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U.S. Bank, N.A. v. Dowd

Court of Appeals of Ohio, Fifth District

September 4, 2013

U.S. BANK, N.A. Plaintiff- Appellee
v.
VICKIE L. DOWD, ET AL. Defendants-Appellants

Appeal from the Stark County Court of Common Pleas, Case No. 2012-CV-02674

For Plaintiff-Appellee STEPHEN D. WILLIGER RICHARD A. FRESHWATER Thompson Hine LLP

For Defendants-Appellants CRAIG T. CONLEY

Hon. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

(¶1} Defendants-appellants Vickie L. Dowd and Thomas F. Dowd appeal from the April 11, 2013 Judgment Entry of the Stark County Court of Common Pleas denying their Motion to Vacate and Dismiss.

STATEMENT OF THE FACTS AND CASE

(¶2} On August 23, 2012, appellee U.S. Bank, N.A. filed a complaint in foreclosure and for reformation of mortgage against appellants Vickie and Thomas Dowd, among others. Appellants, on September 6, 2012, filed an answer. Appellants, in their answer, set forth a number of affirmative defenses, including the defenses of insufficiency of process and/or insufficiency of service of process and lack of personal jurisdiction over them.

(¶3} Entries in the trial court's docket dated September 18, 2012 show that certified mail service was returned unclaimed with respect to both appellants. As memorialized in a Judgment Entry filed on October 4, 2012, the trial court ordered appellee to complete service on those defendants who had not yet been served. Docket entries dated October 15, 2012 show a failure of personal service for both appellants.

(¶4} Thereafter, on October 31, 2012, appellee filed a Motion for Summary Judgment. Appellee, in its motion, alleged that appellants had been served with a copy of the summons and complaint on September 6, 2012. Appellants did not file a response to such motion.

(¶5} Pursuant to an Entry filed on December 5, 2012, the trial court granted appellee's Motion for Summary Judgment and issued a Decree in Foreclosure and for Reformation of Mortgage. An Order of Sale was issued to the Stark County Sheriff on December 19, 2012.

(¶6} Subsequently, on March 13, 2013, appellants filed a Motion to Vacate and Dismiss. Appellants, in their motion, alleged that they had never been served with a copy of the summons and complaint. Appellants alleged that the trial court's December 5, 2012 Entry should be dismissed for lack of personal jurisdiction over appellants and that appellee's complaint should be dismissed without prejudice for failure of service of process within six months. A Notice of Sheriff's Sale that was filed on March 15, 2013 stated that a Sheriff's Sale had been set for April 8, 2013.

(¶7} Appellee, on March 26, 2013, filed an opposition to appellants' Motion to Vacate and Dismiss and appellants, on March 28, 2013, filed a reply brief. The subject property was sold to appellee at the Sheriff's foreclosure sale on April 8, 2013.

(ΒΆ8} As memorialized in a Judgment Entry filed on April 11, 2013, the trial court denied appellants' ...


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