[Cite as First Horizon Home Loans v. Fanous, 2011-Ohio-4237.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                          JOURNAL ENTRY AND OPINION
                                   No. 95924



                  FIRST HORIZON HOME LOANS,
                      A DIVISION OF FIRST
                     TENNESSEE BANK, N.A.
                                                         PLAINTIFF-APPELLANT

                                                   vs.

                        MOHSEN FANOUS, ET AL.
                                                         DEFENDANTS-APPELLEES




                                        JUDGMENT:
                                         AFFIRMED


                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CV-692595

        BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                               August 25, 2011
ATTORNEYS FOR APPELLANT

David F. Hanson
David Bokor
John Codrea
Matthew Curry
Manley Deas Kochalski, L.L.C.
P.O. Box 165028
Columbus, Ohio 43216-5028


ATTORNEY FOR APPELLEES

Dominic J. Vannucci
22649 Lorain Road
Fairview Park, Ohio 44126


ALSO LISTED

Mortgage Electronic Registration Systems, Inc.
1901 East Voorhees Street
Suite C
Danville, Illinois 61834




FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellant, First Horizon Loan Corporation (“First Horizon”),

appeals the judgment of the common pleas court denying its motion for relief

from judgment. After careful review of the record and relevant case law, we

affirm.

      {¶ 2} This foreclosure action stemmed from a mortgage transaction

between lender, First Horizon, and defendants-appellees, Mohsen Fanous and

Brenda Fanous.    The Fanouses were the record title holders of the real
property located at 8112 Denison Avenue, Cleveland, Ohio 44102, parcel no.

006-25-082 (“the Property”). On September 30, 2005, Mohsen Fanous signed

and delivered to First Horizon a promissory note in the original principal

amount of $53,700 (“the Note”). Contemporaneously, to secure the payment

of the Note, Fanous signed and delivered a mortgage on the Property (“the

Mortgage”) to First Horizon. The Mortgage was recorded on September 30,

2005 with the Cuyahoga County Recorder’s Office and remains a valid

mortgage lien on the Property.

      {¶ 3} On May 12, 2009, appellant filed a complaint for foreclosure after

the Fanouses failed to make payments under the terms of their Note and

Mortgage.   On November 9, 2009, appellant filed a motion for summary

judgment.

      {¶ 4} On December 20, 2009, First Horizon and Mohsen Fanous

entered into a forbearance agreement whereby the past due payments were to

be paid in six installments of $400 each, with a balloon payment of $16,991.52

due on July 15, 2010. The purpose of the forbearance agreement was to cure

the default and prevent acceleration of the Note and Mortgage.

      {¶ 5} On January 8, 2010, appellant gave the trial court notice of the

forbearance agreement and requested that the court retain jurisdiction to

enforce the agreement and reinstate the foreclosure in the event of default.

The court, however, dismissed the case with prejudice on January 21, 2010,

stating:
      {¶ 6} “Court notified that parties have entered into a forbearance

agreement. Case is hereby settled and dismissed with prejudice. The court

deems cases settled and dismissed when the parties in interest enter a new

contract which is separate and distinct from the original and requires new

consideration or has new terms.”

      {¶ 7} Thereafter, the Fanouses failed to make a single payment in

compliance with the forbearance agreement. On May 19, 2010, First Horizon

filed a motion with the trial court to enforce the forbearance agreement.

However, the trial court denied the motion following a hearing.

      {¶ 8} On September 23, 2010, First Horizon moved for relief from the

trial court’s dismissal of the foreclosure action on January 21, 2010 pursuant

to Civ.R. 60(B)(4).   On September 29, 2010, the court denied the motion

without a hearing, stating the following:

      {¶ 9} “Plaintiff’s motion for relief from final order dismissing case with

prejudice filed on 9/23/10 is denied.   Court notified that the parties have

entered into a forbearance agreement. The court deems cases settled with

prejudice when parties to the mortgage agreement, or parties with an interest

in the subject property, enter a forbearance agreement.           A forbearance

agreement is a separate and distinct contract from the original mortgage

because different/additional terms alter the parties’ rights and obligations

under the original mortgage and because additional consideration is required.

 A forbearance agreement is, therefore, no different than other settlement
agreements. Plaintiff’s remedy for breach of the new agreement would be to

file a separate foreclosure based on that agreement and its new terms and

conditions.”

       {¶ 10} First Horizon now appeals, raising two assignments of error for

review:

       {¶ 11} I.    “The trial court erred in determining that no meritorious

defense was raised sufficient for Civ.R. 60(B) relief.”

       {¶ 12} II.     “The trial court abused its discretion in dismissing

plaintiff-appellant’s Civ.R. 60(B) motion without conducting an evidentiary

hearing, despite the presentment of operative facts that would warrant such

relief.”

                                  Law and Analysis

                                     Civ.R. 60(B)

       {¶ 13} In its first assignment of error, First Horizon argues that it is

entitled to relief from the trial court’s judgment dismissing the case with

prejudice on January 21, 2010. For the reasons forthcoming, we disagree.

       {¶ 14} When reviewing the denial of a motion for relief from judgment,

an appellate court applies an abuse of discretion standard of review.

Shuford v. Owens, Franklin App. No. 07AP-1068, 2008-Ohio-6220, ¶15, citing

Natl. City Bank v. Rini, 162 Ohio App.3d 662, 2005-Ohio-4041, 834 N.E.2d

836, ¶15.      An abuse of discretion connotes that the court’s attitude is
arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 450 N.E.2d 1140.

      {¶ 15} 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 Elec.,

Inc. v. ARC Indus., Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph

two of the syllabus.

      {¶ 16} First Horizon contends that it is entitled to relief from the trial

court’s January 21, 2010 judgment pursuant to Civ.R. 60(B)(4), which

provides relief when “it is no longer equitable that the judgment should have

prospective application.” First Horizon argues that it is no longer equitable

for the trial court’s dismissal of the initial foreclosure action with prejudice to

have prospective application because it effectually precludes First Horizon

from refiling its foreclosure action against the Fanouses based on the

Fanouses’ breach of the forbearance agreement.

      {¶ 17} The record reflects that the trial court dismissed the initial

foreclosure action with prejudice based on the parties’ decision to enter into a

forbearance agreement.       As stated by the trial court, the forbearance

agreement constituted a new contract, separate and distinct from the initial

mortgage.    Therefore, the trial court’s dismissal of the initial foreclosure

action with prejudice does not preclude First Horizon from filing an action for
breach of the forbearance agreement, and that agreement includes language

that allows First Horizon to foreclose on the property in a subsequent action.

      {¶ 18} In light of First Horizon’s available remedies at law, we find that

First Horizon has failed to establish that it is no longer equitable for the

judgment to have prospective application. See Ransome v. Lampman (1995),

103 Ohio App.3d 8, 658 N.E.2d 313. Having found that First Horizon has

failed to meet a prong of the GTE test, we find the trial court’s denial of First

Horizon’s motion to vacate pursuant to Civ.R. 60(B)(4) did not constitute an

abuse of discretion. First Horizon’s first assignment of error is overruled.

                               Civ.R. 60(B) Hearing

      {¶ 19} In its second assignment of error, First Horizon argues that it

was entitled to a hearing on its Civ.R. 60(B)(4) motion.           However, an

evidentiary hearing is not required where the motion and attached

evidentiary material do not contain allegations of operative facts that would

warrant relief under Civ.R. 60(B).      BancOhio Natl. Bank v. Schiesswohl

(1988), 51 Ohio App.3d 130, 554 N.E.2d 1362.

      {¶ 20} In this matter, we find that First Horizon failed to put forth any

evidence or allege any operative facts that would warrant relief under Civ.R.

60(B)(4). First Horizon’s second assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
