[Cite as Household Realty v. Cipperley, 2013-Ohio-4365.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

HOUSEHOLD REALTY CORP. ) CASE NO. 12 MA 113 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

NANCY CIPPERLEY ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the County Court #2 

 of Mahoning County, Ohio 

Case No. 09CVF0785 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. James Oh 

Atty. Mark C. Brncik 

Atty. Steven Alsip 

Javitch, Block & Rathbone, LLC 

1100 Superior Avenue, 19th Floor 

Cleveland, Ohio 44114-2521 

For Defendant-Appellant: Atty. Bruce M. Broyles 

5815 Market Street, Suite 2 

Boardman, Ohio 44512 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: September 24, 2013
[Cite as Household Realty v. Cipperley, 2013-Ohio-4365.]

WAITE, J. 

{¶1} Appellant Nancy Cipperley appeals from the denial of her Civ.R. 

60(B)(5) motion for relief from judgment after she failed to make payments on her 

personal line of credit obtained from Appellee Household Realty Corporation 

(“Household Realty”). Household Realty filed a complaint for the unpaid debt in the 

Mahoning County Court #2. Appellant failed to answer the complaint or make an 

appearance. The court awarded Household Realty default judgment. Household 

Realty later attempted to garnish Appellant's wages, but the garnishment order was 

denied because Appellant had entered into a consumer counseling program for the 

repayment of her debts, pursuant to R.C. 2716.03(B). Appellant then filed a motion 

for relief from judgment on the grounds that Household Realty may have violated 

R.C. 2716.03(B) by attempting to garnish her wages a second time after she had 

entered into a debt counseling agreement. The motion was denied. 

{¶2} Appellant understands that there are three requirements for granting 

relief under Civ.R. 60(B)(5): there must be a meritorious defense to the underlying 

claim, there must be a valid reason for relief under subsection (B)(5), and the motion 

must be filed within a reasonable time. GTE Automatic Electric, Inc. v. ARC 

Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). Appellant did not satisfy any 

of the three requirements. Her alleged defense relates to the garnishment process 

rather than the underlying judgment, and Ohio law does not allow a judgment debtor 

to relitigate the original judgment as part of the garnishment proceedings. She also 

waited two years to file the motion, which is an unreasonable period. Finally, she 

failed to show that the garnishment or debt counseling statutes entitle her to any type 
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of relief. The trial court was correct in denying the motion for relief from judgment, 

and the judgment is affirmed. 

Case History

{¶3} On November 9, 2004, Appellant entered into a credit agreement with 

Household Realty with a credit limit of $8,000. After Appellant failed to make 

payments on the line of credit, Household Realty filed a complaint for collection of a 

debt on July 13, 2009. Appellant failed to answer the complaint or otherwise make 

an appearance in the action, and default judgment was granted on September 15, 

2009, in the amount of $11,837.69, with interest to accrue at the contract rate of 

21.25%. No appeal was filed. 

{¶4} Appellant subsequently entered into an agreement with GreenPath 

Debt Solutions, a debt counseling service, to arrange the repayment of her debts. 

When Household Realty attempted to garnish Appellant's wages on February 22, 

2011, she challenged the garnishment on the grounds that she had a legal excuse to 

avoid garnishment of personal earnings. The matter was heard before a magistrate, 

and the garnishment order was denied on March 22, 2011, because Appellant was 

working with a debt counseling service. On November 10, 2011, Appellant filed a 

Civ.R. 60(B)(5) motion for relief from judgment of the September 15, 2009, default 

judgment on the grounds that Household Realty had violated the statute governing 

consumer debt counseling. The motion was heard before a magistrate and denied 

on February 8, 2012. Appellant filed objections, but her objections were overruled on 
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May 15, 2012, and the motion for relief from judgment was denied. Appellant then 

filed an appeal of the denial of her Civ.R. 60(B)(5) motion. 

Law governing Civ.R. 60(B) motions for relief from judgment

{¶5} According to Civ.R. 60(B), a court may relieve a party or 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 Civ.R. 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. 

{¶6} Civ.R. 60(B) is a remedial rule to be liberally construed so that the ends 

of justice may be served. Colley v. Bazell, 64 Ohio St.2d 243, 249, 416 N.E.2d 605 

(1980). A trial court's ruling on a Civ.R. 60(B) motion is reviewed only for abuse of 

discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987); Pons v. 

Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). Abuse of 

discretion may be indicated by a ruling that is arbitrary, unreasonable or 

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

(1983). 
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{¶7} In order to prevail on a motion for relief from judgment pursuant to 

Civ.R. 60(B), the appellant 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 amount of 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 Electric, Inc., supra, 47 Ohio St.2d 146, 351 

N.E.2d 113, paragraph two of the syllabus. If any of the three GTE Automatic 

Electric requirements are not met, the motion should be overruled. Volodkevich v. 

Volodkevich, 35 Ohio St.3d 152, 153, 518 N.E.2d 1208 (1988). 

{¶8} For cases arising from Civ.R. 60(B)(5), the motion must be filed within a 

reasonable time from the date of the judgment being challenged. Adomeit v. 

Baltimore, 39 Ohio App.2d 97, 106, 316 N.E.2d 469 (8th Dist.1974). In the absence 

of any justification for the delay in filing a Civ.R. 60(B) motion, the motion to vacate 

should be denied. CitiMortgage, Inc. v. Fishel, 7th Dist. No. 11 MA 97, 2012-Ohio4117; Dunn v. Marthers, 9th Dist. No. 05CA008838, 2006-Ohio-4923. Delays as 

short as three or four months have been held to be unreasonable when no justifiable 

reason is given for the delay. Mount Olive Baptist Church v. Pipkins Paints, 64 Ohio 

App.2d 285, 413 N.E.2d 850 (8th Dist.1979) (four month delay was unreasonable); 

Bolinger v. Lake County Sheriff's Dept., 11th Dist. No. 12-053, 1987 WL 18003 (Sept. 

30, 1987) (three month delay was unreasonable). Whether the motion is filed in a 
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reasonable time depends on the facts and circumstances of the case. LaSalle Bank 

Natl. Assn. v. Smith, 7th Dist. No. 11 MA 85, 2012-Ohio-4040, ¶38. 

{¶9} Civ.R. 60(B)(5) is considered a “catch-all provision,” that “reflect[s] the 

inherent power of a court to relieve a person from the unjust operation of a 

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

paragraph one of the syllabus. The grounds for invoking Civ.R. 60(B)(5) must be 

substantial, and this subsection cannot be used as a substitute for any of the more 

specific provisions of Civ.R. 60(B). Id. at paragraphs one and two of the syllabus. 

Civ.R. 60(B)(5) relief is to be granted only in unusual or extraordinary circumstances, 

and will not operate to relieve a party who “ignores its duty to take legal steps to 

protect its interest.” Mount Olive Baptist Church v. Pipkins Paints, supra, 64 Ohio 

App.2d at 288. 

ASSIGNMENT OF ERROR

The trial court erred in denying the objections to Magistrate's Decision 

and adopting the Decision which denied the Appellant's motion for relief 

from judgment. 

{¶10} Appellant asserts that she satisfied the requirements of GTE Automatic 

Electric, Inc., and that the trial court should have granted her Civ.R. 60(B)(5) motion. 

Before proceeding with the arguments presented in Appellant's brief on appeal, we 

note that Appellant's counsel argued at oral argument that the trial court should have 

granted relief under Civ.R. 60(B)(4), even though this subsection was not invoked in 

her motion for relief from judgment. Appellant's counsel later conceded that any 
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argument regarding Civ.R. 60(B)(4) was waived and that the trial court was correct in 

denying the motion because it was filed under the wrong subsection. Civ.R. 60(B)(4) 

allows for relief from judgment when: “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.” Civ.R. 60(B)(5), on the other hand, is the generic catch-all 

provision for relief from judgment and cannot be used as a substitute for any of the 

more specific subsections of the rule. Caruso–Ciresi, Inc., supra, at paragraph one 

of the syllabus. Despite counsel's concessions at oral argument, Appellant's motion 

for relief from judgment did raise at least one matter that is more properly resolved 

under Civ.R. 60(B)(5), i.e., whether irregularities in garnishment proceedings may 

justify relief from judgment. Therefore, we will examine the arguments relating to 

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

{¶11} Appellant first contends that she presented a meritorious defense to the 

judgment because she had a potential setoff to the judgment arising from Household 

Realty's misuse of the garnishment process. This argument does not present a 

meritorious defense to the underlying judgment, however. In fact, Appellant in no 

way at any time addresses the underlying judgment. This argument, instead, 

appears to be an attempt to reopen her underlying case in order to somehow 

“punish” Household Realty for some alleged post-judgment wrongdoing. That aside, 

garnishment is a statutory procedure used by a creditor to obtain the property of a 

debtor that is in the possession of a third party. We have recently held that: 
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The judgment debtor may not use garnishment proceedings to relitigate 

the underlying debt. Rak–Ree Ents., Inc. v. Timmons, 10th Dist. Nos. 

10AP–476, 10AP–556, 2011-Ohio-1090, ¶16. The scope of a 

garnishment hearing is “limited to the judgment debtor's claims of 

exemption or any defense to the garnishment.” (Emphasis sic.) 

Ashtabula Cty. Med. Ctr. v. Douglass, 11th Dist. No. 1311, 1988 WL 

59836, at *1 (June 3, 1988). 

E. Liverpool v. Buckeye Water Dist., 2012-Ohio-2821, 972 N.E.2d 1090, ¶34 (7th 

Dist.). 

{¶12} Further, as discussed in the magistrate's decision, a claim for setoff is 

not a meritorious defense. Instead, it is in the nature of a counterclaim. Baker 

Motors, Inc. v. Baker Motors Towing, Inc., 183 Ohio App.3d 223, 2009-Ohio-3294, 

916 N.E.2d 853, ¶13 (8th Dist.). A setoff might act to reduce the amount of 

judgment, but does not challenge the integrity and validity of the judgment. 

Therefore, it cannot satisfy the Civ.R. 60(B) requirement that a defendant have a 

meritorious defense to the underlying claim. Id.

{¶13} Appellant also argues that Household Realty violated R.C. 2716.03(B) 

by filing repeated orders to garnish her wages, and that this violation acted to cancel 

some or all of the underlying debt. There is no basis to this line of reasoning. R.C. 

2716.03(B) states: 

(B) No proceeding in garnishment of personal earnings shall be brought 

against a judgment debtor for the collection of a debt that is the subject 
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of an agreement for debt scheduling between the judgment debtor and 

a budget and debt counseling service, unless any payment to be made 

by the judgment debtor, or by a budget and debt counseling service to 

the judgment creditor under the agreement for debt scheduling between 

the judgment debtor and the budget and debt counseling service, is due 

and unpaid for more than forty-five days after the date on which the 

payment became due, or unless the judgment creditor previously was 

notified by the service that the debt scheduling agreement between the 

judgment debtor and the service was terminated. 

{¶14} There is nothing in R.C. 2716.03(B) to allow a debt to be cancelled if a 

creditor files a garnishment action in violation of the statute. Additionally, the record 

indicates that Appellant was not current with her payments under the debt counseling 

agreement between March of 2011 (when the trial court ruled that Appellant was a 

participant in a consumer debt counseling program) and November of 2011 (when 

she filed her Civ.R. 60(B) motion), because she made only one payment during that 

time period. R.C. 2716.03(B) allows the creditor to file for garnishment if debt 

payments are more than 45 days late under a debt counseling agreement. Nothing 

in R.C. 2716.03(B) prohibits a creditor from filing multiple garnishment actions if the 

debtor is delinquent in making payments under a debt counseling agreement. 

{¶15} We note here that there is no second garnishment action reflected in 

the record. If there was a second garnishment, it was imperative for Appellant to 
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place evidence of that second garnishment action in the record so that proper 

appellate review could take place. 

{¶16} As to the timeliness factor, we agree with the trial court that Appellant's 

Civ.R. 60(B) motion was untimely. Appellant's Civ.R. 60(B) motion sought relief 

under subsection (B)(5), which allows for relief for “any other reason justifying relief 

from the judgment.” Under this subsection, the motion must be filed within a 

reasonable time. In the absence of any explanation or justification for the delay in 

filing a Civ.R. 60(B)(5) motion, the motion should be denied. CitiMortgage, Inc. v. 

Fishel, 7th Dist. No. 11 MA 97, 2012-Ohio-4117, ¶10. Delays as short as three or 

four months render a Civ.R. 60(B)(5) untimely. Mount Olive Baptist Church and 

Bolinger, supra. Appellant waited over two years to file her Civ.R. 60(B)(5) motion, 

and it was well within the trial court's discretion to treat a two-year delay in filing as 

unreasonable and untimely. 

{¶17} Appellant explains that she delayed filing the motion because the facts 

supporting the motion did not arise until October of 2011, just a few weeks before she 

filed the motion. Those supposed facts deal with her belief that Household Realty 

violated the garnishment statutes by filing repeated garnishment notices against her. 

As already discussed, Household Realty's attempt to garnish Appellant's wages to 

pay the 2009 judgment does not in any way present a meritorious defense to the 

underlying judgment and does not support reopening the judgment. For this reason, 

these alleged facts cannot in any way be used to support an argument that the 

motion to vacate was timely filed, since these facts are completely irrelevant to the 
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issue: whether the original judgment is valid. Appellant has not alleged any facts 

that would explain why she did not answer or otherwise respond to the 2009 

complaint. Thus, the Civ.R. 60(B)(5) motion challenging the 2009 judgment from that 

complaint, filed more than two years after the final judgment, was untimely. The 

Civ.R. 60(B) motion was properly denied. 

{¶18} Because Appellant has failed all three requirements for relief from 

judgment under Civ.R. 60(B)(5) and GTE Automatic Electric, Inc., the trial court 

properly denied Appellant's motion. For all the aforementioned reasons, Appellant's 

assignment of error is overruled. 

Conclusion

{¶19} Appellant filed a Civ.R. 60(B)(5) motion for relief from a money 

judgment arising from her failure to make payments on a line of credit. Appellant 

conceded at oral argument that any matters arising from Civ.R. 60(B)(4) were not 

raised in the trial court and are waived. The motion before the trial court argued that 

relief should be granted under Civ.R. 60(B)(5) because Household Realty misused 

the garnishment process in attempting to collect on its money judgment, in violation 

of the debt counseling statute. Appellant has failed to establish any of the three 

requirements of Civ.R. 60(B) relief under GTE Automatic Electric, Inc. Garnishment 

is a collection procedure and cannot be used to challenge the underlying judgment. 

Hence, it cannot form a basis for Civ.R. 60(B) relief. She has not established a 

meritorious defense, she has not shown that she is entitled to relief under Civ.R. 

60(B)(5), and the motion was not filed within a reasonable amount of time. The 
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judgment of the trial court overruling Appellant's motion for relief from judgment was 

correct and is hereby affirmed. 

Donofrio, J., concurs. 

Vukovich, J., concurs.