Wells Fargo Bank N.A. v. McGinnis

2012 Ohio 1779

• Court: Ohio Court of Appeals
• Decided: April 20, 2012
• Docket: 24776
• Status: Published

Opinion

[Cite as Wells Fargo Bank N.A. v. McGinnis, 2012-Ohio-1779.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

WELLS FARGO BANK, N.A. :

Plaintiff-Appellee : C.A. CASE NO. 24776

vs. : T.C. CASE NO. 10CV1573

MARTHA MCGINNIS, et al : (Civil Appeal from Common Pleas Court) Defendant-Appellant :

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OPINION th Rendered on the 20 day of April, 2012.

Christopher G. Phillips, Atty. Reg. No. 0074249, 4805 Montgomery Road, Suite 320, Norwood, OH 45212 Attorney for Plaintiff-Appellee

John Sherrod, Atty. Reg. No. 0078598, 2130 Arlington Avenue, Columbus, OH 43221 Attorney for Defendant-Appellant

FISCHER, J. (sitting by assignment):

{¶ 1} Defendant-appellant Martha McGinnis appeals from the order of the

Montgomery County Common Pleas Court that denied her motion to vacate the default

judgment of foreclosure entered in favor of plaintiff-appellee Wells Fargo Bank, N.A.

(“Wells Fargo Bank”). McGinnis contends that service of process was insufficient, and 2

that, therefore, the judgment is void ab inito. Because there is competent, credible

evidence that service of process was sufficient, however, we affirm.

{¶ 2} On March 12, 1999, McGinnis executed a note secured by a mortgage on

real property located at 2144 Lehigh Place in Dayton, Ohio (“the Lehigh Place

address”). Wells Fargo is the holder of the note and mortgage.

{¶ 3} On February 23, 2010, Wells Fargo filed a complaint for foreclosure

against McGinnis, and requested the clerk of courts to issue service of summons upon

her. The record includes both (1) a signed certified-mail receipt addressed to

McGinnis at the Lehigh Place address, and (2) a return of service signed by process

server William Becker indicating that on February 26, 2010, he served the summons

and complaint on Linda Hood at the Lehigh Place address. After McGinnis failed to

answer, the trial court entered default judgment on April 14, 2010, and confirmed the

sale of the property on April 1, 2011.

{¶ 4} On July 14, 2011, McGinnis moved to vacate the judgment as void ab

initio for insufficient service of process. At a hearing on the motion, McGinnis and

Hood testified that they had been living together at the Lehigh Place address in

February 2010. They both denied signing for certified mail containing the summons

and complaint, and personally receiving the same. Becker testified, however, that on

February 26, 2010, he had served Hood with the summons and complaint at the Lehigh

Place address. He further identified Hood in the courtroom. 3

{¶ 5} Finding the testimony of McGinnis and Hood not credible, the trial court

denied the motion to vacate the judgment. McGinnis now appeals, raising the

following assignment of error:

The trial court abused its discretion in denying Appellant’s

motion to vacate judgment based upon lack of service of the

summons and complaint when it took into consideration

whether or not Appellant had defaulted on the note in

denying the motion to vacate.

{¶ 6} “It is rudimentary that in order to render a valid personal judgment, a court

must have personal jurisdiction over the defendant.” Maryhew v. Yova, 11 Ohio St.3d

154, 156, 464 N.E.2d 538 (1984). Where service of process is not made in

accordance with the Rules of Civil Procedure and the defendant has not appeared in

the case or otherwise waived service, the trial court lacks jurisdiction to consider the

complaint, and any judgment on that complaint is void ab initio. Portfolio Recovery

Assoc., LLC v. Thacker, 2d Dist. Clark No. 2008-CA-119, 2009-Ohio-4406, ¶ 22; Rite

Rug Co., Inc. v. Wilson, 106 Ohio App.3d 59, 62, 665 N.E.2d 260 (10th Dist.1995).

“Because a court has the inherent authority to vacate a void judgment, a party who

asserts that the trial court lacks personal jurisdiction over him or her due to ineffective

service of process need not satisfy the requirements of Civ.R. 60(B).” Portfolio

Recovery Assoc.. at ¶ 22.

{¶ 7} This court has held that “the determination by the trial court of the

question of sufficiency of process is a matter in its sound discretion.” Bell v. 4

Midwestern Edn. Servs., 89 Ohio App.3d 193, 203, 624 N.E.2d 196 (2d Dist.1993).

“The standard of review in such cases is whether the trial court abused its discretion,

and the test is that a judgment supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed by a reviewing court as

being against the manifest weight of the evidence.” Id., citing C.E. Morris Co. v. Foley

Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶ 8} At the hearing on the motion, the trial judge asked McGinnis when she

had stopped making payments on the note. Although the answer to this question was

irrelevant to whether service of process was sufficient, there is no indication in the

record that the trial court relied on her answer in denying the motion.

{¶ 9} Moreover, the decision of the trial court was supported by competent,

credible evidence that service was, in fact, perfected under Civ.R. 4.1, which details the

methods for obtaining service of process in Ohio.

{¶ 10} Under Civ.R. 4.1(A), service may be made by certified or express mail

“[e]videnced by return receipt signed by any person * * * .” “Valid service of process is

presumed when the envelope is received by any person at the defendant’s residence;

the recipient need not be an agent of the defendant.” Ohio Civ. Rights Comm. v. First

Am. Properties, Inc., 113 Ohio App.3d 233, 237, 680 N.E.2d 725 (2d. Dist.1996).

Although McGinnis and Hood testified that neither had signed for certified mail

containing the summons and complaint, the trial court—with a signed certified-mail

receipt addressed to McGinnis in hand—was free to conclude that their testimony was

not credible. See id. at 239. 5

{¶ 11} In addition, under Civ.R. 4.1(C), “[r]esidence service shall be effected by

leaving a copy of the process and the complaint * * * at the usual place of residence of

the person to be served with some person of suitable age and discretion then residing

therein.” There is no dispute that in February 2010, McGinnis and Hood lived at the

Lehigh Place address. Becker testified that he had served the summons and

complaint on Hood at their residence on February 26, 2010, and although Hood

contradicted his testimony, it was within the trial court’s discretion to believe Becker.

{¶ 12} Accordingly, we hold that the trial court did not abuse its discretion in

denying the motion to vacate the default judgment against McGinnis. The assignment

of error is overruled, and the judgment of the trial court is affirmed.

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FROELICH, J., and HALL, J., concur.

(Hon. Patrick F. Fischer, First District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)

Copies mailed to:

Christopher Phillips, Esq. John Sherrod, Esq. Hon. Steven K. Dankof