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TBF Financial LLC v. Wilkerson

Court of Appeals of Ohio, Tenth District

August 29, 2019

TBF Financial LLC, Plaintiff-Appellant,
v.
Angela Wilkerson, Defendant-Appellee.

          APPEAL from the Franklin County Court of Common Pleas No. 18JG-16471

          On brief: Burman & Robinson, Randal D. Robinson, and Carolyn M. Easterday for appellant.

          DECISION

          SADLER, J.

         {¶ 1} Plaintiff-appellant, TBF Financial LLC, appeals the judgment of the Franklin County Court of Common Pleas adopting a magistrate's decision ordering money secured by a bank garnishment to be released to defendant-appellee, Angela Wilkerson. For the following reasons, we reverse the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} In the Franklin County Municipal Court, appellant was granted judgment against appellee jointly and severally with "Angela Wilkerson Rawlings dba Diamond Tax Service" in the amount of $2, 722.66, plus interest and attorney fees. (Feb. 15, 2018 Entry for Default Jgmt. at 1.) Appellant certified the judgment to the Franklin County Common Pleas Court on March 29, 2018. Both the certificate of judgment and praecipe requesting the clerk of the court of common pleas file a certificate of judgment lien state 4626 Grovedale Court in Columbus as appellee's address.

         {¶ 3} On May 10, 2018, appellant filed a non-wage garnishment of appellee's Fifth Third Bank ("Fifth Third") checking account. The trial court set a hearing date for May 31, 2018, and the clerk of courts for the court of common pleas was instructed to make certified mail service of an "Order and Notice of Garnishment of Property Other Than Personal Earnings" to Fifth Third (the garnishee) and a "Notice to the Judgment Debtor of Garnishment" to appellee at the Grovedale Court address. (May 10, 2018 Instruction for Service at 1.) The docket reflects the clerk issued service of the notice to appellee on May 14, 2018. Fifth Third answered the order and notice of garnishment, indicating it held $2, 722.66 of appellee's money and then deposited $2, 722.66 with the court.

         {¶ 4} On June 1, 2018, appellee filed a change of address form stating 5890 Aqua Bay Drive in Columbus as her address. On July 3, 2018, [1] appellee filed, pro se, a motion requesting a hearing on the case. In her motion, appellee alleged she did not receive the notice of garnishment due to "bad delivery service" and states she had no knowledge of appellant and had never done business with appellant. (July 3, 2018 Refiled Mot. at 2.) Appellee attached to her motion a bank statement from Fifth Third listing the Aqua Bay Drive address. She also filed a separate "motion to be heard." (July 3, 2018 Mot. to be Heard at 1.)

         {¶ 5} Both parties filed motions for an order to distribute the funds. Appellee argued she never received notice of previous court proceedings and the lack of notice "disallowed [her] to properly defend [her]self against this debt allegation brought forth before this Court" and asserted she should be "allow[ed] to properly negate this matter with [appellant] that/whom [she] ha[s] no prior knowledge of until [her] funds were released by [her] bank." (July 27, 2018 Mot. at 2.)

         {¶ 6} The trial court scheduled a hearing on the parties' motions to distribute funds on August 16, 2018 before a magistrate. The day following the hearing, August 17, 2018, the magistrate issued a decision granting appellee's motion for an order to distribute the held funds and denying appellant's motion. Among the findings of fact, the magistrate found:

15. There was no evidence on the Docket that any document sent to 4626 Grovedale Court was ever returned; i.e., ordinary mail was not returned and there was no return of the certified mail.
16. The Docket supports a presumption that there was good service of the Notice on the Judgment Debtor.
17. However, the Judgment Debtor testified that she did not get notice of the garnishment.
18. The Judgment Debtor testified that she had not resided at the Grovedale address for some time prior to the May 2018 mailings.
19. The Judgment Debtor did not have any other fact that would preclude the money from being released to the Judgment Creditor other than the alleged service issue.

(Aug. 17, 2018 Mag.'s Decision at 3.) In its conclusions of law, the magistrate stated:

There is evidence that the Judgment Debtor was served with the proper notice contained within R.C. ยง2716.13. (See the May 10, 2018 Notice to the Judgment Debtor) That mailing created a presumption that there was good service. In response, the Judgment Debtor claimed that the address used by the Judgment Creditor was not valid at that time. The judgment Debtor testified that she did not receive the ...

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