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Fighting Default Foreclosure Judgments in Ohio
Fighting a Default Foreclosure Judgment is a difficult task, but you have options.
If a court has entered an order on foreclosure against you recently, it is time to act. You may be able to either vacate or set aside the judgment, but your options are time sensitive. When it comes to motions to vacate and to set aside the judgment, trial courts can lose jurisdiction to help you if you do not act timely. One of the maxims of the law is “the law serves the vigilant, and not those who sleep on their rights.” This is especially true in post-judgment proceedings. When dealing with post judgment reconsideration, there are generally two methods that are useful at the trial court level (the court that entered the foreclosure judgment against you) – a motion to vacate based on a failure of the bank in bringing their case, and a motion to set aside the judgment and allow you to reenter the case based on certain criteria such as newly discovered evidence or excusable neglect. You are essentially asking a sitting judge to undo either the complete foreclosure judgment or a portion of what he or she entered.
Motion to Vacate a Foreclosure Judgment
If the bank has failed to follow the proper procedures and Civil Rules when they bring their case, the court can vacate the judgment. This means that the judge sets aside the judgment as if it never happened. If the bank wants to continue the foreclosure, they have to initiate a new case from the beginning. There are two main reasons that a court will vacate a default judgment: (1) excusable default and (2) lack of personal jurisdiction. Excusable has two parts: (1) a reasonable excuse for not filing an Answer within the 30-day time; and (2) a meritorious defense (a good defense).
Excusable Default: Common examples of a reasonable excuse are you were ill, incarcerated, or that you could not answer the Summons for some other good reason. You would also have a reasonable excuse if, in response to the Summons, you telephoned the attorneys for the plaintiff and they told you not to bother filing an Answer. A meritorious defense is a reason why you don’t owe the money, not a reason why you can’t pay. For example, you would like to use the defense of statute of limitations. You can also dispute the amount of the debt. Disputing the amount of the debt, combined with improper service, can be a sufficient reason for the court to grant an order vacating the default judgment.
Lack of Personal Jurisdiction (Improper Service): The court can also vacate a default judgment if you were not properly served with a Summons. If you seek to vacate a judgment because of improper service, you do not need to cite a meritorious defense (or any defense). The disadvantage of seeking to vacate a judgment on the grounds of improper service is that you have the burden of proving the bad service, which you must do at a hearing before the judge. Proving improper service can be difficult depending on the facts of your case.
Motion to Set Aside a Foreclosure Judgment
If there is a good reason why you were simply unable to respond to the bank’s lawsuit before the judgment, you can file a motion to have the court set aside the default judgment. Here, you are asking the judge to set aside your default judgment: because of your mistake, inadvertence, surprise, or excusable neglect; because of the other side’s fraud, misrepresentation, or other misconduct; because the judgment has been satisfied, release, or discharged; or because other reasons of justice and equity require it.
In Ohio, the rule for setting aside a default judgment is explained in GTE Automatic Elec., Inc. v. ARC Industries, Inc. The GTE test says that (1) you must have a meritorious defense, (2) you are entitled to relief under Civil Rule 60(B), and (3) the motion is made within a reasonable time and, for reasons under Civ.R. 60(B)(1)-(3), not more than one year after the judgment was entered.
If you can show that you meet each element of the GTE test, the court can set aside the default judgment and allow you to reenter the case as if the deadline had not passed. This means you can then file an Answer and your defense, and the case will proceed from there.
Act quickly to protect yourself from a Default Foreclosure
If you find yourself facing a default judgment from a bank in a foreclosure lawsuit, you should act quickly to protect your interests and your home. Your best option is to get an attorney on your side to review everything and present you case to the court. Contact Doucet & Associates to help ensure that your rights are protected.