by David Cliffe, Attorney
On July 17, 2012, the Tenth Appellate District in Columbus, Ohio, issued a decision that, while not groundbreaking from a legal standpoint, could result in about a three to four-week delay in the granting of default judgments for a significant percentage of foreclosure cases in Franklin County.[1] In the case, the borrower requested and attended a mediation hearing through the county program with unsuccessful results. The lender filed a motion for default judgment, which the trial court granted seven days later without a hearing.
On appeal, the appellate court reversed the judgment granted by the trial court. The appellate court, citing the language of Civil Rule 55 and Franklin County Local Rule 55.01, determined that the borrower’s request for mediation constituted an appearance under those Rules, thus requiring a hearing to be set on the motion for default with prior notice to the borrower.
As a result of this decision, the trial courts in Franklin County will now set a hearing and send out notice to the borrower upon the filing of any lender’s motion for default judgment in a foreclosure case where the borrower previously requested mediation. While it appears likely that the hearings will be non-oral in nature and not require the lender’s attorney to make a personal appearance before the court, the addition of this hearing will likely add about three to four weeks to the process of obtaining judgment in these circumstances. In the future, the lender’s attorney will add a request for a non-oral hearing to any motion for default matching this scenario.
One concern this decision causes is that borrowers, who in prior, similar cases were defaulted, will now seek to have the default judgments against them set aside. While there may be a few borrowers who will attempt it, those borrowers will need to allege a meritorious claim for relief and also incur the expense associated with filing a motion for relief under Civil Rule 60B. Based on those factors, borrowers seeking relief will likely be few in number.
In conclusion, lenders involved in foreclosure proceedings in Franklin County should anticipate up to four additional weeks for the date of recovering a default judgment when a case submitted to mediation failed to result in a complete resolution.
If you have any questions on this matter, please contact Mr. David Cliffe, Esq. Dave is an attorney in the Real Estate Default Group of Weltman, Weinberg & Reis Co., LPA focused on foreclosure and eviction services. He can be reached at 513.333.4054 and dcliffe@weltman.com.
[1] Union Savings Bank v. Duffy, 2012-Ohio-3232
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