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Citizens Bank Company v. Eric O. Keffer

January 28, 2013

CITIZENS BANK COMPANY, PLAINTIFF-APPELLEE,
v.
ERIC O. KEFFER, ET AL., DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: William H. Harsha, Judge

Cite as Citizens Bank Co. v. Keffer,

{¶1} Eric O. Keffer, Tiffany Keffer, Carolyn Kay Schaad and the Estate of Kenneth Schaad appeal the trial court's decision denying their motion to vacate judgments against them. They argue that their failure to respond to Citizens' motion for summary judgment against Eric Keffer and motion for default judgment against the remaining parties was the result of excusable neglect. However to prevail under Civ.R. 60(B), the movants must establish that in addition to excusable neglect, they also have meritorious defenses to the allegations in the complaint. And because the defendants did not allege any operative facts that if true would establish a meritorious defense to Citizens' allegation that they defaulted on the mortgage, the trial court did not abuse its discretion in denying their motion to vacate judgment.

I. FACTS

{¶2} This appeal arises from an action filed by Citizens Bank Company (Citizens) to foreclose real property jointly owned by Eric O. Keffer, Tiffany Keffer, Carolyn Kay Schaad and the Estate of Kenneth Schaad (defendants). Mr. Keffer was the only party to file an answer. As a result, Citizens filed a motion for summary judgment against him and a motion for default judgment against the remaining parties. The trial court granted both motions and entered judgment in favor of Citizens.

{¶3} All four defendants then filed a combined motion to vacate, motion for leave to file answer and/or amended answer, and motion for stay of any and all post judgment proceedings. In their motions the defendants asserted that the judgments entered in favor of Citizens were the result of excusable neglect and if the judgments were vacated, they have meritorious defenses to assert. The trial court however, denied the defendants' motions finding that they were given adequate notice of the proceedings and they had not established that they failed to respond due to excusable neglect. The defendants now appeal the trial court's decision.

II. ASSIGNMENTS OF ERROR

{¶4} The defendants present four assignments of error for our review:

{¶5} 1. "THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE ITS NOVEMBER 18, 2011 JUDGMENT ENTRY OR ANY SUBSEQUENT ENTRY GRANTING SUMMARY OR DEFAULT JUDGMENT TO PLAINTIFF AGAINST DEFENDANTS BASED ON CIV.R. 60(B)(1) AND/OR (5)."

{¶6} 2. "THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE ITS NOVEMBER 18, 2011 JUDGMENT ENTRY OR ANY SUBSEQUENT ENTRY GRANTING SUMMARY OR DEFAULT JUDGMENT TO PLAINTIFF AGAINST DEFENDANTS PURSUANT TO THE TRIAL COURT'S POLICY AND 'LONGSTANDING PRACTICE' WITH RESPECT TO ADJUDICATING MATTERS ON THEIR MERITS AS OPPOSED TO PROCEDURAL DEFECTS."

{¶7} 3. "THE TRIAL COURT ERRED WHEN IT FAILED TO SET FORTH A FINDING OF EXCUSABLE NEGLECT."

{¶8} 4. "THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT'S [SIC] FAILED TO DEMONSTRATE MERITORIOUS DEFENSES."

III. MOTION TO VACATE JUDGMENT

{ΒΆ9} The defendants claim that the trial court erred by denying their motion to vacate judgment. They argue that their failure to respond to Citizens' motion for summary judgment and default judgment was the result of excusable neglect and that ...


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