[Cite as CitiMortgage, Inc. v. Eschbaugh, 2012-Ohio-5140.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CITIMORTGAGE, INC. 

 Plaintiff-Appellee 

-vsKEITH D. ESCHBAUGH, ET AL 

 Defendants-Appellants 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. John W. Wise, J. 

: Hon. Julie A. Edwards, J. 

: 

: 

: Case No. 2012-CA-21 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court 

of Common Pleas, Case No. 06CV0587 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: November 1, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

HARRY FINKE MARC DANN 

GRAYDON HEAD & RITCHEY LLP GRACE DOBERDRUK 

1900 Fifth Third Center 4600 Prospect Avenue 

511 Walnut Street Cleveland, OH 44103 

Cincinnati, OH 45202
[Cite as CitiMortgage, Inc. v. Eschbaugh, 2012-Ohio-5140.]

Gwin, P.J. 

{¶1} Defendants-appellants Keith and Debra Eschbaugh appeal a judgment of 

the Court of Common Pleas of Fairfield County, Ohio, which overruled their motion to 

vacate the court’s prior judgment entered in favor of plaintiff-appellee CitiMortgage, Inc. 

Appellants assign a single error to the trial court: 

{¶2} “I. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO 

DENY APPELLANTS’ 60(B) MOTION TO VACATE WITHOUT HOLDING A HEARING.” 

{¶3} The record indicates appellee filed its complaint in foreclosure on June 8, 

2006. Appellee alleged it is the holder of the Note executed by appellants, but it did not 

attach a copy of the note and mortgage to the complaint as required by Civ. R. 10 (D). 

On July 26, 2006, appellants filed an answer to the complaint. 

{¶4} On August 11, 2006, appellee filed a motion for summary judgment, 

including an affidavit in support which stated it was the holder of the Note, although 

appellee did not attach a copy of the Note to the affidavit. Appellants did not respond to 

the motion for summary judgment, but instead, on about October 2006 they filed a 

Chapter 13 bankruptcy petition which stayed the foreclosure action. In May 2009, the 

bankruptcy court dismissed the Chapter 13 proceeding for failure to comply with the 

terms of the plan. 

{¶5} The trial court restored the foreclosure action to its active docket and 

scheduled a new hearing on the pending motion for summary judgment on October 21, 

2009. Appellants did not respond to the motion and the trial court entered summary 

judgment in appellee’s favor on December 15, 2009. The court ordered the property 
Fairfield County, Case No. 2012-CA-21 3 

sold at a sheriff’s sale, but on March 31, 2010, appellants filed a second Chapter 13 

bankruptcy petition, which again stayed the foreclosure action. 

{¶6} On January 12, 2012 the bankruptcy court dismissed the Chapter 13 

proceeding. The court returned the foreclosure action to its active docket and 

appellants then filed their motion for relief from judgment under Civ. R. 60 (B)(5). 

{¶7} Civ. R. 60 states: 

(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; 

fraud; etc 

On motion and upon such terms as are just, the court may relieve a party 

or his 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 Rule 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. The motion shall 

be made within a reasonable time, and for reasons (1), (2) and (3) not 

more than one year after the judgment, order or proceeding was entered 

or taken. A motion under this subdivision (B) does not affect the finality of 

a judgment or suspend its operation. 
Fairfield County, Case No. 2012-CA-21 4 

{¶8} In order to prevail on a motion for relief from judgment pursuant to Civ.R. 

60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement 

to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) 

timeliness of the motion. GTE Automatic Electric v. ARC Industries, 47 Ohio St.2d 146, 

351 N.E.2d 113 (1976), paragraph two of the syllabus. If any of these three 

requirements is not met, the motion must be overruled. Svoboda v. Brunswick, 6 Ohio 

St.3d 348, 351, 406, 453 N.E.2d 648, 651 (1983). 

{¶9} The decision to grant or deny a Civ.R. 60(B) motion lies within the sound 

discretion of the trial court and will not be reversed on appeal absent an abuse of 

discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994). The term 

“abuse of discretion” implies that the court's attitude was unreasonable, arbitrary or 

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983). Appellants brought the motion under Civ.R. 60(B)(5), which is not subject to the 

one-year limitation. Appellants argued the motion was timely because the matter had 

been stayed by the bankruptcy court. 

{¶10} Civ. R. 60(B)(5) applies only when a more specific provision does not 

apply. Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983). 

Appellants brought their motion under subsection (5), although their brief asserts both 

that appellee did not prove standing to bring the action, and also that appellee 

perpetrated a fraud on the court by alleging it was the holder of the note when in fact it 

did not produce it. Allegations of fraud are properly brought under Civ.R. 60(B)(3), which 

is subject to the one-year limitation. 
Fairfield County, Case No. 2012-CA-21 5 

{¶11} The trial court addressed the matter only on the law regarding subsection 

(5), and we will do likewise. Thus, the question of whether appellants’ motion was timely 

is whether it was reasonable under the facts and circumstances of the case. Colley v. 

Bazell, 64 Ohio St.2d 243, 249-250, 416 N.E.2d 605 (1980). 

{¶12} The trial court found the motion was untimely. The court noted that unlike 

many Civ. R. 60(B) movants, appellants were represented throughout the course of the 

action and had filed a timely answer to the complaint. The court found seven months 

passed between the dismissal of the first Chapter 13 petition and the court’s entry of 

summary judgment against appellants. Another two months had passed after the entry 

of judgment before the action was stayed in the second Chapter 13 petition. Appellants 

never filed a response to the motion for summary judgment. 

{¶13} We find the trial court did not abuse its discretion in finding the motion was 

untimely. 

{¶14} Appellants also argue the court erred in not conducting a hearing before 

ruling on their motion. Because the trial court found the motion was untimely, it did not 

address the merits of the motion. We find no error herein. 

{¶15} Finally, the trial court noted Civ. R. 60 (B) is not a substitute for a direct 

appeal or to challenge the merits of the court’s decision. Blasco v. Mislik, 69 Ohio St. 2d 

684, 686, 433 N.E. 2d 612 (1982). The December 15, 2009 summary judgment was a 

final appealable order which could have been brought before this court. Appellants do 

not argue they are entitled to relief from the judgment because they were unaware or 

otherwise unable to perfect a timely appeal. Their second bankruptcy petition was filed 
Fairfield County, Case No. 2012-CA-21 6 

some three one-half months after the entry of the summary judgment, well after the time 

for appeal had run. 

{¶16} We find the trial court did not err in determining appellants’ motion 

pursuant to Civ. R. 60 (B) was untimely given the particular facts and circumstances of 

the case. For this reason, the court did not err in failing to conduct a hearing on the 

merits of the motion. 

{¶17} The assignment of error is overruled. 

{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Fairfield County, Ohio, is affirmed. 

By Gwin, P.J., 

Wise, J., and 

Edwards, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JOHN W. WISE 

 _________________________________ 

 HON. JULIE A. EDWARDS 

WSG:clw 1019
[Cite as CitiMortgage, Inc. v. Eschbaugh, 2012-Ohio-5140.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CITIMORTGAGE, INC. : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

KEITH D. ESCHBAUGH, ET AL : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2012-CA-21 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Court of Common Pleas of Fairfield County, Ohio, is affirmed. Costs to appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JOHN W. WISE 

 _________________________________ 

 HON. JULIE A. EDWARDS