file within 14 days after filing of such motion a brief containing the reasons and authorities in opposition to the motion,” the rule excludes motions for summary judgment. 4

submitted by Plaintiff * * * .” We note that the trial court did not endorse on the judgment

“a direction to the clerk to serve upon all parties not in default for failure to appear notice of

the judgment,” as required by Civ.R. 58(B). Further, there is no notation of service by the

clerk in the appearance docket, as Civ.R. 58(B) requires.

{¶ 8} On November 9, 2010, OneWest Bank filed a “Notice of Filing of Reverified

Affidavit,” which provides that OneWest Bank “previously filed an affidavit in support of its

motion for summary judgment in the above-entitled action on or about July 22, 2010. As

reflected in the attached reverified affidavit, all of the facts set forth in the previously filed

affidavit concerning defendant’s mortgage and loan and related transactions have been

reviewed and have been confirmed to be correct at all relevant times. The attached

reverified affidavit has been filed to correct the form of the previously filed affidavit without

altering the substantive contents of the previously filed affidavit, which remains identical.”

William Kana, the affiant, avers that he is a “duly authorized signer” on behalf of OneWest

Bank, that he is familiar with OneWest Bank’s business records, and that he has “personally

examined these business records reflecting data and information as of November 17, 2009.”

Attached to the Notice is the Note, Mortgage, Assignment, and a Military Status Report.

{¶ 9} On November 22, 2010, Stoner filed a “Motion for Stay of Execution of Sale

Pending HAMP Loan Modification & Referral to Mediation.” According to the Motion,

One West violated provisions of the Home Affordable Modification Program (“HAMP”)

which mandate a stay while the borrower is in HAMP review. The motion further asserted

that OneWest is not entitled to equitable relief due to its “egregious misconduct,” namely

that counsel for OneWest misrepresented to Stoner that she had 30 days to respond to the 5

motion for summary judgment; that OneWest misrepresented in its motion that Stoner failed

to file an Answer to the Complaint; that OneWest misrepresented that it is the holder of the

Note “when Note was not in plaintiff’s name and [A]ssignment did not delineate chain of

title,” the Assignment “contained no words of conveyance,” and on information and belief,

“was signed by well known robo-signer, not in front of a notary and not on the date of her

signature”; and that OneWest “arrogantly and audaciously attempted to remediate his failed

basis for Summary Judgment support by filing a so-call ‘substitute affidavit.’” Stoner

requested court-ordered mediation.

{¶ 10} On December 3, 2010, OneWest opposed Stoner’s motion, asserting that

Stoner is not entitled to a stay, and that she is not entitled to mediation.

{¶ 11} On December 9, 2010, Stoner filed a Reply.

{¶ 12} On December 17, 2010, the trial court journalized an Order denying Stoner’s

motion for stay and request for mediation, which provides that “there is no legal basis for

staying enforcement of the Judgment Entry and Decree in Foreclosure previously granted * *

* .” The Order further provides that there is “no basis for ordering mediation in this case,

after judgment has been entered, given that Defendant, an attorney, did not request

mediation in a timely fashion before the case went to judgment.”

{¶ 13} On December 28, 2010, Stoner filed an “Emergency Motion to Set Aside

Default Judgment & Order of Sale & Stay of Proceedings,” in reliance upon Civ.R. 55(B),

Civ.R. 60(B), and Civ.R. 62(A). According to Stoner she is entitled to relief from

judgment based upon inadvertence, surprise or excusable neglect, procurement by fraud,

misrepresentation, and misconduct of an adverse party, and upon “‘Other Grounds,’ as said 6

Entry is void for vagueness.” Stoner argued that the judgment entry and foreclosure decree

is invalid because it was not “preceded by notice of response period.” Stoner further

asserted that the judgment entry is invalid because OneWest did not provide her with Civ. R.

55 written notice that it sought a default judgment. Stoner asserted that the trial court

entered the judgment against her “two days prior to the first day available for a default

hearing.” Pursuant to Civ.R. 60(B), Stoner asserted that she has a meritorious defense to

present. She asserted that OneWest “offered no evidence it owned the note when the

complaint was filed.” Stoner asserted that OneWest failed to prove possession and

indorsement of the Note. According to Stoner, the complaint is subject to dismissal because

OneWest is not the real party in interest. Stoner asserted that the affirmative defenses she

pled in her Answer preclude summary judgment. Stoner contended that One West did not

attach an Affidavit to its second motion for summary judgment, “but made a mere reference

to it in an unsworn memorandum of law.” Stoner argued that OneWest failed to attach the

requisite exhibits to its affidavit. She asserted that the signatures of counsel for OneWest

are “deviant from each other.” Stoner argued that the reverified affidavit is a fraud upon the

court, and subject to dismissal pursuant to Civ.R. 56(G). Stoner asserted that she is entitled

to relief from judgment because OneWest has engaged in fraud, misrepresentation and other

misconduct. Stoner asserted that her motion for relief was timely. She asserted that she is

entitled to relief from judgment on the basis of “mistake, inadvertence, surprise and

excusable neglect regarding the ascertainment of time within which an answer motion to

summary judgment was due.” Finally, she asserted that she is entitled to a “stay of

proceedings to enforce a judgment, in accordance with Civ.R. 62(A).” 7

{¶ 14} On January 13, 2011, OneWest opposed the motion. According to OneWest,

the trial court did not enter a default judgment against her pursuant to Civ.R. 55, and she is

not entitled to relief pursuant to Civ.R. 60(B). OneWest asserts that, since Stoner did not

oppose the motion for summary judgment or appeal from the judgment against her, her

arguments are waived. Regarding Stoner’s assertion that she relied upon counsel for

OneWest’s representation that she had 30 days to respond to the summary judgment motion,

OneWest noted that Stoner’s allegation was not made in an affidavit, and it denied providing

advice to Stoner.

{¶ 15} Stoner filed a Reply on January 26, 2011.

{¶ 16} On February 2, 2011, the trial court issued an Order denying Stoner’s motion.

The Order provides in part that Stoner “has not proven that she is entitled to set aside the

judgment previously granted in Plaintiff’s favor and against Defendant.” We note that the

trial court again failed to comply with Civ.R. 58(B).

{¶ 17} Stoner asserts six assignments of error herein. We will address her first four

assignments of error together. They are as follows:

{¶ 18} “THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING

SUMMARY JUDGMENT TO PLAINTIFF WITHOUT GRANTING DEFENDANT A

FAIR OPPORTUNITY TO BE HEARD,” And,

{¶ 19} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO PLAINTIFF AS GENUINE ISSUES OF MATERIAL FACT EXIST REGARDING

WHETHER PLAINTIFF IS THE HOLDER OF THE NOTE UPON WHICH JUDGMENT

WAS SOUGHT,” And, 8

{¶ 20} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO PLAINTIFF BECAUSE GENUINE ISSUES OF MATERIAL FACT EXISTED WITH

REGARD TO AFFIRMATIVE OFFENSES,” And,

{¶ 21} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO PLAINTIFF WHERE APPELLEE FAILED TO AUTHENTICATE ATTACHED

BUSINESS RECORD IN AFFIDAVIT.”

{¶ 22} According to Stoner, “the time for appealing the grant of summary judgment

is tolled, per App.R. 4.” However, Stoner’s Notice of Appeal indicates that she is

appealing solely the denial of her “Emergency Motion” filed on December 28, 2010. Stoner

did not appeal the trial court’s judgment and decree of foreclosure, but she instead sought

relief from that judgment pursuant to Civ.R.60(B). As we have previously determined, the

two avenues of relief are distinct, and “a party cannot use Civ.R. 60(B) relief as a substitute

for a timely appeal. (Citations omitted).” UBS Real Estate Securities, Inc. v. Teague, Darke

App. No. 2010 CA 5,

, ¶ 16. Any alleged error by the trial court in granting

summary judgment in favor of OneWest Bank and foreclosing upon the mortgage could

have been raised in a direct appeal, and Stoner cannot raise those issues in an appeal from

the denial of her “Emergency Motion.”

{¶ 23} Stoner’s first four assigned errors are overruled.

{¶ 24} We will consider Stoner’s remaining two assigned errors together. They are

as follows:

{¶ 25} “THE TRIAL COURT ABUSED ITS DISCRETION IN NOT HOLDING A

HEARING TO TAKE EVIDENCE BEFORE IT RULED ON THE DEFENDANT’S Civil

(B) MOTION TO VACATE SUMMARY JUDGMENT,” And,

{¶ 26} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S CIVIL R.

60(B) MOTION TO VACATE SUMMARY JUDGMENT.”

{¶ 27} “‘Civ. R. 60(B) represents an attempt to strike a balance between conflicting

principles that litigation must be brought to an end and that justice should be done.’”

Portfolio Recovery Associates v. Thacker, Clark App. No. 2008 CA 119,

(internal citation omitted).

{¶ 28} Civ.R. 60(B) provides in relevant part, “On motion and upon such terms as

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 * * * ; (3) fraud * * * , misrepresentation or other

misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged;

or (5) any other reason justifying relief from the judgment.”

{¶ 29} To prevail on a motion pursuant to Civ. R. 60(B), a movant must establish

that: (1) he has a meritorious defense or claim to present if relief is granted; (2) he is entitled

to relief pursuant to 60(B)(1) - (5); and (3) the motion was 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 or proceeding was entered or taken. GTE Automatic Elec. v. Arc

Industries, Inc. (1976),

,

. All three requirements

must be met.

.

{¶ 30} “A ‘meritorious defense’ means a defense ‘going to the merits, substance, or

essentials of the case.’” (Citations omitted). UBS Real Estate Securities, Inc., ¶ 23. “In 10

meeting the first requirement above, ‘[t]he movant need not prove that he will prevail on his

alleged meritorious defense. He need only allege that such a defense exists.’ (Emphasis

sic.) Williamson v. Saranda Consol. Ltd. Partnership (Dec. 14, 1989), Montgomery App.

No. 11507,

, citing Rose Chevrolet, Inc. v. Adams (1988),

, * * * .” State v. Yount,

,

.

{¶ 31} “In an appeal from a Civ.R. 60(B) determination, a reviewing court must

determine whether the trial court abused its discretion. (Internal citation omitted).” State ex

rel. Richard v. Seidner,

,

.

{¶ 32} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most

instances of abuse of discretion will result in decisions that are simply unreasonable, rather

than decisions that are unconscionable or arbitrary.

{¶ 33} “A decision is unreasonable if there is no sound reasoning process that would

support that decision. It is not enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive, perhaps in view of

countervailing reasoning processes that would support a contrary result.” AAAA

Enterprises, Inc. v. River Place Community Redevelopment (1990),

.

{¶ 34} We initially note that OneWest Bank asserts that Stoner’s Notice of Appeal is

untimely. “The record reveals that the trial court failed to place an entry on its appearance

docket noting service of the judgment, and the failure to comply with Civ.R. 58(A) tolls the

time for filing the appeal.” State v. Moore, Clark App. No. 2007 CA 123,

, citing In re J.F., Montgomery App. Nos. 22181, 22441,

. Accordingly, 11

Stoner’s appeal was not filed out of time.

{¶ 35} We agree with OneWest Bank that Civ.R. 55, which applies to default

judgments, does not apply to the matter herein, since the trial court granted summary

judgment, and not a default judgment, against Stoner.

{¶ 36} In its ruling, the trial court did not expressly address whether Stoner alleged a

meritorious defense, satisfied any of the grounds for relief under Civ.R. 60(B), or timely

sought relief. Instead, it determined that Stoner “has not proven that she is entitled to set

aside the judgment * * * .” (emphasis added). In its brief, OneWest Bank asserts that “a

hearing is not required unless the movant’s affidavit or other evidentiary material offered in

support demonstrates ‘operative facts’ and not mere general allegations in support of

vacating the judgment.” Civ.R. 60(B) does not require Stoner to provide evidentiary material

to prove that she is entitled to set aside the summary judgment granted against her, only that

she has a meritorious defense to present. “Although general denials in an answer are

insufficient to state a meritorious defense for purposes of Civ.R. 60(B), the meritorious

defense requirement is met by filing an answer that contains sufficient affirmative defenses

or facts sufficient to support the claim of a valid defense.” UBS Real Estate Securities, Inc.,

¶ 24. Stoner’s Answer contends in part that OneWest’s alleged interest in the Note and

Mortgage was not properly assigned to it, and that it accordingly lacks standing to pursue

foreclosure, which is a meritorious defense.

{¶ 37} Further, Stoner filed her “Emergency Motion” on December 28, 2010, a little

more than two months after the trial court’s October 25, 2010 Judgment Entry and Decree in

Foreclosure, and we conclude that Stoner’s motion was timely. 12

{¶ 38} Finally, Stoner asserted that she was entitled to relief in part on the basis of

surprise, inadvertence and excusable neglect, and with the record before us, she is entitled to

a hearing on her claims.

{¶ 39} The trial court erred in requiring that Stoner prove entitlement to relief from

judgment, and an abuse of discretion is demonstrated. Accordingly, Stoner’s fifth and sixth

assignments of error are sustained, the trial court’s order denying the motion for relief from

judgment is reversed, and the matter is remanded for an evidentiary hearing on Stoner’s

requested relief from summary judgment.

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GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Charles R. Janes Carol Stoner William Hoffman Hon. Douglas M. Rastatter