FIG20, L.L.C. v. Aldana

2023 Ohio 4560

• Court: Ohio Court of Appeals
• Decided: December 15, 2023
• Docket: 29852
• Status: Published

Opinion

[Cite as FIG20, L.L.C. v. Aldana, 2023-Ohio-4560.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

FIG20, LLC FBO SEC PTY : : Appellees : C.A. No. 29852 : v. : Trial Court Case No. 2023 CV 01360 : MIGUEL ALDANA, et al. : (Civil Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on December 15, 2023

ERIC T. DEIGHTON, Attorney for Appellees

MIGUEL ALDANA, Appellant, Pro Se

.............

TUCKER, J.

{¶ 1} Defendant-appellant Miguel Aldana appeals from a default judgment entered

against him on a foreclosure action filed by FIG20, LLC FBO SEC PTY (“FIG20”). For

the reasons that follow, we affirm.

I. Factual and Procedural Background -2-

{¶ 2} On March 17, 2023, FIG20 filed an action in foreclosure against Aldana. In

the complaint, FIG20 alleged that it had purchased two Montgomery County tax liens filed

against a duplex property owned by Aldana and known as 266 and 268 S. Findlay Street

in Dayton. On April 27, 2023, the trial court filed a notice of default in which it permitted

Aldana 14 days to file an answer or other responsive pleading in order to avoid default

judgment. In June 2023, FIG20 filed a motion for default judgment. On June 20, 2023,

the trial court entered default judgment against Aldana. Aldana filed a notice of appeal

on July 7, 2023.

II. Analysis

{¶ 3} The sole assignment of error asserted by Aldana states as follows:

FIG20 LLC GBO SEC PTY FAILED TO CONTACT ME TO MY

UPDATED MAILING ADDRESS LISTED WITH THE TAX ASSESSOR

FIG20 LLC FBO SEC PTY FAILED TO RUN AN ADD [SIC] AS IN

CASE NOTED IN PAGE 2 (2023 CV 04050)

FIG20 ONLY SERVED US FOR ONE PROPERTY BUT IN THE

CASE 2 TAX LIENS ARE SITED [SIC]

{¶ 4} The argument raised in Aldana’s pro se appellate brief is difficult to discern.

In the first two sentences of the statement of assignment of error, he arguably claims

FIG20 did not properly serve him with notice of the proceedings. However, in the third

sentence of the assignment of error, he seems to admit service but claims it was deficient -3-

because there were two tax liens cited with service for only one property. Further, the

entirety of his argument, as written, is as follows:

My argument is that the Tax system should sell Tax Lien to

Companies who are trying to help the citizen keep their homes, and provide

programs to do so. And at least return calls and have a live person to

speak to. A lot of elderly people can’t use these automated systems this

company has to assist the caller. Tax Lien Companies should be screened

selected and monitored for compliance with new mandates that will help

Ohio citizen stay in their homes.

Aldana’s appellate brief then goes on to state that he will provide “more documentation

and video” to support his arguments.

{¶ 5} We turn first to the issue of service. Under Civ.R. 4.1(A), service may be

made by certified or express mail, personal service, or commercial carrier service.

“Service of process must be made in a manner reasonably calculated to apprise

interested parties of the action and to afford them an opportunity to respond.” Chilcote v.

Kugelman, 8th Dist. Cuyahoga No. 98873, 2013-Ohio-1896, ¶ 10, citing Akron-Canton

Regional Airport Auth. v. Swinehart, 62 Ohio St.2d 403, 406, 406 N.E.2d 811 (1980). “A

trial court lacks jurisdiction to render a judgment against a defendant if effective service

of process has not been made on the defendant and the defendant has not appeared in

the case or waived service.” (Citation omitted.) Money Tree Loan Co. v. Williams, 169

Ohio App.3d 336, 2006-Ohio-5568, 862 N.E.2d 885, ¶ 8 (8th Dist.). “A judgment in the

absence of personal jurisdiction over the defendant is void.” Lincoln Tavern, Inc. v. -4-

Snader, 165 Ohio St. 61, 64, 133 N.E.2d 606 (1956).

{¶ 6} The plaintiff bears the burden of obtaining proper service upon a defendant.

Cincinnati Ins. Co. v. Emge, 124 Ohio App.3d 61, 63, 705 N.E.2d 408 (1st Dist.1997).

Where the plaintiff follows the civil rules governing the service of process, the service is

presumed to be proper unless the defendant rebuts the presumption with sufficient

evidence of nonservice. Rafalski v. Oates, 17 Ohio App.3d 65, 66, 477 N.E.2d 1212 (8th

Dist.1984).

{¶ 7} We first note that Aldana’s claim that service was deficient because he was

“only served for one property” lacks merit. The record shows Montgomery County filed

two separate tax liens covering two separate periods of time against one property owned

by Aldana. The suit filed by FIG20 involves its right to foreclose on the Findlay Street

property following its purchase of the two tax liens filed against that property. FIG20 was

not required to effectuate service twice for one lawsuit.

{¶ 8} Otherwise, Aldana does not cite any deficiency with the service of process in

this case. A review of the record demonstrates that service was perfected in compliance

with Civ.R. 4.1(A). Thus, we find no merit in any claim that Aldana was not properly

served with notice.

{¶ 9} We next address his argument that we should reverse the default judgment

because FIG20 refused to return his calls and did not work with him to permit him to retain

his property. We note there is no competent evidence in the record to support these

claims. Furthermore, there is no evidence that FIG20 failed to comply with any laws in

the pursuit of its foreclosure action. Thus, we find no merit in this argument. -5-

{¶ 10} Finally, we will treat Aldana’s argument as though he has made a claim that

the trial court improperly rendered default judgment against him.

{¶ 11} Default judgments are governed by Civ.R. 55, which provides in part: “When

a party against whom a judgment for affirmative relief is sought has failed to plead or

otherwise defend as provided by these rules, the party entitled to a judgment by default

shall apply in writing or orally to the court therefor[.]” Civ.R. 55(A). “Civ.R. 55 generally

authorizes the entry of a default judgment based on the fact that the defending party has

failed to plead or otherwise defend against the claims.” Brookville Ents., Inc. v. Seibel,

2d Dist. Montgomery No. 28561, 2020-Ohio-948, ¶ 23. “The purpose of Civ.R. 55(A) is

to prevent a defendant from employing inaction or delay as a litigation strategy in order

to avoid or defeat a plaintiff's claim for relief.” Gary R. Gorby & Assocs. v. McCarty, 2d

Dist. Clark No. 2010-CA-71, 2011-Ohio-1983, ¶ 33, quoting Med-Care Convalescent

Supply, Inc. v. Grafton Assocs., 2d Dist. Montgomery Nos. 14587, 14648, 1995 WL

137032, *3 (Mar. 31, 1995).

{¶ 12} We review a trial court's decision to grant a default judgment for abuse of

discretion. Natl. Collegiate Student Loan Tr. 2007-2 v. Tigner, 2d Dist. Montgomery No.

27841, 2018-Ohio-4442, ¶ 9. An abuse of discretion suggests the trial court's decision

was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

{¶ 13} Aldana does not deny the existence or validity of the tax liens. He does

not contest the validity of the sale of those liens to FIG20, and he does not assert any

defense that would prevent foreclosure. Instead, he merely argues that FIG20 should -6-

have worked with him to effectuate payment of the liens prior to initiating this action.

{¶ 14} Aldana’s failure to file an answer or other responsive pleading is not

excused by the fact that he was allegedly attempting to negotiate with FIG20 to avoid

foreclosure. See Assoc. First Capital Corp. v. Crane, 2d Dist. Montgomery No. 21259,

2006-Ohio-4145, ¶ 22. Because Aldana does not assert any valid defense to the claims

made by FIG20 and the record does not disclose any error, we conclude that Aldana has

failed to demonstrate that the trial court abused its discretion in rendering default

judgment against him.

{¶ 15} Accordingly, the sole assignment of error is overruled.

III. Conclusion

{¶ 16} The judgment of the Common Pleas Court is affirmed.

WELBAUM, P.J. and HUFFMAN, J., concur.