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Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367
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IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS
CIVIL DIVISION
Fifth Third Bank Case No. 12 CV 009367
Judge McIntosh
Plaintiff,
-vs-
The Estate of Thomas Leo Getz, et al.
Defendants.
MOTION OF DEFENDANTS, THE ESTATE OF THOMAS LEO GETZ,
DANIELLE D. GETZ-WOYAN, ADMINISTRATOR, AND DANIELLE D. GETZ-
WOYAN, INDIVIDUALLY, FOR RELIEF FROM JUDGMENT
Now come the Defendants, The Estate of Thomas Leo Getz, Danielle D. Getz-
Woyan, Individually and as Administrator (hereinafter “Defendants”), by and through the
undersigned counsel, and hereby respectfully request that this Court vacate and
reconsider its Decree on Foreclosure, Entry Motion for Summary and Default Judgment
and Order for Sale journalized by this Court on April 4, 2013.
A Memorandum in Support is attached below.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367
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Respectfully submitted,
PRICE LAW FIRM, LLC
/s/ Bryan R. Moore
Bryan R. Moore (0085187)
Gary Paul Price (0010296)
Attorneys for Defendants, The Estate of
Thomas Leo Getz, Danielle D. Getz-Woyan,
Administrator, and Danielle D. Getz-Woyan,
Individually
Price Law Firm, LLC
555 City Park Avenue
Columbus, Ohio 43215
Telephone: (614) 224-2319
Email: Bryan.Moore@PriceLawOhio.com
Email: Gary.Price @ PriceLawOhio.com
Fax: (614) 224-4708Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367
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MEMORANDUM IN SUPPORT
On April 4, 2013, the Court entered Summary Judgment against the Defendants
based upon the “Motion for Summary Judgment . . . filed by the Plaintiff.” The Plaintiff
filed its Motion for Summary Judgment on January 24, 2013. The Defendants filed a
Motion for Summary Judgment of their own on February 1, 2013.
The Court’s Decree dated April 4, 2013 does not acknowledge that the
Defendants filed a Motion for Summary Judgment nor does it dispose of any arguments
made by the Defendants in said Motion. The Defendants raised multiple meritorious
arguments in their Motion which should not only deny the Plaintiff's Motion for
Summary Judgment but also grant Summary Judgment in the Defendants’ favor. The
Court’s Decree does not discuss or acknowledge any of the Defendant’s arguments.
The Ohio Supreme Court has stated Rule 60(B) is “a remedial rule and should be
liberally construed." Svoboda v. Brunswick, 6 Ohio St.3d 348, 351 (1983). “This
standard of liberality is consistent with the oft-stated general principle that Civ. R. 60
(B)(5) is a provision whereby a court may relieve a party from judgment for any other
reason than set forth in Civ. R. 60 (B)(1) to (4) justifying relief from judgment.” Jd.
“Doubt, if any, should be resolved in favor of the motion to vacate.” Id.
A motion to vacate a judgment pursuant to Civ.R. 60(B) is within the discretion of
the trial court. GTE Automatic Electric v. ARC Industries, 47 Ohio St. 2d 146, (1976). A
standard three part test is outcome determinative as to whether a party filing a 60(B)
motion is entitled to relief. First, the filing party must show the filing itself is timely,
specifically within a reasonable time, generally considered to be within one year of the
entry of judgment. /d. at 13. Second, the filing party must demonstrate it is entitled to
' Decree on Foreclosure, Entry Motion for Summary and Default Judgment and Order for Sale, page 1.
-3-Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367
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relief under one of the enumerated ground in Civ.R. 60(B). /d. Finally, the filing party
must present a meritorious claim or defense for the underlying merits of the case. Id.
Here, the Defendants clearly satisfy the reasonable time burden as this Motion is
filed within a week of the Court’s entry of judgment. Second, the Defendants are entitled
to relief pursuant Civ. R. 60(B)(5) as justice requires that the Court consider the merits of
the Defendants’ arguments in their Motion for Summary Judgment. Finally, as argued in
the Defendants’ Motion for Summary Judgment, the Defendants not only have and
maintain meritorious defenses to the Plaintiff’s claims, but they also have presented their
own claims via their Motion for Summary Judgment which entitle them to judgment on
the merits of the Plaintiffs Complaint.
Should the Court vacate the judgment and reconsider the filed motions, “a trial
court has plenary power in ruling on a motion for reconsideration,” Groza-Vance ¥.
Vance, 162 Ohio App. 3d 510, 532, 834 N.E.2d 15, 33 (10th Dist. 2005).
Wherefore, the Defendants respectfully request that the Court vacate its judgment
dated April 4, 2013 and reconsider the Defendants’ Motion for Summary Judgment.onosé pprankin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367
Respectfully submitted,
PRICE LAW FIRM, LLC
/s/ Bryan R. Moore
Bryan R. Moore (0085187)
Gary Paul Price (0010296)
Attorneys for Defendants, The Estate of
Thomas Leo Getz, Danielle D. Getz-Woyan,
Administrator, and Danielle D. Getz-Woyan,
Individually
Price Law Firm, LLC
555 City Park Avenue
Columbus, Ohio 43215
Telephone: (614) 224-2319
Email: Bryan.Moore@PriceLawOhio.com
Email: Gary.Price @ PriceLawOhio.com
Fax: (614) 224-4708onosé zo ranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the
foregoing was served upon the following via U.S. Mail, postage prepaid this 11" day of
April, 2013:
Bank One, NA
132 E. Washington Street
Indianapolis, IN 46204
Defendant
The undersigned hereby certifies that a true and accurate copy of the foregoing
was served upon the following individuals through the Court’s electronic filing system at
the email address registered with the Court on this ha day of April, 2013:
Thomas D. Richards, Esq.
Attorney for Plaintiff, Fifth Third Bank
/s/ Bryan R. Moore
Bryan R. Moore (0085187)
Gary Paul Price (0010296)
Attorneys for Defendants, The Estate
of Thomas Leo Getz, Danielle D.
Getz-Woyan, Administrator, and
Danielle D. Getz-Woyan,
Individually
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367 OBO86 - H96 IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS CIVIL DIVISION Fifth Third Bank Case No. 12 CV 009367 Judge McIntosh Plaintiff, -vs- The Estate of Thomas Leo Getz, et al. Defendants. MOTION OF DEFENDANTS, THE ESTATE OF THOMAS LEO GETZ, DANIELLE D. GETZ-WOYAN, ADMINISTRATOR, AND DANIELLE D. GETZ- WOYAN, INDIVIDUALLY, FOR RELIEF FROM JUDGMENT Now come the Defendants, The Estate of Thomas Leo Getz, Danielle D. Getz- Woyan, Individually and as Administrator (hereinafter “Defendants”), by and through the undersigned counsel, and hereby respectfully request that this Court vacate and reconsider its Decree on Foreclosure, Entry Motion for Summary and Default Judgment and Order for Sale journalized by this Court on April 4, 2013. A Memorandum in Support is attached below.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367 OBO86 - H97 Respectfully submitted, PRICE LAW FIRM, LLC /s/ Bryan R. Moore Bryan R. Moore (0085187) Gary Paul Price (0010296) Attorneys for Defendants, The Estate of Thomas Leo Getz, Danielle D. Getz-Woyan, Administrator, and Danielle D. Getz-Woyan, Individually Price Law Firm, LLC 555 City Park Avenue Columbus, Ohio 43215 Telephone: (614) 224-2319 Email: Bryan.Moore@PriceLawOhio.com Email: Gary.Price @ PriceLawOhio.com Fax: (614) 224-4708Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367 OBO86 - H98 MEMORANDUM IN SUPPORT On April 4, 2013, the Court entered Summary Judgment against the Defendants based upon the “Motion for Summary Judgment . . . filed by the Plaintiff.” The Plaintiff filed its Motion for Summary Judgment on January 24, 2013. The Defendants filed a Motion for Summary Judgment of their own on February 1, 2013. The Court’s Decree dated April 4, 2013 does not acknowledge that the Defendants filed a Motion for Summary Judgment nor does it dispose of any arguments made by the Defendants in said Motion. The Defendants raised multiple meritorious arguments in their Motion which should not only deny the Plaintiff's Motion for Summary Judgment but also grant Summary Judgment in the Defendants’ favor. The Court’s Decree does not discuss or acknowledge any of the Defendant’s arguments. The Ohio Supreme Court has stated Rule 60(B) is “a remedial rule and should be liberally construed." Svoboda v. Brunswick, 6 Ohio St.3d 348, 351 (1983). “This standard of liberality is consistent with the oft-stated general principle that Civ. R. 60 (B)(5) is a provision whereby a court may relieve a party from judgment for any other reason than set forth in Civ. R. 60 (B)(1) to (4) justifying relief from judgment.” Jd. “Doubt, if any, should be resolved in favor of the motion to vacate.” Id. A motion to vacate a judgment pursuant to Civ.R. 60(B) is within the discretion of the trial court. GTE Automatic Electric v. ARC Industries, 47 Ohio St. 2d 146, (1976). A standard three part test is outcome determinative as to whether a party filing a 60(B) motion is entitled to relief. First, the filing party must show the filing itself is timely, specifically within a reasonable time, generally considered to be within one year of the entry of judgment. /d. at 13. Second, the filing party must demonstrate it is entitled to ' Decree on Foreclosure, Entry Motion for Summary and Default Judgment and Order for Sale, page 1. -3-Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367 OBO86 - H99 relief under one of the enumerated ground in Civ.R. 60(B). /d. Finally, the filing party must present a meritorious claim or defense for the underlying merits of the case. Id. Here, the Defendants clearly satisfy the reasonable time burden as this Motion is filed within a week of the Court’s entry of judgment. Second, the Defendants are entitled to relief pursuant Civ. R. 60(B)(5) as justice requires that the Court consider the merits of the Defendants’ arguments in their Motion for Summary Judgment. Finally, as argued in the Defendants’ Motion for Summary Judgment, the Defendants not only have and maintain meritorious defenses to the Plaintiff’s claims, but they also have presented their own claims via their Motion for Summary Judgment which entitle them to judgment on the merits of the Plaintiffs Complaint. Should the Court vacate the judgment and reconsider the filed motions, “a trial court has plenary power in ruling on a motion for reconsideration,” Groza-Vance ¥. Vance, 162 Ohio App. 3d 510, 532, 834 N.E.2d 15, 33 (10th Dist. 2005). Wherefore, the Defendants respectfully request that the Court vacate its judgment dated April 4, 2013 and reconsider the Defendants’ Motion for Summary Judgment.onosé pprankin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367 Respectfully submitted, PRICE LAW FIRM, LLC /s/ Bryan R. Moore Bryan R. Moore (0085187) Gary Paul Price (0010296) Attorneys for Defendants, The Estate of Thomas Leo Getz, Danielle D. Getz-Woyan, Administrator, and Danielle D. Getz-Woyan, Individually Price Law Firm, LLC 555 City Park Avenue Columbus, Ohio 43215 Telephone: (614) 224-2319 Email: Bryan.Moore@PriceLawOhio.com Email: Gary.Price @ PriceLawOhio.com Fax: (614) 224-4708onosé zo ranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Apr 11 9:22 AM-12CV009367 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing was served upon the following via U.S. Mail, postage prepaid this 11" day of April, 2013: Bank One, NA 132 E. Washington Street Indianapolis, IN 46204 Defendant The undersigned hereby certifies that a true and accurate copy of the foregoing was served upon the following individuals through the Court’s electronic filing system at the email address registered with the Court on this ha day of April, 2013: Thomas D. Richards, Esq. Attorney for Plaintiff, Fifth Third Bank /s/ Bryan R. Moore Bryan R. Moore (0085187) Gary Paul Price (0010296) Attorneys for Defendants, The Estate of Thomas Leo Getz, Danielle D. Getz-Woyan, Administrator, and Danielle D. Getz-Woyan, Individually