[Cite as PNC Mtge. v. Chapman, 2014-Ohio-3617.]




                          IN THE COURT OF APPEALS OF OHIO
                              SIXTH APPELLATE DISTRICT
                                     ERIE COUNTY


PNC Mortgage, a division of PNC Bank,             Court of Appeals No. E-14-010
National Association, successor by merger
to National City Mortgage, a division of          Trial Court No. 2010 CV 0942
National City Bank

       Appellee

v.

John T. Chapman, et al.                           DECISION AND JUDGMENT

       Appellant                                  Decided: August 22, 2014

                                              *****

       Lisa B. Forbes, Natalia Steele, Christopher P. Santagate, Adam R.
       Fogelman, and Barbara Borgmann, for appellee.

       Daniel L. McGookey, Kathryn M. Eyster, and Lauren McGookey, for appellant.

                                              *****

       PIETRYKOWSKI, J.

       {¶ 1} Appellant, John Chapman, appeals the February 10, 2014 judgment of the

Erie County Court of Common Pleas which denied his Civ.R. 60(B) motion for relief

from the judgment of foreclosure. Because we find that appellant failed to demonstrate

entitlement to relief, we affirm.
          {¶ 2} The relevant facts are as follows. On August 25, 2006, appellant and his

wife, Jennifer Chapman, executed a note/mortgage in favor of National City Mortgage, a

division of National City Bank, in order to finance the purchase of their home. On

February 12, 2010, after failing to make payments on the note and mortgage and

defaulting on the loan, appellant and his wife entered into a loan modification agreement

through the Home Affordable Modification Program (“HAMP”) in order to avoid

foreclosure. The documents listed “PNC Mortgage, a division of PNC Bank, NA” as the

lender.

          {¶ 3} After appellant and his wife failed to make further payments, PNC Mortgage

filed a complaint in foreclosure on November 18, 2010. PNC alleged that it was the

holder of the loan and loan modification, copies of which were attached to the complaint.

The parties were served with notice of the complaint at their residence on November 20,

2010; appellant’s wife accepted service.

          {¶ 4} On October 12, 2011, appellant’s wife filed a letter with the court with

questions about an upcoming telephonic status conference. She indicated that neither she

nor appellant were available. Jennifer also stated that they had a loan modification in

place and it was entered into with the intent to “avoid all foreclosure.”

          {¶ 5} PNC filed a “renewed” motion for default judgment on December 6, 2012,

based on appellant’s failure to file a motion or answer. On June 13, 2013, the court

granted PNC’s motion. Specifically, the court concluded that the parties had been




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properly served and that PNC was the holder of the note and loan modification, that the

defendants were in default, the equity of redemption was foreclosed, and ordered that the

property be sold. The court found no just reason for delay.

       {¶ 6} On September 28, 2013, appellant filed a motion to continue the stay of

proceedings. He requested an additional 28 days following the scheduled sale date of

October 29, 2013. Appellant stated that he was attempting to work out an agreement

with the lender so he did not lose his home. The court denied the motion as moot.

       {¶ 7} On October 22, 2013, represented by counsel, appellant filed a motion to

stay the sheriff’s sale. Appellant argued that he qualified for HAMP, but that he never

received or signed the final paperwork and that once he discovered that his house was set

to be sold at a sheriff’s sale he contacted counsel immediately. The court granted the stay

request.

       {¶ 8} Appellant’s arguments were again raised in his November 7, 2013 motion

for relief from judgment. Appellant claimed that he was not served with the complaint,

that he entrusted his wife to pay the mortgage, and that he had no knowledge that they

were behind in payments or of the foreclosure proceedings until he saw his house listed

for sheriff’s sale in the newspaper. These assertions were supported by appellant’s

attached affidavit. Further, appellant argued that he had a meritorious defense to the

foreclosure complaint in that PNC failed to establish that it was the real party in interest,

i.e. the holder of the note and mortgage. Specifically, PNC failed to attach merger

documents and supporting affidavits. Appellant further contended that there was dispute



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as to the amount owed under the loan, PNC failed to meet the condition precedent to

filing the foreclosure complaint, and that a face-to-face meeting was required under

federal law prior to commencement of the action.

       {¶ 9} In response, PNC argued that its assertion that it was the holder of the note

complied with the notice pleading requirement under Ohio law. PNC further contended

that it presented sufficient evidence that it had standing to enforce the note based upon its

identification of itself as the successor by merger to National City Mortgage, a division of

National City Bank. This was further supported by the loan modification executed by

PNC and attached to the complaint and signed by appellant. Regarding the procedural

claims, PNC argued that there was no dispute over the amount owed, that appellant failed

to properly challenge conditions precedent, and that no face-to-face meeting was required

and the lack of a meeting was not a defense to foreclosure. Finally, PNC argued that

service in the action was proper.

       {¶ 10} On February 10, 2014, the trial court denied appellant’s motion for relief.

The court first concluded that appellant failed to allege a meritorious defense. The court

further found that appellant failed to rebut the presumption of proper service. Finally, the

court determined that the motion was not filed within a reasonable time. This appeal

followed.

       {¶ 11} Appellant raises the following assignment of error for our review:

              The trial court erred in granting judgment to plaintiff.




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       {¶ 12} In his sole assignment of error, appellant argues that the trial court erred

when it denied his Civ.R. 60(B) motion for relief from judgment. It is well-settled that

“[a] motion for relief from judgment under Civ.R. 60(B) is addressed to the sound

discretion of the trial court, and that court’s ruling will not be disturbed on appeal absent

a showing of abuse of discretion.” Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d

1122 (1987). An abuse of discretion implies that the court’s attitude is unreasonable,

unconscionable or arbitrary. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶ 13} Civ.R. 60(B) sets forth the following grounds for relief from judgment:

              (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.

       {¶ 14} In order to obtain relief from judgment pursuant to Civ.R. 60(B), a movant

must demonstrate that:




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              (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 Indus., Inc., 47 Ohio St.2d 146,

       351 N.E.2d 113 (1976), paragraph two of the syllabus.

       {¶ 15} Appellant argued in the court below that he was entitled to relief from

judgment based upon Civ.R. 60(B)(1) and (5). As to the excusable neglect component,

appellant argued that he was not served with the foreclosure complaint. Service of

process must be made in a manner reasonably calculated to apprise interested parties of

the action and to afford them an opportunity to respond. Regional Airport Auth. v.

Swinehart , 62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980), quoting Mullane v. Cent.

Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

Where the plaintiff complies with the rules governing service of process, a rebuttable

presumption exists that service was perfected. Calvary Invest., L.L.C. v. Clevenger, 6th

Dist. Lucas No. L-05-1103, 2005-Ohio-7003, ¶ 10.

       {¶ 16} In Calvary, we further noted that in some instances the presumption of

service may be rebutted by the defendant’s affidavit and other matters in the record;

however, in other situations more information is needed. Id. at ¶ 13. In the present case,




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the complaint was served by certified mail and was signed for at appellant’s residence by

his wife. We cannot say that the trial court abused its discretion in finding that

appellant’s affidavit was insufficient.

       {¶ 17} Appellant next makes several arguments in an attempt to demonstrate the

existence of a meritorious defense. Chiefly, appellant contends that because PNC lacked

standing at the commencement of the action, the default judgment is void. The Ohio

Supreme Court has held that in a foreclosure action, the mortgagor must have standing at

the time of the filing of the complaint in foreclosure. Fed. Home Loan Mtge. Corp. v.

Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214.

       {¶ 18} In its complaint in foreclosure, PNC alleged that it was the holder of the

note and mortgage. The document was attached to the complaint. Further, PNC attached

the 2010 loan modification form which listed it as the lender. We find this sufficient to

establish that PNC had standing to commence the foreclosure action. See U.S. Bank, N.A.

v. Coffey, 6th Dist. Erie No. E-11-026, 2012-Ohio-721.

       {¶ 19} Appellant next argues that there was a dispute over the amount owed based

on the fact that his wife made a few payments following the loan modification. Appellant

did not present any evidence of the purported dispute. Likewise, appellant asserts that

PNC failed to demonstrate that it complied with the conditions precedent to its right to

foreclose. In its complaint, PNC alleged that it had complied; this allegation is sufficient

to sustain a default judgment. Finally, appellant argues that PNC failed to offer a face-to-




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face meeting prior to instituting the foreclosure action. Reviewing the record below,

appellant has failed to demonstrate that the loan was subject to federal servicing

guidelines.

       {¶ 20} Based on the foregoing, we find that the trial court did not abuse its

discretion when it denied appellant’s motion for relief from judgment. Appellant’s

assignment of error is not well-taken.

       {¶ 21} On consideration whereof, we find that substantial justice was done the

party complaining and the judgment of the Erie County Court of Common Pleas is

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.


                                                                Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
James D. Jensen, J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.



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