COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68549 THIRD FEDERAL SAVINGS AND LOAN ASSOCIATION OF CLEVELAND : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICKY T. JOHNSON, ET AL. : : Defendants : PER CURIAM : : [Appeal by City Loan Financial : Services, Inc. : : Defendant-Appellant] : DATE OF ANNOUNCEMENT OF DECISION AUGUST 24, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 241551 JUDGMENT Reversed and remanded. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: MICHAEL LINDEN, ESQ. LEONARD B. SCHARFELD, ESQ. 668 Euclid Avenue 1905 The Superior Building Suite 725 815 Superior Avenue, N.E. Cleveland, Ohio 44114 Cleveland, Ohio 44114 [Continued on next page] For State of Ohio, Dept. Also listed: of Taxation: RICKY T. JOHNSON GREGORY SEVERANCE, Asst. GEORGIA ANN JOHNSON Attorney General 3928 Washington Park Blvd. Revenue Recovery Section Newburg Hts., Ohio 44105 30 East Broad Street Columbus, Ohio 43266 - 3 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Defendant-appellant City Loan Financial Services, Inc. appeals from the trial court's denial of its Civ. R. 60(B) motion requesting relief from a foreclosure judgment barring defendant from participating in the foreclosure proceeds by default. City Loan contends the trial court abused its discretion in not granting the requested relief. We find merit to the appeal and reverse the order denying relief. This case arose from a complaint filed by Third Federal for foreclosure and money judgment. City Loan was one of the defendants listed therein by virtue of a second mortgage upon the affected real estate in the amount of $21,916.87 with interest. On November 5, 1992, City Loan was served by certified mail. City Loan failed to appear or file any pleading for the reasons set forth in its motion for relief from judgment, to wit: City Loan's staff misfiled the court's summons and complaint and as a result took no steps to protect its second mortgage on the property. On February 28, 1994, a Judgment and Decree of Foreclosure was filed by the court defaulting City Loan for failing to appear or plead. On April 25, 1994, a sheriff's sale of said real estate was held and after paying the court costs, real estate taxes, and the - 4 - balance due to Third Federal, the first mortgagee, the sum of $6,485.26 was held by the Clerk pending further order of the court. On June 21, 1994, City Loan filed its motion for relief from judgment pursuant to Civ. R. 60(B) requesting leave to file its answer and counterclaim setting forth its mortgage interest against the property. It was explained that the court papers were placed in the wrong file rather than forwarded to City Loan's attorney for appropriate action. The other parties filed no opposition to the motion and Third Federal and the Ohio Department of Taxation consented to a Judgment Entry granting the relief. On January 19, 1995, the trial court filed its final order and judgment denying the Rule 60(B) motion and this appeal ensued. No appellee's brief has been filed. City Loan's sole assignment of error states as follows: I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING AND OVERRULING THE MOTION FOR RELIEF FROM JUDGMENT AND FOR LEAVE TO FILE ANSWER AND COUNTER- CLAIM AND WHICH MOTION WAS FILED BY CITY LOAN FINANCIAL SERVICES, INC., DEFENDANT-APPELLANT. Civ. R. 60(B) provides in pertinent part: (B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. 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 reasons: (1) mistake, inadvertence, surprise or excusable neglect; *** 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. - 5 - The requirements necessary for a motion seeking relief from judgment have been set forth in paragraph two of the syllabus of GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146: To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds for relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. Recently followed and quoted with approval in Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. The issue on this appeal from the denial of a Civ. R. 60(B) motion for relief from judgment is whether the trial court abused its discretion. Strack v. Pelton, supra at 174; Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. The trial court did not offer any explanation or reasons for its denial of the motion for relief which was unopposed. We have no difficulty in determining within the requirements of Civ. R. 60(B) and GTE Automatic that City Loan has presented a meritorious claim (a second mortgage which no one disputes) and that its motion for relief was timely brought (within four months of the judgment entry and two months after discovering its default). The only question is whether its failure to answer or - 6 - respond was due to "mistake, inadvertence *** or excusable neglect" within the meaning of subsection (B)(1). We are guided by the recent statement in Miami Sys. v. Dry Cleaning Computer Sys. (1993), 90 Ohio App.3d 181, 185: Civ. R. 60(B)(1) is a remedial rule entitled to liberal construction with a view to effectuate just results. Rose Chevrolet, Inc., supra. The movant "has the burden to demonstrate by operative facts a prima facie case of 'excusable neglect' showing that the ends of justice will be served by vacating the judgment. To this extent, the quantum of evidence necessary depends upon all surrounding facts and circumstances." Childs v. Kelley (Jan. 23, 1991), Hamilton App. No. C-890468, unreported, 1991 WL 6360. "'Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be in favor of the motion to set aside the judgment so that cases may be decided on their merits.'" Doddridge v. Fitzpatrick (1978), 53 Ohio St.2d 9, 13, 7 O.O.3d 5, 7, 371 N.E.2d 214, 217, quoting GTE Automatic Elec. v. ARC Industries, supra, at paragraph three of the syllabus. The prevailing rule of law in Ohio is that relief from default judgment may be granted on the basis of excusable neglect when service is properly made on a corporation, but a corporate employee fails to forward the summons and complaint to the appropriate party. Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578, 582; Sycamore Messenger, Inc. v. Cattle Barons, Inc. (1986), 31 Ohio App.3d 196, 197. This Court has also adopted this principle in Moore v. Searcy (July 18, 1991), Cuyahoga App. No. 61154, unreported; Enhanced Systems, Inc. v. CBM Computer Center (July 20, 1989), Cuyahoga App. No. 56978, unreported. - 7 - We find, under the circumstances presented, that a misfiling of the court papers was a "mistake, inadvertent or excusable neglect" and we can find no reasonable basis for the trial court denying the timely request for relief. The other parties took no exception to the proffered explanation and filed no opposition to the motion for relief. No opposition has been filed in this Court to the appeal. It is further evident that no prejudice resulted to the other parties to the proceeding from City Loan's default and it would be an injustice to avoid the second mortgage obligation on the basis of a default in responding to the court papers. We sustain the assignment of error, reverse the denial of the motion for relief from judgment and grant same. This case is remanded for further proceedings consistent with this opinion. - 8 - It is ordered that appellant recover of appellee its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .