CitiMtge., Inc. v. Fangman

[Cite as CitiMtge., Inc. v. Fangman, 2013-Ohio-3316.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
CITIMORTGAGE, INC., SUCCESSOR :
BY MERGER TO ABN AMRO CASE NO. CA2013-03-020
MORTGAGE GROUP, INC., :
OPINION
Plaintiff-Appellee, : 7/29/2013
:
- vs -
:
ROGER P. FANGMAN, et al., :
Defendants-Appellant. :
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2012 CVE 00169
Graydon Head & Ritchey LLP, Harry J. Finke, IV, 1900 Fifth Third Center, 511 Walnut Street,
Cincinnati, Ohio 45202-3157, for plaintiff-appellee
Doucet & Associates, Inc., Troy J. Doucet, 4200 Regent Street, Suite 200, Columbus, Ohio
43219, for defendant-appellant, Roger P. Fangman
Eric W. Goering, 220 West Third Street, 3rd Floor, Cincinnati, Ohio 45202, for defendant,
Ann F. Fangman
Tabitha M. Hochscheid, 250 East Fifth Street, Suite 1200, Cincinnati, Ohio 45202, for
defendant, Ellenbee Leggett Company
Jackson T. Moyer, 471 East Broad Street, 12th Floor, Columbus, Ohio 43215, for defendant,
Matrix Acquisition
Yale R. Levy, 4645 Executive Drive, Columbus, Ohio 43220, for defendant, Advantage
Assets, II, Inc.
Clermont CA2013-03-020
J.P. Mortgage Chase Bank, 1300 East 9th Street, Suite 1010, Cleveland, Ohio 44114,
defendant
Sysco Food Service of Cincinnati, 10510 Evendale Drive, Cincinnati, Ohio 45241, defendant
Amex Centurion Bank, 100 Vasey Street, 44th Floor, New York, New York 10285, defendant
Citibank, 701 East 60th Street North, Sioux Falls, South Dakota 57104, defendant
M. POWELL, J.
{¶ 1} Defendant-appellant, Roger Fangman, appeals a decision of the Clermont
County Court of Common Pleas granting plaintiff-appellee, CitiMortgage, Inc., a default
judgment in a foreclosure action.
{¶ 2} On January 30, 2012, CitiMortgage filed a foreclosure complaint against
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Fangman and his wife. Fangman did not file an answer to the complaint. CitiMortgage
moved for summary judgment on September 21, and for default judgment on October 5. On
November 1, counsel for Fangman entered an appearance in the case and moved for leave
to file an answer to CitiMortgage's motion for summary judgment out of time. Fangman's
motion for leave was granted by the trial court. On November 21, Fangman filed an answer
to CitiMortgage's motion for summary judgment. The record indicates a summary judgment
hearing was held on December 17.
{¶ 3} On January 21, 2013, Fangman filed a motion for mediation which was denied
by the trial court. On February 8, CitiMortgage once again moved for default judgment.
Fangman was served with a copy of the motion by CitiMortgage via ordinary mail. On
February 19, 2013, the trial court granted CitiMortgage's motion for default judgment, entered
a judgment in favor of CitiMortgage in the amount of $139,701.94, and ordered the sale of
the property.
1. Fangman's wife is not a party to this appeal.
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Clermont CA2013-03-020
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{¶ 4} Fangman now appeals, raising one assignment of error:
{¶ 5} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ENTERED
DEFAULT JUDGMENT AGAINST MR. FANGMAN, HOLDING HE WAS IN DEFAULT OF
MOTION OR ANSWER.
{¶ 6} Fangman argues the trial court abused its discretion in entering a default
judgment in favor of CitiMortgage. Specifically, Fangman argues the trial court entered the
default judgment in violation of the hearing and notification procedures of Civ.R. 55(A).
Fangman also argues the trial court improperly entered the default judgment because by
filing an answer to CitiMortgage's motion for summary judgment, Fangman clearly defended
the foreclosure action under Civ.R. 55(A), and was thus entitled to a judgment on the merits.
{¶ 7} An appellate court reviews a trial court's decision to grant or deny a motion for
default judgment under an abuse of discretion standard. First Horizon Home Loans v. Sims,
12th Dist. Warren No. CA2009-08-117, 2010-Ohio-847, ¶ 11. An abuse of discretion is more
than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary,
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 8} Civ.R. 55(A) provides in pertinent 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.
{¶ 9} "Civ.R. 55(A) clearly requires that before it enters a default judgment against a
defendant who has appeared, a trial court must hold a hearing and provide the defendant
2. This is a direct appeal of the trial court's default judgment. Fangman did not file a Civ.R. 60(B) motion or
otherwise seek relief from that judgment in the trial court.
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with seven days' notice of the hearing on the motion for default judgment." Producers Credit
Corp. v. Voge, 12th Dist. Preble No. CA2002-06-009, 2003-Ohio-1067, ¶ 17; see also
Nieman v. Bunnell Hill Development Co., Inc., 12th Dist. Butler No. CA2002-10-249, 2004-
Ohio-89. "An appearance is ordinarily made when a party comes into court by some overt
act of that party that submits a presentation to the court." Alliance Group, Inc. v. Rosenfield,
115 Ohio App.3d 380, 390 (1st Dist.1996). "If a party or his representative has appeared as
a matter of record in any manner, the notice and hearing required by Civ.R. 55(A) must be
given that party before default judgment can be properly granted." Hartmann v. Ohio Crime
Victims Reparations Fund, 138 Ohio App.3d 235, 238 (10th Dist.2000).
{¶ 10} There is no question that Fangman appeared in the action for purposes of
triggering the seven-day notice requirement of Civ.R. 55(A), since his counsel entered an
appearance in the case and, with leave from the trial court, filed an answer to CitiMortgage's
motion for summary judgment. CitiMortgage concedes Fangman appeared in the case for
purposes of Civ.R. 55(A). However, the record reveals the trial court did not comply with the
hearing and notification procedures of Civ.R. 55(A) before entering a default judgment in
favor of CitiMortgage.
{¶ 11} The certificate of service on CitiMortgage's motion for default judgment stated
only it had served a copy of the motion upon Fangman. It contained no mention of a hearing.
See Plant Equip., Inc. v. Nationwide Control Serv., Inc., 155 Ohio App.3d 46, 2003-Ohio-
5395 (1st Dist.). More importantly, the trial court never provided Fangman with any notice of
the default judgment hearing, and in fact, never actually held such hearing before entering a
default judgment in favor of CitiMortgage. The trial court, therefore, entered a default
judgment against Fangman and in favor of CitiMortgage in violation of Civ.R. 55(A). See
Voge, 2003-Ohio-1067 at ¶ 17.
{¶ 12} "[A] defendant who has appeared in the action is entitled to service of an
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application for default judgment prior to its entry, and where service is required, a default
judgment without service must be vacated or reversed on appeal." AMCA Internatl. Corp. v.
Carlton, 10 Ohio St.3d 88, 91 (1984). Because the trial court's February 19, 2013 entry of
default judgment was in violation of Civ.R. 55(A), we hereby reverse it and remand the matter
for the trial court to hold a hearing and otherwise comply with Civ.R. 55(A) before deciding
whether to enter default judgment in this case. Id. at 92; Voge at ¶ 17.
{¶ 13} We emphasize that nothing in this opinion should be read as relieving Fangman
of his obligation to show why default judgment should not be entered against him. We are
remanding this matter merely because a default judgment cannot be entered against a party
who has appeared in an action without holding a hearing on the application for default
judgment, and without giving that party seven days' notice of the hearing, as required by
Civ.R. 55(A). Nieman, 2004-Ohio-89 at ¶ 26; AMCA at 92, fn. 3.
{¶ 14} In light of our holding, we decline to address Fangman's claim he defended the
foreclosure action under Civ.R. 55(A), and was thus entitled to a judgment on the merits.
The issue of whether Fangman "has otherwise defend[ed]" under Civ.R. 55(A) will be more
appropriately determined by the trial court on remand at the default judgment hearing.
Fangman's assignment of error is sustained to the extent indicated.
{¶ 15} Judgment reversed and cause remanded for further proceedings consistent
with this opinion and in accordance with law.
S. POWELL, P.J., and PIPER, J., concur.
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