[Cite as CitiMortgage, Inc. v. Eschbaugh, 2012-Ohio-5140.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
CITIMORTGAGE, INC.                                   :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. John W. Wise, J.
                         Plaintiff-Appellee          :       Hon. Julie A. Edwards, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 2012-CA-21
KEITH D. ESCHBAUGH, ET AL                            :
                                                     :
                 Defendants-Appellants               :       OPINION




CHARACTER OF PROCEEDING:                                 Civil appeal from the Fairfield County Court
                                                         of Common Pleas, Case No. 06CV0587

JUDGMENT:                                                Affirmed



DATE OF JUDGMENT ENTRY:                                  November 1, 2012



APPEARANCES:

For Plaintiff-Appellee                                   For Defendants-Appellants

HARRY FINKE                                              MARC DANN
GRAYDON HEAD & RITCHEY LLP                               GRACE DOBERDRUK
1900 Fifth Third Center                                  4600 Prospect Avenue
511 Walnut Street                                        Cleveland, OH 44103
Cincinnati, OH 45202
[Cite as CitiMortgage, Inc. v. Eschbaugh, 2012-Ohio-5140.]


Gwin, P.J.

        {¶1}    Defendants-appellants Keith and Debra Eschbaugh appeal a judgment of

the Court of Common Pleas of Fairfield County, Ohio, which overruled their motion to

vacate the court’s prior judgment entered in favor of plaintiff-appellee CitiMortgage, Inc.

Appellants assign a single error to the trial court:

        {¶2}    “I. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO

DENY APPELLANTS’ 60(B) MOTION TO VACATE WITHOUT HOLDING A HEARING.”

        {¶3}    The record indicates appellee filed its complaint in foreclosure on June 8,

2006. Appellee alleged it is the holder of the Note executed by appellants, but it did not

attach a copy of the note and mortgage to the complaint as required by Civ. R. 10 (D).

On July 26, 2006, appellants filed an answer to the complaint.

        {¶4}    On August 11, 2006, appellee filed a motion for summary judgment,

including an affidavit in support which stated it was the holder of the Note, although

appellee did not attach a copy of the Note to the affidavit. Appellants did not respond to

the motion for summary judgment, but instead, on about October 2006 they filed a

Chapter 13 bankruptcy petition which stayed the foreclosure action. In May 2009, the

bankruptcy court dismissed the Chapter 13 proceeding for failure to comply with the

terms of the plan.

        {¶5}    The trial court restored the foreclosure action to its active docket and

scheduled a new hearing on the pending motion for summary judgment on October 21,

2009. Appellants did not respond to the motion and the trial court entered summary

judgment in appellee’s favor on December 15, 2009. The court ordered the property
Fairfield County, Case No. 2012-CA-21                                                    3


sold at a sheriff’s sale, but on March 31, 2010, appellants filed a second Chapter 13

bankruptcy petition, which again stayed the foreclosure action.

       {¶6}    On January 12, 2012 the bankruptcy court dismissed the Chapter 13

proceeding.     The court returned the foreclosure action to its active docket and

appellants then filed their motion for relief from judgment under Civ. R. 60 (B)(5).

       {¶7}    Civ. R. 60 states:

       (B) Mistakes; inadvertence; excusable neglect; newly discovered evidence;

       fraud; etc

       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. A motion under this subdivision (B) does not affect the finality of

       a judgment or suspend its operation.
Fairfield County, Case No. 2012-CA-21                                                   4


       {¶8}   In order 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 Electric v. ARC Industries, 47 Ohio St.2d 146,

351 N.E.2d 113 (1976), paragraph two of the syllabus. If any of these three

requirements is not met, the motion must be overruled. Svoboda v. Brunswick, 6 Ohio

St.3d 348, 351, 406, 453 N.E.2d 648, 651 (1983).

       {¶9}   The decision to grant or deny a Civ.R. 60(B) motion lies within the sound

discretion of the trial court and will not be reversed on appeal absent an abuse of

discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994). The term

“abuse of discretion” implies that the court's attitude was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). Appellants brought the motion under Civ.R. 60(B)(5), which is not subject to the

one-year limitation. Appellants argued the motion was timely because the matter had

been stayed by the bankruptcy court.

       {¶10} Civ. R. 60(B)(5) applies only when a more specific provision does not

apply. Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983).

Appellants brought their motion under subsection (5), although their brief asserts both

that appellee did not prove standing to bring the action, and also that appellee

perpetrated a fraud on the court by alleging it was the holder of the note when in fact it

did not produce it. Allegations of fraud are properly brought under Civ.R. 60(B)(3), which

is subject to the one-year limitation.
Fairfield County, Case No. 2012-CA-21                                                    5


      {¶11} The trial court addressed the matter only on the law regarding subsection

(5), and we will do likewise. Thus, the question of whether appellants’ motion was timely

is whether it was reasonable under the facts and circumstances of the case. Colley v.

Bazell, 64 Ohio St.2d 243, 249-250, 416 N.E.2d 605 (1980).

      {¶12} The trial court found the motion was untimely. The court noted that unlike

many Civ. R. 60(B) movants, appellants were represented throughout the course of the

action and had filed a timely answer to the complaint. The court found seven months

passed between the dismissal of the first Chapter 13 petition and the court’s entry of

summary judgment against appellants. Another two months had passed after the entry

of judgment before the action was stayed in the second Chapter 13 petition. Appellants

never filed a response to the motion for summary judgment.

      {¶13} We find the trial court did not abuse its discretion in finding the motion was

untimely.

      {¶14} Appellants also argue the court erred in not conducting a hearing before

ruling on their motion. Because the trial court found the motion was untimely, it did not

address the merits of the motion. We find no error herein.

      {¶15} Finally, the trial court noted Civ. R. 60 (B) is not a substitute for a direct

appeal or to challenge the merits of the court’s decision. Blasco v. Mislik, 69 Ohio St. 2d

684, 686, 433 N.E. 2d 612 (1982). The December 15, 2009 summary judgment was a

final appealable order which could have been brought before this court. Appellants do

not argue they are entitled to relief from the judgment because they were unaware or

otherwise unable to perfect a timely appeal. Their second bankruptcy petition was filed
Fairfield County, Case No. 2012-CA-21                                                6


some three one-half months after the entry of the summary judgment, well after the time

for appeal had run.

       {¶16} We find the trial court did not err in determining appellants’ motion

pursuant to Civ. R. 60 (B) was untimely given the particular facts and circumstances of

the case. For this reason, the court did not err in failing to conduct a hearing on the

merits of the motion.

       {¶17} The assignment of error is overruled.

       {¶18} For the foregoing reasons, the judgment of the Court of Common Pleas of

Fairfield County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur




                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. JOHN W. WISE


                                            _________________________________
                                            HON. JULIE A. EDWARDS



WSG:clw 1019
[Cite as CitiMortgage, Inc. v. Eschbaugh, 2012-Ohio-5140.]


             IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


CITIMORTGAGE, INC.                                    :
                                                      :
                            Plaintiff-Appellee        :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
KEITH D. ESCHBAUGH, ET AL                             :
                                                      :
                                                      :
                       Defendant-Appellant            :       CASE NO. 2012-CA-21




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

the Court of Common Pleas of Fairfield County, Ohio, is affirmed. Costs to appellant.




                                                          _________________________________
                                                          HON. W. SCOTT GWIN


                                                          _________________________________
                                                          HON. JOHN W. WISE


                                                          _________________________________
                                                          HON. JULIE A. EDWARDS
