[Cite as HSBC Mtge. Servs., Inc. v. Abbott, 2011-Ohio-3032.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

HSBC MORTGAGE SERVIES, INC.                                JUDGES:
                                                           Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                                 Hon. William B. Hoffman, J.
                                                           Hon. Julie A. Edwards, J.
-vs-
                                                           Case No. 10-CA-129
CHARLES ABBOTT

        Defendant-Appellant                                OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Licking County Court of
                                                       Common Pleas, Case No. 10-CV-725


JUDGMENT:                                              Affirmed


DATE OF JUDGMENT ENTRY:                                June 20, 2011


APPEARANCES:


For Plaintiff-Appellee                                 For Defendant-Appellant


JASON A. WHITACRE                                      BRIAN K. DUNCAN
LAURA C. INFANTE                                       Duncan Simonette, Inc.
KATHRYN M. EYSTER                                      580 South High Street, Suite 100
The Law Offices of                                     Columubus, Ohio 43215
John D. Clunk, Co., L.P.A.
4500 Courthouse Blvd., Ste. 400
Stow, Ohio 44224
Licking County, Case No. 10-CA-129                                                     2

Hoffman, J.


        {¶1}   Defendant-appellant Charles Abbott appeals the October 19, 2010

Judgment Entry entered by the Licking County Court of Common Pleas denying his

motion to vacate the entry of default judgment against him and in favor of Plaintiff-

appellee HSBC Mortgage Services, Inc.

                                 STATEMENT OF THE CASE

        {¶2}   On August 25, 2005, Appellant executed an adjustable rate note in favor

of Popular Financial Services, LLC, and a mortgage in favor of Mortgage Electronic

Registration Systems, Inc. HSBC received an assignment of the note and mortgage,

recorded May 7, 2010.

        {¶3}   On May 6, 2010, Appellee filed a complaint in foreclosure in the Licking

County Court of Common Pleas against Appellant. Service was issued on all parties

the same day. Appellant was personally served by private process server on May 10,

2010. HSBC moved the trial court for default judgment on June 10, 2010.

        {¶4}   The trial court entered default judgment in favor of HSBC via Judgment

Entry on June 21, 2010. On July 1, 2010, Bank of New York filed its Praecipe for Order

of Sale with the Court. A Sheriff’s Sale of the property was to be held on November 5,

2010.

        {¶5}   On September 17, 2010, Appellant filed a motion to vacate the default

judgment, motion to stay execution, request for mediation and motion for leave to file an

answer out of time, alleging his failure to file an answer was the result of excusable

neglect.
Licking County, Case No. 10-CA-129                                                    3


      {¶6}   On September 29, 2010, HSBC opposed the motion. On October 18,

2010, the trial court conducted an oral hearing on Appellant’s motion. No transcript was

made a part of the record in this appeal.

      {¶7}   Via Judgment Entry of October 19, 2010, the trial court denied Appellant’s

motion to vacate the default judgment.

      {¶8}   Appellant now appeals, assigning as error:

      {¶9}   “I. THE TRIAL COURT ERRED WHEN IT FAILED TO VACATE ITS JUNE

21, 2010 JUDGMENT ENTRY BASED ON CIV.R. 60(B)(5) AND/OR CIV.R. 60(B)(1).”

      {¶10} Ohio Civil Rule 60(B) reads,

      {¶11} “(B) Mistakes; inadvertence; excusable neglect; newly discovered

evidence; fraud; etc

      {¶12} “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
Licking County, Case No. 10-CA-129                                                       4


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

suspend its operation.

       {¶13} “The procedure for obtaining any relief from a judgment shall be by motion

as prescribed in these rules.”

       {¶14} The moving party must demonstrate he is entitled to relief on one of the

grounds set forth in Civil Rule 60(B)(1) through (5), that he has a meritorious defense,

and the motion is made within a reasonable time. GTE Automatic Electric, Inc. v. Arc

Industries, Inc. (1976), 47 Ohio St.2d 146. These requirements are independent and in

conjunctive; thus, the test is not fulfilled if any one of the requirements is not met. Id.

Further, the movant must establish the above requirements by operative facts

presented in a form that meets evidentiary standards such as affidavits, depositions,

transcripts of evidence, written stipulations or other evidence given under oath. East

Ohio Gas Co. v. Walker (1978), 59 Ohio App. 2d 216.

       {¶15} On appeal, the proper standard of review of a trial court’s decision on a

Civil Rule 60(B) motion is abuse of discretion. Strack v. Pelton (1994), 70 Ohio St.3d

172; Quebodeaux v. Quebodeaux (1995), 102 Ohio App.3d 502.

       {¶16} As set forth in the statement of the case, supra, Appellant has not

provided this Court with a transcript of the proceedings before the trial court on October

18, 2010, at which time the trial court conducted a hearing on Appellant’s motion to

vacate. Ohio Appellate Rule 9 states,

       {¶17} “(B) The transcript of proceedings; duty of appellant to order; notice

to appellee if partial transcript is ordered
Licking County, Case No. 10-CA-129                                                        5


       {¶18} “At the time of filing the notice of appeal the appellant, in writing, shall

order from the reporter a complete transcript or a transcript of the parts of the

proceedings not already on file as the appellant considers necessary for inclusion in the

record and file a copy of the order with the clerk. The reporter is the person appointed

by the court to transcribe the proceedings for the trial court whether by stenographic,

phonogramic, or photographic means, by the use of audio electronic recording devices,

or by the use of video recording systems. If there is no officially appointed reporter,

App.R. 9(C) or 9(D) may be utilized. If the appellant intends to urge on appeal that a

finding or conclusion is unsupported by the evidence or is contrary to the weight of the

evidence, the appellant shall include in the record a transcript of all evidence relevant to

the findings or conclusion.”

       {¶19} Appellant bears the burden of showing error by reference to matters in the

record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197; State v. Prince

(1991), 71 Ohio App.3d 694. An appellate court can reach its decision only upon facts

which are adduced in the trial court’s proceeding and cannot base its decision on

allegations founded upon facts from outside of the record. Merillat v. Fulton Cty. Bd. Of

Commrs. (1991), 73 Ohio App.3d 459.

       {¶20} When portions of the transcript necessary for resolution of assigned errors

are omitted from the record, the reviewing court has nothing to pass upon and thus, as

to those assigned errors, the court has no choice but to presume the validity of the

lower court's proceedings, and affirm.” Knapp, supra.

       {¶21} Because Appellant has failed to provide this Court with a transcript of the

October 18, 2010 hearing, we presume the validity of the lower court’s proceedings.
Licking County, Case No. 10-CA-129                                           6


      {¶22} The October 19, 2010 Judgment Entry of the Licking County Court of

Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

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


                                       s/ W. Scott Gwin _____________________
                                       HON. W. SCOTT GWIN


                                       s/ Julie A. Edwards___________________
                                       HON. JULIE A. EDWARDS
Licking County, Case No. 10-CA-129                                                 7


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


HSBC MORTGAGE SERVIES, INC.               :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CHARLES ABBOTT                            :
                                          :
       Defendant-Appellant                :         Case No. 10-CA-129


       For the reason stated in our accompanying Opinion, the judgment of the Licking

County Court of Common Pleas is affirmed. Costs to Appellant.




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


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
