[Cite as Tambe v. Montgomery, 2024-Ohio-2857.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
PAUL TAMBE, :
Appellee, : CASE NO. CA2023-10-082
: OPINION - vs - 7/29/2024 :
ELLINGTON HARPER MONTGOMERY : aka MADELINE ROSE REDMOND aka MADELINE ROSE KLEEMEIR, : et al.,
Appellant.
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 22CV95174
Gurry Law, LLC, and Robert Gurry, for appellee.
Kohl & Cook Law Firm, LLC, and Brian A. Brown and Andrew J. Gerling, for appellant.
PIPER, J.
{¶ 1} Appellant, Ellington Montgomery, appeals from a decision of the Warren
County Court of Common Pleas denying her motion to vacate a default judgment entered
in favor of appellee, Paul Tambe. For the reasons detailed below, we affirm.
FACTUAL BACKGROUND
{¶ 2} In December 2009, Montgomery purchased a home located at 8427 Warren CA2023-10-082
Primrose Way, Waynesville, Ohio ("Primrose address"). In 2018, Montgomery borrowed
money from Tambe so that Montgomery could pay for repairs from a house fire. The
nature of the repairs is not material to this case.1 As evidence of the loan agreement, a
note and mortgage was executed by Montgomery using the residence as collateral. Later
Montgomery defaulted on the terms of the promissory note and on May 25, 2022, Tambe
filed a foreclosure action on Montgomery's Primrose real estate securing the debt.
{¶ 3} Tambe had Montgomery served with the complaint by certified mail at the
Primrose address. The certified mail return receipt was duly signed with an illegible
signature. Montgomery failed to respond or appear for any proceedings and a default
judgment and decree of foreclosure was entered against her on September 14, 2022. A
sheriff's sale of the Primrose address was scheduled for December 19, 2022.
{¶ 4} On December 18, 2022, Montgomery filed for bankruptcy, which resulted in
the cancellation of the scheduled sheriff's sale. The bankruptcy action was later
dismissed. Thereafter, a second sheriff's sale was scheduled for July 10, 2023, at which
time the Primrose address sold for $740,500.
{¶ 5} On July 11, 2023, Montgomery moved to vacate the default judgment,
complaining that Tambe failed to serve her with the complaint. The trial court held an
evidentiary hearing on the motion to vacate on August 28, 2023.
EVIDENTIARY HEARING
{¶ 6} During the hearing, Montgomery alleged that the Primrose address had
electrical damage that resulted in her moving from the residence in March of 2022.
Montgomery admitted returning to the Primrose address about three times a week but
claimed to not reside there. She claimed that she moved to Xenia but declined to provide
1. The record reflects that Montgomery borrowed $160,000 from Tambe.
-2- Warren CA2023-10-082
the address. Montgomery said "I think we stayed with my friend's mom for a weekend or
two and then - - I'm so sorry. It's been - - it's been a long - - a lot of addresses."
Montgomery then mentioned living in Kettering in a "vacant" apartment. However, she
denied ever signing a lease agreement or mortgage for any of the residences she claimed
to have lived in.
{¶ 7} Montgomery denied signing for any certified mail in this case. She made
reference to an alleged attempt to have a hold placed on her mail. She said that mail in
the neighborhood was inconsistent and that she mostly received junk mail. Montgomery
claimed that she moved back in the Primrose address in the Fall of 2022, but she still had
no knowledge of the foreclosure action. Montgomery testified that she first learned of the
foreclosure action in December of 2022 when she was at the Primrose address tiling the
floors when a "family" came by and mentioned that the home was set for auction.
{¶ 8} Tambe called Joseph Redmond who was the father of Montgomery's
daughter to testify at the evidentiary hearing. Redmond testified that he had driven their
daughter to the Primrose residence for parenting time every other weekend for years,
including throughout 2022. Redmond said he never had any indication that Montgomery
was living anywhere other than the Primrose address. He had no reason to suspect that
Montgomery could be living anywhere other than where he dropped off his daughter.
{¶ 9} There was other testimony presented about how a suspicious number of
correspondences were returned to Tambe's attorney and marked undeliverable shortly
after Montgomery filed her motion to vacate. Montgomery was also cross-examined
about her claims that she was not residing at the Primrose address. For example,
Montgomery was asked about the bankruptcy petition she filed that listed the Primrose
address as being her street address. She attested in the bankruptcy proceedings that
she had not lived anywhere else in the past three years. Montgomery defended herself
-3- Warren CA2023-10-082
claiming that her residence was really "a subjective question."
{¶ 10} The trial court took the matter under advisement and determined that
service was proper. The record showed Tambe served Montgomery with certified mail
service at her residence, the Primrose address, which had been signed. The trial court
determined that Montgomery's testimony lacked credibility and was disingenuous. The
trial court determined that since Tambe complied with the civil rules of service, there was
a presumption of service and Montgomery failed to rebut the presumption. Therefore, the
trial court denied Montgomery's motion to vacate. Montgomery now appeals, raising a
single assignment of error for review.
APPEAL
{¶ 11} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
VACATE THE DEFAULT JUDGMENT ENTERED ON 09/18/2023.
{¶ 12} In her sole assignment of error, Montgomery argues the trial court erred by
overruling her motion to vacate the default judgment. "In order to render a valid judgment,
a court must have jurisdiction over the defendant in the action." Nix v. Richter, 2017-
Ohio-8431, ¶ 7 (12th Dist.). A trial court lacks jurisdiction to enter a default judgment
against a defendant if a plaintiff fails to perfect service on the defendant and the defendant
has not appeared in the action or waived service. Id.
{¶ 13} A trial court's ability to vacate a void judgment does not arise from Civ.R.
60(B), but rather, from an inherent power possessed by the courts in this state. Ohio
State Aerie Fraternal Order of Eagles v. Alsip, 2013-Ohio-4866, ¶10 (12th Dist.). Thus,
when a party claims a trial court lacked personal jurisdiction due to improper service of
process, the appropriate method to challenge such void judgment is through a common
law motion to vacate. Third Fed. S. & L. Assn. v. Taylor, 2017-Ohio-7620, ¶ 11. (10th
Dist.).
-4- Warren CA2023-10-082
{¶ 14} An appellate court reviews the denial of a motion to vacate under an abuse-
of-discretion standard. Bank of New York Mellon v. Maxfield, 2016-Ohio-2990, ¶ 9 (12th
Dist.). An abuse of discretion constitutes more than an error of law or judgment; it requires
a finding that the trial court acted unreasonably, arbitrarily or unconscionably. Alsip at ¶
10.
{¶ 15} "Service of process is consistent with due process standards where it is
reasonably calculated, under the circumstances, to give interested parties notice of a
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[Cite as Tambe v. Montgomery, 2024-Ohio-2857.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
PAUL TAMBE, :
Appellee, : CASE NO. CA2023-10-082
: OPINION - vs - 7/29/2024 :
ELLINGTON HARPER MONTGOMERY : aka MADELINE ROSE REDMOND aka MADELINE ROSE KLEEMEIR, : et al.,
Appellant.
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 22CV95174
Gurry Law, LLC, and Robert Gurry, for appellee.
Kohl & Cook Law Firm, LLC, and Brian A. Brown and Andrew J. Gerling, for appellant.
PIPER, J.
{¶ 1} Appellant, Ellington Montgomery, appeals from a decision of the Warren
County Court of Common Pleas denying her motion to vacate a default judgment entered
in favor of appellee, Paul Tambe. For the reasons detailed below, we affirm.
FACTUAL BACKGROUND
{¶ 2} In December 2009, Montgomery purchased a home located at 8427 Warren CA2023-10-082
Primrose Way, Waynesville, Ohio ("Primrose address"). In 2018, Montgomery borrowed
money from Tambe so that Montgomery could pay for repairs from a house fire. The
nature of the repairs is not material to this case.1 As evidence of the loan agreement, a
note and mortgage was executed by Montgomery using the residence as collateral. Later
Montgomery defaulted on the terms of the promissory note and on May 25, 2022, Tambe
filed a foreclosure action on Montgomery's Primrose real estate securing the debt.
{¶ 3} Tambe had Montgomery served with the complaint by certified mail at the
Primrose address. The certified mail return receipt was duly signed with an illegible
signature. Montgomery failed to respond or appear for any proceedings and a default
judgment and decree of foreclosure was entered against her on September 14, 2022. A
sheriff's sale of the Primrose address was scheduled for December 19, 2022.
{¶ 4} On December 18, 2022, Montgomery filed for bankruptcy, which resulted in
the cancellation of the scheduled sheriff's sale. The bankruptcy action was later
dismissed. Thereafter, a second sheriff's sale was scheduled for July 10, 2023, at which
time the Primrose address sold for $740,500.
{¶ 5} On July 11, 2023, Montgomery moved to vacate the default judgment,
complaining that Tambe failed to serve her with the complaint. The trial court held an
evidentiary hearing on the motion to vacate on August 28, 2023.
EVIDENTIARY HEARING
{¶ 6} During the hearing, Montgomery alleged that the Primrose address had
electrical damage that resulted in her moving from the residence in March of 2022.
Montgomery admitted returning to the Primrose address about three times a week but
claimed to not reside there. She claimed that she moved to Xenia but declined to provide
1. The record reflects that Montgomery borrowed $160,000 from Tambe.
-2- Warren CA2023-10-082
the address. Montgomery said "I think we stayed with my friend's mom for a weekend or
two and then - - I'm so sorry. It's been - - it's been a long - - a lot of addresses."
Montgomery then mentioned living in Kettering in a "vacant" apartment. However, she
denied ever signing a lease agreement or mortgage for any of the residences she claimed
to have lived in.
{¶ 7} Montgomery denied signing for any certified mail in this case. She made
reference to an alleged attempt to have a hold placed on her mail. She said that mail in
the neighborhood was inconsistent and that she mostly received junk mail. Montgomery
claimed that she moved back in the Primrose address in the Fall of 2022, but she still had
no knowledge of the foreclosure action. Montgomery testified that she first learned of the
foreclosure action in December of 2022 when she was at the Primrose address tiling the
floors when a "family" came by and mentioned that the home was set for auction.
{¶ 8} Tambe called Joseph Redmond who was the father of Montgomery's
daughter to testify at the evidentiary hearing. Redmond testified that he had driven their
daughter to the Primrose residence for parenting time every other weekend for years,
including throughout 2022. Redmond said he never had any indication that Montgomery
was living anywhere other than the Primrose address. He had no reason to suspect that
Montgomery could be living anywhere other than where he dropped off his daughter.
{¶ 9} There was other testimony presented about how a suspicious number of
correspondences were returned to Tambe's attorney and marked undeliverable shortly
after Montgomery filed her motion to vacate. Montgomery was also cross-examined
about her claims that she was not residing at the Primrose address. For example,
Montgomery was asked about the bankruptcy petition she filed that listed the Primrose
address as being her street address. She attested in the bankruptcy proceedings that
she had not lived anywhere else in the past three years. Montgomery defended herself
-3- Warren CA2023-10-082
claiming that her residence was really "a subjective question."
{¶ 10} The trial court took the matter under advisement and determined that
service was proper. The record showed Tambe served Montgomery with certified mail
service at her residence, the Primrose address, which had been signed. The trial court
determined that Montgomery's testimony lacked credibility and was disingenuous. The
trial court determined that since Tambe complied with the civil rules of service, there was
a presumption of service and Montgomery failed to rebut the presumption. Therefore, the
trial court denied Montgomery's motion to vacate. Montgomery now appeals, raising a
single assignment of error for review.
APPEAL
{¶ 11} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
VACATE THE DEFAULT JUDGMENT ENTERED ON 09/18/2023.
{¶ 12} In her sole assignment of error, Montgomery argues the trial court erred by
overruling her motion to vacate the default judgment. "In order to render a valid judgment,
a court must have jurisdiction over the defendant in the action." Nix v. Richter, 2017-
Ohio-8431, ¶ 7 (12th Dist.). A trial court lacks jurisdiction to enter a default judgment
against a defendant if a plaintiff fails to perfect service on the defendant and the defendant
has not appeared in the action or waived service. Id.
{¶ 13} A trial court's ability to vacate a void judgment does not arise from Civ.R.
60(B), but rather, from an inherent power possessed by the courts in this state. Ohio
State Aerie Fraternal Order of Eagles v. Alsip, 2013-Ohio-4866, ¶10 (12th Dist.). Thus,
when a party claims a trial court lacked personal jurisdiction due to improper service of
process, the appropriate method to challenge such void judgment is through a common
law motion to vacate. Third Fed. S. & L. Assn. v. Taylor, 2017-Ohio-7620, ¶ 11. (10th
Dist.).
-4- Warren CA2023-10-082
{¶ 14} An appellate court reviews the denial of a motion to vacate under an abuse-
of-discretion standard. Bank of New York Mellon v. Maxfield, 2016-Ohio-2990, ¶ 9 (12th
Dist.). An abuse of discretion constitutes more than an error of law or judgment; it requires
a finding that the trial court acted unreasonably, arbitrarily or unconscionably. Alsip at ¶
10.
{¶ 15} "Service of process is consistent with due process standards where it is
reasonably calculated, under the circumstances, to give interested parties notice of a
pending action and an opportunity to appear." Maxfield at ¶ 10, citing Hamilton v.
Digonno, 2005-Ohio-6552, ¶ 9 (12th Dist.). Civ.R. 4.1 sets forth permissible methods of
service for in-state defendants, including certified or express mail service, personal
service, or residence service.
{¶ 16} Proper service of process by certified mail is "[e]videnced by [a] return
receipt signed by any person." Motorists Mut. Ins. Co. v. Roberts, 2014-Ohio-1893, ¶ 32
(12th Dist.), quoting Civ.R. 4.1(A). Valid service of process is presumed when it is
received by any person at the defendant's residence; the recipient need not be the
defendant or an agent of the defendant. Alsip, 2013-Ohio-4866 at ¶ 11. "In determining
whether a defendant has sufficiently rebutted the presumption of valid service, a trial court
may assess the credibility and competency of the submitted evidence demonstrating non-
service." Maxfield at ¶ 10.
{¶ 17} On appeal, Montgomery argues the trial court "relied on several mistaken
facts, utilized the wrong burden analysis, and ignored the proof Ms. Montgomery
provided."2 Montgomery incorrectly argues the standard of review is de novo and
2. Montgomery claims the trial court relied on a mistaken fact as to when she claimed to have moved from the Primrose address. However, we note most of Montgomery's claims were extremely vague and difficult to follow. The trial court relied on a multitude of considerations in concluding that Montgomery's claims lacked merit.
-5- Warren CA2023-10-082
maintains, among other things, that the trial court should have afforded her testimony
greater weight emphasizing her testimony and an affidavit she signed.3
{¶ 18} Following review, we find Montgomery's arguments to be without merit. The
record clearly demonstrates that Tambe complied with Civ.R. 4.1 as he served
Montgomery by certified mail at the Primrose address, which was signed, thereby
establishing a presumption of valid service. Montgomery was not required to be the
recipient or signer of the return receipt. Alsip at ¶ 11. While Montgomery denies the
Primrose address was her residence at the time, there is ample evidence to refute
Montgomery's claims. Montgomery then had to rebut the presumption of valid service,
which she failed to do. In short, this case came down to the credibility of the witnesses.
See Miami Poplar Rentals, L.L.C. v. Hudoba, 2014-Ohio-1323, ¶ 21 (12th Dist.). The trial
court ultimately determined that Montgomery lacked credibility and was being
disingenuous. This court will defer to credibility determinations made by the trial court,
as it is not our role to substitute our determination of credibility in place of the trial court's
determination. Smith-Knabb v. Vesper, 2023-Ohio-259, ¶ 30 (12th Dist.).
{¶ 19} For the reasons discussed above, we find that the trial court did not abuse
its discretion by denying Montgomery's motion to vacate the default judgment.
Montgomery's sole assignment of error is overruled.
{¶ 20} Judgment affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.
3. It is well established the standard of review is abuse of discretion. Terwoord v. Harrison, 10 Ohio St.2d 170, 171 (1967); Maxfield, 2016-Ohio-2990 at ¶ 9.
-6-