[Cite as Richland Bank v. Winters, 2012-Ohio-1799.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



RICHLAND BANK                                            JUDGES:
                                                         Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                               Hon. Sheila G. Farmer, J.
                                                         Hon. John W. Wise, J.
-vs-
                                                         Case No. 11 CA 66
MICHAEL R. WINTERS, et al.

        Defendants-Appellants                            OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 09 CV 1703H


JUDGMENT:                                             Reversed and Remanded



DATE OF JUDGMENT ENTRY:                               April 23, 2012



APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant Mechanics

ERIC S. MILLER                                        BENJAMIN D. KITZLER
13 Park Avenue West                                   3 North Main Street
Suite 608                                             Suite 803
Mansfield, Ohio 44902                                 Mansfield, Ohio 44902

For Appellee BAC                                      For Defendant Key Bank

ERIC T. DEIGHTON                                      THOMAS J.KELLEY
WILLIAM T. TINI                                       300 Madison Avenue
24755 Chagrin Blvd. Suite 200                         Suite 110
Cleveland, Ohio 44122-5690                            Mansfield, Ohio 44902
Richland County, Case No. 11 CA 66                                                    2

Wise, J.

       {¶1}   Defendant-Appellant Mechanics Savings Bank appeals the May 11, 2011,

decision of the Court of Common Pleas of Richland County, Ohio, granting Appellee

BAC Home Loans Services, L.P.’s Civ.R. 60(B) Motion to Partially Vacate Judgment.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On November 20, 2009, Plaintiff-Appellee Richland Bank filed its

Complaint for Foreclosure in the instant matter against the real estate commonly known

as 690 Walnut Drive South, Lexington, Ohio 44904.

       {¶3}   On or about November 30, 2009, certified mail service was made on

Mortgage Electronic Registration Systems, Inc. ("MERS"). At that time, MERS was the

nominee for Key Bank pursuant to the Preliminary Evidence of Title filed

contemporaneously with the Complaint in this matter.

       {¶4}   Defendant-Appellant BAC Home Loans Servicing L.P., fka Countrywide

Home Loans Servicing L.P. ("BAC") as successor in interest to MERS admits valid

service of the Complaint. (T. at 15).

       {¶5}   Neither MERS nor BAC filed a timely Answer. (T. at 24).

       {¶6}   On or about January 5, 2010, Plaintiff-Appellee moved for Default

Judgment against some Defendants, including MERS. Neither MERS nor BAC were

aware of the Motion for Default Judgment and, as such, neither responded to the Motion

for Default Judgment.

       {¶7}   On April 19, 2010, and again on June 21, 2010, the trial court issued

judgment(s) finding MERS in default and ultimately Ordering the sale of the subject real

estate.
Richland County, Case No. 11 CA 66                                                     3


       {¶8}   On or about August 4, 2010, BAC moved to Partially Vacate the Judgment

Entry of Foreclosure and Order of Sale.

       {¶9}   On April 28, 2011, an oral hearing was held on BAC's Motion to Partially

Vacate the Judgment Entry of Foreclosure and Order of Sale. At the conclusion of the

hearing, the trial court held that BAC was entitled to relief from judgment pursuant to

Civ.R. 60(B) finding its failure to appear in the instant matter to be the result of

excusable neglect.

       {¶10} By Judgment Entry filed May 11, 2011, the trial court issued specific

findings of fact and conclusions of law.

       {¶11} Appellant Mechanics Savings Bank now appeals, assigning the following

sole assignment of error.

                                  ASSIGNMENT OF ERROR

       {¶12} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED

BAC’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIV.R. 60(B)

WHEN BAC DEMONSTRATED THAT FOR UNKNOWN REASONS IT FAILED TO

RESPOND AFTER PROPER SERVICE.”

                                               I.

       {¶13} In its sole assignment, Appellant argues that the trial court erred in

granting Appellee BAC’s Civ.R. 60(B) motion for relief from judgment. We agree.

       {¶14} The decision to grant or deny a motion for relief from judgment pursuant

to Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed

absent an abuse of the discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172, 174, 637

N.E.2d 914. An abuse of discretion is more than an error of judgment; it means that the
Richland County, Case No. 11 CA 66                                                     4

trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.

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

demonstrates “perversity of will, passion, prejudice, partiality, or moral delinquency.”

Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. When

applying the abuse of discretion standard, this Court may not substitute its judgment for

that of the trial court. Id.

       {¶15} Therefore, the only issue before this Court is whether the trial court

abused its discretion in denying Appellant's motion for relief from judgment under the

dictates of Civ.R. 60(B).

       {¶16} Civ.R. 60(B) states, in relevant part:

       {¶17} “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

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.”
Richland County, Case No. 11 CA 66                                                     5


       {¶18} To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving

party must demonstrate that:

       {¶19} “(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 Elec., Inc. v.

ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the

syllabus.

       {¶20} Generally, the moving party's failure to satisfy any of the three

requirements will result in the motion being overruled. Rose Chevrolet, Inc. v.

Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564.

       {¶21} In the instant case, Appellee argued that it was entitled to relief pursuant

to Civ.R. 60(B)(1). Upon review, however, this Court finds the reasons offered by

Appellee failed to justify relief from the trial court's judgment.

       {¶22} As set forth above, under Civ.R. 60(B)(1), the trial court may “relieve a

party or his legal representative from a final judgment, order or proceeding for the

following reasons: (1) mistake, inadvertence, surprise or excusable neglect.”

       {¶23} Here, in its motion for relief, Appellee BAC argued that its failure to

respond in the instant case was excusable “because there is a system in place at BAC

Home Loans Servicing, L.P., fka Countrywide Home Loans Servicing, L.P. to deal with

service of summons, but that this particular summons was not timely handled due to a

mistake by BAC Home Loans Servicing, fka Countrywide Home Loans Servicing, L.P.
Richland County, Case No. 11 CA 66                                                          6


       {¶24} Upon review, we find that Appellee BAC failed to present sufficient

evidence of excusable neglect to warrant relief from judgment in the case sub judice.

Appellee was unable to articulate what event, action or inaction, caused BAC to fail to

answer the complaint in this matter. In explanation, BAC offered only that “It fell through

the cracks, something happened.” (T. at 25).

       {¶25} As Appellee failed to offer any sufficient explanation for its failure to file an

answer in this matter, we find that the trial court abused its discretion in granting

Appellee’s motion for partial relief from judgment.

       {¶26} The judgment of the Court of Common Pleas, Richland County, Ohio, is

reversed and remanded for further proceedings consistent with the law and this opinion.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.


                                              ___________________________________


                                              ___________________________________


                                              ___________________________________

                                                                   JUDGES

JWW/d 0326
Richland County, Case No. 11 CA 66                                           7


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




RICHLAND BANK                          :
                                       :
       Plaintiff-Appellee              :
                                       :
-vs-                                   :        JUDGMENT ENTRY
                                       :
MICHAEL R. WINTERS, et al.             :
                                       :
       Defendants-Appellants           :        Case No. 11 CA 66




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

judgment of the Court of Common Pleas of Richland County, Ohio, is reversed and

remanded.

       Costs assessed to Appellee.




                                       ___________________________________


                                       ___________________________________


                                       ___________________________________

                                                        JUDGES
