[Cite as Mill City Mtge. Loan Trust 2019-1, Wilmington Savs. Fund Soc., FSB v. Knight, 2021-Ohio-4135.]

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

ASHTABULA COUNTY

MILL CITY MORTGAGE LOAN 

TRUST 2019-1, WILMINGTON 

SAVINGS FUND SOCIETY, FSB, 

AS TRUSTEE, 

 Plaintiff-Appellee, 

 - v - 

TODD B. KNIGHT, a.k.a. TODD 

KNIGHT, SR., et al., 

 Defendant-Appellant. 

CASE NO. 2020-A-0053

Civil Appeal from the 

Court of Common Pleas 

Trial Court No. 2020 CV 00345 

O P I N I O N 

Decided: November 22, 2021 

Judgment: Affirmed 

David T. Brady and Suzanne M. Godenswager, Sandhu Law Group, LLC, 1213 Prospect 

Avenue, Suite 300, Cleveland, OH 44115 (For Plaintiff-Appellee). 

Anne M. Reese, Legal Aid Society of Cleveland, 121 East Walnut Street, Jefferson, OH 

44047 and Philip D. Althouse, Legal Aid Society of Cleveland, 1530 West River Road, 

Suite 301, Elyria, OH 44035 (For Defendant-Appellant). 

MARY JANE TRAPP, P.J. 

{¶1} Appellant, Todd B. Knight, a.k.a. Todd Knight, Sr. (“Mr. Knight”), appeals 

the judgment of the Ashtabula County Court of Common Pleas granting default judgment 

against him and issuing a decree of foreclosure in favor of appellee, Mill City Mortgage 

Loan Trust 2019-1, Wilmington Savings Fund Society, FSB, as Trustee (“Mill City”). 

{¶2} Mr. Knight asserts one assignment of error, contending that the trial court 

deprived him of due process by granting Mill City’s motion for default judgment without 
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providing him 14 days to respond pursuant to Civ.R. 6(C)(1) and the trial court’s local 

rules. 

{¶3} After a careful review of the record and pertinent law, we find that the trial 

court did not abuse its discretion in entering a default judgment against Mr. Knight. The 

proper procedure for holding a party in default is set forth in Civ.R. 55(A). Since Mr. 

Knight neither answered the complaint nor appeared prior to Mill City’s filing of its motion 

for default judgment, the response deadlines in Civ.R. 6(C)(1) and similar local rules were 

not applicable, and the trial court was not required to provide him 14 days to respond. 

{¶4} Thus, we affirm the judgment of the Ashtabula County Court of Common 

Pleas. 

Substantive and Procedural History 

{¶5} On August 14, 2020, Mill City filed a complaint for “money, foreclosure in 

reformation, and other equitable relief” against Mr. Knight and others in the Ashtabula 

County Court of Common Pleas. Mr. Knight was served with the complaint and summons 

by certified mail on August 20 and by personal service on August 22. 

{¶6} Mr. Knight failed to appear or respond to the complaint. On October 9, Mill 

City filed a motion for default judgment, a military affidavit, and an affidavit of status of 

account. Four days later, on October 13, the trial court filed a judgment entry granting 

default judgment against Mr. Knight and issuing a decree of foreclosure in favor of Mill 

City. 

{¶7} On October 15, Mr. Knight, through counsel, filed a notice of appearance 

and a motion for leave to file an answer instanter. According to Mr. Knight’s counsel, she 

was unaware of the trial court’s October 13 judgment entry at such time. The trial court 
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filed a judgment entry on the same date granting Mr. Knight’s motion for leave and 

permitting him until October 30 to file an answer. 

{¶8} On October 20, Mr. Knight filed an answer and a motion to vacate the 

October 13 judgment entry pursuant to Civ.R. 60(B). The trial court scheduled a hearing 

on Mr. Knight’s motion to vacate. Prior to the scheduled hearing, Mr. Knight filed a notice 

of appeal of the October 13 judgment entry and a notice withdrawing his motion to vacate. 

{¶9} Mill City filed a precipe for an order of sale, which the clerk of courts 

subsequently issued. Mr. Knight filed a motion to stay execution of the foreclosure 

judgment pursuant to Civ.R. 62(B), which the trial court denied. 

{¶10} Mr. Knight filed a motion for stay in this court, which we granted under 

certain conditions, including that Mr. Knight, in lieu of a supersedeas bond, execute a quit 

claim deed to Mill City and deposit it with the clerk of courts. 

{¶11} Mr. Knight raises the following assignment of error: 

{¶12} “The Trial Court erred to the prejudice of Appellant and deprived him of Due 

Process and an opportunity to defend when it granted a Motion for Default only four days 

after it was filed, without following Ohio Civ. R. 6(C)(1) and Loc. R. 3 of the Court of 

Common Pleas of Ashtabula County, General Division, which both provide litigants a 14 

day response time to a Motion.”1

1. Mill City obtained four extensions but did not ultimately file an appellee’s brief. App.R. 18(C) provides, 

in relevant part, that “[i]f an appellee fails to file the appellee’s brief within the time provided by this rule, or 

within the time as extended, * * * in determining the appeal, the court may accept the appellant’s statement 

of the facts and issues as correct and reverse the judgment if appellant’s brief reasonably appears to sustain 

such action.” Despite Mill City’s failure to file an appellee’s brief, the applicable law does not support 

reversal of the trial court’s judgment. 
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Standard of Review 

{¶13} We review a trial court’s decision to grant a default judgment under an 

abuse of discretion standard. Sericola v. Johnson, 2016-Ohio-1164, 61 N.E.3d 643, ¶ 18 

(11th Dist.). An abuse of discretion is the “‘failure to exercise sound, reasonable, and 

legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, 

¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). When an appellate court is 

reviewing a pure issue of law, the mere fact that the reviewing court would decide the 

issue differently is enough to find error. Id. at ¶ 67. By contrast, where the issue on 

review has been confided to the discretion of the trial court, the mere fact that the 

reviewing court would have reached a different result is not enough, without more, to find 

error. Id. 

Due Process 

{¶14} Mr. Knight asserts that the trial court violated his due process rights by 

failing to follow Civ.R. 6(C)(1) and Ashtabula County Court of Common Pleas Loc.R. 3. 

{¶15} Civ.R. 6(C)(1), which was amended effective July 1, 2019, states as follows: 

{¶16} “Motion Responses and Movants’ Replies Generally. Responses to a 

written motion, other than motions for summary judgment, may be served within fourteen 

days after service of the motion. Responses to motions for summary judgment may be 

served within twenty-eight days after service of the motion. A movant’s reply to a 

response to any written motion may be served within seven days after service of the 

response to the motion.” 

{¶17} According to the 2019 Staff Notes, “[t]he provisions of Division (C)(1) 

supersede and replace the differing deadlines for responding to motions imposed by the 
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numerous local rules of Ohio trial courts, thereby eliminating confusion and creating 

consistency by providing uniform statewide deadlines.” 

{¶18} Ashtabula County Court of Common Pleas Loc.R. 3, entitled “time for filing 

pleadings,” provides as follows: 

{¶19} “Unless otherwise provided by law or other rule, all pleadings, amended 

pleadings or motions shall be filed within fourteen (14) days after the filing of any entry 

granting leave to file or overruling or sustaining a motion unless otherwise specified in the 

entry itself. 

{¶20} “The opposing party shall move or otherwise respond to the pleading, 

amended pleadings, or motion within fourteen (14) days of filing such pleading, amended 

pleading or motion unless otherwise ordered by the Court.” 

{¶21} Loc.R. 3 appears to be applicable only to responses to pleadings and 

motions filed following the trial court’s issuance of a judgment entry. However, we note 

that Loc.R. 6(C)(2), entitled “all other motions,” provides as follows: 

{¶22} “All other motions will be decided without oral hearing unless oral argument 

is requested and determined necessary by the Court. The moving party shall file with the 

motion a brief supporting memorandum containing the authorities relied upon and any 

affidavits or other supporting documents required or appropriate to file with the motion. 

Each party opposing the motion shall file a written response within fourteen (14) days 

after receipt of the motion. Reply or additional briefs or memoranda shall be submitted 

only with approval of the Court. Motions for leave to plead shall be in accordance with 

local rules of Court.” (Emphasis added.) 
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{¶23} In support of his due process argument, Mr. Knight cites several decisions 

from this court and others reversing a trial court’s judgment based on its failure to follow 

similar procedural rules. See Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 721 N.E.2d 

1029 (2000) (involving a motion for sanctions); El-Mahdy v. Mahoning Natl. Bank, 7th 

Dist. Mahoning No. 01-C.A.-27, 2002-Ohio-3851 (same); Akron v. Heller, 9th Dist. 

Summit No. 26969, 2013-Ohio-5228 (involving a motion for relief from judgment); 

Rendina v. Rendina, 11th Dist. Lake No. 91-L-019, 1992 WL 217993 (Feb. 28, 1992) 

(involving a motion for guardian ad litem fees); In re Marquez, 11th Dist. Geauga No. 96-

G-1976, 1996 WL 702461 (Nov. 22, 1996) (same); Zamos v. Zamos, 11th Dist. Portage 

No. 2004-P-0108, 2005-Ohio-6075 (involving a motion to pay child support arrearages). 

{¶24} We find such cases to be distinguishable, however. Unlike the foregoing 

cases, this case involves the trial court’s granting of a motion for default judgment that 

the plaintiff filed after the defendant failed to answer or appear, which is governed by 

Civ.R. 55. 

Default Judgment 

{¶25} The proper procedure for holding a party in default is set forth in Civ.R. 

55(A). AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d 88, 90, 461 N.E.2d 1282 (1984). 

It provides, in relevant part, as follows: 

{¶26} “Entry of Judgment. When a party against whom a judgment for affirmative 

relief is sought has failed to plead or otherwise defend as provided by these rules, the 

party entitled to a judgment by default shall apply in writing or orally to the court therefor; 

but no judgment by default shall be entered against a minor or an incompetent person 

unless represented in the action by a guardian or other such representative who has 
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appeared therein. If the party against whom judgment by default is sought has appeared 

in the action, he (or, if appearing by representative, his representative) shall be served 

with written notice of the application for judgment at least seven days prior to the hearing 

on such application.” (Emphasis added.) 

{¶27} According to the Supreme Court of Ohio, “[d]efault, under both pre-Civil 

Rule decisions and under Civ.R. 55(A), is a clearly defined concept.” Ohio Valley 

Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 121, 502 N.E.2d 

599 (1986). “‘A default by a defendant * * * arises only when the defendant has failed to 

contest the allegations raised in the complaint and it is thus proper to render a default 

judgment against the defendant as liability has been admitted or ‘confessed’ by the 

omission of statements refuting the plaintiff’s claims.’” Id., quoting Reese v. Proppe, 3 

Ohio App.3d 103, 105, 443 N.E.2d 992 (8th Dist.1981). “It is only when the party against 

whom a claim is sought fails to contest the opposing party’s allegations by either pleading 

or ‘otherwise defend[ing]’ that a default arises.” Id., quoting Civ.R. 55(A). The rule is 

“logically consistent with the general rule of pleading contained in Civ.R. 8(D) * * * that 

‘[a]verments in a pleading to which a responsive pleading is required * * * are admitted 

when not denied in the responsive pleading.’” Id., quoting Civ.R. 8(D). Thus, “[i]f the 

defending party has failed to appear in the action, a default judgment may be entered 

without notice.” (Emphasis added.) Id. at 120. 

{¶28} However, when a party has “appeared” in an action, the opposing party may 

not take a default judgment against that party absent a seven-day notice. See id. 

According to the Supreme Court of Ohio, this notice requirement is “‘intended to protect 

those parties who, although delaying in a formal sense by failing to file [timely] pleadings 
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* * *, have otherwise indicated to the moving party a clear purpose to defend the suit.’” 

AMCA at 91, quoting H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 

F.2d 689, 691 (D.C.Cir.1970). 

{¶29} Based on the foregoing authority, several Ohio appellate courts have held 

that response deadlines set forth in Civ.R. 6 and/or similar local rules are inapplicable to 

motions for default judgment filed pursuant to Civ.R. 55(A) following a defendant’s failure 

to file an answer or appear. See L.S. Industries v. Coe, 9th Dist. Summit No. Civ.A. 

22603, 2005-Ohio-6736, ¶ 14, 17; Hover v. O’Hara, 12th Dist. Warren No. CA2006-06-

077, 2007-Ohio-3614, ¶ 13; Bank of Am., N.A. v. Sullivan, 3d Dist. Allen No. 1-15-09, 

2015-Ohio-2736, ¶ 15; Natl. Collegiate Student Loan Trust 2007-2 v. Tigner, 2d Dist. 

Montgomery Nos. 27841 & 28035, 2018-Ohio-4442, ¶ 13. Notably, the Third District 

Court of Appeals’ decision in Sullivan involved a foreclosure case with nearly identical 

facts to the present matter. 

{¶30} According to the above courts, the appellant effectively admitted the 

allegations in the complaint because he or she neither answered the allegations in the 

complaint nor appeared prior to the plaintiff’s filing of its motion for default judgment. 

Thus, the appellant was not entitled to the notice and hearing requirements of Civ.R. 

55(A), and a default judgment could be entered against the appellant without notice. See 

L.S. Industries at ¶ 17; Hover at ¶ 12; Sullivan at ¶ 15; Tigner at ¶ 17. 

{¶31} The Twelfth District reasoned that “[w]here there is no requirement that 

appellant be provided notice of the filing of the default motion, a local rule that sets the 

deadlines for a party’s response to a filed motion is simply not applicable to this situation.” 

Hover at ¶ 13. 
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{¶32} Similarly, the Ninth District reasoned that “where no response can 

reasonably be anticipated and no notice to the defaulting party is necessary,” there is “no 

reason to delay the administration of justice and the entry of default judgment, where such 

judgment is appropriate.” L.S. Industries at ¶ 14. According to the court, “[t]he interests 

of justice and judicial economy do not dictate that a trial court conduct a hearing and delay 

ruling on a timely motion for default judgment on the chance that the party in default might 

at some speculative later date enter an appearance in the action.” Id. at ¶ 17. 

{¶33} The Third District in Sullivan also rejected the appellant’s argument that the 

trial court’s ruling on the motion for default judgment precluded him from appearing and 

responding to the motion. Id. at ¶ 16. According to the court, the appellant was not 

precluded from filing a motion for relief from judgment under Civ.R. 60(B) if he had a valid 

defense to the motion for default judgment. Id. However, the appellant in Sullivan made 

the tactical decision not to pursue that avenue for relief. Id. Instead, he filed a motion for 

reconsideration, which the Supreme Court of Ohio has determined is a nullity. Id.; see 

Pitts v. Ohio Dept. Transp., 67 Ohio St.2d 378, 379, 423 N.E.2d 1105 (1981) (“[M]otions 

for reconsideration of a final judgment in the trial court are a nullity”). 

Analysis

{¶34} In this case, Mr. Knight failed to answer or appear prior to Mill City’s filing of 

its motion for default judgment, effectively admitting the allegations in the complaint. 

Therefore, the notice and hearing requirements of Civ.R. 55(A) were not applicable. 

Since Civ.R. 55(A) did not even require Mill City to provide notice of its motion for default 

judgment, the response deadlines in Civ.R. 6(C)(1) and the trial court’s local rules were 
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not applicable. Thus, the trial court was not required to give Mr. Knight 14 days to respond 

to Mill City’s motion for default judgment. 

{¶35} Although the trial court subsequently granted Mr. Knight’s motion for leave 

to file an answer instanter, this act had no effect on the October 13 judgment entry. A 

judgment decree in foreclosure is a final order. CitiMortgage, Inc. v. Roznowksi, 139 Ohio 

St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 23. Courts have consistently treated as 

void actions taken by a trial court subsequent to the entry of a final judgment. See Allstate 

Ins. Co. v. Witta, 9th Dist. Summit No. 25738, 2011-Ohio-6068, ¶ 9-11. A trial court may 

only relieve a party from judgment by the mechanisms provided by the Ohio Rules of Civil 

Procedure, which, in this case, would be a motion for relief from judgment pursuant to 

Civ.R. 60(B). See id. at ¶ 19; Civ.R.55(B) (“If a judgment by default has been entered, 

the court may set it aside in accordance with Rule 60(B)”). 

{¶36} The record demonstrates that Mr. Knight filed a motion to vacate the trial 

court’s October 13 judgment entry pursuant to Civ.R. 60(B). Prior to the trial court’s 

consideration, however, Mr. Knight filed a notice of appeal of the judgment entry and a 

notice withdrawing his motion. 

{¶37} While an appeal divests a trial court of jurisdiction to consider a Civ.R. 60(B) 

motion for relief from judgment, jurisdiction may be conferred on the trial court through an 

order by the reviewing court remanding the matter for consideration of the Civ.R. 60(B) 

motion. Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 147, 

637 N.E.2d 890 (1994). Thus, Howard provides a mechanism by which a party may 

protect its rights through an appeal and still obtain a ruling on a Civ.R. 60(B) motion while 

the appeal is pending, i.e., by filing a motion to remand in conjunction with the notice of 
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appeal. See Willoughby Eastlake City School Dist. v. Lake Cty. Court of Common Pleas, 

11th Dist. Lake No. 99-L-130, 2000 WL 522456, *5 (Apr. 21, 2000). We caution litigants 

to consider the foregoing authority prior to withdrawing a potentially meritorious Civ.R. 

60(B) motion. 

{¶38} While we are mindful of the serious consequences of foreclosure and are 

sympathetic to Mr. Knight’s argument, the Supreme Court of Ohio has held that “the rules 

of procedure must be applied consistently * * *.” Davis v. Immediate Medical Svcs., Inc., 

80 Ohio St.3d 10, 15, 684 N.E.2d 292 (1997). According to the court, “‘[h]owever hurried 

a court may be in its efforts to reach the merits of a controversy, the integrity of procedural 

rules is dependent upon consistent enforcement because the only fair and reasonable 

alternative thereto is complete abandonment.’” Id., quoting Miller v. Lint, 62 Ohio St.2d 

209, 214, 404 N.E.2d 752 (1980). 

{¶39} Accordingly, the trial court did not abuse its discretion in entering a default 

judgment against Mr. Knight. 

{¶40} Mr. Knight’s sole assignment of error is without merit. 

{¶41} For the foregoing reasons, the judgment of the Ashtabula County Court of 

Common Pleas is affirmed. 

THOMAS R. WRIGHT, J., 

MATT LYNCH, J., 

concur.