[Cite as Countrywide Home Loans Servicing, L.P. v. Davis, 2016-Ohio-7421.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY
Countrywide Home Loans Servicing, L.P. Court of Appeals No. H-15-009
Appellee Trial Court No. CVE 2009 0469
v.
James P. Davis aka James Davis,
aka James Phillip Davis, et al. DECISION AND JUDGMENT
Appellant Decided: October 21, 2016
*****
Robert A. DeBlasis, for appellee.
Warren W. Ruggles and West M. Ruggles, for appellant.
*****
JENSEN, P.J.
I. Introduction
{¶ 1} In this foreclosure action, the Huron County Court of Common Pleas entered
a default judgment in favor of the plaintiff-appellee, Countrywide Home Loans
Servicing, L.P. Five years later, the defendant-appellant, James P. Davis, moved the
court to dismiss the case because he claimed that service of process was invalid as to him
and therefore, that the foreclosure judgment was void ab initio.
{¶ 2} The lower court denied the motion, finding that service was valid and the
sale of the property could proceed. For the reasons that follow, we affirm.
II. Statement of Facts and Procedural History
{¶ 3} Appellee filed a complaint in foreclosure on May 18, 2009, based on an
alleged default under the terms of a promissory note, executed by appellant, and a
mortgage, executed by appellant and his then-wife, Lisa Davis. Appellee named
appellant, Lisa Davis, America’s Wholesale Lender, and the Huron County Treasurer as
defendants. The mortgage encumbered the real property at 4914 State Route 601,
Norwalk, Ohio 44857, where appellant lived.
{¶ 4} At issue in this case is service of the summons and complaint as it relates to
appellant.
{¶ 5} Appellee moved to appoint a private process server which the court granted.
According to the record, the process server made “residence service” on appellant at his
usual place of residence with appellant’s “sister (live-in) Linda Johnson age 50-60 years”
on May 20, 2009. The server filed a “return of service” with the clerk the next day.
{¶ 6} Only the county treasurer answered the complaint. On July 2, 2009,
appellee filed a motion for default judgment as to the remaining defendants. None of the
parties, including appellant, responded to the motion, and the trial court entered a default
2.
judgment in foreclosure on July 7, 2009. Appellee purchased the property on
September 16, 2013, and the clerk of courts issued a writ of possession on June 23, 2014.
{¶ 7} On September 12, 2014, five years after the default judgment, appellant
moved to dismiss the case. He claimed that he had not been served with process and,
therefore, that the trial court never obtained personal jurisdiction over him. He submitted
affidavits to that effect from Johnson and himself.
{¶ 8} Appellee objected to the motion, and an evidentiary hearing was held. At
the hearing, the parties stipulated that appellant’s sister, Linda Johnson, lives next door to
appellant, on an adjacent property, with a separate address. Johnson testified that she did
not receive any papers regarding the commencement of this action on or about May 20,
2009.
{¶ 9} Likewise, appellant denied that he received the summons or complaint. He
also claimed not to have received five other notices sent by the clerk of courts,
subsequent to the filing of the complaint. Appellant verified that the docket correctly
identified his address and that he has had no problems with his mail delivery.
{¶ 10} Appellee called the general manager of Process Pro, LLC, the company
hired to serve appellant with process. The manager testified as to the company’s methods
generally, stated that those methods were followed here, and read from the company
records created in this case. The process server created a report which states, in part: “At
5-20-2009 at 7:00 p.m., served through live-in sister, Linda Johnson, a white female 50 to
60 years old, 5’7”, 140 to 150 pounds, short blonde slash gray hair.”
3.
{¶ 11} Following briefing by both sides, the trial court denied appellant’s motion
to dismiss. The trial court found that appellee presented evidence to create a presumption
of valid residence service and that appellant had failed to rebut that presumption. The
court specifically found that testimony by appellant and Johnson was not credible.
Appellant appealed. 1
{¶ 12} Appellant raises the following assignment of error:
The trial court erred as a matter of law by concluding that the Civil
Rules were followed even though it found that the person to whom the
process and the complaint were allegedly given did not actually reside in
defendant-appellant’s residence.
III. Law and Analysis
{¶ 13} Due process requires that service of process be accomplished in a manner
“reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action” and to give them an opportunity to appear. Samson Sales, Inc. v.
Honeywell, Inc., 66 Ohio St.2d 290, 293, 421 N.E.2d 522 (1981). “In addition, service of
process must satisfy the requirements of Civ.R. 4 et seq. Proper service of process is
needed before the court can render a valid default judgment. Therefore, a default
1
Initially, we found that the trial court’s judgment, denying the motion to dismiss, was
not a final, appealable order. We reconsidered that decision, however, pursuant to the
rationale articulated in Dairyland Ins. Co. v. Forgus, 58 Ohio App.3d 78, 569 N.E.2d
1232 (8th Dist.1989).
4.
judgment rendered by a court without personal jurisdiction over the parties is void.”
(Citations omitted.) United Home Fed. v. Rhonehouse, 76 Ohio App.3d 115, 601 N.E.2d
138 (6th Dist.1991); see also Peoples Banking Co. v. Brumfield Hay & Grain Co., 172
Ohio St. 545, 179 N.E.2d 53 (1961), paragraph two of the syllabus.
Moreover, “the determination by the trial court of the question of sufficiency of
process is a matter in its sound discretion.” Seal Master Indus. v. Bay Area Seal Coating
& Stripping, 6th Dist. Lucas No. L-05-1186, 2006-Ohio-3610, ¶ 18. An abuse of
discretion requires more than an error in judgment; the trial court’s decision must be
found to be unreasonable, arbitrary, or unconscionable. In re. K.M.-B., 6th Dist. Lucas
No. L-15-1037, 2015-Ohio-4626, ¶ 45.
{¶ 14} Civ.R. 4.1 describes the methods that may be used for service of process
within the state. The rule permits service by the clerk of courts, personal service, and
residence service. At issue herein is whether residence service, pursuant to Civ.R.
4.1(C), was accomplished. The rule provides, in relevant part,
The person serving process shall effect service by leaving a copy of
the process and the complaint, or other document to be served, at the usual
place of residence of the person to be served with some person of suitable
age and discretion then residing therein. When the copy of the process has
been served, the person serving process shall endorse that fact on the
process and return it to the clerk, who shall make the appropriate entry on
the appearance docket. (Emphasis added.)
5.
{¶ 15} “[V]alid service of process is presumed when such a person at the
defendant’s residence receives the summons.” Henry v. Baker, 6th Dist. Erie No.
E-02-001, 2002-Ohio-2170, ¶ 6, citing Ohio Civ. Rights Comm. v. First Am. Properties,
Inc., 113 Ohio App.3d 233, 237, 680 N.E.2d 725 (2d Dist.1996).
{¶ 16} Appellant argues that residence service was ineffective because “the person
to whom the process and the complaint were allegedly given did not actually reside in
appellant’s residence. The [legal] conclusion of the trial court is in conflict with the basic
requirements of Civ.R. 4.1(C).”
{¶ 17} In response, appellee makes two arguments. First, it claims that appellant
had actual knowledge of the lawsuit, given the multiple notices sent to his address.
Appellee stresses that the court judicially noticed five court-initiated filings that were sent
to appellant, at the correct address, subsequent to the complaint. A defendant’s
knowledge that a case has been filed against him, however, does not dispense with the
necessity of service of process. “[I]naction upon the part of a defendant, even though he
might be aware of the filing of the action, does not dispense with the need for service.”
(Emphasis added.) Maryhew v. Yova, 11 Ohio St.3d 154, 157, 464 N.E.2d 538 (1984),
citing Haley v. Hanna, 93 Ohio St. 49, 112 N.E. 149 (1915). A defendant who was not
served with process may do nothing or may file an answer asserting the defense of
insufficient service of process. Id.
{¶ 18} Second, appellee argues that the trial court acted reasonably when it found
that the appellee satisfied its burden to show that service was valid. In so ruling, the
6.
court accepted the testimony of the process server and the documentary evidence, i.e.,
that a person matching Johnson’s description received the court papers, at appellant’s
home, and that she identified herself as appellant’s “live-in” sister.
{¶ 19} Indeed, the court found:
The Court is persuaded that the most reliable evidence in the matter
is the actual return of service filed in the Court’s records on May 21, 2009.
The return plainly shows that the Complaint was served on May 20, 2009
upon [appellant] by [the] process server * * * and that [the process server]
hand delivered the Complaint to someone who identified herself as Linda
Johnson and as [appellant’s] sister. The return further accurately reflects
Ms. Johnson’s age. While the return does indicate that Ms. Johnson lived
at [appellant’s] residence, the testimony at the hearing established that she
actually lived on an adjoining parcel. Based on the evidence presented, the
Court finds that the [appellee] followed the Civil Rules in making service
and that it is therefore presumed valid. The Court further finds that the
simple denial by Ms. Johnson is not credible. The Court finds that
[appellant’s] denial of any knowledge of the action is also not credible.
{¶ 20} Appellee argues, and we agree, that the court acted within its discretion to
reject Johnson’s self-serving testimony, all these years later, that she did not receive
service at appellant’s residence and/or that she did not claim to live there, even if that
was, in fact, accurate.
7.
{¶ 21} The trial court found that the testimony offered by appellant did not
provide the necessary evidence to rebut the presumption of proper service. We see no
abuse of discretion. Appellant’s assignment of error is not well-taken, and the judgment
of the trial court is affirmed. Costs are assessed to appellant pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
8.