[Cite as Household Realty Corp. v. Kamar, 2014-Ohio-508.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



HOUSEHOLD REALTY                                 :          JUDGES:
CORPORATION                                      :          Hon. W. Scott Gwin, P.J.
                                                 :          Hon. Sheila G. Farmer, J.
        Plaintiff-Appellee                       :          Hon. Patricia A. Delaney, J.
                                                 :
-vs-                                             :
                                                 :
SHEKU KAMARA, ET AL.                             :          Case No. 13 CAE 07 0054
                                                 :
        Defendants-Appellants                    :          OPINION




CHARACTER OF PROCEEDING:                                    Appeal from the Court of Common
                                                            Pleas, Case No. 12 CVE 10 1186



JUDGMENT:                                                   Affirmed




DATE OF JUDGMENT:                                           February 12, 2014




APPEARANCES:

For Plaintiff-Appellee                                      For Defendants-Appellants

CHRISTINE E. WATCHORN                                       BRIAN K. DUNCAN
88 East Broad Street                                        BRYAN D. THOMAS
Suite 1600                                                  155 East Broad Street, Suite 2200
Columbus, OH 43215-3506                                     Columbus, OH 43215
Delaware County, Case No. 13 CAE 07 0054                                                  2

Farmer, J.

       {¶1}   On October 10, 2012, appellee, Household Realty Corporation, filed a

complaint in foreclosure against appellants, Sheku Kamara and Halimatou Souare

Kamara, for money due and owing on a note. On June 3, 2013, appellee filed a motion

for default judgment for appellants' failure to answer or otherwise defend. By judgment

entry filed June 5, 2013, the trial court granted the motion.

       {¶2}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶3}   "THE    TRIAL    COURT      ERRED      WHEN       IT   GRANTED      DEFAULT

JUDGMENT AS DEFENDANTS WERE NOT AFFORDED THE OPPORTUNITY TO

RESPOND, AS THE MOTION FOR DEFAULT JUDGMENT WAS GRANTED TWO

DAYS AFTER THE SAME WAS FILED AND SAID MOTION WAS FILED UNTIMELY

PURSUANT TO CIV. R. 5(D)."

                                             II

       {¶4}   "THE TRIAL COURT ERRED WHEN IT HELD THAT THE DEFENDANTS

WERE IN DEFAULT OF ANSWER, AND PREVENTED DEFENDANTS FROM

PRESENTED        (SIC)   EVIDENCE      THAT       DEFENDANTS         HAD   MADE    SIX   (6)

CONSECUTIVE MORTGAGE PAYMENTS PURSUANT TO THE TERMS OF A LOAN

MODIFICATION AGREEMENT."
Delaware County, Case No. 13 CAE 07 0054                                                 3


                                            I, II

       {¶5}    Appellants claim the trial court erred in granting default judgment without

giving them the opportunity to respond in violation of Civ.R. 55(A), and the motion for

default was untimely filed under Civ.R. 5(D).

       {¶6}    There is no dispute that appellants failed to answer or offer a defense;

however, with their various requests for extensions of time to respond (October 19 and

29, 2012 and two on November 5, 2012) which were denied, they made an appearance

in the case.

       {¶7}    Civ.R. 55 governs default. Subsections (A) and (B) state the following:



               (A) Entry of judgment

               When a party against whom a judgment for affirmative relief is

       sought has failed to plead or otherwise defend as provided by these rules,

       the party entitled to a judgment by default shall apply in writing or orally to

       the court therefor; but no judgment by default shall be entered against a

       minor or an incompetent person unless represented in the action by a

       guardian or other such representative who has appeared therein. If the

       party against whom judgment by default is sought has appeared in the

       action, he (or, if appearing by representative, his representative) shall be

       served with written notice of the application for judgment at least seven

       days prior to the hearing on such application. If, in order to enable the

       court to enter judgment or to carry it into effect, it is necessary to take an

       account or to determine the amount of damages or to establish the truth of
Delaware County, Case No. 13 CAE 07 0054                                              4


      any averment by evidence or to make an investigation of any other matter,

      the court may conduct such hearings or order such references as it deems

      necessary and proper and shall when applicable accord a right of trial by

      jury to the parties.

             (B) Setting aside default judgment

             If a judgment by default has been entered, the court may set it

      aside in accordance with Rule 60(B).



      {¶8}   Civ.R. 5 governs service and filing of pleadings and other papers

subsequent to the original complaint. Subsection (D) states the following:



             All documents, after the original complaint, required to be served

      upon a party shall be filed with the court within three days after service,

      but depositions upon oral examination, interrogatories, requests for

      documents, requests for admission, and answers and responses thereto

      shall not be filed unless on order of the court or for use as evidence or for

      consideration of a motion in the proceeding.



      {¶9}   Appellee's June 3, 2013 motion for default contained the following proof of

service:



             A copy of the foregoing Motion and Notice was mailed by Ordinary

      U.S. Mail this 22 day of May, 2013, to the following:
Delaware County, Case No. 13 CAE 07 0054                                                     5


              Sheku Kamara
              597 Locust Court
              Westerville, Ohio 43082

              Halimatou Souare Kamara
              597 Locust Court
              Westerville, Ohio 43082

              Citifinancial, Inc.
              300 St. Paul Place
              Baltimore, Maryland 21202

              Christopher D. Betts
              Asst. Prosecutor of Delaware County
              140 North Sandusky Street
              Delaware, OH 43015



       {¶10} Filed contemporaneously with the motion for default was an affidavit of

amount due as required by Loc.R. 31 of the Court of Common Pleas of Delaware

County and the final judicial report.

       {¶11} From May 22, 2013 (proof of service) to June 5, 2013 (judgment entry

granting default), fourteen days had passed. Appellants argue Civ.R. 55(A) requires

that seven days must pass before the filing of a default judgment. We disagree with this

interpretation of the rule. The passage of seven days prior to judgment begins to run at

the time of the proof of service of the motion for default, not the filing date of the motion.

       {¶12} The provisions of Loc.R. 31.01 and 31.04 of the Court of Common Pleas

of Delaware County and Civ.R. 55 are substantially similar:



              31.01 When a party against whom a judgment for affirmative relief

       is sought who has been served and has failed to plead or otherwise

       defend as provided by the Civil Rules, the party entitled to a judgment by
Delaware County, Case No. 13 CAE 07 0054                                                   6


       default shall promptly apply in writing to the trial judge within thirty days

       after the date upon which the defaulting party should have pled or

       otherwise defended.      Service of the motion upon the defendant(s) is

       required even if the defendant(s) has not made an appearance in the

       case. The written motion shall include where appropriate, if not previously

       submitted to the court, the following documents: proof of assignment from

       the original creditor or original party in interest to the plaintiff and the last

       billing statement from the original creditor sent to the defendant(s), or an

       affidavit explaining why any of the required documents are not available.

              31.04 Pursuant to Civ.R. 55, if the party against whom judgment by

       default is sought has appeared in the action, written notice of the hearing

       on the motion shall be served upon all parties.



       {¶13} We find appellee complied with Civ.R. 55(A) and the default judgment was

timely filed. Any delay in filing the motion under Civ.R. 5 constitutes harmless error as it

did not "affect the substantial rights of the parties." Civ.R. 61.

       {¶14} Appellants also argue they were entitled to a hearing on the motion for

default. Apart from a specific challenge to the amount of damages available only on

cross-examination, the hearing would have been a non-event. Further, Loc.R. 7.06 of

the Court of Common Pleas of Delaware County implies that all hearings on motions

are non-oral hearings: "Except as otherwise ordered by the judge or magistrate, all

motions are hereby set for a non-oral hearing to occur on the twenty-first day following

the filing of the motion."
Delaware County, Case No. 13 CAE 07 0054                                                  7


       {¶15} Under Loc.R. 31.01, appellee was required to pursue its motion for default

and the trial court so ordered all parties to file any dispositive motions by June 10, 2013.

See, Judgment Entry filed March 8, 2013.             Appellants were served this order.

Appellants never presented any evidence to the trial court of previous payments via

Civ.R. 60(B) as they now argue.

       {¶16} Upon review, under these provisions and appellants' undisputed default,

we find the trial court did not err in granting default judgment to appellee.

       {¶17} Assignments of Error I and II are denied.

       {¶18} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




SGF/sg 115
