Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
PHILLIP BARRAGATE, ATTY. REG. NO. 0063017 AND ASHLYN HEIDER,
ATTY. REG. NO. 0086074, 4805 MONTGOMERY ATTORNEYS FOR
MARCELLE ROSE ANTHONY, ATTY. REG. NO. 0026115, 700 STONEHENGE
PARKWAY, ATTORNEY FOR DEFENDANT-APPELLANT
1} Defendant-appellant Donald Abston appeals the
trial court's judgment overruling his Civ.R. 60(B) motion
for relief from a default judgment of foreclosure entered for
plaintiff-appellee Nationstar Mortgage LLC d/b/a Mr. Cooper.
Finding no error, we affirm.
Facts and Procedural History
2} On February 15, 2013, Abston executed a
promissory note and he and his former wife executed a
mortgage with PNC Mortgage, which later assigned the mortgage
to Nationstar. In 2017, Abston fell behind in his payments.
Nationstar sent him a letter, dated September 15, 2017, in
which it offered him payment relief by modifying his loan. To
obtain the modification, Abston had to participate in a Trial
Period Plan (TPP). The TPP required him to make three
consecutive payments by the last days of October, November,
and December 2017. The letter also told Abston that to avoid
foreclosure he must contact Nationstar to accept the offer or
must make his first payment by September 29, 2017. The letter
further said: "Once you have successfully made each of
the three monthly Trial Period Plan payments by the due
dates, we will send you the final modification agreement
which is required to be signed and returned to us. We will
also sign this modification agreement and your account will
be permanently modified in accordance with the terms of the
modification agreement." Abston did not contact
Nationstar or make his first TPP payment by September 29.
3} On October 20, Nationstar filed a foreclosure
action against Abston seeking judgment on the note and
foreclosure of the mortgage. Abston was served with the
summons and complaint seven days later. That same day, Abston
contacted Nationstar and arranged to make his first TPP
payment. Abston made his second payment on November 16.
Nationstar moved to stay the foreclosure proceedings; on
December 6, the motion was granted and the action was
administratively dismissed, subject to reactivation. Abston
made his third and final TPP payment on December 18.
4} On January 5, 2018, Nationstar mailed Abston the
final modification agreement. Almost a month later, Abston
called Nationstar and was told that he would need to return
the agreement signed and notarized by both him and his wife.
When Abston said that he and his wife had divorced,
Nationstar told him that, in lieu of his wife's
signature, he would need to send a copy of the divorce
decree. Abston returned the modification agreement, along
with a check for the new monthly payment. He did not send a
copy of the divorce decree and had simply crossed out his
former wife's signature line in the agreement. On
February 13, 2018, Nationstar sent Abston a new copy of the
modification agreement. Abston did not sign and return the
new copy or submit a copy of the divorce decree, but on March
6, 2018, he made a payment in accordance with the
5} Nationstar sent Abston a letter dated April 6,
2018, telling him that he had not been approved for a loan
modification. The letter advised Abston that he had 30 days
to appeal the decision. Abston did not appeal. He did,
though, send another payment. Nationstar returned the payment
to him on April 26, 2018 with a letter telling Abston that it
was insufficient to bring his account current. Abston called
Nationstar on May 7, 2018, with a question about the amount
of his May payment and was told that he had not been approved
for the loan modification.
6} On May 9, 2018, Nationstar moved to reactivate
the foreclosure proceedings and served the motion on Abston
by regular mail. Two days later, the trial court granted the
motion. On May 16, 2018, Nationstar moved for default
judgment, serving the motion on Abston again by regular mail.
Abston failed to file an answer or otherwise respond. On May
31, 2018 the trial court granted the motion and entered a
final judgment of foreclosure.
7} While the record does not make the details clear,
it appears that sometime after Abston's May 7, 2018 call
to Nationstar, he did submit a copy of the divorce decree.
Curiously, Nationstar sent Abston a letter, dated June 2,
2018, telling him that it had reviewed his documentation,
that his response was complete, and that a 30-day evaluation
period had begun. The letter further told Abston that
Nationstar would not proceed with a foreclosure sale before
evaluating his response. Two weeks later, Nationstar sent
Abston another letter, dated June 14, 2018, telling him that
he had not been approved for the loan modification. Like the
April 6 letter, this letter advised Abston that he had 30
days to appeal the decision. Abston did not appeal.
8} On July 10, 2018, Abston moved to stay the
foreclosure proceedings so that he could file a motion for
relief from judgment, and on July 13, 2018, he filed a motion
for relief from judgment under Civ.R. 60(B). The trial court
granted the motion to stay, but on December 17, 2018, the
court overruled the motion for relief from judgment.
9} Abston appeals.
10} Abston presents five assignments of error for
our review. The first four challenge the substance of the
trial court's judgment and the last challenges the lack
of a hearing on the relief motion.
11} "The standard of review of a trial
court's decision on a Civ. R. 60(B) motion is the abuse
of discretion standard." (Citation omitted.)
Discover Bank v. Wells, 2d Dist. Clark No.
2018-CA-44, 2018-Ohio-4637, ¶ 26. "Abuse of
discretion" has been defined as an attitude that is
unreasonable, arbitrary, or unconscionable. Huffman v.
Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248
(1985). "A decision is unreasonable if there is no sound
reasoning process that would support that decision."
AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d
12} A trial court may set aside a default judgment
under Civ.R. 60(B) if the movant demonstrates that: "(1)
the party has a meritorious defense or claim to present if
relief is granted; (2) the party is entitled to relief under
one of the grounds stated in Civ.R. 60(B)(1) through (5); and
(3) the motion is made within a reasonable time, and, where
the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not
more than one year after the judgment, order or proceeding
was entered or taken." GTE Automatic Elec., Inc. v.
ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113
(1976), paragraph two of the syllabus. The grounds for relief
enumerated in the rule include "mistake, inadvertence,
surprise or excusable neglect," Civ.R. 60(B)(1), and
"fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an
adverse party," Civ.R. 60(B)(3).
13} Abston argued in his Civ.R. 60(B) motion that he
was not in default of the note and that he had a claim for
promissory estoppel. He argued for relief on the grounds of
excusable neglect and fraud. The trial court rejected these
arguments. In the first and second assignments of error,
Abston challenges the rejection of the lack-of-default
defense and promissory-estoppel claim, and in the third and
fourth assignments of error he challenges the rejection of
the two grounds for relief.
Meritorious defense or claim
14} "In order to establish a meritorious claim
or defense under Civ.R. 60(B), the movant is required to
allege a meritorious claim or defense, not to prove that she
will prevail on that claim or defense." (Citation
omitted.) GMAC Mtge., LLC. v. Herring, 189 Ohio
App.3d 200, 2010-Ohio-3650, 937 N.E.2d 1077, ¶ 32 (2d
Dist.). "A 'meritorious defense' means a defense
'going to the merits, substance, or essentials of the
case.' * * * Relief from a final judgment should not be
granted unless the party seeking such relief makes at least a
prima facie showing that the ends of justice will be better
served by setting the judgment aside." Wayne Mut.
Ins. Co. v. Marlow, 2d Dist. Montgomery No. 16882, 1998
WL 288912, *2-3 (Jun. 5, 1998), quoting Black's Law
Dictionary, 290 (6th Ed.Rev.1991); see also
Herring at ¶ 32 (quoting the same). "Broad,
conclusory statements do not satisfy the requirement that a
Civ.R. 60(B) motion must be supported by operative facts that
would warrant relief from judgment." Herring at
¶ 32, citing Cunningham v. Ohio Dept. of
Transp., 10th Dist. Franklin No. 08AP-330,
2008-Ohio-6911, ¶ 37, and Bennitt v. Bennitt,
8th Dist. Cuyahoga Nos. 65094 and 66055, 1994 WL 236295 (May
26, 1994). "A party seeking relief from judgment is not
required to prove that he or she will prevail on the
meritorious defense; the movant is merely required to allege
the existence of such a defense." (Citation omitted.)
UBS Real Estate Securities, Inc. v. Teague, 191 Ohio
App.3d 189, 2010-Ohio-5634, 945 N.E.2d 573, ¶ 23 (2d