Household Realty Corp. v. Cipperley, CASE NO. 12 MA 113

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWAITE
Citation2013 Ohio 4365
Docket NumberCASE NO. 12 MA 113
Decision Date24 September 2013

2013 Ohio 4365


CASE NO. 12 MA 113


Dated: September 24, 2013



Civil Appeal from the County Court #2
of Mahoning County, Ohio
Case No. 09CVF0785

JUDGMENT: Affirmed.


For Plaintiff-Appellee:

Atty. James Oh
Atty. Mark C. Brncik
Atty. Steven Alsip
Javitch, Block & Rathbone, LLC

For Defendant-Appellant:

Atty. Bruce M. Broyles


Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich

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{¶1} Appellant Nancy Cipperley appeals from the denial of her Civ.R. 60(B)(5) motion for relief from judgment after she failed to make payments on her personal line of credit obtained from Appellee Household Realty Corporation ("Household Realty"). Household Realty filed a complaint for the unpaid debt in the Mahoning County Court #2. Appellant failed to answer the complaint or make an appearance. The court awarded Household Realty default judgment. Household Realty later attempted to garnish Appellant's wages, but the garnishment order was denied because Appellant had entered into a consumer counseling program for the repayment of her debts, pursuant to R.C. 2716.03(B). Appellant then filed a motion for relief from judgment on the grounds that Household Realty may have violated R.C. 2716.03(B) by attempting to garnish her wages a second time after she had entered into a debt counseling agreement. The motion was denied.

{¶2} Appellant understands that there are three requirements for granting relief under Civ.R. 60(B)(5): there must be a meritorious defense to the underlying claim, there must be a valid reason for relief under subsection (B)(5), and the motion must be filed within a reasonable time. GTE Automatic Electric, Inc. v. ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). Appellant did not satisfy any of the three requirements. Her alleged defense relates to the garnishment process rather than the underlying judgment, and Ohio law does not allow a judgment debtor to relitigate the original judgment as part of the garnishment proceedings. She also waited two years to file the motion, which is an unreasonable period. Finally, she failed to show that the garnishment or debt counseling statutes entitle her to any type

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of relief. The trial court was correct in denying the motion for relief from judgment, and the judgment is affirmed.

Case History

{¶3} On November 9, 2004, Appellant entered into a credit agreement with Household Realty with a credit limit of $8,000. After Appellant failed to make payments on the line of credit, Household Realty filed a complaint for collection of a debt on July 13, 2009. Appellant failed to answer the complaint or otherwise make an appearance in the action, and default judgment was granted on September 15, 2009, in the amount of $11,837.69, with interest to accrue at the contract rate of 21.25%. No appeal was filed.

{¶4} Appellant subsequently entered into an agreement with GreenPath Debt Solutions, a debt counseling service, to arrange the repayment of her debts. When Household Realty attempted to garnish Appellant's wages on February 22, 2011, she challenged the garnishment on the grounds that she had a legal excuse to avoid garnishment of personal earnings. The matter was heard before a magistrate, and the garnishment order was denied on March 22, 2011, because Appellant was working with a debt counseling service. On November 10, 2011, Appellant filed a Civ.R. 60(B)(5) motion for relief from judgment of the September 15, 2009, default judgment on the grounds that Household Realty had violated the statute governing consumer debt counseling. The motion was heard before a magistrate and denied on February 8, 2012. Appellant filed objections, but her objections were overruled on

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May 15, 2012, and the motion for relief from judgment was denied. Appellant then filed an appeal of the denial of her Civ.R. 60(B)(5) motion.

Law governing Civ.R. 60(B) motions for relief from judgment

{¶5} According to Civ.R. 60(B), a court may relieve a party or 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 Civ.R. 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.

{¶6} Civ.R. 60(B) is a remedial rule to be liberally construed so that the ends of justice may be served. Colley v. Bazell, 64 Ohio St.2d 243, 249, 416 N.E.2d 605 (1980). A trial court's ruling on a Civ.R. 60(B) motion is reviewed only for abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987); Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). Abuse of discretion may be indicated by a ruling that is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

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{¶7} In order to prevail on a motion for relief from judgment pursuant to Civ.R. 60(B), the appellant must demonstrate that: (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 amount of 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 Electric, Inc., supra, 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus. If any of the three GTE Automatic Electric requirements are not met, the motion should be overruled. Volodkevich v. Volodkevich, 35 Ohio St.3d 152, 153, 518 N.E.2d 1208 (1988).

{¶8} For cases arising from Civ.R. 60(B)(5), the motion must be filed within a reasonable time from the date of the judgment being challenged. Adomeit v. Baltimore, 39 Ohio App.2d 97, 106, 316 N.E.2d 469 (8th Dist.1974). In the absence of any justification for the delay in filing a Civ.R. 60(B) motion, the motion to vacate should be denied. CitiMortgage, Inc. v. Fishel, 7th Dist. No. 11 MA 97, 2012-Ohio-4117; Dunn v. Marthers, 9th Dist. No. 05CA008838,...

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