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Guiley v. Dewalt

Court of Appeals of Ohio, Fifth District, Stark

June 5, 2017

RICHARD R. GUILEY, ADMINISTRATOR OF THE ESTATE OF AUDREY J. WILHELM Plaintiff-Appellee
v.
CAROL R. DEWALT, ET AL. Defendants-Appellees U.S. BANK NATIONAL ASSOCIATION Defendant-Appellant

         Appeal from the Stark County Probate Court, Case No. 226033

          For Defendant-Appellant - U.S. Bank National Association DEAN KANELLIS Felty & Lembright, Co., L.P.A.

          For Plaintiff-Appellee RICHARD R. GUILEY Guiley & Guiley, Co., L.P.A.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.

          OPINION

          Gwin, J.

         {¶1} Appellant appeals the July 15, 2016 judgment entry of the Stark County Court of Common Pleas, Probate Division, granting default judgment against appellant and in favor of appellee.

         Facts & Procedural History

         {¶2} On April 28, 2016, appellee Richard R. Guiley, Administrator of the Estate of Audrey J. Wilhelm, filed a complaint to sell real estate to pay debts. Appellee filed an amended complaint on April 29, 2016, joining appellant U.S. Bank National Association as a defendant. The complaint averred that appellant, "possess or claims to possess a valid interest in the real estate by virtue of an assignment of mortgage * * * dated April 18, 2016 and recorded on April 18, 2016." It is undisputed that appellant has a valid mortgage on the property in the unpaid amount of $44, 256.43. Decedent signed the mortgage with Residential Bancorp, and Residential Bancorp assigned the mortgage to appellant.

         {¶3} On May 2, 2016, the trial court issued a summons to appellant. The summons states, in pertinent part:

(1) YOU ARE HEREBY SUMMONED AND REQUIRED TO SERVE UPON THE PLAINTIFFS ATTORNEY A COPY OF YOUR WRITTEN ANSWER TO THE COMPLAINT WITHIN TWENTY-EIGHT (28) DAYS AFTER THE SERVICE OF THE SUMMONS ON YOU, EXCLUSIVE OF THE DAY OF SERVICE.
(2) YOUR WRITTEN ANSWER MUST ALSO BE FILED WITH THE COURT WITHIN THREE (3) DAYS AFTER THE SERVICE OF A COPY OF THE ANSWER ON THE PLAINTIFF'S ATTORNEY.
IF YOU FAIL TO COMPLY WITH PARAGRAPHS (1) AND (2), JUDGMENT BY DEFAULT WILL BE RENDERED AGAINST YOU FOR THE RELIEF DEMANDED IN THE COMPLAINT.

         {¶4} The trial court docket contains an entry on May 5, 2016 stating, "SUMMONS RETURNED-SERVED*** NOTICE TO: U.S. BANK NATIONAL ASSOCIATION." On May 9, 2016, a United States Postal Service domestic return receipt was filed with the trial court regarding service upon appellant. The receipt indicates service was made by certified mail; however the receipt is neither signed by a representative of appellant, nor dated to indicate the date of service. By comparison, the filed return receipts relative to the other named defendants each contain a signature.

         {¶5} On June 10, 2016, appellee filed a motion for default judgment as to various defendants, including appellant. The motion avers on or before May 9, 2016, service was successful on the defendants, including appellant. The proof of service of appellee's motion for default judgment indicates appellant was served with a copy of the motion by regular mail on June 8, 2016.

         {¶6} On June 13, 2016, appellant filed an answer to the amended complaint with the trial court without leave of court. The proof of service attached to the answer states appellant "served a copy of the foregoing Answer on the following parties or their counsel by Ordinary U.S. Mail, this 7th day of June, 2016."

         {¶7} The trial court issued a judgment entry on July 15, 2016 and granted default judgment in favor of appellee against appellant. The judgment entry states, "the complaints were served upon the aforesaid Defendant on or before May 10, 2016, rendering the answer date for said Defendants on or before June 7, 2016. The aforesaid Defendants failed to file an answer or otherwise respond by the prescribed date." The trial court's judgment entry cites Civil Rule 55(A) and (B) in rendering its decision. The trial court further states, "* * * Defendant U.S. Bank failed to request leave to file its answer beyond the timeframe prescribed by law and failed to establish that its failure to answer in a timely manner was due to excusable neglect."

         {¶8} The trial court entered an order of sale and judgment entry finding sale necessary via separate judgment entries on July 15, 2016. The order of sale was stayed by the trial court upon motion of appellant with the posting of bond.

         {¶9} On August 9, 2016, appellee filed a notice of service on appellant of the amended complaint. The notice of service avers service of the amended complaint was perfected on appellant on May 5, 2016 at 9:52 a.m. Appellee attached the electronic signature of proof of service for the United States Postal Service. The notice of service will not be considered for purposes of this appeal, as the document was not before the trial court at the time the trial court granted the motion for default judgment against appellant.

         {¶10} Appellant appeals the July 15, 2016 judgment entry of the Stark County Court of Common Pleas, Probate ...


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