[Cite as Deutsche Bank Natl. Trust Co. v. Davis,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

DEUTSCHE BANK NATIONAL TRUST : JUDGES: COMPANY : : : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. v. : : Case No. 11CAE060055 HELEN DAVIS, et al. : : : Defendants-Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 09CVE070864

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 8, 2011

APPEARANCES:

For Appellants: For Appellee:

JOHN SHERROD JENNIFER N. HELLER 2130 Arlington Ave. P.O. Box 5480 Columbus, OH 43221 Cincinnati, OH 45201 [Cite as Deutsche Bank Natl. Trust Co. v. Davis,

.]

Delaney, J.

{¶1} Defendant-Appellant Helen J. Davis appeals the June 7, 2011 judgment

entry of the Delaware County Court of Common Pleas denying Appellant’s Motion for

Relief from Judgment. Plaintiff-Appellee is Deutsche Bank National Trust Company.

{¶2} This case comes to us on the accelerated calendar. App. R. 11. 1, which

governs accelerated calendar cases, provides in pertinent part:

{¶3} “(E) Determination and judgment on appeal.

{¶4} “The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

{¶5} “The decision may be by judgment entry in which case it will not be

published in any form.”

{¶6} This appeal shall be considered in accordance with the aforementioned

rule.

STATEMENT OF THE FACTS AND CASE

{¶7} On July 1, 2009, Plaintiff-Appellee Deutsche Bank National Trust filed a

complaint in foreclosure against Davis in the Delaware County Court of Common Pleas.

The Delaware County Sheriff’s Department served Davis with the complaint and

summons by residential service on July 7, 2009. The Notice of Service was filed on

July 8, 2009.

{¶8} On July 30, 2009, Davis timely filed a pro se Motion for Extension of Time

to Answer or Otherwise Plead in Order to Mediate with Plaintiff/Lender. The trial court

granted Davis’ motion on August 5, 2009. The judgment entry stated Davis was Delaware County, Case No. 11CAE060055 3

granted an additional 30 days to submit the matter to mediation and to file an answer to

Deutsche Bank’s complaint. By entry on August 26, 2009, the trial court assigned the

matter to the mediator.

{¶9} Davis did not file an answer within 30 days of the date of the August 5,

2009 judgment entry.

{¶10} The trial court held a status conference of the case on March 26, 2010.

Davis attended the status conference.

{¶11} Deutsche Bank filed a Motion for Default Judgment on May 12, 2010

because Davis had not yet filed an answer to the complaint. The trial court set the

Bank’s motion for default judgment for a hearing pursuant to Civ.R. 55 because Davis

had made an appearance in the action.

{¶12} The hearing was held on June 22, 2010. Davis appeared at the hearing

pro se. At the time of the hearing, Davis had not filed an answer to the complaint. The

trial court granted the motion for default judgment by journal entry on June 23, 2010. A

judgment and decree in foreclosure was granted on July 1, 2010.

{¶13} Davis did not file an appeal of the June 23, 2010 or July 1, 2010 judgment

entries.

{¶14} A confirmation of sale was filed April 19, 2011. Davis, through counsel,

filed a Motion for Relief from Judgment on May 5, 2011. The trial court denied the

motion on June 7, 2011 without hearing.

{¶15} It is from this decision Davis now appeals.

{¶16} Appellant raises one Assignment of Error: Delaware County, Case No. 11CAE060055 4

{¶17} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S CIVIL RULE

60(B) MOTION FOR RELIEF FROM JUDGMENT WHEN APPELLANT FILED

MOTIONS FOR TIME EXTENSIONS, RECEIVED HEARING NOTICES, AND

ATTENDED COURT HEARINGS PRO SE BEFORE LOCATING COUNSEL.”

{¶18} Davis argues the trial court erred when it denied her Motion for Relief from

Judgment.

{¶19} 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),

,

. In order to find abuse of discretion, we must

determine the trial court's decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore (1983),

,

.

{¶20} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:

“(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief

under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be

timely filed.” GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976),

,

, paragraph two of the syllabus. A failure to establish any one of

these three requirements will cause the motion to be overruled. Rose Chevrolet, Inc. v.

Adams (1988),

,

; Argo Plastic Prod. Co. v.

Cleveland (1984),

,

.

{¶21} Davis makes multiple arguments as to why she is entitled to relief from

judgment. Davis first argues the trial court was without jurisdiction to enter default

judgment against her because the trial court did not have personal jurisdiction over

Davis. Davis states she was not properly served with the complaint in foreclosure. Delaware County, Case No. 11CAE060055 5

“[W]hen service is not perfected upon a defendant in a civil case, the trial court lacks

personal jurisdiction, and any judgment rendered against that defendant is void.”

Medina v. Davis, 9th Dist. No. 11CA009953,

, ¶ 5 citing Jacobs v.

Szakal, 9th Dist. No. 22903,

. However, the trial court can

acquire jurisdiction through the actions of the defendant. The Tenth District Court of

Appeals has held that: “A court may acquire personal [jurisdiction] over a defendant in

one of three ways: (1) proper service of process; (2) the defendant's voluntary

appearance and submission; or (3) acts by the defendant or his counsel that

involuntarily subject the defendant to the court's jurisdiction. Maryhew v. Yova (1984),

. ‘Where a defendant appears and participates in the case

without objection, he waives the defense of lack of personal jurisdiction due to failure of

service.’” Green v. Huntley, Franklin App. No. 09AP-652,

, ¶12.

{¶22} The record in this case belies Davis’ contention that she was not served

with the complaint and summons or that she did not submit to the trial court’s

jurisdiction. The record shows residential service of the complaint and summons on

Helen J. Davis on July 7, 2009 by the Delaware County Sheriff’s Department. Further,

any arguments regarding service have been waived by Davis’ participation in the case.

Davis filed a Motion for Extension of Time to File and Answer on July 30, 2009. She

appeared at a status conference and at the default judgment hearing. Under this

record, Davis’ argument that she was not under the jurisdiction of the trial court is

without support.

{¶23} Davis appears to then utilize Civ.R. 60(B)(5) to argue that due to Davis’

actions in working with Deutsche Bank to remedy the foreclosure outside the judicial Delaware County, Case No. 11CAE060055 6

proceedings, extraordinary relief should apply to grant her relief from judgment. Civ.R.

60(B)(5) operates as a catch-all provision and “reflects ‘the inherent power of a court to

relieve a person from the unjust operation of a judgment.’” Dutton v. Potroos, 5th Dist.

No. 2010CA00318,

, at ¶ 49 citing Chuck Oeder Inc. v. Bower, 9th Dist.

No. 23785, 2007–Ohio–7032, at ¶ 10. It is reserved for “extraordinary and unusual

case[s],” Myers v. Myers, 9th Dist. No. 22393,

, and “is not a

substitute for the enumerated grounds for relief from judgment[.]”

The trial court in

the present case held that homeowners do not have the right to loan modification based

on federal law and further determined Davis failed to offer evidence to support her

contention of meritorious defenses to the complaint.

{¶24} It is undisputed Davis did not file an answer in this case. While Davis

worked with Deutsche Bank to remedy the default on her loan, the Rules of Civil

Procedure must still be followed regardless of actions taken outside the courthouse

doors. A pro se litigant is presumed to have knowledge of the law and correct legal

procedures so that she remains subject to the same rules and procedures to which

represented litigants are bound. Carskadon v. Avakian, 5th Dist. No. 11CAG020018,

, ¶ 33 citing Kilroy v. B.H. Lakeshore Co. (1996),

,

. She is not given greater rights than represented parties, and

must bear the consequences of her mistakes.

citing Sinsky v. Matthews (Dec. 12,

2001), 9th Dist. No. 20499, at 5.

{¶25} Davis finally argues the trial court erred in not holding an evidentiary

hearing before denying the motion for relief from judgment. The standard for when an

evidentiary hearing on a Civ.R. 60(B) motion is necessary is set forth in Cogswell v. Delaware County, Case No. 11CAE060055 7

Cardio Clinic of Stark County, Inc. (October 21, 1991), 5th Dist. No. CA–8553. In

Cogswell, this Court held under Civ.R. 60(B), a hearing is not required unless there

exist issues supported by evidentiary quality affidavits. A trial court must hold an

evidentiary hearing when the motion and supporting evidence contain sufficient

allegations of operative facts that would support a meritorious defense to the judgment.

Cogswell; BancOhio National Bank v. Schiesswohl (1988),

,

. Based on our findings above, we can find no error in the trial court’s

decision to not hold an evidentiary hearing.

{¶26} Davis never appealed the original entries granting default judgment or

foreclosure. 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),

. We can

find no abuse of discretion in the trial court’s decision to deny Davis’ Motion for Relief

from Judgment.

{¶27} Davis’ sole Assignment of Error is overruled. Delaware County, Case No. 11CAE060055 8

{¶28} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.

Farmer, P.J. and Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE [Cite as Deutsche Bank Natl. Trust Co. v. Davis,

.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

DEUTSCHE BANK NATIONAL TRUST : COMPANY : : : Plaintiff-Appellee : : v. : JUDGMENT ENTRY : HELEN DAVIS, et al. : : : Case No. 11CAE060055 Defendants-Appellants :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant

Helen Davis.

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE