[Cite as JP Morgan Chase Bank, NA v. Koontz, 2014-Ohio-3904.]


                                     COURT OF APPEALS
                                    PERRY COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT

JP MORGAN CHASE BANK, NA                                JUDGES:
                                                        Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                              Hon. Patricia A. Delaney, J.
                                                        Hon. Craig R. Baldwin, J.
-vs-
                                                        Case No. 2014-CA-00013
PAUL E. KOONTS, JR.

        Defendant-Appellant                             OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Perry County Court of
                                                    Common Pleas, Case No. 12-CV-00023


JUDGMENT:                                           Affirmed


DATE OF JUDGMENT ENTRY:                             September 8, 2014


APPEARANCES:


For Plaintiff-Appellee                              For Defendant-Appellant


THOMAS WYATT PALMER                                 BRUCE M. BROYLES
MICHAEL L. DILLARD                                  5815 Market Street, Suite 2
Thompson Hine LLP                                   Boardman, Ohio 44512
41 S. High St., Suite 1700
Columbus, Ohio 43215

STEPHEN D. WILLIGER
Thompson Hine LLP
127 Public Square
3900 Key Tower
Cleveland, Ohio 44114
[Cite as JP Morgan Chase Bank, NA v. Koontz, 2014-Ohio-3904.]


Hoffman, P.J.


        {¶1}    Defendant-appellant Paul E. Koonts, Jr. appeals the February 13, 2014

Judgment Entry entered by the Perry County Court of Common Pleas, which denied his

Civ. R. 60(B) motion for relief from judgment. Plaintiff-appellee is JP Morgan Chase

Bank, NA (“the Bank”).

                              STATEMENT OF THE CASE AND FACTS

        {¶2}    The Bank filed a Complaint for Foreclosure and Declaratory Judgment on

January 25, 2012.         After retaining Attorney Mitchell Marczewski, Appellant filed a

Chapter 13 Petition for Bankruptcy on March 27, 2012. Attorney Marczewski filed a

Notice of Bankruptcy with the trial court on March 29, 2012. The trial court stayed the

matter. The Bankruptcy Court subsequently dismissed the petition.                   Attorney

Marczewski filed a Notice of Bankruptcy Dismissal on April 4, 2013. Via Entry filed April

8, 2013, the trial court lifted the stay and the matter was returned to the active docket.

On May 16, 2013, the Bank filed a motion for default judgment. A copy of the motion

was served upon Appellant. The trial court granted default judgment to the Bank via

judgment Entry filed June 25, 2013. The trial court issued an order of sale on July 8,

2013.

        {¶3}    Appellant filed motion for stay of execution and to cancel the sheriff’s sale

on September 10, 2013. Appellant filed a motion for relief from judgment on the same

day. Therein, Appellant argued he was entitled to relief from judgment under one of the

grounds set forth in Civ. R. 60(B)(1) – (5). In his Affidavit, Appellant averred he did not

understand it was necessary for him to do something to protect his interest in this matter
Perry County, Case No. 2014-CA-00013                                              3


following the bankruptcy dismissal. Appellant further stated he did not receive a notice

of default or notice of acceleration from the Bank.

       {¶4}   Via Entry filed February 13, 2014, the trial court denied Appellant’s motion

for relief from judgment. The trial court issued an order of sale on February 25, 2014.

       {¶5}   It is from this judgment entry Appellant appeals, raising as his sole

assignment of error:

       {¶6}   "I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

MOTION FOR RELIEF FROM JUDGMENT."

       {¶7}   The decision whether to grant a motion for relief from judgment under

Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan (1987), 33

Ohio St.3d 75, 514 N.E.2d 1122. In order to find abuse of discretion, we must determine

the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

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

       {¶8}   Civ. R. 60(B) provides the basis upon which a party may obtain relief from

judgment, and states in pertinent part: “On motion and upon such terms as are just, the

court may relieve a party * * * from a final judgment, order or proceedings 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 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
Perry County, Case No. 2014-CA-00013                                             4


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 to taken.”

          {¶9}   To prevail on a motion made pursuant to Civ.R. 60(B), the movant must

demonstrate: (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 Electric, Inc. v.

ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 150–151. Where timely relief is sought

from a default judgment, and the movant has a meritorious defense, doubt should be

resolved in favor of the motion to set aside the judgment so that cases may be decided

on their merits. Id. at paragraph three of the syllabus. The GTE Automatic factors are

“independent and conjunctive, not disjunctive.” Blaney v. Kerrigan (Aug. 4, 1986),

Fairfield App. No. 12–CA–86. “[F]ailing to meet one is fatal, for all three must be

satisfied in order to gain relief.” Id.

          {¶10} In his Civ. R. 60(B) motion, Appellant argued he had a meritorious

defense as the Bank failed to satisfy a condition precedent before filing the foreclosure

action.     Assuming, arguendo, the Bank’s failure to satisfy a condition precedent

constitutes a meritorious defense, we, nonetheless, find the trial court did not abuse its

discretion in denying Appellant's motion.

          {¶11} Appellant cannot establish his failure to file an answer was due to

excusable neglect. The Bank served a copy of the complaint on Appellant. Appellant
Perry County, Case No. 2014-CA-00013                                               5


subsequently retained counsel and filed for bankruptcy protection. After the Bankruptcy

Court dismissed his petition and the matter reinstated to the active docket, the Bank

filed its motion for default judgment.    The Bank served a copy of the motion on

Appellant.   Appellant did not respond to the motion in any manner.         Thus, on two

occasions, Appellant failed to respond to court pleadings. We cannot find the trial court

abused its discretion in denying Appellant’s motion for relief from judgment as Appellant

as not established excusable neglect.

      {¶12} In his Brief to this Court, Appellant now claims he is entitled to relief

because he was abandoned by his [bankruptcy] attorney. Appellant did not assert this

argument to the trial court in his Civ. R. 60(B) motion.   Appellant’s failure to raise this

issue in the trial court when he filed his Civ.R. 60(B) motion waived it for purposes of

appellate review.   Gentile v. Ristas, 160 Ohio App.3d 765, 2005–Ohio–2197, 828

N.E.2d 1021, ¶ 74. We cannot find that the trial court abused its discretion in denying

Civ.R. 60(B) relief based upon arguments that were never presented to it.

      {¶13} Appellant’s sole assignment of error is overruled.
Perry County, Case No. 2014-CA-00013                                       6


      {¶14} The judgment of the Perry County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
