[Cite as NationStar Mtge., L.L.C. v. Purnell, 2014-Ohio-2824.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



NATIONSTAR MORTGAGE, LLC                           :             JUDGES:
                                                   :             Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                         :             Hon. John W. Wise, J.
                                                   :             Hon. Patricia A. Delaney, J.
-vs-                                               :
                                                   :
MARY PURNELL, ET AL.                               :             Case No. 13-CA-74
                                                   :
        Defendants-Appellants                      :             OPINION




CHARACTER OF PROCEEDING:                                         Appeal from the Court of Common
                                                                 Pleas, Case No. 2013 CV 00457




JUDGMENT:                                                        Reversed




DATE OF JUDGMENT:                                                June 25, 2014




APPEARANCES:

For Plaintiff-Appellee                                           For Defendants-Appellants

DAVID F. HANSON                                                  ANDREW J. GERLING
MICHAEL E. CARLETON                                              TROY J. DOUCET
CRAIG SPADAFORE                                                  700 Stonehenge Parkway
P.O. Box 16508                                                   Suite 2B
Columbus, OH 43216-5028                                          Dublin, OH 43017
Fairfield County, Case No. 13-CA-74                                                    2

Farmer, P.J.

        {¶1}   On May 24, 2013, appellee, Nationstar Mortgage, LLC, filed a complaint in

foreclosure against appellant, Mary Purnell, and others, for money due and owing on a

note secured by a mortgage. On August 14, 2013, appellee filed a motion for default

judgment for appellant's failure to answer or otherwise defend. By judgment entry and

decree in foreclosure filed same date, the trial court granted the motion and ordered the

requested foreclosure.

        {¶2}   Thereafter, appellant filed an answer and counterclaim on August 22,

2013.    On September 20, 2013, appellant filed a motion for relief from judgment

pursuant to Civ.R. 60(B). An affidavit and exhibits were attached to the motion. By

entry filed October 30, 2013, the trial court denied the motion without hearing.

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

consideration. Assignments of error are as follows:

                                             I

        {¶4}   "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MS.

PURNELL'S MOTION FOR RELIEF FROM JUDGMENT ON THE GROUNDS SHE

DOES NOT HAVE A MERITORIOUS DEFENSE OR CLAIM."

                                            II

        {¶5}   "THE TRIAL COURT ABUSED ITS DISCRETION IN SUMMARILY

CONCLUDING MS. PURNELL WAS NOT ENTITLED TO RELIEF UNDER CIV.R.

60(B)(1) AND (5) IN LIGHT OF THE CASE LAW AND EVIDENCE."
Fairfield County, Case No. 13-CA-74                                                        3


                                              I

      {¶6}   Appellant claims the trial court abused its discretion in denying her Civ.R.

60(B) motion for relief from judgment and erred in failing to conduct an evidentiary

hearing. We agree in part.

      {¶7}   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).         Appellant based her Civ.R. 60(B) motion on

"mistake, inadvertence, surprise or excusable neglect" and "any other reason justifying

relief from the judgment." Civ.R. 60(B)(1) and (5). 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.
Fairfield County, Case No. 13-CA-74                                                     4


      {¶8}    The standard for when an evidentiary hearing on a Civ.R. 60(B) motion is

necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc., 5th Dist. Stark

No. CA-8553, 1991 WL 242070 (Oct. 21, 1991). In Cogswell, this court held under

Civ.R. 60(B), a hearing is not required unless there exist issues supported by

evidentiary quality affidavits. A trial court must hold an evidentiary hearing when the

motion and supporting evidence contain sufficient allegations of operative facts which

would support a meritorious defense to the judgment. Cogswell; BancOhio National

Bank v. Schiesswohl, 51 Ohio App.3d 130 (9th Dist.1988).

      {¶9}    In its entry filed October 30, 2013, the trial court found the motion was

made within a reasonable time, but appellant did not demonstrate that she was entitled

to relief under Civ.R. 60(B)(1) or that she had a meritorious defense. The trial court did

not hold a hearing.

      {¶10} Appellant presented an evidentiary quality affidavit with her motion. In her

affidavit, appellant averred on October 12, 2012, she informed appellee of an

emergency medical procedure and requested an extension of her monthly mortgage

payment.     Appellee agreed to accept the mortgage payments for November and

December 2012 in December 2012.          Appellant stated she made the payments on

December 19, 2012 (four days after the due date for the December payment). Attached

to the motion as Exhibit 2 is a copy of a "MoneyGram" directed to appellee and

appellant's receipt for payment from Walmart. Appellant averred she then resumed her

scheduled monthly mortgage payments. In May 2013, appellant contacted appellee for

a new modification plan. In a letter dated May 22, 2013, attached to the motion as
Fairfield County, Case No. 13-CA-74                                                     5


Exhibit 3, appellee returned her payments "that were insufficient to resolve your

delinquency."

        {¶11} Based upon these evidentiary quality issues relative to appellant's claim of

a meritorious defense, we find the trial court should have conducted an evidentiary

hearing.

        {¶12} Assignment of Error I is granted in part.

                                              II

        {¶13} Based upon our decision in Assignment of Error I, this assignment is

moot.

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

hereby reversed for an evidentiary hearing.

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.




SGF/sg 602
