Traci M. Cull v. Dyck-O'neal, Inc.

• Court: Court of Appeals of Kentucky
• Decided: July 29, 2021
• Docket: 2019 CA 001338
• Status: Unknown

Opinion

RENDERED: JULY 30, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1338-MR

TRACI M. CULL APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE DANIEL J. ZALLA, JUDGE ACTION NO. 09-CI-00600

DYCK-O’NEAL, INC.; DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE, RESIDENTIAL FUNDING CO., LLC FKA RESIDENTIAL FUNDING CORP., ATTORNEY IN FACT; DOUGLAS A. CULL; AND NATIONAL CITY BANK APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, JONES, AND McNEILL, JUDGES.

COMBS, JUDGE: Traci M. Cull appeals an order of the Campbell Circuit Court

that declined to set aside the judgment and order of sale entered in a foreclosure

action against her. It did so on the basis that Cull had been properly served with process. The circuit court specifically rejected Cull’s testimony that she had not

been served with a summons and a copy of the complaint in favor of the deputy

sheriff’s testimony to the contrary and his return of service. After our review, we

affirm.

By deed dated September 6, 2006, Traci Cull and her husband,

Douglas A. Cull (a home builder), acquired from Douglas Cull & Company, Inc., a

residence at 6 Camryn Court in Newport, Kentucky. Essentially refinancing the

existing construction loan, the Culls executed a note in the amount of

$1,300,000.00, and agreed to make monthly interest-only payments to the lender

for 120 months – after which they were to make monthly payments to include both

principal and interest.

The note was secured by a mortgage against the Camryn Court home.

The mortgage included a borrower occupancy rider. Pursuant to the rider, the

Culls agreed that they would occupy the home at 6 Camryn Court as their principal

residence. If they failed to do so, the lender retained the right to accelerate the debt

and foreclose the mortgage.

When the Culls defaulted on the note by failing to make the monthly

interest payments, Deutsche Bank, the holder of the note, accelerated the

repayment terms. The bank filed a foreclosure action against the Culls in

Campbell Circuit Court on April 20, 2009. Named as defendants were Traci Cull,

-2- Douglas Cull, and National City Bank (an additional mortgagee). For each of the

Culls, the complaint identified three separate addresses for service of process.

Two of these were addresses in Fort Thomas; the remaining address was the

Camryn Court house in Newport.

Civil summonses on the complaint were duly issued by the clerk on

April 20, 2009. One summons directed that Traci was to be served by the Kenton

County Sheriff; one was to be served by certified mail; and the last one was to be

served by special bailiff and indicated that she could be served at 6 Camryn Court

in Newport. On May 1, 2009, another summons was issued to be served upon

Traci by the Campbell County Sheriff. It was given to Campbell County Sheriff’s

Deputy Timothy Rechtin for service. It indicated that Traci Cull could be served at

6 Camryn Court.

On May 5, 2009, Deputy Timothy Rechtin filed his proof of service.

It indicated that he had served the summons along with a copy of the complaint

upon Traci Cull on May 4, 2009. An alias summons was served upon Douglas

Cull by Deputy Rechtin on the same date, and proof of service appears of record.

On May 15, 2009, Douglas answered the complaint. National City Bank filed its

answer on May 18, 2009.

On August 7, 2009, Deutsche Bank filed a motion for default

judgment with respect to its claim against Traci Cull and a motion for summary

-3- judgment with respect to its claims against Douglas Cull and National City Bank.

Deutsche Bank certified that Traci Cull had been served by the sheriff’s

department on May 4, 2009; that she had filed nothing in response; and that the

balance due from the borrowers totaled $1,347,022.36 as of that date. The circuit

court granted the default judgment and the summary judgment. Its final judgment

and an order of sale were entered on September 2, 2009, and the matter was

referred to the master commissioner for judicial sale.

On April 20, 2010, the master commissioner filed his report of sale.

Deutsche Bank was the successful bidder at the sale with an offer of $733,434.00.

The court’s order confirming the sale was entered on May 20, 2010. Deutsche

Bank paid $6,366.95 into court for sale expenses, acquiring a deed to the home at 6

Camryn Court on June 1, 2010.

In 2013, Deutsche Bank assigned its remaining interest in the court’s

final judgment to Dyck-O’Neal, Inc. By order entered on April 23, 2018, Dyck-

O’Neal was substituted as plaintiff in the foreclosure action. In order to address

the substantial deficiency remaining with respect to the judgment, Dyck-O’Neal

sought to garnish Traci Cull’s wages. Notice was forwarded to Deloitte Tax, LLP,

where she worked as a certified public accountant.

On December 27, 2018, by limited appearance, Traci Cull filed a

motion to void the judgment against her. She contended that she had never been

-4- served with process. Cull contended that because she was never properly before

the court, its judgment was ineffective with respect to her interest in the disputed

property. Cull attached her affidavit to the motion in which she explained that she

had never resided at 6 Camryn Court. Instead, the house had been leased to John

and Victoria Grooms, who resided there at the time that the foreclosure action was

commenced. Cull swore that she had never been served with process. Despite her

husband’s participation in the foreclosure litigation, Cull indicated that she had not

been aware that a judgment by default had been entered against her until

November 2018 when her employer told her about the wage garnishment. Dyck-

O’Neal responded and opposed the motion; Deutsche Bank filed a motion to

intervene.

Dyck-O’Neal and Deutsche Bank argued that Cull’s statements were

false. They explained that Cull had made a number of representations to the lender

indicating that she resided at 6 Camryn Court; that she would continue to maintain

the home as her primary residence; and that the loan was intended to pay for the

home. They contended that Cull’s flimsy attack on the service of process was

insufficient to overcome the presumption that the sheriff department’s return of

service was valid. In response, Cull indicated that she was entitled to an

evidentiary hearing in which she intended to present the testimony of Victoria

-5- Grooms, her tenant at the time the foreclosure action was commenced, and retired

Deputy Sheriff Rechtin, who provided the proof of service.

By order entered on February 27, 2019, the Campbell Circuit Court

permitted Deutsche Bank to intervene. The circuit court referred the matter to the

master commissioner for a hearing and specifically directed him to consider

whether Cull had been personally served with process. A period of discovery

followed.

On July 18, 2019, the master commissioner conducted an evidentiary

hearing on a single issue of fact: whether Traci Cull was served with a summons

and a copy of the complaint in Deutsche Bank’s foreclosure action by Campbell

County Deputy Sheriff Rechtin. One week later, the master commissioner filed

his report with the court indicating that Traci Cull had been duly served with

process by Rechtin on May 4, 2009. Cull filed timely her exceptions to the

commissioner’s report. Nevertheless, the report was confirmed by the circuit court

on August 15, 2019. Cull’s motion to alter, amend, or vacate the order confirming

the report was denied, and the court’s final judgment was entered on August 23,

2019. This appeal followed.

On appeal, Cull argues that the circuit court erred by confirming the

master commissioner’s report. Having carefully considered each of her several

arguments, we disagree.

-6- Master commissioner reports are governed by the provisions of CR1

53.05. Pursuant to the rule, the master commissioner is required to prepare a report

of recommendations to the court upon the matters submitted to him by the court’s

order of referral. CR 53.05(1). The master commissioner is expressly authorized

to make findings of fact and conclusions of law. Id. The court has a variety of

options. It may: adopt the master commissioner’s report; modify it; reject it in

whole or in part; or elect to receive additional evidence. CR 53.05(2).

To the extent that the court adopts the master commissioner’s findings

of fact, they are to be considered the findings of the court. CR 52.01. Findings of

fact shall not be set aside unless clearly erroneous. Id. Findings are clearly

erroneous only where they are not supported by substantial evidence. Ryan v.

Collins, 481 S.W.2d 85 (Ky. 1972). Where the court has adopted the findings of

the master commissioner, due regard shall be given to the opportunity of the

commissioner to judge the credibility of the witnesses. CR 52.01.

There is no dispute that Rechtin executed and filed his proof of

service confirming that he had personally served Traci Cull with a summons and a

copy of Deutsche Bank’s complaint against her on May 4, 2009. The fact issue

concerns whether it was actually Traci Cull who was served.

1 Kentucky Rules of Civil Procedure.

-7- The evidence is conflicting on that point. Cull testified that despite

her representations to the lender, she had never lived at the Camryn Court address.

She admitted that the house had been utilized as an office for her husband’s

construction business instead and that she worked in the business part-time as a

bookkeeper. Cull explained that the house was eventually leased to John and

Victoria Grooms, who were residing there at the time the foreclosure action was

commenced. Cull swore that she had never been served with process.

Victoria Grooms confirmed that she had resided at 6 Camryn Court

since May 2008. She and her husband rented the property on a month-to-month

basis, and it remained on the market throughout their tenancy. Grooms testified

that she had no recollection that anyone from the Campbell County Sheriff’s

Office had ever attempted to serve her with a summons.

Rechtin testified that he began working as a process server for the

sheriff’s office in 2006. In 2008, he was hired as a Campbell County sheriff’s

deputy. Rechtin indicated that he was unfamiliar with Traci Cull. He testified that

he had served “thousands and thousands of papers” during his tenure and that he

could not specifically recall Camryn Court or serving the individual identified as

Traci Cull on May 4, 2009. He also candidly admitted that he could not remember

what he had for lunch yesterday. Nevertheless, Rechtin was adamant that “[i]f my

signature’s on it, I served her.” He explained that the “only way I would have

-8- served this is if that person was telling me that’s who they were.” Rechtin

specifically denied that he would have “just given [the summons and a copy of the

complaint] to anybody . . . . [T]here’s no incentive for us to do that.” “I was never

under pressure to serve X number of papers, anything like that.” Rechtin was

asked whether “in the totality of your experience in serving papers . . . have you

ever after the fact realized that you were mistaken in making the return on anything

ever [?]” He responded, “No, I’ve never . . . I never, to my knowledge, know that I

made any mistakes on returning a paper.”

There is a well established presumption that a sheriff’s return of

service is correct. See Igo v. Berea Realty & Finance Co., 300 Ky. 526, 189

S.W.2d 733 (1945), and the cases cited therein. An officer’s proof of service

indicating that he served a defendant with process is ordinarily conclusive to show

that the summons and a copy of the complaint were duly delivered to her. Id. In

light of the evidence and the long established presumption in favor of the validity

of proof of service by a sheriff’s deputy, the court did not err by finding that Cull’s

unsupported and unequivocal testimony -- albeit ten years after the event at issue --

was insufficient to impeach Rechtin’s proof of service.

In the alternative, Cull argues that the service of process was invalid.

She bases the argument on the premise that Deputy Rechtin was not truly a deputy

sheriff because he admitted in his deposition that he was never sworn in by

-9- Campbell County Sheriff John Dunn, who held office until 2013. KRS2 70.030(1)

expressly provides that a deputy “shall take the oath required to be taken by the

sheriff” before he executes the duties of his office.

Cull contends that Rechtin was acting merely as a process server in

2009 when he allegedly delivered the summons and a copy of the complaint to her.

She argues that the presumption that a sheriff’s return of service is correct does not

apply. She notes the requirements of KRS 70.050 pertinent to execution of process

by someone other than the sheriff (or his deputy). She contends that Rechtin did

not follow those statutory requirements by failing to attach an affidavit to the

return and deliver it to the sheriff (or his deputy). Thus, she argues that service of

process was fatally defective.

We conclude that Rechtin’s delivery of the summons and a copy of

the complaint to Cull was sufficient to bring her before the court -- even if the

presumption in favor of Rechtin’s proof of service is ignored. The testimony was

sufficient to support the court’s finding that Cull was personally served with

process on March 4, 2009.

The purpose of the proof of service is to provide evidence that service

has been effected and to put on record the statement of a responsible official that

notice has been provided to the defendant that proceedings have been commenced

2 Kentucky Revised Statutes.

-10- against her. Ryan, 481 S.W.2d 85. Even if we were to accept that Rechtin’s return

of service was deficient because it omitted a necessary affidavit, we are not

persuaded that the defect invalidated the service of process. Rechtin testified that

he served Cull with the summons and a copy of the complaint. The court found

this testimony credible. In addition, the provisions of CR 4.16 permit the court in

its sound discretion -- at any time -- to allow proof of service to be amended to

remedy any deficiency. Our review of the totality of the circumstances and

pertinent law persuades us to conclude that service of process was valid in this

case.

Cull next argues that portions of Rechtin’s deposition testimony were

improperly admitted into evidence. She contends that Rechtin’s inability to

recollect any of the specifics concerning his alleged service of process upon her on

March 4, 2009, renders the testimony entirely speculative and inadmissible under

the provisions of KRE3 602.

A master commissioner may rule upon the admissibility of evidence.

CR 53.03. The provisions of KRE 602 prohibit a witness from testifying to

matters unless evidence is introduced that is sufficient to support a finding that the

witness has personal knowledge of the matter. Rechtin freely and candidly

acknowledged that he had no specific recollection of serving Cull with a summons

3 Kentucky Rules of Evidence.

-11- more than a decade before his deposition was taken. The challenged testimony

related to the standard procedure that he followed when serving defendants with

process. Evidence was introduced that was sufficient to support a finding that he

had personal knowledge of this practice of asking for confirmation of an

individual’s identity before delivering a summons and complaint. The testimony,

elicited by Cull’s own counsel, was clearly admissible. Moreover, Cull’s counsel

proffered Rechtin’s deposition testimony to the master commissioner during the

evidentiary hearing and indicated when asked that he had raised no objections

while the testimony was being taken. There was no evidentiary error. Moreover,

under the circumstances, Cull cannot now be heard to complain about the

testimony.

Finally, Cull argues that the master commissioner’s report exceeded

the scope of the circuit court’s referral. A master commissioner is authorized to

make recommendations to the court concerning matters submitted to him through

referral by the court. CR 53.05(1). In this matter, the circuit court directed the

master commissioner to consider whether Cull had been personally served with

process. The evidentiary hearing was confined to this sole issue. The master

commissioner’s report characterized Cull’s testimony concerning the events of a

decade earlier as merely self-serving. The report reflected his conclusion that her

testimony was insufficient to overcome Rechtin’s credible testimony concerning

-12- the standard practices that he scrupulously observed while serving a defendant with

process. The report did not contain recommendations beyond the master

commissioner’s authority, nor did it exceed the scope of his directive to focus on

service of process.

We AFFIRM the order of the Campbell Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES DYCK- O’NEAL, INC.; AND DEUTSCHE David A. Kruer BANK TRUST COMPANY Covington, Kentucky AMERICAS, AS TRUSTEE, RESIDENTIAL FUNDING CO., LLC FKA RESIDENTIAL FUNDING CORP., ATTORNEY IN FACT:

Olivia F. Amlung Covington, Kentucky

Lawrence J. Kemper Carmel, Indiana

Sarah S. Mattingly Louisville, Kentucky

-13-