[Cite as Wells Fargo Bank, N.A. v. Neal, 2011-Ohio-3952.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

WELLS FARGO BANK, N.A. 

 Plaintiff-Appellee 

-vsBRUCE NEAL, ET AL. 

 Defendants-Appellants 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case Nos. 11CA16, 11CA17, 11CA19 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 09 CV 1283 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 5, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendants-Appellants 

JASON A. WHITACRE TROY J. DOUCET 

LAURA C. INFANTE 4200 Regent Street 

KATHRYN M. EYSTER Suite 200 

LAW OFFICES OF JOHN D. CLUNK Columbus, Ohio 43219 

4500 Courthouse Boulevard, Suite 400 

Stow, Ohio 44224 
Stark County, Case No. 11 CA 16, 11 CA 17, 11 CA 19 2

Wise, J. 

{¶1} Defendants-Appellants Bruce Neal and Susan Neal (Duncan) appeal from 

three judgment entries addressing denial of relief from judgment in a foreclosure action 

in the Court of Common Pleas, Fairfield County, brought by Plaintiff-Appellee Wells 

Fargo Bank, N.A., Successor by Merger to Wells Fargo Bank Minnesota, N.A., as 

Trustee f/k/a Norwest Bank Minnesota, N.A., as Trustee for the Registered Holders of 

Renaissance Home Equity Loan Asset-Backed Certificates, Series 2003-3. The relevant 

facts leading to this appeal are as follows. 

{¶2} The subject property of this case is appellants’ residence at 523 Spring 

Street in Lancaster, Ohio. In September 2003, appellants executed a note and 

mortgage with Fidelity Mortgage, Inc. for a principal amount of $102,600.00, to be paid 

initially in the amount of $858.23 per month. 

{¶3} Appellants subsequently experienced difficulty making the payments, 

leading to a foreclosure action filed on October 1, 2009 by Appellee Wells Fargo, 

assignee of the note and mortgage. Appellants were duly served with the complaint on 

October 6, 2009. Appellee filed a motion for default judgment on December 21, 2009, 

alleging a default in answer by appellants. On December 22, 2009, the trial court issued 

a default judgment and decree in foreclosure. 

{¶4} The property at issue was scheduled to go to a sheriff’s sale in February 

2010. However, on February 9, 2010, the trial court issued an order withdrawing the 

sale, indicating that the parties were seeking alternatives to resolving the matter. 

Nonetheless, on November 12, 2010, a sheriff’s sale was conducted, and the property 

at issue was sold to appellee. 
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19 3

{¶5} On December 6, 2010, appellants filed a motion for relief from the 

foreclosure, citing Civ.R. 60(B)(4) and (5). Appellee filed a brief in opposition on January 

20, 2011. 

{¶6} On February 7, 2011, the trial court denied appellants’ motion for relief 

from judgment. Appellants filed a motion for reconsideration on the same day. On 

March 8, 2011, appellants filed a notice of appeal of the aforesaid February 7, 2011 

judgment entry. 

{¶7} On March 15, 2011 and March 17, 2011, the trial court issued nunc pro 

tunc entries to correct typographical errors. Appellants filed notices of appeal therefrom 

as well. 

{¶8} The three notices of appeal have each been assigned a separate 

appellate case number, which have now been consolidated in the within appeal. 

Appellants now raise the following sole Assignment of Error: 

{¶9} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE 

DEFENDANT-APPELLANTS’ MOTION FOR RELIEF FROM JUDGMENT UNDER 

OHIO RULE OF CIVIL PROCEDURE 60(B)(4).” 

I. 

{¶10} In their sole Assignment of Error, appellants contend the trial court erred in 

denying their motion for relief from the default foreclosure judgment under Civ.R. 

60(B)(4). We disagree. 

{¶11} Civ.R. 60(B) states in pertinent part as follows: 

{¶12} “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 
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19 4

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. 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. * * *.” 

{¶13} Civ.R. 60(B) represents an attempt to strike a proper balance between the 

conflicting principles that litigation must be brought to an end and justice should be 

done. Colley v. Bazell (1980), 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (citation 

omitted). A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound 

discretion of the trial court and a ruling will not be disturbed absent an abuse of 

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

find an abuse of discretion, we must determine that the trial court's decision was 

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. 

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

{¶14} Specifically, “Civ.R. 60(B)(4) relates to situations in which a judgment with 

prospective effect becomes inequitable. Relief under that provision is afforded to those 

individuals who are subjected to circumstances which could not be foreseen or 
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19 5

controlled.” Yearwood v. Yearwood, Montgomery App.No. 16352, 1997 WL 797717, 

citing Knapp v. Knapp (1986), 24 Ohio St.3d 141, 493 N.E.2d 1353. 

{¶15} In their affidavit in support of a Civ.R. 60(B) vacation of the default 

foreclosure in this matter, appellants provided Bruce’s affidavit averring that they had 

“been actively working with Wells Fargo’s servicing company, Ocwen, to save [their] 

home.” Bruce Neal Affidavit at para. 3. Appellants attached to their motion a copy of a 

letter from Ocwen Loan Servicing, LLC, indicating a temporary agreement had been 

reached, although appellants did not save the temporary agreement itself. Under the 

agreement, appellants apparently would pay the modified sum of $482.43 per month for 

a three-month trial period. See Appellants’ Exhibit A. The letter also states as follows 

regarding a permanent loan modification: “Once you make all of your trial period 

payments on time, we will send you a modification agreement detailing the terms of the 

modified loan. ***.” Id. Nonetheless, the letter includes a caveat that “[d]uring the trial 

period, we may accept and post your trial period payments to your account and it will 

not affect foreclosure proceedings that have already been started.” Id. 

{¶16} It appears appellants duly paid the $482.43 sums via cashier’s checks on 

April 8, April 28, and May 25, 2010. See Appellants’ Exhibit B. Appellants also made a 

fourth temporarily modified $482.43 payment via automated clearing (ACH) on Jul 2, 

2010. However, Ocwen refused to accept an August 2010 attempted payment. See 

Appellants’ Exhibit C. There is no evidence that Ocwen ever followed up on a 

permanent modification; Ocwen instead sent a letter to appellants on or about August 

17, 2010 demanding an immediate amount due of $25,951.03. See Appellants’ Exhibit 
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19 6

D. Appellants thereafter sought assistance from a Pennsylvania company, GMK 

Solutions, which was unable to modify the loan at issue. See Appellants’ Exhibit E. 

{¶17} While this Court is somewhat troubled by Ocwen’s treatment of appellants 

in the case sub judice as they sought a permanent loan modification, we remain mindful 

that this attempted modification process was occurring months after Appellee Wells 

Fargo had obtained a valid foreclosure in the common pleas court, the complaint for 

which appellants had chosen to ignore. While appellants most likely counted on Ocwen 

to work with them for a permanent modification, the decision to pursue that avenue 

post-foreclosure was something within appellants’ control, thus removing the matter 

from the applicability of Civ.R. 60(B)(4). See Knapp, supra. Under these circumstances, 

we are unable to classify the trial court’s denial of 60(B)(4) relief as unreasonable, 

arbitrary, or unconscionable. 

{¶18} Appellants’ sole Assignment of Error is overruled. 

{¶19} For the reasons stated in the foregoing opinion, the judgment of the Court 

of Common Pleas, Fairfield County, Ohio, is affirmed. 

By: Wise, J. 

Farmer, J., concurs. 

Hoffman, P. J., dissents. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES 

JWW/d 0722 
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19 7

 
Fairfield County, Case Nos. 11CA16, 11CA17, 11CA19 8

Hoffman, P.J., dissenting 

{¶20} I respectfully dissent from the majority opinion. 

{¶21} I find it significant, if not determinative, Ocwen received and accepted 

Appellants’ fourth payment under the modification plan after Appellants had successfully 

completed the three month trial period.1 

{¶22} Having successfully completed the trial period and, therefore, qualifying 

for the permanent loan modification as evidenced by Exhibit B, I find the underlying 

foreclosure action had been essentially satisfied by novation and it would be inequitable 

for the foreclosure to have prospective application. 

{¶23} While Appellants had control over the decision to enter the trial period and 

make the three modified payments required, they did not foresee nor could they control 

Appellee’s refusal to honor the loan modification. Under these circumstances, I find it 

no longer equitable to give prospective application to the original order of foreclosure. 

 ________________________________ 

 HON. WILLIAM B. HOFFMAN 

 

1

 The “caveat” in the letter noted in the majority opinion only applies to payments 

accepted during the trial period, not after the fourth payment accepted in July. 
Stark County, Case No. 11 CA 16, 11 CA 17, 11 CA 19 9

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

WELLS FARGO BANK, N.A. : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

BRUCE NEAL, et al. : 

 : 

 Defendants-Appellants : Case Nos. 11CA16, 11CA17, 11CA19 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed. 

 Costs are to be assessed to appellants. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES