[Cite as PNC Bank, Natl. Assn. v. JP Morgan Chase Bank, Natl. Assn., 2013-Ohio-1046.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

PNC BANK, NATIONAL                                       JUDGES:
ASSOCIATION, SUCCESSOR IN                                Hon. Patricia A. Delaney, P.J.
INTEREST TO NATIONAL CITY BANK,                          Hon. William B. Hoffman, J.
N.A.                                                     Hon. Sheila G. Farmer, J.

        Plaintiff-Appellee                               Case No. 12 CAE 07 0042

-vs-
                                                         OPINION
JP MORGAN CHASE BANK,
NATIONAL ASSOCIATION,
SUCCESSOR IN INTEREST OF
CERTAIN ASSETS AND LIABILITIES
FROM THE FEDERAL DEPOSIT AND
INSURANCE CORPORATION, AS
RECEIVER FOR WASHINGTON
MUTUAL BANK, F.A.

        Defendant-Appellant



CHARACTER OF PROCEEDING:                             Appeal from the Delaware County Court of
                                                     Common Pleas, Case No. 08 CVE 11 1568


JUDGMENT:                                            Affirmed

DATE OF JUDGMENT ENTRY:                              March 18, 2013

APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JAMES R. MOATS                                       O. JUDSON SCHEAF, III
BROAM T. JOHNSON                                     GABE J. ROEHRENBECK
Carille Patchen & Murphy LLP                         JASON R. HARLEY
366 East Broad Street                                Welin, O'Shaughnessy & Scheaf LLC
Columbus, Ohio 43215                                 240 N. Fifth Street, Suite 300
                                                     Columbus, Ohio 43215
Delaware County, Case No. 12 CAE 07 0042                                               2

Hoffman, J.


       {¶1}   Defendant-appellant JP Morgan Chase Bank, National Association,

Successor In Interest of Certain Assets and Liabilities from the Federal Deposit and

Insurance Corporation, As Receiver for Washington Mutual Bank, F.A. appeals the June

13, 2012 Judgment Entry entered by the Delaware County Court of Common Pleas

denying its motion for relief from judgment pursuant to Ohio Civil Rule 60(B). Plaintiff-

appellee is PNC Bank, National Association, Successor in Interest to National City

Bank, N.A.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On June 19, 1998, Tushar Shelat opened a revolving line of credit with

National City Bank.     Ruma T. Shelat guaranteed the note.        The Shelats granted

National City Bank a mortgage lien to secure the line of credit.

       {¶3}   On January 13, 2003, the Shelats borrowed $840,000 from Washington

Mutual Bank, granting Washington Mutual a mortgage lien to secure the loan.          On

January 17, 2003, pursuant to the terms of the loan, $215,964.53 was paid to National

City Bank on the line of credit.

       {¶4}   Subsequent to paying the proceeds from the Washington Mutual loan on

the National Bank line of credit, the Shelats proceeded to incur an additional

$286,615.04 on the National City Bank line of credit.

       {¶5}   On September 25, 2008, JP Morgan Chase purchased substantially all of

Washington Mutual's secured assets, including the mortgage at issue.
Delaware County, Case No. 12 CAE 07 0042                                               3


      {¶6}    On November 24, 2008, National City Bank filed a foreclosure action

against Tushar B. Shelat and Ruma T. Shelat, naming Washington Mutual Bank, JP

Morgan Chase Bank's predecessor in interest, as a necessary party defendant.

      {¶7}    On February 9, 2009, National City Bank moved for default judgment as

Washington Mutual had not responded to the complaint.

      {¶8}    On March 31, 2009, the trial court granted the motion for default judgment,

and issued a judgment of foreclosure in favor of National City Bank.

      {¶9}    On July 12, 2010, Appellant JP Morgan Chase Bank filed an Ohio Civil

Rule 60(B) motion for relief from the judgment. JP Morgan Chase maintains their legal

department never received the summons and complaint pursuant to the established

corporate policy for handling judicial documents.

      {¶10} On June 8, 2011, via Magistrate's Order, the trial court denied the motion.

      {¶11} Appellant filed objections to the Magistrate's Order. Via Judgment Entry of

June 13, 2012, the trial court overruled the objections, and adopted the order of the

Magistrate.

      {¶12} Appellant JP Morgan Chase now appeals, assigning as error:

      {¶13} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S CIV.R.

60(B)(1) MOTION FOR RELIEF FROM A JUDGMENT ENTRY AND DECREE OF

FORECLOSURE (THE ‘FORECLOSURE ENTRY’) (A COPY OF THE FORECLOSURE

ENTRY IS ATTACHED HERETO AS APPENDIX A) BECAUSE (1) IT FILED ITS

MOTION WITHIN A REASONABLE TIME AND LESS THAN ONE YEAR AFTER THE

FORECLOSURE ENTRY; (2) IT HAS A MERITORIOUS DEFENSE TO THE CLAIMS;
Delaware County, Case No. 12 CAE 07 0042                                                  4


AND (3) ITS FAILURE TO TIMELY RESPOND RESULTED FROM EXCUSABLE

NEGLECT.

        {¶14} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S CIV.R.

60(B)(5) MOTION FOR RELIEF FROM THE FORECLOSURE ENTRY BECAUSE (1)

THAT MOTION WAS MADE WITHIN A REASONABLE TIME AFTER THE

FORECLOSURE ENTRY; (2) APPELLANT HAS A MERITORIOUS DEFENSE TO THE

CLAIMS; AND (3) THE FORECLOSURE ENTRY WAS ERRONEOUS AND/OR

CONSTITUTES         EXTRAORDINARY          CIRCUMSTANCES          THAT     WILL    CAUSE

SUBSTANTIAL INJUSTICE.

        {¶15} “III. THE TRIAL COURT COMMITTED PLAIN ERROR BY ENTERING

THE FORECLOSURE ENTRY AND DENYING APPELLANT’S MOTION FOR RELIEF

FROM IT BECAUSE THOSE DECISIONS RESULT IN A MANIFEST MISCARRIAGE

OF JUSTICE AND HAVE A MATERIAL ADVERSE EFFECT ON THE CHARACTER

OF, AND PUBLIC CONFIDENCE IN, JUDICIAL PROCEEDINGS.”

                                             I, II, & III

        {¶16} Appellant's assigned errors raise common and interrelated issues;

accordingly, we will address the arguments together.

        {¶17} Initially, we note, a Rule 60(B) motion is not a substitute for direct appeal.

Key v. Mitchell, 81 Ohio St.3d 89, 689 N.E.2d 548, 1998–Ohio–643; Bobardier Capital,

Inc. v. W.W. Cycles, Inc. 155 Ohio App.3d 484, 801 N.E.2d 900, 2003–Ohio–6716;

Citimortgage, Inc. v. Buttermore, 5th Dist. 2012CA00004, 2012CA00071, 2012-Ohio-

5351.

        {¶18} Civil Rule 60(B) provides,
Delaware County, Case No. 12 CAE 07 0042                                              5


      {¶19} "(B) Mistakes; inadvertence; excusable neglect; newly discovered

evidence; fraud; etc.

      {¶20} "On motion and upon such terms as are just, the court may relieve a party

or his legal representative from a final judgment, order or proceeding for the following

reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered

evidence which by due diligence could not have been discovered in time to move for a

new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment

has been satisfied, released or discharged, or a prior judgment upon which it is based

has been reversed or otherwise vacated, or it is no longer equitable that the judgment

should have prospective application; or (5) any other reason justifying relief from the

judgment. The motion shall be made within a reasonable time, and for reasons (1), (2)

and (3) not more than one year after the judgment, order or proceeding was entered or

taken. A motion under this subdivision (B) does not affect the finality of a judgment or

suspend its operation."

      {¶21} Appellant initially sought relief from judgment under (B)(2), excusable

neglect. Appellant argues the failure to timely answer was the result of Washington

Mutual's collapse and JP Morgan's purchase of the secured assets of Washington

Mutual such that the procedures to process legal documents did not work in this unique

circumstance. Alternatively, Appellant asserts, pursuant to 60(B)(5), the foreclosure

entry would result in windfalls for both Appellee and the Shelats in addition to extreme

prejudice to Appellant. The Shelats’ personal liability on the note was discharged in
Delaware County, Case No. 12 CAE 07 0042                                                  6


bankruptcy, and the Shelats' grown children purchased the property at Sheriff's sale

free of encumbrance.

       {¶22} The question of whether a motion for relief from judgment should be

granted is entrusted to the sound discretion of the trial court and will not be disturbed on

appeal absent an abuse of discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172.

       {¶23} Washington Mutual Bank was served with several legal documents during

the course of the proceedings below and never responded. As such, we do not find the

trial court abused its discretion in not finding excusable neglect on Appellant’s part. We

note, Rule 60(B)(1) does not allow for relief from judgment for excusable neglect outside

of one year from the date of judgment. Further, the Ohio Supreme Court has held Civil

Rule 60(B)(5) "is not to be used as a substitute for any of the other more specific

provisions of Civil Rule 60(B)." Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64.

       {¶24} In Daroczy v. Lantz, 10th Dist. 2002, 2002 Ohio 5417, the Tenth District

held where a party had the opportunity to but failed to pursue an appeal, the application

of Civil Rule 60(B)(5) was barred as the movant could not achieve by Civil Rule 60(B)(5)

what it could have timely pursued on appeal.

       {¶25} Here, Appellant did not file a timely appeal and is barred from

consideration of Civil Rule 60(B)(1)-(4).    Accordingly, we find the trial court did not

abuse its discretion in denying the Rule 60(B) motion for relief from judgment.
Delaware County, Case No. 12 CAE 07 0042                                      7


       {¶26} The June 13, 2012 Judgment of the Delaware County Court of Common

Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

                                       s/ William B. Hoffman _________________
                                       HON. WILLIAM B. HOFFMAN


                                       s/ Patricia A. Delaney _________________
                                       HON. PATRICIA A. DELANEY


                                       s/ Sheila G. Farmer __________________
                                       HON. SHEILA G. FARMER
           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


PNC BANK, NATIONAL                        :
ASSOCIATION, SUCCESSOR IN                 :
INTEREST TO NATIONAL CITY BANK,           :
N.A.                                      :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
JP MORGAN CHASE BANK,                     :
NATIONAL ASSOCIATION,                     :
SUCCESSOR IN INTEREST OF                  :
CERTAIN ASSETS AND LIABILITIES            :
FROM THE FEDERAL DEPOSIT AND              :         Case No. 12 CAE 07 0042
INSURANCE CORPORATION, AS                 :
RECEIVER FOR WASHINGTON                   :
MUTUAL BANK, F.A.                         :
                                          :
       Defendant-Appellant                :



       For the reasons stated in our accompanying Opinion, the June 13, 2012

Judgment of the Delaware County Court of Common Pleas is affirmed. Costs

to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
