Household Realty Corp. v. Cipperley
| Decision Date | 24 September 2013 |
| Docket Number | CASE NO. 12 MA 113 |
| Citation | 2013 Ohio 4365 |
| Parties | HOUSEHOLD REALTY CORP. PLAINTIFF-APPELLEE v. NANCY CIPPERLEY DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee:
Atty. James Oh
Atty. Mark C. Brncik
Atty. Steven Alsip
Javitch, Block & Rathbone, LLC
For Defendant-Appellant:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
{¶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 typeof relief. The trial court was correct in denying the motion for relief from judgment, and the judgment is affirmed.
{¶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 onMay 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).
{¶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, 2006-Ohio-4923. Delays as short as three or four months have been held to be unreasonable when no justifiable reason is given for the delay. Mount Olive Baptist Church v. Pipkins Paints, 64 Ohio App.2d 285, 413 N.E.2d 850 (8th Dist.1979) (); Bolinger v. Lake County Sheriff's Dept., 11th Dist. No. 12-053, 1987 WL 18003 (Sept. 30, 1987) (). Whether the motion is filed in areasonable time depends on the facts and circumstances of the case. LaSalle Bank Natl. Assn. v. Smith, 7th Dist. No. 11 MA 85, 2012-Ohio-4040, ¶38.
{¶9} Civ.R. 60(B)(5) is considered a "catch-all provision," that "reflect[s] the inherent power of a court to relieve a person from the unjust operation of a judgment." Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph one of the syllabus. The grounds for invoking Civ.R. 60(B)(5) must be substantial, and this subsection cannot be used as a substitute for any of the more specific provisions of Civ.R. 60(B). Id. at paragraphs one and two of the syllabus. Civ.R. 60(B)(5) relief is to be granted only in unusual or extraordinary circumstances, and will not operate to relieve a party who "ignores its duty to take legal steps to protect its interest." Mount Olive Baptist Church v. Pipkins Paints, supra, 64 Ohio App.2d at 288.
The trial court erred in denying the objections to Magistrate's Decision and adopting the Decision which denied the Appellant's motion for relief from judgment.
{¶10} Appellant asserts that she satisfied the requirements of GTE Automatic Electric, Inc., and that the trial court should have granted her Civ.R. 60(B)(5) motion. Before proceeding with the arguments presented in Appellant's brief on appeal, we note that Appellant's counsel argued at oral argument that the trial court should have granted relief under Civ.R. 60(B)(4), even though this subsection was not invoked in her motion for relief from judgment. Appellant's counsel later conceded that anyargument regarding Civ.R. 60(B)(4) was waived and that the trial court was correct in denying the motion because it was filed under the wrong subsection. Civ.R. 60(B)(4) allows for relief from judgment when: "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." Civ.R. 60(B)(5), on the other hand, is the generic catch-all provision for relief from judgment and cannot be used as a substitute for any of the more specific subsections of the rule. Caruso-Ciresi, Inc., supra, at paragraph one of the syllabus. Despite counsel's concessions at oral argument, Appellant's motion for relief from judgment did raise at least one matter that is more properly resolved under Civ.R. 60(B)(5), i.e., whether irregularities in garnishment proceedings may justify relief from judgment. Therefore, we will examine the arguments relating to Civ.R. 60(B)(5).
{¶11} Appellant first contends that she presented a meritorious defense to the judgment because she had a potential setoff to the judgment arising from Household Realty's misuse of the garnishment process. This argument does not present a meritorious defense to the underlying judgment,...
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