[Cite as Calvary SPV I, L.L.C. Assignee of Beneficial Ohio, Inc. v. Gabelman, 2013-Ohio-4663.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



CALVARY SPV I, LLC ASSIGNEE                       :            JUDGES:
OF BENEFICIAL OHIO, INC.                          :            Hon. William B. Hoffman, P.J.
                                                  :            Hon. Sheila G. Farmer, J.
        Plaintiff-Appellee                        :            Hon. Patricia A. Delaney, J.
                                                  :
-vs-                                              :
                                                  :
CONNIE M. GABELMAN AND                            :            Case No. 13-CA-15
MARK J. GABELMAN                                  :
                                                  :
        Defendants-Appellants                     :            OPINION




CHARACTER OF PROCEEDING:                                       Appeal from the Court of Common
                                                               Pleas, Case No. 2006CV00397



JUDGMENT:                                                      Affirmed




DATE OF JUDGMENT:                                              October 21, 2013




APPEARANCES:

For Plaintiff-Appellee                                         For Defendants-Appellants

AUDRA T. FUNK                                                  THOMAS L. GABELMAN
140 East Town Street                                           3300 Great American Tower
Suite 1250                                                     301 East Fourth Street
Columbus, OH 43215                                             Cincinnati, OH 45202
Licking County, Case No. 13-CA-15                                                      2

Farmer, J.

       {¶1}   On March 27, 2006, Beneficial Ohio, Inc., kna Calvary SPV I, LLC,

assignee of Beneficial Ohio, Inc., appellee herein, filed a complaint against appellants,

Mark and Connie Gabelman, for money due and owing on a $15,000.00 loan

agreement. On May 1, 2006, appellee filed a motion for default judgment. By judgment

entry filed same date, the trial court granted the motion and entered judgment for

appellee in the amount of $21,294.33 plus interest at the rate of 22.98%. Garnishment

proceedings commenced in July 2006.

       {¶2}   On September 28, 2011, appellants filed a motion for accounting and

termination of garnishment.     On October 20, 2011, appellants filed a Civ.R. 60(B)

motion for relief from judgment, claiming the judgment had been satisfied or was no

longer equitable. A hearing was held on December 21, 2012. By judgment entry filed

March 26, 2012, the trial court granted the motion for accounting which was

subsequently filed on August 27, 2012. By judgment entry filed January 22, 2013, the

trial court denied appellants' Civ.R. 60(B) motion.

       {¶3}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}   "THE TRIAL COURT ERRED IN DENYING THE GABELMANS' MOTION

FOR RELIEF FROM JUDGMENT."

                                             I

       {¶5}   Appellants claim the trial court erred in denying their Civ.R. 60(B) motion

for relief from judgment as it is inequitable to enforce a judgment which will allow
Licking County, Case No. 13-CA-15                                                           3


appellee to collect more than $57,000.00 on a $15,000.00 note based upon a 22.98%

interest rate. We disagree.

       {¶6}   A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's

sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987). In order to find an abuse

of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217 (1983). Appellants based their Civ.R. 60(B) motion on the

fact that the "judgment has been satisfied***or it is no longer equitable that the judgment

should have prospective application." Civ.R. 60(B)(4). In GTE Automatic Electric Inc. v.

ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus, the

Supreme Court of Ohio held the following:



              To prevail on a motion brought under Civ.R. 60(B), the movant

       must demonstrate 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.



       {¶7}   In its judgment entry filed January 22, 2013, the trial court found the

following:
Licking County, Case No. 13-CA-15                                                     4


             Upon hearing arguments from Plaintiff's counsel, the court

      determines that the Defendants' Motion for Relief From Judgment is not

      well taken. Specifically, Defendants claim they are entitled to relief under

      Ohio Civ.R. 60(B)(4) because the Judgment should be deemed "satisfied,

      released or discharged" by this Court. Defendants argue that a balance is

      not owed on the Judgment and actually claim that they have overpaid

      because they believe the interest rate awarded in connection with the

      Judgment was unlawful. However, their argument is faulty because it is

      based upon an incorrect characterization of the underlying agreement in

      this case and attendant incorrect application of the statute governing the

      interest rate awarded.      The Court determines that the underlying

      agreement in this case was a Revolving Loan Agreement governed by

      R.C. §1321.571 which permits an agreed interest rate up to 25% between

      the parties. Here, according to the Revolving Loan Agreement the interest

      rate agreed to by the parties was 22.98% and that was the interest rate

      awarded in connection with the Judgment.          For these reasons, the

      Defendants' Motion for Relief From Judgment is denied.



      {¶8}   It was appellants' position that the contract upon which the judgment was

based on was a promissory note; therefore, R.C. 1343.01 controls the interest rate:



             The parties to a bond, bill, promissory note, or other instrument of

      writing for the forbearance or payment of money at any future time, may
Licking County, Case No. 13-CA-15                                                        5


      stipulate therein for the payment of interest upon the amount thereof at

      any rate not exceeding eight per cent per annum payable annually, except

      as authorized in division (B) of this section.



      {¶9}   The instrument upon which the judgment was granted was entitled

"Revolving Loan Agreement," and specifically identified that appellants were receiving a

"Personal Credit Line." See, Exhibit A, attached to the Complaint filed March 26, 2006.

Nowhere in the agreement is there a specific amount to pay as would be required in a

promissory note under R.C. 1303.03:



             (A) Except as provided in divisions (C) and (D) of this section,

      "negotiable instrument" means an unconditional promise or order to pay a

      fixed amount of money, with or without interest or other charges described

      in the promise or order, if it meets all of the following requirements:

             (1) It is payable to bearer or to order at the time it is issued or first

      comes into possession of a holder.

             (2) It is payable on demand or at a definite time.

             (3) It does not state any other undertaking or instruction by the

      person promising or ordering payment to do any act in addition to the

      payment of money, but the promise or order may contain any of the

      following:

             (a) An undertaking or power to give, maintain, or protect collateral

      to secure payment;
Licking County, Case No. 13-CA-15                                                       6


             (b) An authorization or power to the holder to confess judgment or

      realize on or dispose of collateral;

             (c) A waiver of the benefit of any law intended for the advantage or

      protection of an obligor.

             (B) "Instrument" means a negotiable instrument.

             ***
             (E)(1) "Note" means an instrument that is a promise.


      {¶10} On May 1, 2006, the trial court granted default judgment to appellee,

ordering the following: "IT IS THEREFORE ORDERED, ADJUDGED AND DECREED

that pursuant to Ohio Civil Rule 55, default judgment is hereby rendered against the

Defendant (s) in the amount of $21,294.33, and interest at the rate of 22.98% per

annum from February 28, 2006 and costs of the within action." Appellants did not seek

relief from judgment until September 28, 2011, some five plus years after judgment. At

all times, the judgment clearly stated the 22.98% interest rate. The docket illustrates

appellants were aware of the default judgment and its interest rate as early as July 10,

2006, when they requested and were granted a hearing on garnishment, on October 12,

2006, via a notice of court proceeding to collect debt and order of continuous

disbursement of funds from garnishment, and November 8, 2006, a letter dated

November 3, 2006 appearing that the garnishment had been granted.

      {¶11} Appellants argue they have satisfied the reasonable time requirement

under GTE Automatic because they have just now determined that they have more than

satisfied the judgment. See, October 20, 2011 Motion for Relief From Judgment, fn. 3.
Licking County, Case No. 13-CA-15                                                    7


      {¶12} We fail to find that appellants can now avail themselves of an excuse for

lack of timeliness, when in fact the record demonstrates an awareness of the judgment

and interest charged some two months after the granting of the default judgment. We

conclude the necessity for finality of judgments and the awareness by appellants of the

interest rate within one year of the judgment mandate that the motion for relief from

judgment be denied as untimely.

      {¶13} The sole assignment of error is denied.

      {¶14} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




                                           _______________________________
                                           Hon. Sheila G. Farmer



                                           _______________________________
                                           Hon. William B. Hoffman



                                           _______________________________
                                           Hon. Patricia A. Delaney


SGF/sg 926
[Cite as Calvary SPV I, L.L.C. Assignee of Beneficial Ohio, Inc. v. Gabelman, 2013-Ohio-4663.]


                   IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



CALVARY SPV I, LLC ASSIGNEE                            :
OF BENEFICIAL OHIO, INC.                               :
                                                       :
        Plaintiff-Appellee                             :
                                                       :
-vs-                                                   :           JUDGMENT ENTRY
                                                       :
CONNIE M. GABELMAN AND                                 :
MARK J. GABELMAN                                       :
                                                       :
        Defendants-Appellants                          :           CASE NO. 13-CA-15




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to

appellants.




                                                       _______________________________
                                                       Hon. Sheila G. Farmer



                                                       _______________________________
                                                       Hon. William B. Hoffman



                                                       _______________________________
                                                       Hon. Patricia A. Delaney
