Lexis Nexis - Case Brief

Not a Lexis Advance subscriber? Try it out for free.

Law School Case Brief

Banc One Fin. Servs. v. Hancock - CASE NO. CA98-02-015, 1998 Ohio App. LEXIS 5158 (Ct. App. Nov. 2, 1998)

Rule:

The trial court is granted broad discretion in ruling on a motion for leave to answer out of time and the trial court's decision can only be reversed on appeal for an abuse of discretion. Abuse of discretion connotes more than an error in law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.

Facts:

Banc One Financial Services, Inc. (“Banc One”) filed a complaint for foreclosure and marshalling of liens against defendant-appellant, Michael J. Hancock (“Hancock”). Service was attempted by certified mail, but was unsuccessful because the forwarding time expired for Hancock’s previous address. Therefore, Hancock was served at his new address by ordinary mail. Hancock failed to file a timely answer and Banc One filed a motion for a default judgment against Hancock. Hancock fired his attorney and filed a motion for leave to answer out of time. The trial court denied the motion for leave to answer out of time and granted a default judgment in Banc One’s favor. Hancock sought a review of the trial court’s decision, contending that the trial court abused its discretion by denying his motion for leave to file an answer out of time and entering a default judgment against him.

Issue:

Did the trial court abuse its discretion by denying Hancock’s motion for leave to file an answer out of time and by entering a default judgment against him?

Answer:

No.

Conclusion:

The court held that there was no basis in the record to conclude that the trial court arbitrarily or unreasonably denied Hancock’s motion. According to the court, the failure of an attorney to file a timely answer should be imputed to the client. The trial court was within its discretion to conclude that attorney nonfeasance does not meet the "excusable neglect" standard of Civ. R. 6(B)(2). The trial court never stated that Civ. R. 60(b), which was more stringent than Civ. R. 6(B)(2), was being applied to the case, and the court found that even if it had, it found no unfair prejudice to Hancock.  

Access the full text case Not a Lexis Advance subscriber? Try it out for free.
Be Sure You're Prepared for Class