[Cite as Wells Fargo Bank, N.A. v. Neal, 2011-Ohio-3952.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                                            JUDGES:
WELLS FARGO BANK, N.A.                                      Hon. William B. Hoffman, P. J.
                                                            Hon. Sheila G. Farmer, J.
        Plaintiff-Appellee                                  Hon. John W. Wise, J.

-vs-                                                        Case Nos. 11CA16, 11CA17, 11CA19

BRUCE NEAL, ET AL.

        Defendants-Appellants                               OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 09 CV 1283


JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               August 5, 2011



APPEARANCES:

For Plaintiff-Appellee                                For Defendants-Appellants

JASON A. WHITACRE                                     TROY J. DOUCET
LAURA C. INFANTE                                      4200 Regent Street
KATHRYN M. EYSTER                                     Suite 200
LAW OFFICES OF JOHN D. CLUNK                          Columbus, Ohio 43219
4500 Courthouse Boulevard, Suite 400
Stow, Ohio 44224
Stark County, Case No. 11 CA 16, 11 CA 17, 11 CA 19                                   2

Wise, J.

       {¶1}   Defendants-Appellants Bruce Neal and Susan Neal (Duncan) appeal from

three judgment entries addressing denial of relief from judgment in a foreclosure action

in the Court of Common Pleas, Fairfield County, brought by Plaintiff-Appellee Wells

Fargo Bank, N.A., Successor by Merger to Wells Fargo Bank Minnesota, N.A., as

Trustee f/k/a Norwest Bank Minnesota, N.A., as Trustee for the Registered Holders of

Renaissance Home Equity Loan Asset-Backed Certificates, Series 2003-3. The relevant

facts leading to this appeal are as follows.

       {¶2}   The subject property of this case is appellants’ residence at 523 Spring

Street in Lancaster, Ohio. In September 2003, appellants executed a note and

mortgage with Fidelity Mortgage, Inc. for a principal amount of $102,600.00, to be paid

initially in the amount of $858.23 per month.

       {¶3}   Appellants subsequently experienced difficulty making the payments,

leading to a foreclosure action filed on October 1, 2009 by Appellee Wells Fargo,

assignee of the note and mortgage. Appellants were duly served with the complaint on

October 6, 2009. Appellee filed a motion for default judgment on December 21, 2009,

alleging a default in answer by appellants. On December 22, 2009, the trial court issued

a default judgment and decree in foreclosure.

       {¶4}   The property at issue was scheduled to go to a sheriff’s sale in February

2010. However, on February 9, 2010, the trial court issued an order withdrawing the

sale, indicating that the parties were seeking alternatives to resolving the matter.

Nonetheless, on November 12, 2010, a sheriff’s sale was conducted, and the property

at issue was sold to appellee.
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19                                        3


       {¶5}   On December 6, 2010, appellants filed a motion for relief from the

foreclosure, citing Civ.R. 60(B)(4) and (5). Appellee filed a brief in opposition on January

20, 2011.

       {¶6}   On February 7, 2011, the trial court denied appellants’ motion for relief

from judgment. Appellants filed a motion for reconsideration on the same day. On

March 8, 2011, appellants filed a notice of appeal of the aforesaid February 7, 2011

judgment entry.

       {¶7}   On March 15, 2011 and March 17, 2011, the trial court issued nunc pro

tunc entries to correct typographical errors. Appellants filed notices of appeal therefrom

as well.

       {¶8}   The three notices of appeal have each been assigned a separate

appellate case number, which have now been consolidated in the within appeal.

Appellants now raise the following sole Assignment of Error:

       {¶9}   “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE

DEFENDANT-APPELLANTS’ MOTION FOR RELIEF FROM JUDGMENT UNDER

OHIO RULE OF CIVIL PROCEDURE 60(B)(4).”

                                             I.

       {¶10} In their sole Assignment of Error, appellants contend the trial court erred in

denying their motion for relief from the default foreclosure judgment under Civ.R.

60(B)(4). We disagree.

       {¶11} Civ.R. 60(B) states in pertinent part as follows:

       {¶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
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19                                      4


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

taken. * * *.”

       {¶13} Civ.R. 60(B) represents an attempt to strike a proper balance between the

conflicting principles that litigation must be brought to an end and justice should be

done. Colley v. Bazell (1980), 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (citation

omitted). A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound

discretion of the trial court and a ruling will not be disturbed absent an abuse of

discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. In order to

find an abuse of discretion, we must determine that the trial court's decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶14} Specifically, “Civ.R. 60(B)(4) relates to situations in which a judgment with

prospective effect becomes inequitable. Relief under that provision is afforded to those

individuals who are subjected to circumstances which could not be foreseen or
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19                                       5

controlled.” Yearwood v. Yearwood, Montgomery App.No. 16352, 1997 WL 797717,

citing Knapp v. Knapp (1986), 24 Ohio St.3d 141, 493 N.E.2d 1353.

      {¶15} In their affidavit in support of a Civ.R. 60(B) vacation of the default

foreclosure in this matter, appellants provided Bruce’s affidavit averring that they had

“been actively working with Wells Fargo’s servicing company, Ocwen, to save [their]

home.” Bruce Neal Affidavit at para. 3. Appellants attached to their motion a copy of a

letter from Ocwen Loan Servicing, LLC, indicating a temporary agreement had been

reached, although appellants did not save the temporary agreement itself. Under the

agreement, appellants apparently would pay the modified sum of $482.43 per month for

a three-month trial period. See Appellants’ Exhibit A. The letter also states as follows

regarding a permanent loan modification: “Once you make all of your trial period

payments on time, we will send you a modification agreement detailing the terms of the

modified loan. ***.” Id. Nonetheless, the letter includes a caveat that “[d]uring the trial

period, we may accept and post your trial period payments to your account and it will

not affect foreclosure proceedings that have already been started.” Id.

      {¶16} It appears appellants duly paid the $482.43 sums via cashier’s checks on

April 8, April 28, and May 25, 2010. See Appellants’ Exhibit B. Appellants also made a

fourth temporarily modified $482.43 payment via automated clearing (ACH) on Jul 2,

2010. However, Ocwen refused to accept an August 2010 attempted payment. See

Appellants’ Exhibit C. There is no evidence that Ocwen ever followed up on a

permanent modification; Ocwen instead sent a letter to appellants on or about August

17, 2010 demanding an immediate amount due of $25,951.03. See Appellants’ Exhibit
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19                                    6


D. Appellants thereafter sought assistance from a Pennsylvania company, GMK

Solutions, which was unable to modify the loan at issue. See Appellants’ Exhibit E.

      {¶17} While this Court is somewhat troubled by Ocwen’s treatment of appellants

in the case sub judice as they sought a permanent loan modification, we remain mindful

that this attempted modification process was occurring months after Appellee Wells

Fargo had obtained a valid foreclosure in the common pleas court, the complaint for

which appellants had chosen to ignore. While appellants most likely counted on Ocwen

to work with them for a permanent modification, the decision to pursue that avenue

post-foreclosure was something within appellants’ control, thus removing the matter

from the applicability of Civ.R. 60(B)(4). See Knapp, supra. Under these circumstances,

we are unable to classify the trial court’s denial of 60(B)(4) relief as unreasonable,

arbitrary, or unconscionable.

      {¶18} Appellants’ sole Assignment of Error is overruled.

      {¶19} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Fairfield County, Ohio, is affirmed.

By: Wise, J.

Farmer, J., concurs.

Hoffman, P. J., dissents.

                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
JWW/d 0722
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19   7
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19                                          8

Hoffman, P.J., dissenting

       {¶20} I respectfully dissent from the majority opinion.

       {¶21} I find it significant, if not determinative, Ocwen received and accepted

Appellants’ fourth payment under the modification plan after Appellants had successfully

completed the three month trial period.1

       {¶22} Having successfully completed the trial period and, therefore, qualifying

for the permanent loan modification as evidenced by Exhibit B, I find the underlying

foreclosure action had been essentially satisfied by novation and it would be inequitable

for the foreclosure to have prospective application.

       {¶23} While Appellants had control over the decision to enter the trial period and

make the three modified payments required, they did not foresee nor could they control

Appellee’s refusal to honor the loan modification. Under these circumstances, I find it

no longer equitable to give prospective application to the original order of foreclosure.



                                                 ________________________________
                                                 HON. WILLIAM B. HOFFMAN




1
  The “caveat” in the letter noted in the majority opinion only applies to payments
accepted during the trial period, not after the fourth payment accepted in July.
Stark County, Case No. 11 CA 16, 11 CA 17, 11 CA 19                                 9


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




WELLS FARGO BANK, N.A.                     :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :          JUDGMENT ENTRY
                                           :
BRUCE NEAL, et al.                         :
                                           :
       Defendants-Appellants               :     Case Nos. 11CA16, 11CA17, 11CA19




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

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

       Costs are to be assessed to appellants.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
