[Cite as Chase Home Fin. L.L.C. v. Middleton, 2012-Ohio-5547.]


                                      COURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



CHASE HOME FINANCE LLC                                   JUDGES:
                                                         Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                               Hon. John W. Wise, J.
                                                         Hon. Julie A. Edwards, J.
-vs-
                                                         Case No. 12 CA 10
JACK MIDDLETON, et al.

        Defendants-Appellants                            OPINION




CHARACTER OF PROCEEDING:                             Civil Appeal from the Court of Common
                                                     Pleas, Case No. 2010 CV 1030


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              November 29, 2012



APPEARANCES:

For Plaintiff-Appellee                               For Defendants-Appellants

PATRICIA K. BLOCK                                    DANIEL L. McGOOKEY
LERNER, SAMPSON & ROTHFUSS                           KATHRYN M. EYSTER
120 East Fourth Street                               LAUREN McGOOKEY
Suite 800                                            McGOOKEY LAW OFFICES
Cincinnati, Ohio 45201-5480                          225 Meigs Street
                                                     Sandusky, Ohio 44870
Fairfield County, Case No. 12 CA 10                                                 2

Wise, J.

      {¶1}   Defendant-appellant Jack Middleton appeals the judgment of the Court of

Common Pleas of Fairfield County, Ohio, which overruled his Civ.R. 60(B) motion to

vacate the court’s prior judgment entered in favor of Plaintiff-appellee Chase Home

Finance, LLC.

                         STATEMENT OF THE FACTS AND CASE

      {¶2}   On April 25, 2007, Appellant Jack D. Middleton executed a promissory

note in the amount of $136,500.00 with an interest rate of 9.800%, to Chase Bank

USA, N.A. The Note was secured by a mortgage executed on the same date by

Appellant to Chase Bank USA, N.A. encumbering the real property located at 11069

Wyandotte Road Southwest, Stoutsville, Ohio, 43154, and was recorded in the Fairfield

County Recorder's Office. The Mortgage was assigned to Appellee Chase Home

Finance, LLC, by Chase Bank USA, N.A. on August 11, 2010. Appellee is the current

holder of both the Note and Mortgage.

      {¶3}   In March 2009, Appellant contacted the Federal Loan Modification

Program in an effort to obtain a loan modification with Chase Bank USA.

      {¶4}   According to Appellant, the Federal Loan Modification Program told him

that he did not have to make payments to Chase Bank USA during the loan

modification review process, that this was considered a "grace period" or "forbearance

period" and, that once he was approved for a loan modification, he would start making

payments under the loan modification. (Middleton Affidavit, at ¶5).

      {¶5}   Appellant did not make his April 2009, May 2009, and June 2009

payments. (Middleton Affidavit, at ¶10)
Fairfield County, Case No. 12 CA 10                                                3


      {¶6}   In June 2009, Appellant contacted Chase Bank USA directly concerning

the status of his loan modification review and was told by Chase Bank USA to stop

working with the Federal Loan Modification Program and to work directly with Chase

Bank USA because the Federal Loan Modification program was not believed to be

reputable.

      {¶7}   Chase Bank USA notified Appellant that he qualified for a Making Homes

Affordable Loan Modification and he was to make payments of $526.07, in accordance

with payment coupons, and that he would receive a permanent loan modification in

short order. Appellant started making $526.07 payments to Chase Bank USA in July

2009. (Middleton's Affidavit, at ¶12).

      {¶8}   Appellant claims that he continued to make payments in accordance with

the coupons and Chase Bank USA's requests. Appellant claims that Chase Bank USA

continuously requested that he provide them with more financial information.

(Middleton's Affidavit, at ¶13).

      {¶9}   Chase Bank USA never sent Appellant a permanent loan modification.

      {¶10} On August 20, 2010, Appellee filed a Complaint in Foreclosure.

      {¶11} On October 1, 2010, Appellee filed its motion for default judgment.

      {¶12} On October 4, 2010, Appellee was granted default judgment after

Appellant failed to file an answer.

      {¶13} On December 15, 2011, Appellee sought an order for judicial sale of the

subject property.

      {¶14} On December 19, 2011, Appellant filed a Motion for Relief from Judgment.
Fairfield County, Case No. 12 CA 10                                                     4


      {¶15} On February 10, 2012, the trial court denied Appellant's Motion primarily

on the grounds that it was untimely, and Appellant failed to allege operative facts to

justify the timing of the Motion.

      {¶16} On February 24, 2012, the property was sold and purchased by Appellee

Chase Home Finance, LLC.

      {¶17} On March 5, 2012, Appellant moved the trial court for an order staying the

execution of the order of sale, which is pending before the trial court.

      {¶18} Appellant now appeals, assigning the following sole error for review:

      {¶19} “THE TRIAL COURT ERRED IN DENYING MIDDLETON'S MOTION FOR

RELIEF FROM JUDGMENT AND ERRED WHEN IT FAILED TO HOLD AN

EVIDENTIARY HEARING.”

      {¶20} Appellant argues that the trial court erred in denying his Civ.R. 60(B)

motion without a hearing. We disagree.

      {¶21} Civ.R. 60 states:

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

evidence; fraud; etc.

      {¶23} 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
Fairfield County, Case No. 12 CA 10                                                    5


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.

      {¶24} In order to prevail on a motion for relief from judgment pursuant to Civ.R.

60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2)

entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and

(3) timeliness of the motion. GTE Automatic Electric v. ARC Industries, 47 Ohio St.2d

146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. If any of these three

requirements is not met, the motion must be overruled. Svoboda v. Brunswick, 6 Ohio

St.3d 348, 351, 406, 453 N.E.2d 648, 651 (1983).

      {¶25} The decision to grant or deny a Civ.R. 60(B) motion lies within the sound

discretion of the trial court and will not be reversed on appeal absent an abuse of

discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994). The term

“abuse of discretion” implies that the court's attitude was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). Appellants brought the motion under Civ.R. 60(B)(5), which is not subject to the

one-year limitation. Appellants argued the motion was timely because the matter had

been stayed by the bankruptcy court.

      {¶26} Civ.R. 60(B)(5) applies only when a more specific provision does not

apply. Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983).
Fairfield County, Case No. 12 CA 10                                                          6


Appellants brought their motion under subsection (5), although their brief asserts both

that appellee did not prove standing to bring the action, and also that appellee

perpetrated a fraud on the court by alleging it was the holder of the note when in fact it

did not produce it. Allegations of fraud are properly brought under Civ.R. 60(B)(3),

which is subject to the one-year limitation.

      {¶27} The trial court addressed the matter only on the law regarding subsection

(5), and we will do likewise. Thus, the question of whether appellants’ motion was

timely is whether it was reasonable under the facts and circumstances of the case.

Colley v. Bazell, 64 Ohio St.2d. 243, 249-250.

      {¶28} The trial court found the motion was untimely. The court noted that

Appellant’s motion was filed more than fourteen (14) months after judgment was issued

in this matter, further explaining:

      {¶29} “In this instance, Defendant failed to act to protect his interests in this

action from the beginning. Defendant acknowledges that he received service of the

Complaint, and that the Complaint was made in the name of an entity other than the

one from whom he was pursuing a loan modification, but that he chose not to respond

to the Complaint. Further, even after the entry of judgment, Defendant failed to respond

for more than fourteen months, until Plaintiff finally applied for an order of sale.

Defendant asserted no facts in his affidavit to justify his delay. In fact, the facts set forth

in Defendant’s affidavit show that Defendant was able to actively pursue a loan

modification by filling out and submitting multiple financial packets, a process that is

more time-consuming and arduous than filing a pro se response in this action or

seeking the assistance of an attorney.” (Feb. 10, 2012, Judgment Entry at 2-3.)
Fairfield County, Case No. 12 CA 10                                                     7


      {¶30} We find the trial court did not abuse its discretion in finding the motion was

untimely.

      {¶31} Additionally, Appellants argue that the trial court erred in not finding that

Appellee failed to comply with HUD requirements, i.e. a face-to face meeting, pursuant

to U.S. Bank, N.A. v. Detweiler, Stark App. No. 2011 CA00095, 2012-Ohio-73 .

      {¶32} Appellant, however, concedes that the loan in this case is not an FHA

loan. Further, the Fannie Mae Servicing Guidelines would represent a contractual

agreement between Appellee and Fannie Mae. Appellant would not be a party to such

an agreement.

      {¶33} Appellant further argues the trial court erred in not conducting a hearing

before ruling on his motion.

      {¶34} We find that the trial court, having found the motion to be untimely, did not

address the merits of Appellant’s motion. We find no error herein.

      {¶35} We find the trial court did not err in determining Appellants’ motion

pursuant to Civ.R. 60 (B) was untimely given the particular facts and circumstances of

the case. For this reason, the court did not err in failing to conduct a hearing on the

merits of the motion.
Fairfield County, Case No. 12 CA 10                                              8


      {¶36} Appellant’s sole Assignment of Error is overruled.

      {¶37} For the foregoing reasons, the judgment of the Court of Common Pleas of

Fairfield County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.



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                                           ___________________________________

                                                                 JUDGES
JWW/d 1113
Fairfield County, Case No. 12 CA 10                                             9


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




CHASE HOME FINANCE LLC                     :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
JACK MIDDLETON, et al.                     :
                                           :
       Defendants-Appellants               :         Case No. 12 CA 10




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

judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.

       Costs assessed to Appellant.




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                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
