[Cite as Deutsche Bank v. Terdina, 2012-Ohio-5940.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

DEUTSCHE BANK NATIONAL TITLE 

CO., ETC., 

 PLAINTIFF-APPELLEE, 

V. 

THOMAS R. TERDINA, ET AL., 

 DEFENDANTS-APPELLANTS. 

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 CASE NO. 12 CO 3 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas of Columbiana County, Ohio 

Case No. 11CV428 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellee Atty. Jason A. Whitacre 

Atty. Laura C. Infante 

4500 Courthouse Blvd., Suite 400 

Stowe, Ohio 44224 

For Defendants-Appellants Atty. Bruce M. Broyles 

5815 Market Street, Suite 2 

Boardman, Ohio 44512 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: December 13, 2012 
[Cite as Deutsche Bank v. Terdina, 2012-Ohio-5940.]

DONOFRIO, J. 

{¶1} Defendants-appellants, Thomas and Kimberly Terdina, appeal from a 

Columbiana County Common Pleas Court judgment denying their Civ.R. 60(B) 

motion for relief from judgment. 

{¶2} Plaintiff-appellee, Deutsche Bank National Trust Company as Trustee 

for Aames Mortgage Trust 2002-1 Mortgage Pass-Through Certificates Series 2002-

1, is the assignee of appellants’ home mortgage. Appellants’ home is located in 

Hammondsville, Ohio. 

{¶3} On June 14, 2011, appellee filed a complaint in foreclosure against 

appellants alleging that appellants owed $48,440.88 as of August 1, 2010. Kimberly 

was served with the complaint on June 18. 

{¶4} Appellants failed to file an answer and, on September 19, 2011, 

appellee filed a motion for default judgment. That same day, the trial court issued a 

default judgment in the requested amount and an order of foreclosure. A few days 

later, the court issued an order of sale. 

{¶5} On October 24, 2011, appellants filed a Civ.R. 60(B) motion for relief 

from judgment. In support of their motion, appellants alleged that appellee was not 

entitled to foreclose on the mortgage because a condition precedent of acceleration 

was not performed and the mortgage and accompanying note were not properly 

placed within the applicable trust. They further alleged that their failure to respond to 

the complaint was due to excusable neglect and or fraud. They asserted that after 

receiving the complaint, they received a letter from appellee’s counsel advising them 

to contact Ocwen Loan Servicing, LLC (Ocwen) if they had any questions. They 

stated that they contacted Ocwen and the trial court and were led to believe it was 

not necessary to take any action and they would be given the opportunity to resolve 

the matter at a hearing. However, they stated no hearing was scheduled and the 

court entered default judgment the day appellee filed the motion. 

{¶6} The trial court denied appellants’ Civ.R. 60(B) motion without a hearing. 

It found that appellants had “sufficiently alleged a meritorious defense.” However, it 

denied the motion upon its further finding that appellants could not establish 
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excusable neglect or fraud. 

{¶7} Appellants filed a timely notice of appeal on January 18, 2012. 

{¶8} Appellants raise a single assignment of error, which states: 

 THE TRIAL COURT ERRED IN DENYING THE MOTION FOR 

RELIEF FROM JUDGMENT. 

{¶9} Appellants break their assignment of error down into two issues. First, 

appellants argue that the trial court abused its discretion in finding that they did not 

establish excusable neglect. They assert they did not act with a complete disregard 

for the judicial system. They state that when they received the complaint, they 

contacted the trial court. They further state that when appellee instructed them to 

contact the loan servicing company, they did so and were led to believe that a 

hearing would be held during which they could resolve the matter. Appellants assert 

that these facts establish excusable neglect. 

{¶10} The Ohio Supreme Court set out the controlling test for Civ.R 60(B) 

motions in GTE Automatic Elec., Inc. v. Arc Industries, Inc., 47 Ohio St.2d 146, 351 

N.E.2d 113 (1976), paragraph two of the syllabus: 

To prevail on a motion brought under 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. 

{¶11} If the movant fails to satisfy any of the above elements, the court shall 

deny relief. Argo Plastic Products Co. v. Cleveland, 15 Ohio St.3d 389, 391, 474 

N.E.2d 328 (1984), citing GTE, at 151. 

{¶12} The standard of review used to evaluate the trial court's decision to 
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grant or deny a Civ.R. 60(B) motion is abuse of discretion. Capital, Inc. v. Rock N 

Horse, Inc., 9th Dist. No. 21703, 2004-Ohio-2122, ¶9. Abuse of discretion connotes 

more than an error in judgment; it implies that the trial court's judgment is arbitrary, 

unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 

450 N.E.2d 1140 (1983). 

{¶13} We will address the GTE elements out of order for ease of discussion. 

There is no issue with the first or third elements. 

{¶14} As to the first element, the trial court found that appellants “sufficiently 

alleged a meritorious defense.” In their motion, appellants raised two defenses. 

First, they asserted that appellee failed to meet a condition precedent of acceleration 

of the loan balance because the lender failed to give proper notice of acceleration. 

Second, appellants asserted that appellee lacked capacity to file the lawsuit because 

it is only a trustee and the mortgage and note were not properly transferred into the 

trust. Because the trial court found that appellants satisfied the first GTE element in 

asserting a meritorious defense, we need not discuss this element further. 

{¶15} As to the third element, the trial court entered default judgment on 

September 19, 2011. Appellants filed their motion for relief from judgment just over a 

month later on October 24, 2011. This was a reasonable time within which to file the 

motion. 

{¶16} As to the second element, the trial court found that appellants did not 

demonstrate excusable neglect or fraud and, therefore, did not satisfy the second 

GTE element. 

{¶17} The second element of the GTE test requires that the moving party be 

entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5). The 

grounds for relief under Civ.R. 60(B) and the second GTE element are: 

(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), 
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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. 

{¶18} In their motion, appellants asserted they were entitled to relief based on 

excusable neglect under Civ.R. 60(B)(1) and fraud under Civ.R. 60(B)(3). In their 

brief on appeal, they rely exclusively on excusable neglect. 

{¶19} In support of their allegation of excusable neglect, appellants offered 

Thomas’s affidavit. In his affidavit, Thomas averred the following. Shortly after 

receiving the complaint, Thomas contacted the trial court by telephone. (Terdina Aff. 

¶3). Shortly after receiving the complaint, appellants received a letter from appellee’s 

attorney. (Terdina Aff. ¶4). The letter instructed appellants to contact Ocwen if they 

had any questions. (Terdina Aff. ¶5). Thomas contacted Ocwen. (Terdina Aff. ¶6). 

Based on the information provided to Thomas during the above referenced telephone 

conferences, he formed the belief that a hearing would be conducted, that appellants 

would receive notice of the hearing, and appellants could appear at the hearing and 

discuss a resolution of the matter. (Terdina Aff. ¶7). No hearing was conducted and 

appellants received a copy of the default judgment entry in the mail. (Terdina Aff. 

¶8). 

{¶20} Attached to the affidavit, Thomas provided a copy of the letter from 

appellee’s counsel dated June 24, 2011, less than a week after the lawsuit was 

served. The letter stated that appellants could bring their loan current and reinstate 

the loan by paying $4,590.90 to Ocwen. It also stated, “If you have any questions 

regarding this reinstatement, please call Ocwen Loan Servicing, LLC at 877-596-

8580.” 

{¶21} The trial court found inexcusable neglect because appellants did not 

“state to whom they spoke or even what an identified person said. They merely 
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indicated that they ‘formed a belief’ that no Answer was required.” 

{¶22} The Ohio Supreme Court has only defined “excusable neglect” in the 

negative. The Court has stated that neglect is not excusable if it is an act of complete 

disregard for the judicial system. Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 

665 N.E.2d 1102 (1996). 

{¶23} Additionally, the Court has cautiously advised that where a party 

presents a meritorious defense in a timely manner, the trial court should resolve any 

doubt on the categorization of neglect in favor of the motion to set aside the judgment 

so that cases can be decided on their merits. WFMJ Television, Inc. v. AT&T Federal 

Systems, 7th Dist. No. 01-CA-69, 2002-Ohio-3013, ¶21, citing GTE, 47 Ohio St.2d at 

151. “This can be interpreted as meaning: the more merit to the defense, the more 

neglect that will be permitted.” Fifth Third Bank v. Perry, 7th Dist. No. 03-MA-100, 

2004-Ohio-1543, ¶16. 

{¶24} Here appellants did not act with a “complete disregard” of the judicial 

system. They received the complaint stating that they owed the $48,440.88 balance 

due on their mortgage. But just days later, they received a letter from appellee’s 

counsel stating that they could reinstate their mortgage if they paid $4,590.90 to the 

loan servicing company. In the letter, appellee’s counsel instructed appellants to call 

the loan servicing company with any questions. According to Thomas’s affidavit, he 

did just as appellee’s counsel instructed him to do and called Ocwen. Thomas’s 

phone conference then led him to believe that a hearing would be set at which the 

matter would be resolved. Presumably, appellants were waiting for notice of the 

hearing when they received a copy of the default judgment. They then promptly filed 

their motion for relief from judgment just over a month later. 

{¶25} Given these facts, we conclude that the trial court abused its discretion 

in denying appellants’ motion for relief from judgment. Thomas’s affidavit coupled 

with the corroborating letter from appellee’s counsel demonstrate that appellants 

believed that they were complying with what they needed to do in order to resolve the 

issue of their overdue mortgage. In light of the fact that appellants presented a 
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meritorious defense in a timely manner, the trial court should have resolved any 

doubt on the categorization of neglect in appellants’ favor. 

{¶26} Second, appellants argue that the trial court erred in denying their 

motion for relief from judgment without holding a hearing. Appellants point out that 

the trial court found that they should have identified the individuals to whom they 

spoke and the information that was conveyed to them during these telephone 

conversations. They contend that these more detailed and specific facts should have 

been explored during a hearing on their motion especially in light of the fact that the 

trial court found that they had demonstrated a meritorious defense. 

{¶27} In WFMJ, 2002-Ohio-3013, ¶26, this court discussed when a hearing 

on a Civ.R. 60(B) motion is necessary: 

It seems that the correct interpretation of case law surrounding 

the need for a hearing on a Civ.R. 60(B) motion is as follows. The court 

can deny relief from judgment without a hearing if the motion fails to 

even allege sufficient operative facts. The court must hold a hearing 

where sufficient operative facts are alleged but are not believed by the 

court or are disputed by the other party. Hence, a hearing was only 

required where the court granted relief if: the facts alleged support relief 

if believed and the plaintiff disputed the veracity of the facts alleged. 

The rationale behind this interpretation is that a court can apply law to 

facts without the need for a hearing; this is done as a matter of law. 

However, when facts are disputed by the parties or suspected by the 

court, the court must hold a hearing to evaluate credibility and weight. 

{¶28} In this case, because appellants alleged sufficient operative facts and 

because it seems that the trial court did not believe them, the trial court should have 

held a hearing to evaluate whether appellants’ assertion of the facts was true. 

{¶29} However, a hearing was not required in order to grant the motion for 

relief from judgment. As this court observed in Perry, 2004-Ohio-1543, ¶27 (internal 
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citation omitted): 

Although the Supreme Court has stated that a court should hold a 

hearing to verify the facts before granting a motion, it has also stated 

that it would not further the interests of justice to require a hearing 

where the motion sufficiently alleged a valid Civ.R. 60(B) claim. * * * In 

Kay, the Supreme Court granted relief without remanding for a hearing 

where the trial court had previously denied relief without a hearing. 

{¶30} Thus, in Perry, upon finding that the trial court should have granted 

Perry’s Civ.R. 60(B) motion, we simply reversed the trial court’s denial of Civ.R. 60(B) 

relief and ordered the trial court to vacate the default judgment and reinstate the 

lawsuit instead of remanding for a hearing on the motion. 

{¶31} Because we find that the trial court should have granted appellants’ 

motion, we will follow the same resolution as in Perry instead of remanding the case 

for an evidentiary hearing. 

{¶32} Accordingly, appellants’ sole assignment of error has merit. 

{¶33} For the reasons stated above, the trial court’s judgment is hereby 

reversed and this matter is remanded for the trial court to vacate the default judgment 

and reinstate the lawsuit. 

Waite, P.J., concurs. 

DeGenaro, J., dissents with attached dissenting opinion. 

DeGenaro, J., dissenting: 

{¶34} I would affirm the trial court's decision for two reasons. First, the 

Terdinas used an improper avenue to challenge the judgment; they should have filed 

an appeal rather than a motion for relief from judgment. Second, they failed to 

establish grounds for relief under Civ.R. 60(B); thus, the trial court did not abuse its 

discretion in denying the motion. 
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{¶35} First, the default judgment entry is dated September 19, 2011. Instead 

of filing a timely notice of appeal within 30 days as required by App.R. 4, the Terdinas 

filed a motion to vacate on October 24, 2011. This was five days after their time to 

appeal had expired. It is well-settled law in Ohio that a motion for relief from 

judgment cannot be a substitute for an appeal. Doe v. Trumbull County Children 

Services Bd., 28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the 

syllabus. 

{¶36} Second, the Terdinas did not establish excusable neglect as 

contemplated by Civ.R. 60(B)(1). The trial court rejected this claim, reasoning: 

The Defendants argue that "Defendants contacted Ocwen Loan 

Servicing and the Court. Defendants formed the belief that they could 

discuss a resolution of the matter at hearing." 

 The Defendants do not state to whom they spoke or even what 

an identified person said. They merely indicate that they "formed a 

belief" that no Answer was required. This is insufficient to constitute 

excusable neglect. (Emphasis added.) 

{¶37} There is competent, credible evidence supporting the trial court's 

decision to deny relief from judgment and therefore the trial court did not abuse its 

discretion. The trial court’s findings were based upon averments made by Thomas 

and Kimberly Terdina that they were aware of the lawsuit, and after being served 

with the Complaint received correspondence from Deutsche Bank’s counsel advising 

them to contact Ocwen with any questions. Although the couple averred they 

contacted unidentified individuals at Ocwen and the trial court; they made no 

averments regarding exactly what either Ocwen or court personnel told them to 

create their "belief" that they did not have to respond to the Complaint and would 

receive notice of a future hearing at which the matter would be resolved. This belief 

is contradicted by the language in the summons advising the Terdinas that they were 
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required to file an Answer within 28 days of service of the Complaint, or run the risk 

of default judgment being entered against them. The Terdinas presented no 

evidence to the trial court identifying who specifically, at either Ocwen or the court, 

told them, for example, to disregard the language in the summons and not file an 

Answer. As found by the trial court, they merely made the unsupported claim that 

they "believed" they did not have to answer. The Terdinas failed to allege specific 

operative facts demonstrating excusable neglect in this matter and the trial court 

properly denied the motion for relief from judgment. 

{¶38} A motion for relief from judgment is not a procedural mechanism to be 

used to circumvent the expired jurisdictional requirement of App.R. 4(A) to obtain 

review of an unfavorable judgment. And mindful of our deferential standard of 

review, the trial court's decision should be affirmed because the Terdinas failed to 

establish a basis for relief pursuant to Civ.R. 60(B)(1).