[Cite as Bank of New York Mellon v. Flack, 2011-Ohio-890.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

BANK OF NEW YORK MELLON                                  JUDGES:
                                                         Hon. William B. Hoffman, P.J.
        Plaintiff-Appellees                              Hon. John W. Wise, J.
                                                         Hon. Julie A. Edwards, J.
-vs-
                                                         Case No. 2010CA00153
CHARLENE M. FLACK, ET AL.

        Defendant-Appellants                             OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court of
                                                     Common Pleas, Case No. 2009CV00723


JUDGMENT:                                            Affirmed

DATE OF JUDGMENT ENTRY:                              February 22, 2011

APPEARANCES:

For Appellees                                        For Appellant Charlene Flack

CHARLES V. GASIOR                                    DANIEL J. FUNK
JASON A. WHITACRE                                    Baker, Dublikar, Beck, Wiley & Mathews
KATHRYN M. EYSTER                                    400 South Main Street
The Law Offices of John D. Clunk,                    North Canton, Ohio 44720
Co., L.P.A
4500 Courthouse Blvd., Ste. 400
Stow, Ohio 44224                                                And

                                                     For Treasurer of Stark County

                                                     JOHN F. ANTHONY, II
                                                     Assistant Prosecuting Attorney
                                                     110 Central Plaza South, Ste. 510
                                                     Canton, Ohio 44702
Stark County, Case No. 2010CA00153                                                     2

Hoffman, P.J.


      {¶1}      Defendant-appellant Charlene M. Flack appeals the May 27, 2010

Judgment Entry entered by the Stark County Court of Common Pleas, which denied her

Civ. R. 60(B) Motion to Vacate Default Judgment. Plaintiff-appellee is The Bank of New

York Mellon.1

                           STATEMENT OF THE CASE AND FACTS

      {¶2}      On July 28, 1997, Appellant executed a note and mortgage in favor of

Multi-Fund, Inc. The mortgage was recorded on July 31, 1997. Multiple assignments of

the mortgage were given, with Appellee eventually receiving an assignment in

November, 2008.

      {¶3}      On February 20, 2009, Appellee filed a foreclosure action, seeking

judgment on its note and to foreclose on its mortgage. Service was perfected on

Appellant on February 26, 2009. After Appellant failed to answer, Appellee filed for

default. The trial court entered default judgment and issued a Decree in Foreclosure on

April 22, 2009. Appellee filed a Praecipe for Order of Sale with the trial court on April

29, 2009. The sheriff sale was scheduled for July 13, 2009. However, Appellee filed an

Order to Withdraw Sale on July 10, 2009, due to the fact it was engaging in loss

mitigation efforts with Appellant.   Appellee attempted to work with Appellant for an

additional two months.

      {¶4}      When it became obvious the loss mitigation efforts would not be

successful, Appellee filed a second Praecipe for Order of Sale on September 9, 2009.

1
 The Bank of New York Mellon fka The Bank of New York as successor to JPMorgan
Chase Bank, NA, as Trustee for the C-BASS Mortgage Loan Asset-Back Certificates,
Series 2005-RPI.
Stark County, Case No. 2010CA00153                                                      3


Appellee purchased the property at a sheriff’s sale on November 2, 2009. Appellee

again attempted to resolve the default with Appellant.         After Appellee determined

Appellant did not have the financial means to support the mortgage payment, Appellee

filed a Motion to Confirm Sheriff’s Sale on December 7, 2009. The trial court confirmed

the sale on December 9, 2009. A sheriff’s deed was recorded on February 10, 2010.

      {¶5}   On March 25, 2010, Appellant filed a Motion to Vacate Default Judgment

pursuant to Civ. R. 60(B)(1-3). Therein, Appellant asserted her failure to answer was

the result of excusable neglect. In an Affidavit attached to her motion, Appellant averred

she had been in contact with Appellee’s loan servicing agent and was pursuing a loan

modification. Appellant added the loan servicing agent advised her she would be able to

keep her residence upon completion of a loan modification program.

      {¶6}   Appellee filed a motion in opposition, arguing Appellant’s failure to answer

was not due to excusable neglect, and the loan modification had never been completed.

Appellee added the default giving rise to the foreclosure remained uncontested;

therefore, Appellant did not have a meritorious defense.

      {¶7}   Via Judgment Entry filed May 27, 2010, the trial court denied Appellant

request for relief from judgment. The trial court found Appellant failed to establish she

was entitled to relief under Civ. R. 60(B). The trial court noted Appellant never alleged

Appellee’s representative advised her not to file an Answer.

      {¶8}   It is from this judgment entry Appellant appeals, raising as her sole

assignment of error:
Stark County, Case No. 2010CA00153                                                          4


        {¶9}    “I. THE TRIAL COURT’S REFUSAL TO VACATE AND SET ASIDE THE

DEFAULT JUDGMENT ENTERED AGAINST DEFENDANT-APPELLANT FLACK WAS

AN ABUSE OF DISCRETION.

                                                  I

        {¶10} In her sole assignment of error, Appellant maintains the trial court abused

its discretion in denying her motion to vacate default judgment. We disagree.

        {¶11} To prevail on a motion to vacate a judgment pursuant to Civ. R. 60(B), the

movant must demonstrate that: (1) the party has a meritorious defense 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. GTE Automatic Electric Company, Inc. v. ARC Industries, Inc. (1976), 47

Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus. 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. Our standard of

review of a court's decision as to whether to grant a Civ. R. 60(B) motion is abuse of

discretion. Id. at 148, 351 N.E.2d 113. 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. at 5.

        {¶12} Upon review of the entire record in this matter, we find the trial court did

not abuse its discretion in overruling Appellant's Civ.R. 60(B) Motion. Appellant failed to
Stark County, Case No. 2010CA00153                                                     5


establish excusable neglect. Appellant was aware Appellee had filed the foreclosure

action and had received default judgment against her. There is no evidence Appellee

advised or otherwise indicated she did not have to file an Answer. Having failed to

satisfy the second prong of the GTE Automatic test, Appellant was not entitled to relief.

Further, the trial court was not required to consider the other two prongs.

       {¶13} Appellant’s sole assignment of error is overruled.

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

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ John W. Wise _____________________
                                             HON. JOHN W. WISE


                                             s/ Julie A. Edwards___________________
                                             JULIE A. EDWARDS
Stark County, Case No. 2010CA00153                                                6


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


BANK OF NEW YORK MELLON                   :
                                          :
       Plaintiff-Appellees                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CHARLENE M. FLACK, ET AL.                 :
                                          :
       Defendant-Appellants               :         Case No. 2010CA00153


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
