FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF
SUMMIT, OHIO CASE No. 15CV01158
HUSAIN, pro se, Appellant.
A. BADER, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
A. SCHAFER JUDGE.
Defendant-Appellant Wazir Husain appeals a judgment of the
Akron Municipal Court that granted Unifund CCR, LLC's
("Unifund") motion for default judgment. For the
reasons that follow, this Court affirms.
Unifund filed a complaint against Mr. Husain, seeking to
recover the unpaid balance on his credit card account. When
attempts to serve Mr. Husain by certified mail were returned
unclaimed, Unifund asked the clerk's office to serve him
by ordinary mail. It complied, and the ordinary mail envelope
was not returned. After Mr. Husain failed to file an answer,
Unifund moved for a default judgment, which the municipal
court granted. Mr. Husain has appealed, assigning as error
that he was not given an opportunity to defend against the
APPELLANT, WAS NOT GIVEN AN OPPORTUNITY TO DEFEND MYSELF.
Mr. Husain argues that that he was not given an opportunity
to defend himself and requests that this Court reverse the
judgment of the Akron Municipal Court. He denies that he
received service of the action and claims that he was mostly
out of town during the months when the alleged service by
ordinary mail occurred.
"A trial court's decision to grant default judgment
is reviewed under an abuse of discretion
standard." Miller v. McStay, 9th Dist.
Summit No. 23369, 2007-Ohio-369, ¶ 5. Civ.R. 4.6(D)
provides that, if certified mail is returned with an
endorsement stating that the envelope was unclaimed, the
serving party may file a written request for ordinary mail
service. The rule also provides that, "[s]ervice shall
be deemed complete when the fact of mailing is entered of
record, provided that the ordinary mail envelope is not
returned by the postal authorities with an endorsement
showing failure of delivery." Civ.R. 4.6(D).
The record indicates that the certified mail sent to Mr.
Husain was returned unclaimed. Unifund subsequently made a
written request for service by ordinary mail, and the clerk
entered in the record when that occurred. There is no
indication in the record that the complaint sent via ordinary
mail was returned to the court. We also note that, despite
denying that he received "service, " Mr. Husain
acknowledges in his brief that he received "notice from
the Akron Municipal Court that a case ha[d] been filed
against me by Unifund[.]" Accordingly, upon review of
the record, we conclude that Mr. Husain has failed to
establish that he did not receive proper service. See
First Merit Bank, N.A. v. Wood, 9th Dist. Lorain No.
09CA009586, 2010-Ohio-1339, ¶ 8.
Under Civ.R. 55(A), a party is entitled to judgment by
default if "a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend as provided by these rules[.]" Under Civ.R.
12(A), "[t]he defendant shall serve his answer within
twenty-eight days after service of the summons and complaint
upon him[.]" Upon review of the record, we note that Mr.
Husain did not file an answer within 28 days of receiving
service. We also note that he has not contested the amount of
his debt to Unifund. Accordingly, we conclude that the