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National City Bank v. Jenkins

Court of Appeals of Ohio, Sixth District

July 12, 2013

National City Bank successor by merger National City Mortgage Co. Appellant
v.
Dimitries Jenkins, et al. Appellee.

Trial Court No. 2008 CV 1051

Marcel C. Duhamel, Heather M. Lutz, David Y. Park, Erin Laurito, and Barbara Borgmann, for appellant.

Daniel L. McGookey, Kathryn M. Eyster, and Lauren McGookey, for appellee.

DECISION AND JUDGMENT

SINGER, P.J.

{¶1} Appellant bank appeals the order of the Erie County Court of Common Pleas granting relief from a judgment of foreclosure. Because we conclude that the trial court abused its discretion in granting the motion, we reverse.

{¶2} In March, 2004, appellee, Dimitries Jenkins, and his now former wife, Gina, purchased a home on Sherman Street in Sandusky. The purchase was financed with a loan from appellant, National City Bank n/k/a PNC Bank N.A., in the amount of $77, 850. The promissory note for the loan was secured by a mortgage on the property. In 2005 National City Bank assigned the mortgage to National City Mortgage Co.

{¶3} According to appellee, in 2007, when he and his wife separated, she stopped contributing toward the mortgage payment and he was ordered to pay what he terms a "substantial child support payment." Appellee maintains that his attempt to modify the loan at that point was unavailing because National City Bank was unwilling to cooperate. In 2008, appellee missed a payment and was unable to catch up because of late fees, bank charges and the bank's unwillingness to work with him, he says.

{¶4} On November 18, 2008, National City Bank filed a complaint seeking to foreclose appellee's mortgage. Appellee did not answer the complaint, but moved for and was granted an extension of time within which to answer. During this extension, appellee obtained counsel, who entered an appearance and moved for a second extension of time. The court extended the answer date until May 1, 2009.

{¶5} On May 1, 2009, rather than file an answer, appellee's counsel moved to withdraw, citing an inability to contact her client. Appellee disputes this account, claiming that it was he who was unable to contact his attorney. Moreover, appellant maintains, counsel never informed him that an answer had not been filed or that one was due.

{¶6} Appellant moved for a default judgment on August 13, 2009. On March 8, 2010, the court entered a default judgment on the note, foreclosed the mortgage and ordered a sheriffs sale of the subject property. On July 20, 2010, appellant purchased the property at the sheriffs sale, assigning its bid to PNC Mortgage, a division of PNC Bank N.A. Appellant moved for an order confirming the sale on June 1, 2011. On June 6, 2011, the court entered a judgment confirming the sale. The court issued a writ of possession on October 27, 2011.

{¶7} On December 2, 2011, appellant moved for a stay of the writ, followed by a motion for relief from judgment. The court granted the stay. Appellant filed a memorandum in opposition to the relief from judgment motion. Extensive briefing followed. On March 30, 2012, the court granted appellee's Civ.R. 60(B) motion. This appeal followed.

{¶8} Appellant sets forth the following two assignments of error:

1. The trial court erred and abused its discretion by vacating PNC Bank, National Association's ("PNC") default judgment and decree of foreclosure against Dimitries Jenkins ("Jenkins") because Jenkins failed to file his motion for relief within a reasonable time.
2. The trial court erred and abused its discretion by vacating the order confirming the sheriffs sale because Jenkins failed to show a meritorious defense with respect to the confirmation of the sale and also failed ...

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