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.

Equable Ascent Financial v. Ybarra

Court of Appeals of Ohio, Ninth District

September 30, 2013

EQUABLE ASCENT FINANCIAL Appellee
v.
PHILLIP YBARRA Appellant

APPEAL FROM JUDGMENT ENTERED IN THE AVON LAKE MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. CVF 1100252

TONY DALAYANIS, Attorney at Law, for Appellant.

MATTHEW G. BURG, Attorney at Law, for Appellee

DECISION AND JOURNAL ENTRY

BELFANCE, Judge.

(¶1} Philip Ybarra appeals the trial court's decision granting Equable Ascent Financial's motion for relief from judgment. For the reasons set forth below, we reverse.

I.

(¶2} Equable Ascent filed a complaint against Mr. Ybarra alleging that he owed $3086.85 on a credit card account owned by Equable Ascent. Mr. Ybarra moved to dismiss the complaint, arguing that, because Equable Ascent was a collection agency, it could not bring the suit because it did not have a business location in Ohio as required by R.C. 1319.12(B). Equable Ascent never responded to Mr. Ybarra's motion to dismiss, and the trial court dismissed Equable Ascent's complaint on June 27, 2011.

(¶3} On January 3, 2012, Equable Ascent filed a motion for relief from judgment, arguing that it was not a collection agency and, therefore, not required to comply with R.C. 1319.12(B). It further argued that the motion was timely because it was made within seven months of the judgment being entered. The same day Equable Ascent filed its motion for relief from judgment, the trial court granted the motion.

(¶4} Mr. Ybarra has appealed, raising three assignments of error. Because Mr. Ybarra's third assignment of error is dispositive, we address it first.

II.

ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION AND/OR IN ERROR ISSUED A [CIV.R.] 60(B) ORDER WHERE APPELLANT FAILED TO PROPER[L]Y RECEIVE TIMELY NOTICE OF SAME AND/OR WITHOUT GIVING APPELLANT OPPORTUNITY TO REVIEW AND/OR RESPOND TO SAID POSITION.

(¶5} Mr. Ybarra argues in his third assignment of error that the trial court erred in granting Equable Ascent's Civ.R. 60(B) motion the same day it was filed. We agree.

(¶6} Equable Ascent filed a motion for relief from judgment more than six months after judgment had been entered against it. The trial court ruled on the motion that same day, giving Mr. Ybarra no opportunity to respond. Fundamental due process principles require that each party have the opportunity to be heard prior to a trial court rendering a decision. See, e.g., Cleveland Bd. of Edn. v. Loudermill , 470 U.S. 532, 542 (1985) ("An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.") (Internal quotations and citations omitted.). Thus, we have previously concluded that, "[u]ntil the other party has a reasonable opportunity to file a written response, there is no reasonable consideration by the court of the issues involved." (Internal quotations and citation omitted.) State v. Dalchuk , 9th Dist. Summit No. 21422, 2003-Ohio-4268, ¶ 5. See also Haley v. Nomad Preservation, 9th Dist. Summit No. 26492, 2013-Ohio-159, ¶ 17; Civ.R. 6(C) (generally requiring service of "[a] written motion, other than one which may be heard ex parte, " not later than seven days before the time fixed for the hearing). This is particularly so in the context of decisions such as Civ.R. 60(B) where "[t]he question of whether relief should be granted is addressed to the sound discretion of the trial court." RoseChevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988). In such ...


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.