Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bank of America, N.A. v. Shultz

Court of Appeals of Ohio, Second District

June 21, 2013

BANK OF AMERICA, N.A., Plaintiff-Appellee
v.
KRISTOPHER E. SHULTZ, et al., Defendant-Appellant

(Civil Appeal from Common Pleas Court) Trial Court Case No. 12-CV-117.

STACY L. HART, Atty. Reg. #0081870, Lerner, Sampson & Rothfuss, Attorney for Plaintiff-Appellee, Bank of America.

JOHN J. SCACCIA, Atty. Reg. #0022217, Scaccia & Associates, LLC, Attorney for Defendant-Appellant, Kristopher E. Shultz.

WILLIAM T. HOFFMAN, Clark County Prosecutor's Office, Attorney for Clark County Treasurer.

Ohio Attorney General's Office, Department of Taxation, c/o Ohio Attorney General Revenue Recovery, Attorney for State of Ohio.

OPINION

HALL, J.

{¶ 1} The defendants moved the trial court for more time to respond to the plaintiff s complaint, and the court granted them an extended period of time. Before expiration of the extended time, the plaintiff filed a motion for default judgment. The defendants did not file their answer until after the extended period expired and did so without leave. The trial court subsequently entered default judgment for the plaintiff, though the plaintiff had not renewed its motion for default judgment. The defendants allege that the trial court erred by entering the default judgment. We agree. The plaintiffs motion for default judgment is void because it was filed before a default had arisen, and it was not otherwise renewed. Although the defendants filed their answer after the extended period expired and without further leave, that the answer was filed before the trial court entered the default judgment was enough to preclude the court from entering it. We reverse.

I. PROCEDURAL HISTORY

{¶ 2} On February 6, 2012, Bank of America, N.A., filed a complaint in foreclosure against Kristopher and Kristin Shultz.[1] Almost three weeks after the Shultzes' response was due, on March 23, their counsel filed an appearance and filed a motion asking the trial court for more time to respond to the Bank's complaint.[2] Counsel said that he had only recently been retained in the case and that he had "recently moved his office and has suffered a prolonged respiratory illness since January 30 and just this week has finally felt well." Two months later, on May 21, the trial court entered an order granting the motion and continuing the case until June 18.

{¶ 3} Eight days after the order was entered, on May 29, the Bank filed a motion for default judgment.

{¶ 4} A month after the continuance expired, the Shultzes' counsel faxed the clerk of courts and asked the clerk to fax him a copy of the original complaint. The clerk did so the same day. The following day, on July 19, counsel filed the Shultzes' answer.

{¶ 5} On August 22, a magistrate entered a notice that a non-oral hearing would be held on August 29 to consider the Bank's motion but the order referred to it as a "motion for summary judgment, " and a summary judgment motion was never filed. On August 30, the trial court granted the Bank's motion and entered a default judgment against the Shultzes. The court found "that all necessary parties ha[d] been properly served" and "that the defendants, Kristopher E. Shultz aka Kristopher E. Schultz and Kristin L. Shultz[, who] filed a Motion for Leave to Please (sic) which expired on 4/20/12, did not file an answer and are therefore in technical default."

{¶ 6} On September 21, the Shultzes' counsel filed a motion to vacate or alternatively to allow them to respond to the motion for default judgment. Counsel argued that the court should have considered the Shultzes' answer. He claimed that he never received, nor were the Shultzes personally served with, the Bank's motion for default judgment. He said that he did not receive the motion until the clerk of courts faxed it to him (at his request) on September 4. He also claimed that he did not receive the notice of non-oral hearing until August 31, after the default judgment had been entered. Both claims are supported with an affidavit from counsel's secretary. Counsel offered this explanation: "I have been plagued with mail problems since moving my office to Dayton. The situation was so unusual and extreme th[at] I actually received two letters in the nature of an apology from the Post Master. If correspondence was inadvertently sent to my old address it will be a problem. [Citation to the affidavit]. I had issues with the new office as well." (Dkt.#16, fn. 1).

{¶ 7} A week later, on September 28, counsel filed a motion to stay execution of the judgment pending the outcome of an appeal to this Court. In this motion, counsel claims that the Bank never served the motion for default judgment. Counsel further ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.