[Cite as Household Realty v. Cipperley,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

HOUSEHOLD REALTY CORP. ) CASE NO. 12 MA 113 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) NANCY CIPPERLEY ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Civil Appeal from the County Court #2 of Mahoning County, Ohio Case No. 09CVF0785

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. James Oh Atty. Mark C. Brncik Atty. Steven Alsip Javitch, Block & Rathbone, LLC 1100 Superior Avenue, 19th Floor Cleveland, Ohio 44114-2521

For Defendant-Appellant: Atty. Bruce M. Broyles 5815 Market Street, Suite 2 Boardman, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: September 24, 2013 [Cite as Household Realty v. Cipperley,

.] WAITE, J.

{¶1} Appellant Nancy Cipperley appeals from the denial of her Civ.R.

60(B)(5) motion for relief from judgment after she failed to make payments on her

personal line of credit obtained from Appellee Household Realty Corporation

(“Household Realty”). Household Realty filed a complaint for the unpaid debt in the

Mahoning County Court #2. Appellant failed to answer the complaint or make an

appearance. The court awarded Household Realty default judgment. Household

Realty later attempted to garnish Appellant's wages, but the garnishment order was

denied because Appellant had entered into a consumer counseling program for the

repayment of her debts, pursuant to R.C. 2716.03(B). Appellant then filed a motion

for relief from judgment on the grounds that Household Realty may have violated

R.C. 2716.03(B) by attempting to garnish her wages a second time after she had

entered into a debt counseling agreement. The motion was denied.

{¶2} Appellant understands that there are three requirements for granting

relief under Civ.R. 60(B)(5): there must be a meritorious defense to the underlying

claim, there must be a valid reason for relief under subsection (B)(5), and the motion

must be filed within a reasonable time. GTE Automatic Electric, Inc. v. ARC

Industries,

,

(1976). Appellant did not satisfy any

of the three requirements. Her alleged defense relates to the garnishment process

rather than the underlying judgment, and Ohio law does not allow a judgment debtor

to relitigate the original judgment as part of the garnishment proceedings. She also

waited two years to file the motion, which is an unreasonable period. Finally, she

failed to show that the garnishment or debt counseling statutes entitle her to any type -2-

of relief. The trial court was correct in denying the motion for relief from judgment,

and the judgment is affirmed.

Case History

{¶3} On November 9, 2004, Appellant entered into a credit agreement with

Household Realty with a credit limit of $8,000. After Appellant failed to make

payments on the line of credit, Household Realty filed a complaint for collection of a

debt on July 13, 2009. Appellant failed to answer the complaint or otherwise make

an appearance in the action, and default judgment was granted on September 15,

2009, in the amount of $11,837.69, with interest to accrue at the contract rate of

21.25%. No appeal was filed.

{¶4} Appellant subsequently entered into an agreement with GreenPath

Debt Solutions, a debt counseling service, to arrange the repayment of her debts.

When Household Realty attempted to garnish Appellant's wages on February 22,

2011, she challenged the garnishment on the grounds that she had a legal excuse to

avoid garnishment of personal earnings. The matter was heard before a magistrate,

and the garnishment order was denied on March 22, 2011, because Appellant was

working with a debt counseling service. On November 10, 2011, Appellant filed a

Civ.R. 60(B)(5) motion for relief from judgment of the September 15, 2009, default

judgment on the grounds that Household Realty had violated the statute governing

consumer debt counseling. The motion was heard before a magistrate and denied

on February 8, 2012. Appellant filed objections, but her objections were overruled on -3-

May 15, 2012, and the motion for relief from judgment was denied. Appellant then

filed an appeal of the denial of her Civ.R. 60(B)(5) motion.

Law governing Civ.R. 60(B) motions for relief from judgment

{¶5} According to Civ.R. 60(B), a court may relieve a party or legal

representative from a final judgment, order or proceeding 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 Civ.R. 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 from the judgment.

{¶6} Civ.R. 60(B) is a remedial rule to be liberally construed so that the ends

of justice may be served. Colley v. Bazell,

,

(1980). A trial court's ruling on a Civ.R. 60(B) motion is reviewed only for abuse of

discretion. Griffey v. Rajan,

,

(1987); Pons v.

Ohio State Med. Bd.,

,

(1993). Abuse of

discretion may be indicated by a ruling that is arbitrary, unreasonable or

unconscionable. Blakemore v. Blakemore,

,

(1983). -4-

{¶7} In order to prevail on a motion for relief from judgment pursuant to

Civ.R. 60(B), the appellant 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 amount of 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,

,

, paragraph two of the syllabus. If any of the three GTE Automatic

Electric requirements are not met, the motion should be overruled. Volodkevich v.

Volodkevich,

,

(1988).

{¶8} For cases arising from Civ.R. 60(B)(5), the motion must be filed within a

reasonable time from the date of the judgment being challenged. Adomeit v.

Baltimore,

,

(8th Dist. 1974). In the absence

of any justification for the delay in filing a Civ.R. 60(B) motion, the motion to vacate

should be denied. CitiMortgage, Inc. v. Fishel, 7th Dist. No. 11 MA 97, 2012-Ohio-

4117; Dunn v. Marthers, 9th Dist. No. 05CA008838,

. Delays as

short as three or four months have been held to be unreasonable when no justifiable

reason is given for the delay. Mount Olive Baptist Church v. Pipkins Paints,

,

(8th Dist. 1979) (four month delay was unreasonable);

Bolinger v. Lake County Sheriff's Dept., 11th Dist. No. 12-053,

(Sept.

30, 1987) (three month delay was unreasonable). Whether the motion is filed in a -5-

reasonable time depends on the facts and circumstances of the case. LaSalle Bank

Natl. Assn. v. Smith, 7th Dist. No. 11 MA 85,

.

{¶9} Civ.R. 60(B)(5) is considered a “catch-all provision,” that “reflect[s] the

inherent power of a court to relieve a person from the unjust operation of a

judgment.” Caruso–Ciresi, Inc. v. Lohman,

,

(1983),

paragraph one of the syllabus. The grounds for invoking Civ.R. 60(B)(5) must be

substantial, and this subsection cannot be used as a substitute for any of the more

specific provisions of Civ.R. 60(B).

at paragraphs one and two of the syllabus.

Civ.R. 60(B)(5) relief is to be granted only in unusual or extraordinary circumstances,

and will not operate to relieve a party who “ignores its duty to take legal steps to

protect its interest.” Mount Olive Baptist Church v. Pipkins Paints, supra,

.

ASSIGNMENT OF ERROR

The trial court erred in denying the objections to Magistrate's Decision

and adopting the Decision which denied the Appellant's motion for relief

from judgment.

{¶10} Appellant asserts that she satisfied the requirements of GTE Automatic

Electric, Inc., and that the trial court should have granted her Civ.R. 60(B)(5) motion.

Before proceeding with the arguments presented in Appellant's brief on appeal, we

note that Appellant's counsel argued at oral argument that the trial court should have

granted relief under Civ.R. 60(B)(4), even though this subsection was not invoked in

her motion for relief from judgment. Appellant's counsel later conceded that any -6-

argument regarding Civ.R. 60(B)(4) was waived and that the trial court was correct in

denying the motion because it was filed under the wrong subsection. Civ.R. 60(B)(4)

allows for relief from judgment when: “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.” Civ.R. 60(B)(5), on the other hand, is the generic catch-all

provision for relief from judgment and cannot be used as a substitute for any of the

more specific subsections of the rule. Caruso–Ciresi, Inc., supra, at paragraph one

of the syllabus. Despite counsel's concessions at oral argument, Appellant's motion

for relief from judgment did raise at least one matter that is more properly resolved

under Civ.R. 60(B)(5), i.e., whether irregularities in garnishment proceedings may

justify relief from judgment. Therefore, we will examine the arguments relating to

Civ.R. 60(B)(5).

{¶11} Appellant first contends that she presented a meritorious defense to the

judgment because she had a potential setoff to the judgment arising from Household

Realty's misuse of the garnishment process. This argument does not present a

meritorious defense to the underlying judgment, however. In fact, Appellant in no

way at any time addresses the underlying judgment. This argument, instead,

appears to be an attempt to reopen her underlying case in order to somehow

“punish” Household Realty for some alleged post-judgment wrongdoing. That aside,

garnishment is a statutory procedure used by a creditor to obtain the property of a

debtor that is in the possession of a third party. We have recently held that: -7-

The judgment debtor may not use garnishment proceedings to relitigate

the underlying debt. Rak–Ree Ents., Inc. v. Timmons, 10th Dist. Nos.

10AP–476, 10AP–556,

, ¶16. The scope of a

garnishment hearing is “limited to the judgment debtor's claims of

exemption or any defense to the garnishment.” (Emphasis sic.)

Ashtabula Cty. Med. Ctr. v. Douglass, 11th Dist. No. 1311,

, at *1 (June 3, 1988).

E. Liverpool v. Buckeye Water Dist.,

,

, ¶34 (7th

Dist.).

{¶12} Further, as discussed in the magistrate's decision, a claim for setoff is

not a meritorious defense. Instead, it is in the nature of a counterclaim. Baker

Motors, Inc. v. Baker Motors Towing, Inc.,

,

,

(8th Dist.). A setoff might act to reduce the amount of

judgment, but does not challenge the integrity and validity of the judgment.

Therefore, it cannot satisfy the Civ.R. 60(B) requirement that a defendant have a

meritorious defense to the underlying claim.

{¶13} Appellant also argues that Household Realty violated R.C. 2716.03(B)

by filing repeated orders to garnish her wages, and that this violation acted to cancel

some or all of the underlying debt. There is no basis to this line of reasoning. R.C.

2716.03(B) states:

(B) No proceeding in garnishment of personal earnings shall be brought

against a judgment debtor for the collection of a debt that is the subject -8-

of an agreement for debt scheduling between the judgment debtor and

a budget and debt counseling service, unless any payment to be made

by the judgment debtor, or by a budget and debt counseling service to

the judgment creditor under the agreement for debt scheduling between

the judgment debtor and the budget and debt counseling service, is due

and unpaid for more than forty-five days after the date on which the

payment became due, or unless the judgment creditor previously was

notified by the service that the debt scheduling agreement between the

judgment debtor and the service was terminated.

{¶14} There is nothing in R.C. 2716.03(B) to allow a debt to be cancelled if a

creditor files a garnishment action in violation of the statute. Additionally, the record

indicates that Appellant was not current with her payments under the debt counseling

agreement between March of 2011 (when the trial court ruled that Appellant was a

participant in a consumer debt counseling program) and November of 2011 (when

she filed her Civ.R. 60(B) motion), because she made only one payment during that

time period. R.C. 2716.03(B) allows the creditor to file for garnishment if debt

payments are more than 45 days late under a debt counseling agreement. Nothing

in R.C. 2716.03(B) prohibits a creditor from filing multiple garnishment actions if the

debtor is delinquent in making payments under a debt counseling agreement.

{¶15} We note here that there is no second garnishment action reflected in

the record. If there was a second garnishment, it was imperative for Appellant to -9-

place evidence of that second garnishment action in the record so that proper

appellate review could take place.

{¶16} As to the timeliness factor, we agree with the trial court that Appellant's

Civ.R. 60(B) motion was untimely. Appellant's Civ.R. 60(B) motion sought relief

under subsection (B)(5), which allows for relief for “any other reason justifying relief

from the judgment.” Under this subsection, the motion must be filed within a

reasonable time. In the absence of any explanation or justification for the delay in

filing a Civ.R. 60(B)(5) motion, the motion should be denied. CitiMortgage, Inc. v.

Fishel, 7th Dist. No. 11 MA 97,

. Delays as short as three or

four months render a Civ.R. 60(B)(5) untimely. Mount Olive Baptist Church and

Bolinger, supra. Appellant waited over two years to file her Civ.R. 60(B)(5) motion,

and it was well within the trial court's discretion to treat a two-year delay in filing as

unreasonable and untimely.

{¶17} Appellant explains that she delayed filing the motion because the facts

supporting the motion did not arise until October of 2011, just a few weeks before she

filed the motion. Those supposed facts deal with her belief that Household Realty

violated the garnishment statutes by filing repeated garnishment notices against her.

As already discussed, Household Realty's attempt to garnish Appellant's wages to

pay the 2009 judgment does not in any way present a meritorious defense to the

underlying judgment and does not support reopening the judgment. For this reason,

these alleged facts cannot in any way be used to support an argument that the

motion to vacate was timely filed, since these facts are completely irrelevant to the -10-

issue: whether the original judgment is valid. Appellant has not alleged any facts

that would explain why she did not answer or otherwise respond to the 2009

complaint. Thus, the Civ.R. 60(B)(5) motion challenging the 2009 judgment from that

complaint, filed more than two years after the final judgment, was untimely. The

Civ.R. 60(B) motion was properly denied.

{¶18} Because Appellant has failed all three requirements for relief from

judgment under Civ.R. 60(B)(5) and GTE Automatic Electric, Inc., the trial court

properly denied Appellant's motion. For all the aforementioned reasons, Appellant's

assignment of error is overruled.

Conclusion

{¶19} Appellant filed a Civ.R. 60(B)(5) motion for relief from a money

judgment arising from her failure to make payments on a line of credit. Appellant

conceded at oral argument that any matters arising from Civ.R. 60(B)(4) were not

raised in the trial court and are waived. The motion before the trial court argued that

relief should be granted under Civ.R. 60(B)(5) because Household Realty misused

the garnishment process in attempting to collect on its money judgment, in violation

of the debt counseling statute. Appellant has failed to establish any of the three

requirements of Civ.R. 60(B) relief under GTE Automatic Electric, Inc. Garnishment

is a collection procedure and cannot be used to challenge the underlying judgment.

Hence, it cannot form a basis for Civ.R. 60(B) relief. She has not established a

meritorious defense, she has not shown that she is entitled to relief under Civ.R.

60(B)(5), and the motion was not filed within a reasonable amount of time. The -11-

judgment of the trial court overruling Appellant's motion for relief from judgment was

correct and is hereby affirmed.

Donofrio, J., concurs.

Vukovich, J., concurs.