[Cite as Wells Fargo Bank, N.A. v. Deel, 2012-Ohio-3782.]


STATE OF OHIO                    )                          IN THE COURT OF APPEALS
                                 )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

WELLS FARGO BANK, N.A.                                      C.A. No.   25876

        Appellees

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
LORI L. DEEL, et al.                                        COURT OF COMMON PLEAS
                                                            COUNTY OF SUMMIT, OHIO
        Appellants                                          CASE No.   CV 2010 12 8137

                                DECISION AND JOURNAL ENTRY

Dated: August 22, 2012



        CARR, Judge.

        {¶1}    Appellants, John and Lori Deel, appeal the judgment of the Summit County Court

of Common Pleas. This Court affirms.

                                                     I.

        {¶2}    Appellee, Wells Fargo Bank, commenced this action in foreclosure on December

9, 2010, alleging that John and Lori Deel had breached the terms of their promissory note and

mortgage. When the Deels did not respond to the complaint, Wells Fargo filed a motion for

default judgment on February 28, 2011. Subsequently, on March 4, 2011, the trial court granted

default judgment in favor of Wells Fargo and entered a decree in foreclosure.

        {¶3}    On March 31, 2011, the Deels filed a motion to vacate the default judgment

pursuant to Civ.R. 60(B). Less than a week later, on April 4, 2011, the Deels filed a notice of

appeal from the March 4, 2011 judgment. This Court remanded the matter to the trial court to

allow for consideration of the Civ.R. 60(B) motion and stayed the appellate proceedings. After
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this Court extended the length of the remand period on multiple occasions, the trial court issued a

judgment entry denying the motion to vacate. The Deels did not file a notice of appeal from the

judgment denying their motion to vacate.

       {¶4}    On December 12, 2010, the Deels filed a motion in this Court to supplement the

record in the instant appeal, seeking to include all filings in the trial court from March 4, 2011,

through November 8, 2011. Wells Fargo opposed the motion to supplement on the basis that

there was no need to do so because the Deels had not appealed from the judgment entry denying

the motion to vacate. On December 29, 2011, this Court denied the motion, reasoning that “the

requested filings are not part of the current appeal.”

       {¶5}    On appeal, the Deels raise two assignments of error.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED ERROR, PREJUDICIAL TO MR. AND
       MRS. DEEL, BY DENYING THE MOTION TO VACATE DURING THE
       PERIOD WHEN THE MATTER WAS REMANDED BY THIS COURT.

       {¶6}    In their first assignment of error, the Deels argue that the trial court erred by

denying the motion to vacate during the period when the matter was remanded by this Court.

The Deels did not file a timely notice of appeal from the trial court’s order denying their motion

to vacate, and that order is not part of the appellate record. Thus, the Deels’ first assignment of

error falls outside the proper scope of this appeal, and this Court is without jurisdiction to

consider it. App.R. 3(D); see also State v. Samuels, 9th Dist. No. 25283, 2011-Ohio-2631, ¶ 6.

                                 ASSIGNMENT OF ERROR II

       WELLS FARGO DID NOT REQUEST, AND THE TRIAL COURT DID NOT
       CONDUCT, A HEARING AT LEAST SEVEN DAYS AFTER WELLS FARGO
       FILED PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT, REQUIRING
                                                  3


        REVERSAL OF THE MARCH 4, 2011 DECREE OF FORECLOSURE UNDER
        OHIO CIV.R. 55(A).

        {¶7}   In their second assignment of error, the Deels argue that the trial court erred in not

conducting a hearing prior to entering default judgment in favor of Wells Fargo. This Court

disagrees.

        {¶8}   In support of their second assignment of error, the Deels argue the trial court was

required to conduct a hearing prior to granting Wells Fargo’s motion for default judgment

because the Deels made an appearance in this action. Specifically, the Deels contend that Mr.

Deel’s phone call to the law firm that represented Wells Fargo constituted an appearance and

triggered the notice requirement set forth in Civ.R. 55(A). The Deels further argue that they did

not file a responsive pleading because they believed the matter had been settled during the phone

call.

        {¶9}   The proper procedure for holding a party in default is set forth in Civ.R. 55(A),

which provides, in relevant part:

        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 ***[.] If
        the party against whom judgment by default is sought has appeared in the action,
        he (or, if appearing by representative, his representative) shall be served with
        written notice of the application for judgment at least seven days prior to the
        hearing on such application. If, in order to enable the court to enter judgment or
        to carry it into effect, it is necessary to take an account or to determine the amount
        of damages or to establish the truth of any averment by evidence or to make an
        investigation of any other matter, the court may conduct such hearings or order
        such references as it deems necessary and proper and shall when applicable
        accord a right of trial by jury to the parties.

        {¶10} The Ohio Supreme Court has stated that “[i]f the defending party has failed to

appear in the action, a default judgment may be entered without notice.” Ohio Valley Radiology
                                                4


Assoc., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 120 (1986); see also Chuck Oeder,

Inc. v. Bower, 9th Dist. No. 23785, 2007-Ohio-7032, ¶ 13. The high court continued:

       Default, under both pre-Civil Rule decisions and under Civ.R. 55(A), is a clearly
       defined concept. A default judgment is a judgment entered against a defendant
       who has failed to timely plead in response to an affirmative pleading. McCabe v.
       Tom, 35 Ohio App. 73 (6th Dist.1929). As stated by the court in Reese v. Proppe,
       3 Ohio App.3d 103, 105 (8th Dist.1981), “[a] default by a defendant * * * arises
       only when the defendant has failed to contest the allegations raised in the
       complaint and it is thus proper to render a default judgment against the defendant
       as liability has been admitted or ‘confessed’ by the omission of statements
       refuting the plaintiff's claims. * * *” It is only when the party against whom a
       claim is sought fails to contest the opposing party’s allegations by either pleading
       or “otherwise defend[ing]” that a default arises. This rule applies to original
       claims as well as to counterclaims (Civ.R. 55[C]), and is logically consistent with
       the general rule of pleading contained in Civ.R. 8(D), which reads in part that
       “[a]verments in a pleading to which a responsive pleading is required * * * are
       admitted when not denied in the responsive pleading.” Ohio Valley Radiology at
       121.

       {¶11} Thus, this Court must determine whether the Deels “appeared in the action” so as

to trigger the seven-day notice requirement set forth in Civ.R. 55(A). A review of the record

reveals that the trial court did not abuse its discretion in granting Wells Fargo’s motion for

default judgment. The Deels’ argument is predicated on the fact that John Deel’s affidavit

established that he was told by someone who worked at the law firm that represented Wells

Fargo that they did not need to file a response to the complaint. However, the affidavit upon

which the Deels rely in support of their argument was not before the trial court at the time it

ruled on the motion for default judgment on March 4, 2011. John Deel swore to the contents of

his affidavit on March 23, 2011, and the affidavit was filed as an attachment to the motion to

vacate judgment that was filed on March 31, 2011. “This Court will not conclude that the trial

court abused its discretion based upon evidence that the trial court could not have considered.”

Neighbor v. Jones, 9th Dist. No. 25050, 2010-Ohio-3003, ¶ 42. While this Court is mindful of

the grave consequences of foreclosure cases and sympathetic to the Deels’ argument, we
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recognize that the trial court could only consider the evidence before it at the time it entered

judgment. As the affidavit upon which the Deels rely in support of their assignment of error was

not before the trial court at the time the trial court entered default judgment, the second

assignment of error is overruled.

                                                III.

       {¶12} The first and second assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT
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WHITMORE, P. J.
MOORE, J.
CONCUR.

APPEARANCES:

SIDNEY N. FREEMAN, Attorney at Law, for Appellants.

ANNA MARIE SFERRA, NELSON M. REID and VLADIMIR P. BELO, Attorneys at Law, for
Appellees.
