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Fifth Third Mortgage Company v. Jeffrey Fantine

September 26, 2011

FIFTH THIRD MORTGAGE COMPANY PLAINTIFF-APPELLEE
v.
JEFFREY FANTINE DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2010 CV 01343

The opinion of the court was delivered by: Wise, P. J.

JUDGES: Hon. John W. Wise, P. J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: Affirmed

{¶1} Defendant-Appellant Jeffrey Fantine appeals the denial of his motion for relief from default judgment in a foreclosure action in the Court of Common Pleas, Fairfield County, brought by Plaintiff-Appellee Fifth Third Mortgage Company. The relevant facts leading to this appeal are as follows.

{¶2} On or about May 13, 2005, appellant signed a promissory note and mortgage regarding a residential property at 123 Behrens Court in Lancaster, Ohio. Appellant thereafter purportedly experienced an extended period of unemployment, which was eventually resolved when appellant obtained a new job in Maine. Although appellant moved out of Ohio, his mother continued to live at the Behrens Court address.

{¶3} On October 27, 2010, Appellee Fifth Third filed a foreclosure complaint against appellant in the Fairfield County Court of Common Pleas, seeking a principal balance of $71,053.32 plus interest at the rate of 6.625% per annum from July 1, 2010, plus late charges. Appellee requested service of the complaint both at the Lancaster, Ohio address and appellant's Hallowell, Maine address.

{¶4} On November 29, 2010, appellant filed a written motion with the trial court seeking additional time to answer or respond to the foreclosure complaint. Although the trial court allowed appellant additional time (until January 28, 2011), appellant did not answer or otherwise respond in court to the complaint.

{¶5} On February 3, 2011, appellee filed a motion for default judgment, serving a copy of same upon appellant at his Hallowell, Maine address.

{¶6} On February 14, 2011, the trial court granted default judgment in favor of appellee.

{¶7} On March 25, 2011, as further discussed infra, appellant filed a motion for relief from judgment, citing Civ.R. 60(B).

{¶8} On April 4, 2011, the trial court denied appellant's motion for relief from judgment.

{¶9} Appellant filed a notice of appeal on April 6, 2011. He herein raises the three Assignments of Error:

{¶10} "I. THE TRIAL COURT ERRED IN DENYING 60(B) RELIEF TO THE APPELLANT WHERE THE APPELLANT PROPERLY DEMONSTRATED MERITORIOUS CLAIMS AND DEFENSES.

{ΒΆ11} "II. THE TRIAL COURT ERRED IN DENYING 60(B) RELIEF TO THE APPELLANT WHERE THE APPELLANT PROPERLY ...


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