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Bank of America, N.A. v. Thrasher

Court of Appeals of Ohio, Second District

September 13, 2013

BANK OF AMERICA, N.A. Plaintiff-Appellee
v.
HEIDI J. THRASHER, et al. Defendant-Appellant

Civil Appeal from Common Pleas Court, Trial Court Case No. 12-CV-632

JAMES S. WERTHEIM, Atty. Reg. #0029464, and MARIA CANDACE BURNETTE, Atty. Reg. #0088507, McGlinchey Stafford PLLC, Attorneys for. Plaintiff-Appellee, Bank of America, N.A.

MICHAEL MAYER, Atty. Reg. #0064079, Mayer Law Office LLC, Attorney for Defendant-Appellant, Dallas Watts.

THERESA BAKER, Atty. Reg. #0059122, Attorney for Defendant-Appellee, Heidi Thrasher.

OPINION

FAIN, P.J.

(¶ 1} Defendant-appellant Dallas Watts appeals from a default judgment rendered against him in a foreclosure action, and also from the order confirming the sheriffs sale. Watts contends that the trial court lacked personal jurisdiction over him and that the ensuing sheriffs sale did not comply with statutory requirements.

(¶ 2} We conclude the record in this case establishes a presumption of proper service that Watts failed to rebut. Therefore, we conclude that the trial court did not err in rendering a default judgment of foreclosure. We further conclude that Watts failed to establish that the sheriffs sale was not properly conducted. Accordingly, the judgment of the trial court is Affirmed.

I. Course of the Proceedings

(¶ 3} Watts and Heidi Thrasher borrowed money from plaintiff appellee Bank of America, N.A., to purchase property located at 8441 Haddix Road in Fairborn, Clark County, Ohio. Watts and Thrasher jointly executed a note and mortgage to secure the loan.

(¶ 4} The Bank brought this foreclosure action against Watts and Thrasher. The Bank requested service of process by certified mail, and also by the Sheriff A return was filed indicating that service by Sheriff failed due to "wrong address." The certified mail addressed to Watts was signed by Thrasher and filed of record.

(¶ 5} A default judgment of foreclosure was entered on August 20, 2012. A praecipe for order of sale was filed on August 29.

(¶ 6} On September 7, Watts filed a Motion for Leave to File an Answer Out of Time. The answer did not allege any defects in service and did not set forth any defenses to the Bank's claims. Three days later, Watts filed a motion to vacate the default judgment. The Bank filed a response to the motion to vacate. An appraisal was filed on September 18 giving an estimated value of $60, 000 for the property.

(¶ 7} Watts then filed an "answer" to the Bank's response to his motion to vacate the judgment, along with a motion to stay the sheriffs sale. In that motion, Watts raised the issue of service. Thereafter, on November 13, 2012, Watts filed a motion requesting a hearing on the motions to vacate the judgment and stay the Sheriffs sale. The record shows that a notice of Sheriffs sale was sent, by regular mail, to Watts at the Haddix Road address. Watts filed a Motion to Vacate and Objection to Sheriffs Sale on December 20. The motions to vacate the judgment and stay the sale were denied by a magistrate. The sheriffs sale was conducted on December 21.

(¶ 8} On January 7, 2012, Watts filed a Motion to Set Aside Sheriffs Sale or in the Alternative to Stay Confirmation of Sheriffs sale. He also filed an objection to the trial court's denial of his motions to vacate the judgment and stay the sale. The trial court entered a Judgment Entry Confirming the Sheriffs Sale and Order of Distribution on February 8, 2013.

(¶ 9} Watts appealed from both the default judgment of foreclosure and the confirmation of sale. The Bank moved to dismiss the appeal from the default judgment of foreclosure upon the grounds that the judgment was not timely appealed. This court denied the Bank's motion to dismiss, finding that the Clark County Clerk of Courts had failed to comply with Civ.R. 58(B) with regard to the default judgment, so that the time for filing an appeal therefrom had never begun to run.

II. Because Watts Was Served with the Complaint in Accordance with Civ.R. 4.1, He Was Presumed to have Been Properly Served with Notice of the Complaint; His Affidavit Falls Short of Overcoming that Presumption, Because it Fails to Aver that He Was without Knowledge of the Complaint in ...


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