[Cite as Provident Funding Assocs., LP v. Ettayem, 2013-Ohio-5275.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


PROVIDENT FUNDING                                    :    JUDGES:
ASSOCIATES, LP                                       :
                                                     :
                                                     :    Hon. Sheila G. Farmer, P.J.
       Plaintiff-Appellee                            :    Hon. John W. Wise, J.
                                                     :    Hon. Patricia A. Delaney, J.
-vs-                                                 :
                                                     :    Case No. 13 CAE 04 0037
                                                     :
ASHRAF A. ETTAYEM, ET AL.                            :
                                                     :
                                                     :
       Defendant-Appellant                           :    OPINION


CHARACTER OF PROCEEDING:                                  Appeal from the Delaware County Court
                                                          of Common Pleas, Case No. 12 CV E
                                                          09 1118



JUDGMENT:                                                 AFFIRMED




DATE OF JUDGMENT ENTRY:                                   November 19, 2013




APPEARANCES:

For Plaintiff-Appellee:                                   For Defendant-Appellant:

SARAH A. OKRZYNSKI                                        MATTHEW J. RODA
P.O. Box 18638                                            522 North State Street
Erlanger, KY 41018                                        Westerville, OH 43082
Delaware County, Case No.13 CAE 04 0037                                               2



Delaney, J.

       {¶1} Defendant-Appellant Ashraf A. Ettayem appeals the April 1, 2013

judgment entry of the Delaware County Court of Common Pleas.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On August 9, 2006, Defendant-Appellant Ashraf A. Ettayem executed a

Note with PFG Loans, Inc. a dba Provident Funding Group, Inc. in the amount of

$340,000.     The note was secured by a Mortgage on his residence located in

Westerville, Ohio.

       {¶3} On September 24, 2012, Plaintiff-Appellee Provident Funding Associates,

LP, the holder of the Note and Mortgage, filed a complaint in foreclosure against Ashraf

A. Ettayem, Natasha A. Ettayem, Eastman Savings and Loan Association, Wesbanco

Bank, Inc., PNC Bank, NA, and State of Ohio Department of Taxation. The complaint

alleged Ashraf A. Ettayem defaulted on the terms of the Note, owing $311,110.32

together with interest at the rate of 3.000% per annum, from March 1, 2012 until the

loan was fully repaid.

       {¶4} Service of the summons and copy of the complaint was attempted by

certified mail upon Ashraf Ettayem and Natasha A. Ettayem at the residence located in

Westerville, Ohio on October 2, 2012, October 9, 2012, and November 26, 2012. On

November 2, 2012, the certified mail was returned to the Delaware County Clerk of

Courts marked “unclaimed.” Pursuant to Civ.R. 4.6(D), service was made upon Ashraf

Ettayem by ordinary mail on December 3, 2012 at the residence located in Westerville,

Ohio. The answer to the complaint was due December 31, 2012.
Delaware County, Case No.13 CAE 04 0037                                               3


       {¶5} Eastman Savings and Loan Association was served by certified mail on

December 5, 2012. Wesbanco Bank, Inc. was served by certified mail on September

27, 2012. PNC Bank, NA was served by certified mail on September 26, 2012. State of

Ohio Department of Taxation was served by certified mail on September 27, 2012.

       {¶6} State of Ohio Department of Taxation filed its Disclaimer of Interest on

January 11, 2013.

       {¶7} On January 16, 2013, Ashraf Ettayem filed a Motion for Leave to Plead

Beyond Answer Deadline.        In the motion, Ettayem stated he obtained counsel on

January 15, 2013 and requested leave to file an answer by February 15, 2013. In his

original motion for leave to plead, Ettayem did not allege excusable neglect pursuant to

Civ.R. 6(B) as basis for his failure to timely answer the complaint.

       {¶8} On January 18, 2013, Provident Funding filed a Motion for Default

Judgment.    Provident Funding moved for default judgment against Ashraf Ettayem,

Natasha Ettayem, Eastman Savings and Loan Association, Wesbanco Bank, Inc., PNC

Bank, NA, and State of Ohio Department of Taxation for their failure to file an answer

after service of the complaint in foreclosure.

       {¶9} Wesbanco Bank, Inc. filed a stipulated extension of time to file an answer

to the complaint in foreclosure on January 28, 2013. The answer was simultaneously

filed on January 28, 2013.

       {¶10} On February 12, 2013, the trial court denied Ashraf Ettayem’s motion for

leave to plead.     The trial court stated the motion failed to assert or demonstrate

excusable neglect pursuant to Civ.R. 6(B).
Delaware County, Case No.13 CAE 04 0037                                                   4


       {¶11} Ashraf Ettayem filed a motion for reconsideration of the denial for leave to

plead on February 15, 2013. In his motion for reconsideration, Ettayem argued his

failure to timely answer the complaint was based on excusable neglect.             Ettayem

attached his affidavit to the motion for reconsideration. He averred in the motion he did

not receive notice of the complaint until January 3, 2013. He stated that due to marital

difficulties, he did not reside at the Westerville residence for most of 2012 and he did

not regularly receive correspondence mailed to the Westerville residence. His wife, who

stayed at the Westerville residence, was out of the state from December 15, 2012 to

December 30, 2012. He did not come back to the Westerville residence until December

30, 2012. On January 3, 2013, he discovered the complaint in his unopened mail. He

obtained an attorney on January 7, 2013.

       {¶12} The trial court ruled on the motion for reconsideration and motion for

default judgment on April 1, 2013. The trial court stated that taking into consideration all

of the surrounding facts and circumstances, it did not consider Ashraf Ettayem’s failure

to answer the complaint in foreclosure on or before December 31, 2012 was excusable

neglect. It denied the motion for reconsideration and granted default judgment in favor

of Provident Funding.

       {¶13} It is from this decision Ashraf Ettayem now appeals.

                              ASSIGNMENTS OF ERROR

       {¶14} Ettayem raises three Assignments of Error:

       {¶15} ‘I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

MOTION OF DEFENDANT, ASHRAF A. ETTAYEM, FOR RECONSIDERATION OF

JUDGMENT ENTRY DENYING LEAVE TO PLEAD FOR THE REASON THAT THE
Delaware County, Case No.13 CAE 04 0037                                             5


COURT     HAD    UNREASONABLY        AND        ARBITRARILY   DENIED    DEFENDANT

OPPORTUNITY       TO    ANSWER      THE      COMPLAINT    DESPITE      RECOGNIZING

RESPONSES FILED BY OTHER DEFENDANTS THAT WERE MORE TARDY THAN

APPELLANT’S AND DONE WITHOUT LEAVE OF COURT.

      {¶16} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

MOTION OF DEFENDANT, ASHRAF A. ETTAYEM, FOR RECONSIDERATION OF

JUDGMENT DENYING LEAVE TO PLEAD FOR THE REASON THAT DEFENDANT

HAD SATISFIED THE REQUIREMENTS OF CIV.R. 6(B).

      {¶17} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN RENDERING

DEFAULT JUDGMENT AND JUDGMENT ENTRY DECREE IN FORECLOSURE,

AGAINST DEFENDANT, ASHRAF A. ETTAYEM.”

                                     ANALYSIS

                                          I., II.

      {¶18} We consider Ettayem’s first and second Assignments of Error together

because they require interrelated analysis. Ettayem argues that considering the total

circumstances and the procedural history of the case, the trial court abused its

discretion when it denied his motion for reconsideration for leave to plead to the

complaint in foreclosure. We disagree.

                                 Time under Civ.R. 6

      {¶19} Service by certified mail of the complaint in foreclosure upon Ettayem

failed. At the request of Provident Funding and pursuant to Civ.R. 4.6(D), service was

made upon Ettayem by ordinary mail. The certificate of mailing was completed and filed

by the clerk of courts on December 3, 2012. The ordinary mail envelopes were not
Delaware County, Case No.13 CAE 04 0037                                                   6


returned by the postal authorities with an endorsement showing failure of delivery.

According to Civ.R. 4.6(D), “[a]nswer day shall be twenty-eight days after the date of

mailing as evidenced by the certificate of mailing.” See also Civ.R. 12(A)(I). Ettayem’s

answer date was December 31, 2012.

       {¶20} On January 16, 2013, Ettayem filed a motion for leave to plead. Ettayem

did not allege Civ.R. 6(B) in his motion for leave to plead. After the denial of the motion

for leave to plead, Ettayem raised Civ.R. 6(B) as the basis for the trial court to grant his

motion for reconsideration of the motion for leave to plead.

       {¶21} Civ.R. 6(B) governs the trial court’s discretion to allow a party to file an

answer out of time:

       When by these rules or by a notice given thereunder or by order of court

       an act is required or allowed to be done at or within a specified time, the

       court for cause shown may at any time in its discretion (1) with or without

       motion or notice order the period enlarged if request therefor is made

       before the expiration of the period originally prescribed or as extended by

       a previous order, or (2) upon motion made after the expiration of the

       specified period permit the act to be done where the failure to act was the

       result of excusable neglect; but it may not extend the time for taking any

       action under Civ.R. 50(B), Civ.R. 59(B), Civ.R. 59(D), and Civ.R. 60(B),

       except to the extent and under the conditions stated in them.

       {¶22} A trial court's decision on whether a party's neglect was excusable may

not be reversed absent an abuse of discretion. Grilli v. Smith, 5th Dist. Fairfield No.

2012-CA-12, 2012-Ohio-6146, ¶ 43 citing Marion Prod. Credit Association v. Cochran,
Delaware County, Case No.13 CAE 04 0037                                                  7


40 Ohio St.3d 265, 271, 533 N.E.2d 325 (1988). The Supreme Court has frequently

defined the term abuse of discretion as showing the court's attitude is unreasonable,

arbitrary, or unconscionable. See, e.g., Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983).

                         Excusable Neglect under Civ.R. 6(B)(2)

       {¶23} The trial court has discretion to grant leave to file an untimely answer.

That discretion is limited, however, by the determination of whether the neglect for

failure to file a timely answer was excusable or inexcusable. Miller v. Lint, 62 Ohio

St.2d 209, 214, 404 N.E.2d 752 (1980). “Although excusable neglect cannot be defined

in the abstract, the test for excusable neglect under Civ.R. 6(B)(2) is less stringent than

that applied under Civ.R. 60(B).”    State ex rel. Lindenschmidt v. Butler Cty. Bd. of

Commrs., 72 Ohio St.3d 464, 466, 650 N.E.2d 1343 (1995). “’Neglect under Civ.R.

6(B)(2) has been described as conduct that falls substantially below what is reasonable

under the circumstances.’ Davis v. Immediate Medical Services, Inc., 80 Ohio St.3d 10,

14, 684 N.E.2d 292, 1997–Ohio–363.           ‘The determination of whether neglect is

excusable or inexcusable must take into consideration all the surrounding facts and

circumstances, and courts must be mindful of the admonition that cases should be

decided on their merits, where possible, rather than procedural grounds.’ State ex rel.

Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 466, 650 N.E.2d 1343,

1995-Ohio-49, citing Marion Production Credit Assn. v. Cochran (1988), 40 Ohio St.3d

265, 271, 533 N.E.2d 325.” Ihenacho v. Ohio Inst. of Photography & Technology, 2nd

Dist. Montgomery No. 24191, 2011-Ohio-3730, ¶ 19.
Delaware County, Case No.13 CAE 04 0037                                              8


                   Ettayem’s Excusable Neglect under Civ.R. 6(B)(2)

       {¶24} Ettayem argues it was excusable neglect that he failed to timely answer

the complaint in foreclosure.    His affidavit stated he did not receive notice of the

complaint until January 3, 2013. He stated that due to marital difficulties, he did not

reside at the Westerville residence for most of 2012 and he did not regularly receive

correspondence mailed to the Westerville residence.         His wife, who stayed at the

Westerville residence, was out of the state from December 15, 2012 to December 30,

2012. He did not come back to the Westerville residence until December 30, 2012. On

January 3, 2013, he discovered the complaint in his unopened mail. He obtained an

attorney on January 7, 2013.

       {¶25} Provident Funding filed a complaint in foreclosure on September 24, 2012

based on Ettayem’s default under the terms of the Note and Mortgage encumbering the

Westerville residence. The complaint in foreclosure was served by certified mail at the

Westerville residence on October 2, 2012, October 9, 2012, and November 26, 2012.

When certified mail failed, Provident Funding served the complaint by ordinary mail to

the Westerville residence on December 3, 2012.

       {¶26} Ettayem filed the original motion for leave to plead on January 16, 2013.

The original motion inarguably failed to meet the requirements of Civ.R. 6(B)(2) and

made no argument that Ettayem’s failure to answer was based on excusable neglect.

The trial court denied the motion on that basis on February 12, 2013.         Provident

Funding filed its motion for default judgment on January 18, 2013. Ettayem filed his

motion for reconsideration on February 15, 2013, where he raised Civ.R. 6(B)(2). The

trial court denied the motion for reconsideration on April 1, 2013.
Delaware County, Case No.13 CAE 04 0037                                              9


       {¶27} The trial court held Ettayem’s conduct was not excusable neglect. The

court held:

              Defendant Ashraf Ettayem’s mail was accessible to his wife who

       continued to reside in the residence while they were separated. She was

       residing there when the certified mail from the Clerk of Court was

       “unclaimed” on three separate occasions and when the ordinary mail from

       the same Clerk of Courts was served on or about December 3, 2012 (i.e.

       she was in California from December 15, 2012 until December 30, 2012).

       He entrusted the responsibility of his mail to her, otherwise he would have

       had it forwarded to a separate mailing address at which he could assume

       complete responsibility.    The Defendant has admitted carelessness,

       neglect, disregard and/or lack of attention to his mail “for most of 2012”

       and in particular for the time of September 24, 2012 through January 3,

       2013, when he finally decided to “[sit] down to go through his mail.”

(Judgment Entry, April 1, 2013).

       {¶28} Ettayem states the facts of this case are similar to those in Yoakam v.

Boyd, 6th Dist. No. OT-08-012, 2009-Ohio-395. In that case, an out-of-state defendant

was served with a complaint on July 23, 2007. The defendant was required to file an

answer on or before August 21, 2007. The plaintiff filed a motion for default judgment

on August 27, 2007. The out-of-state defendant filed a motion for leave to plead on

August 29, 2007. The trial court granted the motion for default judgment without ruling

on the defendant’s motion for leave to plead. Id. at ¶ 11.
Delaware County, Case No.13 CAE 04 0037                                                 10


       {¶29} The defendant appealed the trial court’s decision to grant the motion for

default judgment. The Sixth District Court of Appeals reversed the trial court’s decision.

It found that under the circumstances of the case, the trial court abused its discretion in

granting the motion for default judgment while the defendant’s motion for leave to

answer was pending. Id. at ¶ 12. It stated the trial court did not consider whether the

defendant established excusable neglect before ruling on the motion for default

judgment. It reversed the judgment of the trial court and remanded the matter to the

trial court for further consideration. Id. at ¶ 12, 15.

       {¶30} In Everbank v. Vanarnhem, 3rd Dist. Union No. 14-13-02, 2013-Ohio-

3872, the court found a defendant’s argument that his pre-existing chronic illness

prevented him from finding an attorney and filing an answer after eight months, among

other circumstances, did not constitute excusable neglect. The court held that sudden

illness can constitute excusable neglect because it is by definition unanticipated and

may prevent a party from timely responding. Id. at ¶ 21, 22. “A party suffering from a

pre-existing, chronic illness, on the other hand, knows about the condition and must

account for it when responding to the pleadings.” Id.

       {¶31} We find the holding in Everbank to be somewhat analogous to the present

case. Ettayem’s argues his failure to collect his mail for at least a year was excusable

neglect. The basis of this foreclosure action is Ettayem’s alleged default under the

terms of the Note and Mortgage on his Westerville residence. Ettayem admitted he did

not check his mail for a year because he left his Westerville residence, while his wife

continued to reside at the home. Ettayem made no allegation he was prevented from

obtaining his mail due to unanticipated circumstances.
Delaware County, Case No.13 CAE 04 0037                                               11

       {¶32} This case can be differentiated from Yoakam v. Boyd. In that case, the

trial court granted default judgment without considering the defendant’s motion for leave

to plead. In the present case, the trial court considered both Ettayem’s motion for leave

to plead and Ettayem’s motion for reconsideration. Ettayem’s original motion for leave

to plead was denied based on his failure to allege excusable neglect pursuant to Civ.R.

6(B)(2).   The motion for reconsideration, alleging excusable neglect, was filed after

Provident Funding filed its motion for default judgment. The trial court considered the

motion and attached evidentiary material and found no excusable neglect. We can find

no abuse of discretion for the trial court to determine, under the circumstances, there

was no excusable neglect.

       {¶33} Ettayem argues the trial court’s decision to deny the motion for leave to

plead was an abuse of discretion based on the procedural history of the case. He

states the trial court permitted the State of Ohio Department of Taxation to file its

disclaimer of interest and Wesbanco Bank, Inc. to file its stipulated answer in January

2013, without leave of court. The answer of Wesbanco Bank, Inc. declared its interest

in the Westerville residence. The answers of those parties established a priority of

interests in the Westerville residence.

       {¶34} The trial court rules on those matters presented to it. In this case, the

issue presented to the trial court was Ettayem’s motion for leave to plead and motion for

reconsideration of the denial for leave to plead.

       {¶35} We find no abuse of discretion for the trial court to deny Ettayem’s motion

for leave to plead and motion for reconsideration.         Ettayem’s first and second

Assignments of Error are overruled.
Delaware County, Case No.13 CAE 04 0037                                                   12

                                             III.

       {¶36} Ettayem argues in his third Assignment of Error the trial court erred when

it granted default judgment in favor of Provident Funding.

       {¶37} A trial court's decision to grant or deny a motion for default judgment is

reviewed for an abuse of discretion. Queen v. Hanna, 2012-Ohio-6291, 985 N.E.2d

929, ¶ 20 (4th Dist.) citing Dye v. Smith, 189 Ohio App.3d 116, 2010–Ohio–3539, 937

N.E.2d 628, ¶ 7 (4th Dist.).        Civ.R. 55(A) states, “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; * * *.”

       {¶38} Based on our decision on the first and second Assignments of Error, we

find no abuse of discretion for the trial court’s decision to grant default judgment in favor

of Provident Funding.

       {¶39} Ettayem’s third Assignment of Error is overruled.
Delaware County, Case No.13 CAE 04 0037                                         13


                                  CONCLUSION

      {¶40} The three Assignments of Error of Defendant-Appellant Ashraf A. Ettayem

are overruled.

      {¶41} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.,

Farmer, P.J. and

Wise, J., concur.



                                     HON. PATRICIA A. DELANEY




                                     HON. SHEILA G. FARMER



                                     HON. JOHN W. WISE
