[Cite as Community Natl. Bank v. Parsons, 2013-Ohio-2383.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

COMMUNITY NATIONAL BANK, 

 PLAINTIFF-APPELLEE, 

 CASE NO. 8-11-15 

 v. 

GRANT R. PARSONS, 

 DEFENDANT-APPELLANT, 

 -and- O P I N I O N 

DENISE PARSONS, ET AL., 

 DEFENDANTS-APPELLEES. 

 

Appeal from Logan County Common Pleas Court 

Trial Court No. CV 09 07 0380 

Judgment Affirmed 

Date of Decision: June 10, 2013 

 

APPEARANCES: 

 

D. Jeffrey Ireland and Andrew J. Reitz for Appellant 

John D. Smith and Andrew P. Meier for Appellee Community 

National Bank 
Case No. 8-11-15 

-2- 

PRESTON, P.J. 

{¶1} Defendant-appellant, Grant R. Parsons,1

 appeals the Logan County 

Court of Common Pleas’ judgment denying his motion for relief from the trial 

court’s judgment entry and decree of foreclosure. For the reasons that follow, we 

affirm. 

{¶2} On July 17, 2006, Mr. Parsons and his wife, Denise Parsons, executed 

an adjustable rate note with plaintiff-appellee, Community National Bank2

 (“the 

Bank”), for a loan in the amount of $126,000.00 plus interest at a yearly rate of 

7.00%. (Complaint, Doc. No. 1, Ex. A); (JE, Doc. No. 52). To secure payment of 

the adjustable rate note, the Parsons executed an open-end mortgage, dated July 

17, 2006, against the real property at 7498 Dunns Pond Circle, Russells Point, 

Ohio. (Id., Ex. B); (Id.). On August 23, 2006, the open-end mortgage was 

recorded with the Logan County Recorder at Book 840, Page 127. (Doc. No. 1, 

Ex. B). 

{¶3} The Parsons defaulted on the adjustable rate note and open-end 

mortgage by failing to make payments. (Chartrand Aff. at ¶ 2-4, Doc. No. 66, 

 

1

 The parties’ briefs refer to Mr. Parsons and his wife, Denise Parsons, as appellants; however, the notice of 

appeal in this case states, “Notice is hereby given that Grant R. Parsons appeals to the Court of Appeals * * 

*.” (Doc. No. 76). App.R. 3(D) states that the “notice of appeal shall specify the party or parties taking the 

appeal * * *.” Here, the notice of appeal does not specify Mrs. Parsons as a party taking the appeal. 

Therefore, Mr. Parsons is the sole appellant. Green v. Helms, 9th Dist. No. 26371, 2013-Ohio-2075, ¶ 5 

(holding that husband was the sole appellant where only he signed and submitted the notice of appeal, 

which stated, “Now comes Joel Helms giving notice of appeal * * *.”). 

2

 The record reflects that at some point after Community National Bank filed the underlying lawsuit, 

National Bank and Trust Company became the successor in interest to Community National Bank. 

(Hoffman Aff. at ¶ 2, Doc. No. 66, attached). 
Case No. 8-11-15 

-3- 

attached); (Doc. No. 52). On July 14, 2009, the Bank filed a complaint in 

foreclosure against the Parsons, Champaign National Bank, and the Logan County 

Treasurer relative to the property at 7498 Dunns Pond Circle. (Doc. No. 1). On 

August 7, 2009, the Parsons filed their answer. (Doc. No. 19). The Bank filed a 

motion for summary judgment on August 21, 2009, arguing it was entitled to 

foreclose as a matter of law against the Parsons. (Doc. No. 20). 

{¶4} After the trial court scheduled and, at the request of the parties, 

continued a hearing on the Bank’s motion for summary judgment, the trial court 

stayed the case on February 4, 2010 because Mr. Parsons filed Chapter 13 

bankruptcy. (JE, Doc. No. 29); (JE, Doc. No. 32). The trial court reactivated the 

case on December 10, 2010, following the dismissal of Mr. Parsons’ bankruptcy 

proceeding. (JE, Doc. No. 36). 

{¶5} On March 14, 2011, the trial court held a hearing on the Bank’s 

previously filed motion for summary judgment. (JE, Doc. No. 45). The Parsons 

were represented by counsel at the hearing, but they failed to respond to or to 

request leave to respond to the Bank’s motion for summary judgment. (Id.); (JE, 

Doc. No. 72). The trial court granted the Bank’s motion for summary judgment 

on March 15, 2011. (Doc. No. 45). After the Bank filed the final judicial report 

and affidavit confirming the Parsons were not on active military duty, the trial 
Case No. 8-11-15 

-4- 

court filed a judgment entry and decree of foreclosure on May 27, 2011. (Doc. 

No. 52). 

{¶6} On May 31, 2011, Mr. Parsons, acting pro se, filed a Civ.R. 60(B) 

motion for relief from the judgment entry and decree of foreclosure and a motion 

to stay. (Doc. Nos. 57, 61); (Doc. No. 56). Also on May 31, 2011, the Parsons, 

acting pro se, filed a notice of appeal of the judgment entry and decree of 

foreclosure. (Doc. No. 62). On July 7, 2011, the Bank filed a response to Mr. 

Parsons’ motion for relief from judgment. (Doc. No. 66). The trial court held a 

hearing the next day on Mr. Parsons’ motion for relief from judgment. (Tr. at 2-

4). At the hearing, the Bank and Mr. Parsons were represented by counsel. (Id. at 

3). 

{¶7} In a judgment entry dated July 12, 2011, the trial court concluded that 

it did not have jurisdiction to entertain Mr. Parsons’ motion for relief from 

judgment while the case was on appeal to this Court. (Doc. No. 68). On July 22, 

2011, upon motion of Mr. Parsons, we dismissed that appeal and remanded to the 

trial court. (Doc. No. 71). 

{¶8} On July 28, 2011, the trial court issued the judgment entry denying 

Mr. Parsons’ motion for relief from judgment, concluding “there is no meritorious 
Case No. 8-11-15 

-5- 

defense.” (Doc. No. 72). Mr. Parsons filed his notice of appeal on August 23, 

2011.3

 (Doc. No. 76). He raises two assignments of error for our review. 

Assignment of Error No. I 

The trial court erred by denying the Rule 60(B) Motion for 

Relief from Judgment filed by the Defendants-Appellants Grant 

and Denise Parsons [sic]. (Judgment Entry, Filed July 28, 2011). 

{¶9} In his first assignment of error, Mr. Parsons argues that the trial court 

erred in denying his Civ.R. 60(B) motion for relief from judgment because, 

according to Mr. Parsons, his motion established a meritorious defense. 

Specifically, he argues that he was required only to allege, not prove, a meritorious 

defense, and that he presented facts supporting meritorious defenses—that the 

Bank released the mortgage and incorrectly applied the Parsons’ payments. 

{¶10} Civ.R. 60(B) sets forth the bases upon which a court may relieve a 

party from judgment and provides, in pertinent part: 

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 

 

3

 On October 26, 2011, we stayed this appeal following the Parsons filing a petition in the United States 

Bankruptcy Court, Southern District of Ohio, bearing Case No. 3:11-bk35582. On August 20, 2012, 

following the dismissal of the Parsons’ bankruptcy proceeding, we vacated the stay and issued a scheduling 

order setting forth the time in which to file the merit briefs. 
Case No. 8-11-15 

-6- 

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. 

In order to prevail on a motion brought pursuant to Civ.R. 60(B), 

the movant 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 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 Elec., Inc. v. ARC Industries, Inc., 

47 Ohio St.2d 146 (1976), paragraph two of the syllabus. 
Case No. 8-11-15 

-7- 

“These requirements are independent and in the conjunctive; thus the test is not 

fulfilled if any one of the requirements is not met.” Bish Constr., Inc. v. Wickham, 

3d Dist. No. 13-12-16, 2013-Ohio-421, ¶ 15. 

{¶11} “A motion for relief from judgment under Civ.R. 60(B) is addressed 

to the sound discretion of the trial court, and that court’s ruling will not be 

disturbed on appeal absent a showing of abuse of discretion.” Griffey v. Rajan, 33 

Ohio St.3d 75, 77 (1987). An abuse of discretion constitutes more than an error 

of judgment; rather, it implies that the trial court acted unreasonably, arbitrarily, or 

unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶12} Here, the Bank concedes that Mr. Parsons timely filed his Civ.R. 

60(B) motion. (Appellee’s Brief at 5-6). The Bank is silent as to whether it 

believes Mr. Parsons demonstrated that he was entitled to relief under one of the 

grounds stated in Civ.R. 60(B)(1) through (5). The Bank does, however, dispute 

Mr. Parsons’ argument that he alleged meritorious defenses. 

{¶13} To demonstrate a meritorious defense under Civ.R. 60(B), the 

moving party “must allege supporting operative facts with enough specificity to 

allow the trial court to decide that the movant has a defense he could have 

successfully argued at trial.” Wells Fargo Bank, N.A. v. Dombroski, 10th Dist. 

No. 12AP-331, 2012-Ohio-5858, ¶ 7 (citations and internal quotation marks 

omitted). “Ultimately, a proffered defense is meritorious if it is not a sham and 
Case No. 8-11-15 

-8- 

when, if true, it states a defense in part, or in whole, to the claims for relief set 

forth in the complaint.” Citizens Bank Co. v. Keffer, 4th Dist. No. 12CA17, 2013-

Ohio-245, ¶ 13 (citations and internal quotation marks omitted). 

{¶14} Mr. Parsons argues that his Civ.R. 60(B) motion presented two 

meritorious defenses—namely, that the Bank released the mortgage upon which 

the Bank foreclosed, and that the Bank misapplied payments in the form of checks 

written by Mr. Parsons and a federal bankruptcy trustee as part of Mr. Parsons’ 

Chapter 13 Bankruptcy Plan. The trial court did not abuse its discretion in finding 

neither defense meritorious. 

{¶15} The existence of a valid mortgage is a prerequisite to foreclosure. 

Chase Home Fin., L.L.C. v. Heft, 3d Dist. Nos. 8-10-14 and 8-11-16, 2012-Ohio876, ¶ 25. Thus, the lack of a valid mortgage—whether by satisfaction, release, or 

otherwise—serves as a meritorious defense in a foreclosure action. See Bank of 

Am. v. Kuchta, 9 Dist. No. 12CA0025-M, 2012-Ohio-5562, ¶ 12, 15, citing Fed. 

Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. 

{¶16} Our review of the record shows that Mr. Parsons presented nothing 

to the trial court suggesting that the Bank released the foreclosed-upon mortgage. 

Attached to Mr. Parsons’ affidavit supporting his Civ.R. 60(B) motion was a copy 

of a cancelled and released mortgage. (G. Parsons Aff., Doc. No. 61, attached). 

That mortgage was originally recorded on August 23, 2006 with the Logan County 
Case No. 8-11-15 

-9- 

Recorder at Book 840, Page 116. (Id.). The Bank cancelled and released that 

mortgage on November 24, 2007 and recorded the cancellation on November 30, 

2007 with the Logan County Recorder. (Id.) 

{¶17} The mortgage serving as the basis for the underlying foreclosure, 

however, was recorded on August 23, 2006 with the Logan County Recorder at 

Book 840, Page 127. (Doc. No. 1, Ex. B). Simply by comparing the copy of the 

released mortgage attached to Mr. Parsons’ affidavit with the copy of the 

mortgage attached to the Bank’s complaint, the trial court could easily and 

properly conclude that the mortgage that was released was not the one upon which 

the Bank filed the underlying foreclosure action. Additionally, counsel for the 

Bank explained at the July 8, 2011 hearing that the Parsons executed and the Bank 

held two separate mortgages for two separate loans. (Tr. at 14). The Bank 

released one mortgage because the Parsons satisfied the underlying loan; the Bank 

did not release the other mortgage, which served as the basis for its foreclosure 

action, because the Parsons did not satisfy that obligation. (Id.). Notably, Mr. 

Parsons did not dispute that he and his wife executed two mortgages dated July 17, 

2006. The trial court, therefore, did not abuse its discretion in concluding that this 

defense was not meritorious. Natl. City Bank v. Abundant Life Apostolic, 9th Dist. 

No. 04CA008447, 2004-Ohio-5372, ¶ 18 (trial court did not abuse its discretion in 

denying appellant-mortgagor’s motion for relief from judgment because 
Case No. 8-11-15 

-10- 

“satisfaction of mortgage” document relied upon by appellant related to a 

mortgage other than the one on which the appellee-bank foreclosed, and, therefore, 

appellant “failed to show that Appellant had a meritorious defense if relief were 

granted pursuant to Civ.R. 60(B)”). 

{¶18} Mr. Parsons also argues that the Bank misapplied payments to his 

and his wife’s accounts and that this amounts to a meritorious defense. Even 

assuming misapplication of partial payments on an outstanding balance due on an 

adjustable rate note secured by a mortgage could constitute a meritorious partial 

defense under Civ.R. 60(B), after reviewing the record, we do not believe the trial 

court abused its discretion in concluding that the misapplication of payments, as 

alleged by Mr. Parsons, was not a meritorious defense. Mr. Parsons failed to 

allege supporting operative facts with enough specificity to allow the trial court to 

conclude that he had a defense he could have successfully argued at trial. 

Dombroski, 2012-Ohio-5858, at ¶ 7. 

{¶19} Mr. Parsons alleged in his Civ.R. 60(B) motion that the Bank 

“collected over $9,500.00 in additional funds that [the Bank] as [sic] not entitled 

to collect.” (Doc. No. 61). In support of this assertion, Mr. Parsons said that 

“[t]he copy of the released mortgage prove [sic] the [Bank’s] charges are wrong.” 

(Id.). In Mr. Parsons’ affidavit attached to his Civ.R. 60(B) motion, he averred 

that the Bank’s counsel “failed to provide an accurate accounting of my alleged 
Case No. 8-11-15 

-11- 

mortgage owed the Plaintiff * * *.” (G. Parsons Aff., Doc. No. 61, attached). He 

also averred that two January 5, 2010 check payments made by him in the 

amounts of $500 and $1,350 “are not recorded.” (Id.). Finally, Mr. Parsons 

averred that the Bank received from his federal bankruptcy trustee check payments 

of $6,355.57 for principal and $894.12 for interest, but that the Bank did “not 

record[ ] these payments to my account[,] rather showing these amounts as 

additional sums owed by me.” (Id.) 

{¶20} Attached to the Bank’s response to Mr. Parsons’ Civ.R. 60(B) 

motion was an affidavit of Bank Vice President Robert Hoffman. (Hoffman Aff., 

Doc. No. 66, attached). Mr. Hoffman averred that the $500 check “was applied to 

an outstanding loan secured by a 2006 Saab automobile at the direction of Grant 

R. Parsons.” (Id. at ¶ 3). A copy of the $500 check written by Mr. Parsons, 

attached to the Bank’s response, bears “2006 Saab Payment” on the memorandum 

line. (Doc. No. 66). Mr. Hoffman also averred that the $1,350 check “was 

properly applied to the loan which is the subject of the within foreclosure action at 

the direction of Grant R. Parsons and is accounted for in the balance due on this 

said loan as reflected in the affidavit of” a former Bank vice president and chief 

credit officer attached to the Bank’s motion for summary judgment. (Hoffman 

Aff. at ¶ 4, Doc. No. 66, attached); (Chartrand Aff., Doc. No. 20, attached). In 

response to Mr. Parsons’ arguments concerning misapplication of proceeds from 
Case No. 8-11-15 

-12- 

the bankruptcy trustee, the Bank attached to its response a copy of Mr. Parsons’ 

Chapter 13 Bankruptcy Plan, which the Bank said showed that no payments were 

made by the bankruptcy trustee on account of the foreclosed-upon mortgage. 

(Doc. No. 66). Additionally, at the hearing on Mr. Parsons’ Civ.R. 60(B) motion, 

the Bank presented a certified copy of Mr. Parsons’ bankruptcy trustee’s final 

report and account, which showed that the bankruptcy trustee’s payments to the 

Bank were for a loan other than the adjustable rate note secured by the foreclosedupon mortgage. (Tr. at 16-17, D’s Ex. 2). 

{¶21} It was not an abuse of discretion for the trial court to conclude that 

Mr. Parsons’ payment-misapplication allegations did not amount to a meritorious 

defense. We begin by noting what Mr. Parsons did not allege. He did not dispute 

that he and his wife defaulted on the adjustable rate note secured by the mortgage. 

Nor did he allege that the outstanding balance stated in the complaint and 

judgment entry and decree of foreclosure—$120,482.92 plus interest at 7.00% per 

annum from May 21, 2009—was incorrect. In Mr. Parsons’ affidavit, he referred 

vaguely to “my account” and “this account,” and he alleged broadly that payments 

were “not recorded.” (G. Parsons Aff., Doc. No. 61, attached). He did not specify 

the account or accounts to which he was referring, nor did he attach any Bank 

statements, notices, or other documents. Broad, conclusory statements do not 

satisfy the requirement that a Civ.R. 60(B) movant demonstrate sufficiently 
Case No. 8-11-15 

-13- 

specific operative facts. Aurora Loan Servs., L.L.C. v. Wilcox, 2d Dist. No. 2009 

CA 9, 2009-Ohio-4577, ¶ 14, 21. See also Bank of New York Mellon v. Stefanidis, 

10th Dist. No. 11AP-157, 2011-Ohio-6455, ¶ 9, 12. Finally, judging by his onepage Civ.R. 60(B) motion, it appears Mr. Parsons piggybacked his paymentmisapplication defense on his mistaken belief that the Bank had released the 

foreclosed-upon mortgage, arguing that “[t]he copy of the released mortgage 

prove [sic] the [Bank’s] charges are wrong.” (Doc. No. 61). 

{¶22} For these reasons, we hold that the trial court did not abuse its 

discretion when it concluded that Mr. Parsons failed to present a meritorious 

defense and denied his Civ.R. 60(B) motion. Based on this holding, and because 

the Civ.R. 60(B) test is conjunctive, we need not address the remaining elements 

of the test. Bish Constr., Inc., 2013-Ohio-421, at ¶ 15. 

{¶23} Mr. Parsons’ first assignment of error is, therefore, overruled. 

Assignment of Error No. II 

The trial court erred in failing to allow the DefendantsAppellants Grant and Denise Parsons [sic] the right to conduct 

discovery regarding the allegations contained in the Rule 60(B) 

Motion for Relief from Judgment. (Judgment Entry, Filed July 

28, 2011). 

{¶24} In his second assignment of error, Mr. Parsons argues that the trial 

court erred by not allowing him to conduct discovery in support of his Civ.R. 

60(B) motion. In support of his argument, Mr. Parsons cites Schultz v. Schultz, 
Case No. 8-11-15 

-14- 

10th Dist. No. 97APF04-594 (Nov. 4, 1997), in which the Tenth District suggested 

in dicta that where a party alleges “operative facts warranting an evidentiary 

hearing,” that party is “entitled to discovery sufficient to establish proof of its 

allegation,” and the trial court’s disallowance of discovery could amount to an 

abuse of discretion. Id. at *1. In response, the Bank cites cases from the Ninth 

and Eighth Districts standing for the proposition that a party to a Civ.R. 60(B) 

motion “is not entitled to the discovery of documents in order to support the 

motion for relief.” In re Guardianship of Matyaszek, 9th Dist. No. 20943, 2002-

Ohio-3743, ¶ 17, citing Diversified Equities v. Finesilver, 8th Dist. No. 58125 

(Mar. 8, 1990) and Fed. Deposit Ins. Corp. v. Orrico, 8th Dist. No. 37060 (Mar. 

16, 1978). 

{¶25} We need not and do not decide in this case whether a party to a 

Civ.R. 60(B) motion is entitled to discovery. Even the Schultz case offered by Mr. 

Parsons states that “[t]he trial court can clearly prohibit discovery in cases where 

no operative facts are alleged.” Schultz at *1. We held above that the trial court 

did not abuse its discretion in concluding that Mr. Parsons failed to present a 

meritorious defense—in other words, that he failed to allege operative facts with 

enough specificity to allow the trial court to decide that he had a defense he could 

have successfully argued at trial. Thus, under either line of cases, Mr. Parsons was 
Case No. 8-11-15 

-15- 

not entitled to conduct discovery in support of his Civ.R. 60(B) motion. Id.; 

Matyaszek, 2002-Ohio-3743, at ¶ 17-19. The trial court did not err. 

{¶26} Mr. Parsons’ second assignment of error is, therefore, overruled. 

{¶27} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ROGERS and SHAW, J.J., concur. 

/jlr