[Cite as PHH Mtge. Corp. v. Northrup, 2011-Ohio-6814.]

 IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

PICKAWAY COUNTY 

PHH MORTGAGE CORPORATION, : 

Plaintiff-Appellee, : Case No. 11CA6 

vs. : 

GARY NORTHUP, et al., : DECISION AND JUDGMENT ENTRY 

 

 

Defendant-Appellants. : 

_________________________________________________________________ 

 APPEARANCES: 

COUNSEL FOR APPELLANTS: Brian K. Duncan and Bryan D. Thomas, 155 East Broad 

Street, Suite 2200, Columbus, Ohio 43215 

COUNSEL FOR APPELLEE: David M. Gauntner, 1500 West 3rd Street, Suite 400, 

Cleveland, Ohio 44113 

CIVIL CASE FROM COMMON PLEAS COURT 

DATE JOURNALIZED: 12-27-11 

ABELE, J. 

{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment that denied 

a motion for relief from judgment filed by Gary Northup, defendant below and appellant herein. 

{¶ 2} Appellant assigns the following errors for review: 

FIRST ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING 

TO VACATE ITS JULY 22, 2010 AND/OR DECEMBER 27, 2010 

JUDGMENT ENTRIES AS DEFENDANT/APPELLANT MADE 

THE REQUISITE SHOWING UNDER CIV.R. 60(B) IN HIS 

MOTION TO VACATE.” 
PICKAWAY, 11CA6 2

SECOND ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING 

DEFENDANT/APPELLANT’S REQUEST FOR AN ORAL 

HEARING ON HIS MOTION TO VACATE, DESPITE THE FACT 

THAT THERE WERE ALLEGATIONS OF OPERATIVE FACTS 

WHICH WOULD WARRANT RELIEF UNDER CIVIL RULE 

60(B).” 

{¶ 3} On October 3, 2008, PHH Mortgage Corporation, plaintiff below and appellee herein, 

filed a foreclosure complaint against appellant, Jane Doe (appellant’s unknown spouse), and the 

Pickaway County Treasurer. Appellee subsequently added two other defendants, who are not part 

of this appeal. 

{¶ 4} On February 22, 2010, appellee filed a summary judgment motion and a default 

judgment motion. Appellee asserted that no genuine issues of material fact remain as to whether 

appellant has defaulted on his mortgage obligation and that it is entitled to judgment as a matter of 

law. Appellee further contended that Jane Doe and another defendant were in default for failure to 

answer and that it is entitled to a default judgment against those two parties. 

{¶ 5} On February 22, 2010, the trial court granted appellee summary judgment and entered 

a default judgment against the two defendants who had failed to answer. 

{¶ 6} On March 31, 2010, the trial court vacated its February 22, 2010 summary 

judgment. The court observed that it had failed to allow appellant time to respond to appellee’s 

summary judgment motion. The court thus vacated its summary judgment and allowed appellant 

fourteen days from March 31, 2010 to respond. Appellant, however, never filed any 

memorandum in opposition to appellee’s summary judgment motion. 

{¶ 7} On July 22, 2010, the trial court entered summary judgment in appellee’s favor. 
PICKAWAY, 11CA6 3

On December 27, 2010, the court entered an amended summary judgment. On March 21, 2011, 

appellee filed a notice that a sheriff’s sale would occur on March 29, 2011. 

{¶ 8} On March 28, 2011, appellant filed a “combined motion to vacate this court’s July 

22, 2010 and/or December 27, 2010 judgment entries and/or any and all entries granting summary 

judgment or default judgment to plaintiff against defendant Gary Northup; motion for stay of 

execution of sheriff’s sale scheduled for March 29, 2011; and motion for leave to respond to 

plaintiff’s motion for summary judgment and/or for leave to file amended answer.” Appellant 

alleged that his failure to respond to the summary judgment motion resulted from inadvertence or 

excusable neglect under Civ.R. 60(B)(1). Appellant explained that he thought his former counsel 

had been negotiating with appellee to modify the loan. He thought “he had been engaging in a 

loan modification program and that the instant matter had been stayed, which he never received 

notice of said reinstatement.” Appellant further alleged that his former counsel did not raise 

proper claims, defenses and counterclaims in the original answer and that his former counsel failed 

to respond to appellee’s summary judgment motion. Appellant additionally argued that the 

interests of justice required the court to grant him relief under Civ.R. 60(B)(5). 

{¶ 9} On March 29, 2011, the trial court overruled appellant’s motion. The court 

observed that appellant “had ample time to dispute or appeal” any of its rulings. The court found 

that appellant’s primary purpose in filing the motion, one day before the sheriff’s sale, was to delay 

the sale. This appeal followed. 

I 

{¶ 10} In his first assignment of error, appellant asserts that the trial court erred by 

overruling his Civ.R. 60(B) motion for relief from judgment. We disagree. 
PICKAWAY, 11CA6 4

{¶ 11} Our standard of review regarding a trial court’s Civ.R. 60(B) decision is 

well-settled: 

“Absent an abuse of discretion, we will not disturb a trial court’s decision to 

grant or deny a Civ.R. 60(B) motion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 

77, 514 N.E.2d 1122. The term ‘abuse of discretion’ implies that the court’s 

attitude is unreasonable, unconscionable, or arbitrary. State v. Adams (1980), 62 

Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144. When applying the 

abuse-of-discretion standard, a reviewing court is not free to merely substitute its 

judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 

138, 566 N.E.2d 1181.” 

Dye v. Smith, 189 Ohio App.3d 116, 2010-Ohio-3539, 937 N.E.2d 628, ¶12. 

{¶ 12} Civ.R. 60(B) provides: 

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. 

{¶ 13} 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.” 

 

GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the 

syllabus. A failure to establish any one of the foregoing circumstances is ordinarily fatal to the 

Civ.R. 60(B) motion. See Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520 
PICKAWAY, 11CA6 5

N.E.2d 564 (stating that the trial court should overrule a Civ.R. 60(B) motion if the movant fails to 

meet any one of the foregoing three requirements); GTE, 47 Ohio St.2d at 151 (stating that the 

three requirements are “conjunctive”). 

{¶ 14} In the case sub judice, appellant claims that either Civ.R. 60(B)(1) or (5) entitles 

him to relief from the trial court’s summary judgment. Civ.R. 60(B)(1) allows a court to relieve a 

party from a final judgment due to the party’s “* * * inadvertence * * * or excusable neglect.” 

{¶ 15} Inadvertence is “[a]n accidental oversight; a result of carelessness.” Guider v. Am. 

Heritage Homes Corp., Logan App. No. 8–07–16, 2008-Ohio-2402, ¶7, quoting Black’s Law 

Dictionary (7th Ed.Rev.1999) 762. 

{¶ 16} When a court evaluates whether a movant has demonstrated excusable neglect, the 

court “must of necessity take into consideration all the surrounding facts and circumstances.” 

Colley v. Bazell (1980), 64 Ohio St.2d 243, 249, 416 N.E.2d 605. In Vanest v. Pillsbury Co.

(1997), 124 Ohio App.3d 525, 706 N.E.2d 825, we discussed the term “excusable neglect”: 

“Although ‘[t]he term “excusable neglect” is an elusive concept’ that courts 

often find difficult to define and to apply, Kay v. Marc Glassman, Inc. (1996), 76 

Ohio St.3d 18, 20, 665 N.E.2d 1102, the cases discussing excusable neglect reveal 

some general principles. First, many cases characterize the type of conduct that 

does not constitute excusable neglect. Inaction of a party that can be labeled as a 

‘complete disregard for the judicial system’ constitutes inexcusable neglect. GTE 

Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 153, 1 

O.O.3d 86, 90, 351 N.E.2d 113. Additionally, attorney conduct falling 

‘substantially below what is reasonable under the circumstances’ constitutes 

inexcusable neglect. Id. at 152, 351 N.E.2d 113. Second, a majority of the cases 

finding excusable neglect also have found unusual or special circumstances that 

justified the neglect of the party or attorney. Other cases, however, despite the 

presence of special or unusual circumstances, declined to find excusable neglect. 

The cases generally suggest that if the party or his attorney could have controlled or 

guarded against the happening of the special or unusual circumstance, the neglect is 

not excusable. Third, excusable neglect may exist when a party has neither 

knowledge nor actual notice of the lawsuit. Finally, the demands of being a busy 
PICKAWAY, 11CA6 6

lawyer or of being preoccupied with other litigation generally do not constitute 

excusable neglect.” 

Id. at 536-537 (footnotes omitted). We note that in general, a party’s failure to “to plead or 

respond after admittedly receiving a copy of a court document is not ‘excusable neglect.’” Natl. 

City Home Loans Serv., Inc. v. Gillette, Scioto App. No. 05CA3027, 2006-Ohio-2881, ¶18, citing 

Katko v. Modic (1993), 85 Ohio App.3d 834, 838, 621 N.E.2d 809, and Andrew Bihl Sons, Inc. v. 

Trembly (1990), 67 Ohio App.3d 664, 667, 588 N.E.2d 172. 

{¶ 17} In Vanest, we further noted the distinction between “excusable neglect” and mere 

“neglect,” as Black’s Law Dictionary defines the terms. “‘[E]xcusable neglect’ [means] * * * ‘a 

failure to take the proper steps at the proper time, not in consequence of the party’s own 

carelessness, inattention, or willful disregard of the process of the court, but in consequence of 

some unexpected or unavoidable hindrance or accident, or reliance on the care and vigilance of his 

counsel or on promises made by the adverse party.’” Id. at 537, fn.8, quoting Black’s Law 

Dictionary (6 Ed.1990) 566. In contrast, mere “neglect” means “‘to omit, fail, or forbear to do a 

thing that can be done, or that is required to be done, but it may also import an absence of care or 

attention in the doing or omission of a given act. And it may mean a designed refusal, 

indifference, or unwillingness to perform one’s duty.’” Id., at 1032, fn. 13. 

{¶ 18} Courts ordinarily impute the neglect of a party’s attorney to that party when 

determining whether the facts demonstrate excusable neglect. GTE, paragraph four of the 

syllabus; Newell v. White, Pickaway App. No. 05CA27, 2006-Ohio-637, ¶12; Williams v. Roe

(Feb. 2, 1996), Scioto App. No. 95CA2373. Thus, ordinarily, a party cannot establish excusable 

neglect simply by casting blame upon the party’s attorney. But, see, Whitt v. Bennett (1992), 82 
PICKAWAY, 11CA6 7

Ohio App.3d 792, 613 N.E.2d 667 (“[F]ault should not automatically be imputed when an attorney 

has grossly neglected a diligent client’s case and misleads the client to believe that his interests are 

being properly handled.”). It is only when that neglect rises to the level of excusable neglect that 

Civ.R. 60(B)(1) relief may be had. See Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio 

St.3d 64, 68, 479 N.E.2d 879. 

{¶ 19} The Ohio Supreme Court has recognized the perceived injustice that results to the 

client as a result of the imputed neglect rule, but has further explained that the client voluntarily 

chose the attorney and, thus, must live with the consequences of that chosen representation. See 

GTE, supra. The court explained: 

“There is certainly no merit to the contention that dismissal of petitioner’s 

claim because of his counsel’s unexcused conduct imposes an unjust penalty on the 

client. Petitioner voluntarily chose this attorney as his representative in the action, 

and he cannot now avoid the consequences of the acts or omissions of this freely 

selected agent. Any other notion would be wholly inconsistent with our system of 

representative litigation, in which each party is deemed bound by the acts of his 

lawyer agent and is considered to have ‘notice of all facts, notice of which can be 

charged upon the attorney.’ [Smith v. Ayer (1879), 101 U.S. 320, 25 L.Ed.2d 955.] 

* * * * 

* * * Surely if a criminal defendant may be convicted because he did not 

have the presence of mind to repudiate his attorney’s conduct in the course of a trial, 

a civil (defendant) may be deprived of his (defense) if he failed to see to it that his 

lawyer acted with dispatch in the prosecution of his lawsuit. And if an attorney’s 

conduct falls substantially below what is reasonable under the circumstances, the 

client’s remedy is against the attorney in a suit for malpractice. But keeping this 

suit alive merely because * * * (defendant) should not be penalized for the 

omissions of his own attorney would be visiting the sins of * * * (defendant’s) 

lawyer upon the * * * (plaintiff).” 

GTE, 47 Ohio St.2d at 152, quoting Link v. Wabash R. R. Co. (1962), 370 U.S. 626, 633-34, 82 

S.Ct. 1386, 8 L.Ed.2d 734 and fn.10 (citations omitted). 

{¶ 20} In the case sub judice, we do not believe that the trial court abused its discretion by 
PICKAWAY, 11CA6 8

determining that appellant failed to establish entitlement to relief under Civ.R. 60(B)(1). The 

facts and circumstances present in this case do not demonstrate excusable neglect or inadvertence. 

Instead, appellant’s attorney’s failure to respond to appellee’s summary judgment, which is 

imputed to appellant, demonstrates mere neglect. The trial court afforded appellant ample time to 

respond to appellee’s summary judgment motion. After the court vacated its initial order, nearly 

four months elapsed before the court entered another summary judgment. During that time, the 

record contains no evidence that appellant made any filings or responded to appellee’s summary 

judgment motion. Approximately five months elapsed before the court issued an amended final 

judgment entry. Again, during that time, appellant submitted no filings. Another three months 

elapsed before appellee filed a notice of sheriff’s sale. Only at that point did appellant submit a 

filing–his Civ.R. 60(B) motion, which he did not file until the day before the sale. In view of the 

amount of time that elapsed between the court’s summary judgment rulings and the timing of 

appellant’s Civ.R. 60(B) motion, the court was well within its discretion to determine that the 

purpose of appellant’s Civ.R. 60(B) motion was for delay. Moreover, allowing appellant to 

escape the final judgment due to the alleged neglect of his attorney would be visiting the sins of 

appellant’s attorney upon the appellee. 

{¶ 21} Additionally, we find the following statement relevant to the situation in the case at 

bar: 

“If we were to hold that a party who neglects to respond to a motion for 

summary judgment is entitled to relief when he files a Civ.R. 60(B) motion, 

supported by affidavits which should have been filed in opposition to the motion for 

summary judgment, we would be disemboweling the whole summary judgment 

procedure. No party would be required to file counter-affidavits under Civ.R. 56 if 

he could later obtain relief under Civ.R. 60(B) from his omission. Indeed, were a 

party interested in delaying the final outcome of a case, he would invariably resort 
PICKAWAY, 11CA6 9

to such a tactic.” 

Pittsburgh Press Co. v. Cabinetpak Kitchens of Columbus, Inc. (1984), 16 Ohio App.3d 167, 168; 

see, also, Sand v. Marbex, Inc. (Dec. 1, 1987), Scioto App. No. 1658. In the present case, 

appellant states that he has defenses to present in opposition to appellee’s summary judgment 

motion. He, however, should have raised those defenses in a timely response to appellee’s 

summary judgment motion–not in a Civ.R. 60(B) motion brought approximately eight months after 

the court first entered summary judgment and on the day before the schedule sheriff’s sale. The 

totality of appellant’s conduct demonstrates a tactic to delay the final outcome of the case, i.e., the 

sheriff’s sale. 

{¶ 22} Appellant nonetheless argues that he was unaware of the status of the case and of 

his counsel’s failure to respond to appellee’s summary judgment motion. A party involved in 

litigation cannot simply sit back and claim ignorance of the proceedings. Instead, a party to an 

action must keep himself informed of the status of the case. See State Farm Mut. Auto. Ins. Co. v. 

Peller (1989), 63 Ohio App.3d 357, 361, 578 N.E.2d 874 (stating that a party to an action has the 

duty to stay apprised of the progress of the case); Metcalf v. Ohio State Univ. Hosp. (1981), 2 Ohio 

App.3d 166, 441 N.E.2d 299; see, also, Whitman v. Whitman, Hancock App. No. 5-05-36, 

2007-Ohio-4231, ¶24 (stating that “[t]he parties to an action have a duty to remain informed about 

the progress of their case”); In re Adoption of J.H., Lorain App. No. 06CA008902, 

2006-Ohio-5957, ¶8 (noting that it is “well established that the parties to the case have a duty to 

keep apprised of the progress of the case on the docket”); MBA Realty v. Little G, Inc. (1996), 116 

Ohio App.3d 334, 338, 688 N.E.2d 39 (stating that the parties to an action bear the burden of 

following the progress of their case); P. Maynard v. C. Maynard (Feb. 11, 1982), Cuyahoga App. 
PICKAWAY, 11CA6 10

No. 43642, (stating that appellant “was duty bound to keep abreast of the docket entries”). Thus, 

although appellant claims that he was unaware of the status of his case or of his attorney’s failure 

to respond to appellee’s summary judgment motion, he also had a duty to keep himself informed of 

the status of the case. His ignorance of the status of the case does not demonstrate excusable 

neglect. 

{¶ 23} Finally, we recognize that “courts should strive to decide cases upon their merits 

rather than upon procedural grounds.” Newman v. Farmacy Natural & Specialty Foods, 168 Ohio 

App.3d 630, 2006-Ohio-4633, 861 N.E.2d 559, ¶22. This “principle[, however,] must be 

balanced against the competing principle that litigation must be brought to an end.” Id., citing 

Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 21, 520 N.E.2d 564. In the case sub 

judice, the interest in finality is most manifest. Appellant had more than ample time to argue the 

merits of the case. Appellee obtained a final judgment and sought to execute that judgment 

through the sheriff’s sale. Only when faced with the reality of the sheriff’s sale did appellant take 

action. Appellant, however, had prior opportunities to challenge the judgment. Having failed to 

do so, he cannot now avail himself of the relief that Civ.R. 60(B) provides. 

{¶ 24} Appellant further argues that Civ.R. 60(B)(5) entitles him to relief from the court’s 

summary judgment. Civ.R. 60(B)(5) reflects “the inherent power of a court to relieve a person 

from the unjust operation of a judgment.” State ex rel. Gyurcsik v. Angelotta (1977), 50 Ohio 

St.2d 345, 346, 364 N.E.2d 284. “The grounds for invoking Civ.R. 60(B)(5) should be 

substantial.” Caruso–Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 448 N.E.2d 1365, paragraph 

two of the syllabus. 

{¶ 25} In the case at bar, the trial court did not abuse its discretion by determining that 
PICKAWAY, 11CA6 11

appellant was not entitled to relief under Civ.R. 60(B)(5). The operation of the judgment would 

not be unjust to appellant. To the contrary, undoing the operation of the judgment would be unjust 

to appellee. There is nothing inherently unjust about the trial court’s judgment. The court 

afforded appellant ample procedural protections. Appellant’s failure to take advantage of those 

protections does not render the court’s judgment unjust. 

{¶ 26} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s first 

assignment of error. 

II 

{¶ 27} In his second assignment of error, appellant contends that the trial court abused its 

discretion by failing to hold a hearing regarding his Civ.R. 60(B) motion. 

{¶ 28} A party who files a Civ.R. 60(B) motion for relief from judgment is not 

automatically entitled to a hearing on the motion. Instead, the movant bears the burden to 

demonstrate that he or she is entitled to a hearing on the motion. To warrant a hearing on a Civ.R. 

60(B) motion, the movant must allege operative facts that would warrant relief under Civ.R. 60(B). 

 Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 19, 665 N.E.2d 1102. Although a movant 

is not required to submit evidentiary material in support of the motion, a movant must do more 

than make bare allegations of entitlement to relief. French v. Taylor (Jan. 2, 2002), Lawrence 

App. No. 01 CA15; see, also, Your Financial Community of Ohio, Inc. v. Emerick (1997), 123 

Ohio App.3d 601, 607, 704 N.E.2d 1265. In the case at bar, as we discussed under appellant’s 

first assignment of error, appellant failed to allege operative facts that would entitle him to relief 

under Civ.R. 60(B). Consequently, the trial court was not required to hold a hearing. 

{¶ 29} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s 
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second assignment of error and affirm the trial court’s judgment. 

JUDGMENT AFFIRMED. 

 JUDGMENT ENTRY 

It is ordered that the judgment be affirmed and that appellee recover of appellant the costs 

herein taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Pickaway County 

Common Pleas Court to carry this judgment into execution. 

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules 

of Appellate Procedure. 

Kline, J. & McFarland, J.: Concur in Judgment & Opinion 

For the Court 

BY: 

 Peter B. Abele, Judge 

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk.