[Cite as Capital One Bank (USA), N.A. v. King, 2015-Ohio-3600.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CAPITAL ONE BANK (USA), N.A. : JUDGES: 

 : 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellant : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 2014CA00232 

 : 

STACY L. KING AND N.E. FAMILY 

CARE CENTER 

: 

: 

 : 

 : 

 Defendants-Appellees : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 

2010CV04312 

JUDGMENT: REVERSED 

DATE OF JUDGMENT ENTRY: August 31, 2015 

APPEARANCES: 

For Plaintiff-Appellant: For Defendants-Appellees: 

 

CHRISTOPHER A. GRAY STACY L. KING (PRO SE) 

471 East Broad St., 12th Floor 1877 Lake Center St. SW 

Columbus, OH 43215 Uniontown, OH 44685 

 
Stark County, Case No. 2014CA00232 2 

Delaney, J. 

{¶1} Plaintiff-Appellant Capital One Bank (USA), N.A. appeals the December 

11, 2014 judgment entry of the Stark County Court of Common Pleas. 

FACTS AND PROCEDURAL HISTORY 

{¶2} On November 29, 2010, Plaintiff-Appellant Capital One Bank (USA), N.A. 

filed a complaint against Defendants-Appellees Stacy L. King and N.E. Family Care 

Center in the Stark County Court of Common Pleas. Capital One sought money 

damages based on King’s alleged breach of the obligation for pay the balance due on a 

charged-off credit card. 

{¶3} After service was completed and King filed no answer, Capital One filed a 

motion for default judgment on March 18, 2011. King filed a motion for continuance on 

March 23, 2011. Capital One renewed its motion for default judgment on April 18, 2011. 

On April 19, 2011, the trial court granted the motion for default judgment. 

{¶4} On September 19, 2012, Capital One filed a motion to execute and issue 

a garnishment of King’s personal earnings. Capital One filed a garnishment of funds of 

King’s bank account on April 24, 2013. King did not request a hearing on the 

garnishments. 

{¶5} On August 12, 2014, Capital One filed a new motion to execute and issue 

a garnishment of King’s personal earnings. King filed a request for hearing on 

September 9, 2014. A hearing was held before the magistrate on September 19, 2014. 

On December 11, 2014, the magistrate determined there was no evidence presented 

that any of the funds being garnished were exempt from garnishment under Ohio law. 
Stark County, Case No. 2014CA00232 3 

{¶6} King filed a pro se motion for relief from judgment on October 29, 2014. In 

the motion, King argued they had worked with a debt consolidation company to settle 

the debt, but they were informed the company was convicted of fraud and had not paid 

the debt. King also questioned the amount of the debt. 

{¶7} The trial court gave notice that it would hold a non-oral hearing on the 

motion on November 13, 2014. 

{¶8} Capital One filed a response to the motion on November 10, 2014. 

{¶9} By judgment entry filed on December 11, 2014, the trial court granted 

King’s motion for relief from judgment. The trial court granted the motion pursuant to 

Civ.R. 60(B)(5). 

{¶10} It is from this judgment Capital One now appeals. 

ASSIGNMENTS OF ERROR 

{¶11} Capital One raises five Assignments of Error: 

{¶12} “I. THE TRIAL COURT ERRED IN GRANTING KING’S MOTION FOR 

RELIEF FROM JUDGMENT UNDER THE AUTHORITY OF CIVIL RULE 60(B)(5) 

WHEN NO SUBSTANTIAL GROUNDS EXISTED TO JUSTIFY RELIEF. 

{¶13} “II. THE TRIAL COURT ERRED IN GRANTING KING’S MOTION FOR 

RELIEF FROM JUDGMENT WHEN KING DID NOT BRING HER MOTION WITHIN A 

REASONABLE TIME. 

{¶14} “III. THE TRIAL COURT ERRED IN GRANTING KING’S MOTION FOR 

RELIEF FROM JUDGMENT WHEN IT FOUND THAT KING’S CONFUSION OVER 

THE BALANCE DUE ON THE JUDGMENT CONSTITUTED A DEFENSE TO CAPITAL 

ONE’S CLAIMS FOR RELIEF. 
Stark County, Case No. 2014CA00232 4 

{¶15} “IV. THE TRIAL COURT ERRED IN GRANTING KING’S MOTION FOR 

RELIEF FROM JUDGMENT WHEN KING DID NOT SUPPORT HER MOTION WITH 

AN AFFIDAVIT OR OTHER EVIDENCE. 

{¶16} “V. THE TRIAL COURT ERRED BY FAILING TO HOLD AN 

EVIDENTIARY HEARING ON KING’S MOTION FOR RELIEF FROM JUDGMENT.” 

ANALYSIS 

{¶17} Capital One argues in its five Assignments of Error that the trial court 

abused its discretion when it granted King’s motion for relief from judgment. We agree. 

{¶18} The decision whether to grant a motion for relief from judgment under 

Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d 

75, 514 N.E.2d 1122 (1987). In order to find abuse of discretion, we must determine the 

trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶19} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show: 

“(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief 

under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be 

timely filed.” GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 

351 N.E.2d 113 (1976), paragraph two of the syllabus. A failure to establish any one of 

the three requirements will cause the motion to be overruled. Rose Chevrolet, Inc. v. 

Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Argo Plastic Prod. Co. v. 

Cleveland, 15 Ohio St.3d 389, 391, 474 N.E.2d 328 (1984). 

{¶20} The trial court granted King’s motion for relief from judgment pursuant to 

Civ.R. 60(B)(5), which allows the trial court to relieve a party from a final judgment for 
Stark County, Case No. 2014CA00232 5 

“any other reason justifying relief from the judgment.” Civ.R. 60(B)(5) operates as a 

catch-all provision and “reflects ‘the inherent power of a court to relieve a person from 

the unjust operation of a judgment.’” Maggiore v. Barensfeld, 5th Dist. Stark No. 

2011CA00180, 2012–Ohio–2909, ¶ 35 citing Dutton v. Potroos, 5th Dist. Stark No. 

2010CA00318, 2011–Ohio–3646, at ¶ 49. It is reserved for “extraordinary and unusual 

case[s],” Myers v. Myers, 9th Dist. Summit No. 22393, 2005–Ohio–3800, at ¶ 14, and “is 

not a substitute for the enumerated grounds for relief from judgment[.]” Id.

{¶21} In her motion for relief from judgment, King stated she was paying a debt 

consolidation company under the belief the company was paying the Capital One debt 

at issue in the case. King attached letters from the U.S. Department of Justice Victim 

Witness Coordinator to the motion that showed Mission Settlement Agency and two 

individuals pleaded guilty to federal fraud charges. She argued that on that basis of the 

fraud of Mission Settlement Agency, she should be relieved of the judgment against her 

for the credit card debt. 

{¶22} Capital One argues the criminal actions of Mission Settlement Agency do 

not affect King’s liability for the balance due on the credit card. On April 19, 2011, 

default judgment was granted to Capital One against King on Capital One’s complaint 

on account. In support of its argument that the actions of the debt consolidation 

company do not rise to extraordinary circumstances, Capital One refers this Court to our 

decision in WM Specialty Mtge. V. Mack, 5th Dist. Licking No. 2008 CA 00125, 2009-

Ohio-2590. In Mack, the appellants retained the services of a company named 

Foreclosure Assistance USA to assist them in a foreclosure suit that had been filed 

against them. The company hired an attorney to represent the appellants. The attorney 
Stark County, Case No. 2014CA00232 6 

did not respond to a motion for summary judgment and judgment was entered against 

the appellants. The appellants argued under Civ.R. 60(B)(5) they were the victims of the 

gross neglect of their attorney who abandoned their representation of them and for that 

reason, their attorney’s negligence should not be imputed to them. Id. at ¶ 30. We 

affirmed the trial court’s decision to deny the motion for relief from judgment: 

We find the facts in the present case do not demonstrate that the action, 

or rather inaction, of Appellants' trial counsel in failing to respond to the 

motion for summary judgment or raising the defense of rescission were 

extraordinary circumstances to which Civ.R. 60(B)(5) may apply. It is 

undisputed that Appellants were in default on their mortgage loan, 

triggering the foreclosure proceedings. The motion for summary judgment 

filed by Appellee asserted there was no genuine issue of material fact that 

Appellants were in default of the loan and entitled to judgment as a matter 

of law. The trial court, and this Court, agreed Appellee was entitled to 

judgment as a matter of law. The client's remedy is against the attorney in 

a suit for malpractice; or in this case, an action against Foreclosure 

Assistance USA. Pool Man, Inc. v. Rea (Oct. 17, 1995), Franklin App. No. 

95APG04-438. 

Id. at ¶ 32. 

{¶23} We find it was an abuse of discretion for the trial court to determine the 

failure of the debt consolidation company to pay the debt was an extraordinary 

circumstance pursuant to Civ.R. 60(B)(5) to relieve King of the default judgment. There 

is no dispute in this case that King, not the debt consolidation company, is liable to 
Stark County, Case No. 2014CA00232 7 

Capital One for the balance of the credit card debt. The alleged criminal act of the 

Mission Settlement Agency in failing to pay the debt does not extinguish the existence 

of King’s debt or the validity of the April 19, 2011 judgment against King. King’s remedy 

in this case is a legal action against the debt consolidation company for its alleged 

failure to pay the debt. 

{¶24} Capital One also argues the trial court abused its discretion when the trial 

court found King’s dispute of the amount of the debt was a meritorious defense. Capital 

One argues King did not dispute in her motion that a debt was owed, but challenged the 

amount of the debt. King stated in her motion she requested proof how the debt owed 

was originally $4,500.00 but increased to $10,700.00. King did not attach any 

documents, including affidavits, to her motion for relief from judgment relating to the 

amount of the Capital One debt. 

{¶25} The trial court did not hold an evidentiary hearing before granting King’s 

motion for relief from judgment. The standard for when an evidentiary hearing on a 

Civ.R. 60(B) motion is necessary is set forth in Cogswell v. Cardio Clinic of Stark 

County, Inc., 5th Dist. Stark No. CA–8553, 1991 WL 242070 (Oct. 21, 1991). NationStar 

Mtge., L.L.C. v. Purnell, 5th Dist. Fairfield No. 13-CA-74, 2014-Ohio-2824, ¶ 8. In 

Cogswell, this Court held under Civ.R. 60(B) that a hearing is not required unless there 

exist issues supported by evidentiary quality affidavits. A trial court must hold an 

evidentiary hearing when the motion and supporting evidence contain sufficient 

allegations of operative facts, which would support a meritorious defense to the 

judgment. Cogswell; BancOhio National Bank v. Schiesswohl, 51 Ohio App.3d 130, 554 

N.E.2d 1362 (9th Dist.1988). 
Stark County, Case No. 2014CA00232 8 

{¶26} In her motion for relief from judgment, King disputed the amount of the 

debt owed, which is a dispute of fact. King did not attach evidentiary quality affidavits to 

her motion for relief from judgment to support her dispute of fact. The trial court did not 

hold an evidentiary hearing on the motion for relief from judgment, but granted the 

motion for relief from judgment finding King raised a meritorious defense based on the 

dispute of the amount of the debt. In Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 

1996-Ohio-430, 665 N.E.2d 1102, the Ohio Supreme Court addressed the issue of 

when a hearing is required under Civ.R. 60(B). The Court stated as follows: 

This issue was discussed in Coulson v. Coulson (1983), 5 Ohio St.3d 12, 

16, * * *. In Coulson, this court adopted the following rule set forth in 

Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 105, * * *: ‘If the movant 

files a motion for relief from judgment and it contains allegations of 

operative facts which would warrant relief under Civil Rule 60(B), the trial 

court should grant a hearing to take evidence and verify these facts before 

it rules on the motion.’ * * * 

In re Estate of Perez, 5th Dist. Stark No. 2005CA00204, 2006-Ohio-2841, ¶¶ 17-18. 

{¶27} We find the trial court abused its discretion when it found King presented a 

meritorious defense and granted the motion for relief from judgment without the support 

of evidentiary quality affidavits or an evidentiary hearing. 

{¶28} Upon review, we sustain Capital One’s Assignments of Error. 

 
Stark County, Case No. 2014CA00232 9 

CONCLUSION 

{¶29} The judgment of the Stark County Court of Common Pleas is reversed. 

By: Delaney, J., 

Hoffman, P.J. and 

Baldwin, J., concur.