FIA Card Servs. v. Adler

[Cite as FIA Card Servs. v. Adler, 

.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

FIA CARD SERVICES NA,                                 :

                 Plaintiff-Appellee,                  :

                                                             No. 111087

                 v.                                   :

MARIBETH ADLER,                                       :

                 Defendant-Appellant.                 :



                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 16, 2022


                      Civil Appeal from the Rocky River Municipal Court
                                     Case No. 11-CVF-1197


                                            Appearances:

                 Waldheger • Coyne and Scott Robinson, for appellant.


CORNELIUS J. O’SULLIVAN, JR., J.:

                 Defendant-appellant Maribeth Adler appeals from the November 9,

2021 judgment of the Rocky River Municipal Court granting Bank of America, NA’s

motion to revive judgment and denying appellant’s motion to vacate void judgment.

After a careful review of the facts and pertinent law, we affirm.
Factual and Procedural History

             In May 2011, plaintiff-appellee FIA Card Services NA filed this action

against appellant alleging failure to pay a little over $3,000 in credit card debt. The

docket indicates that service on appellant at a Westlake, Ohio address was

“successful” in June 2011. The name of the person who signed the return receipt

does not appear to be appellant’s name. Appellee did not reissue the summons and

complaint via regular mail.

             In July 2011, appellee filed a motion for default judgment. Appellee

served the motion on appellant at the Westlake address. The trial court granted the

motion without a hearing in August 2011.            Thereafter, appellee attempted,

unsuccessfully, to attach funds from appellant’s banks. The notices of attachment

proceedings and requests for hearings were mailed to appellant at the Westlake

address.

             In December 2020, Bank of America, NA filed a motion to revive

dormant judgment. Bank of America served the motion on appellant at a Rocky

River, Ohio address. In January 2021, appellant, pro se, filed an answer denying

any knowledge of the underlying debt and denying that she had been served with

the complaint in 2011. Appellant stated that she believed the debt may have been

incurred by her husband, who is now deceased. She requested that Bank of America

conduct a fraud investigation.

             In March 2021, appellant filed a motion to vacate the default judgment

against her. Appellant included an affidavit in support of her motion. Appellant
averred that (1) she never received a summons or complaint in 2011, (2) she never

signed for receipt of a summons or complaint in 2011, (3) the return service card

shows her father, who is now deceased, signed for service, (4) she was never served

with a copy of the 2011 complaint, and (5) she was never served with the motion for

default judgment. Appellant further averred that she believed the credit card

account was extended under her name by way of fraud.

             The trial court held a telephonic hearing with Bank of America and

appellant, at which the court granted 90 days for discovery and investigation of

potential fraud. The court stated that a hearing would be set, if necessary, after

June 1, 2021.

             In July 2021, Bank of America filed a response to appellant’s motion to

vacate and in support of appellee’s motion to revive judgment, in which it stated

that, after investigation, it was determined no fraud was associated with the account.

The bank contended that service was complete upon signing of the return receipt

card. The bank also explained that FIA Card Services merged into Bank of America.

             On August 30, 2021, the case was continued for another 60 days for

discovery. The court set the matter for a telephonic case management conference to

be held on November 1, 2021, which was had.

             On November 9, 2021, the trial court issued its judgment granting Bank

of America’s motion to revive judgment and denying appellant’s motion to vacate

judgment.
              Appellant filed a timely notice of appeal and raises the following two

assignments of error for our review:

      I.    The trial court erred when it granted judgment for [the] bank
            and against Maribeth when the court lacked personal
            jurisdiction over Maribeth.

      II.   The trial court violated Maribeth’s due process rights by not
            requiring that [the] bank comply with the Ohio Rule of Civil
            Procedure to perfect service upon Maribeth and not holding an
            evidentiary hearing prior to the court issuing a judgment against
            Maribeth.

Law and Analysis

              Appellant’s assignments of error, both of which challenge service, are

interrelated and will be considered together.

              A trial court cannot render judgment against a defendant over whom

it has no personal jurisdiction. “[T]o enter a valid judgment, a court must have

personal jurisdiction over the defendant.” Mayfran Internatl., Inc. v. Eco-Modity,

L.L.C., 

, 

, ¶ 9 (8th Dist.), citing Maryhew v. Yova, 

, 

 (1984). “[A] judgment rendered without

personal jurisdiction over a defendant is void.” GGNSC Lima, L.L.C. v. LMOP,

L.L.C., 8th Dist. Cuyahoga No. 105910, 

, citing Patton v.

Diemer, 

, 

 (1988), paragraph three of the syllabus.

              A court does not acquire personal jurisdiction over a defendant unless

and until the defendant is properly served with the complaint and summons or the

defendant makes an appearance in the case. State ex rel. Ballard v. O’Donnell, 

, 

 (1990), paragraph one of the syllabus. Appellant
did not make an appearance in this case prior to default judgment being entered

against her. Thus, the issue is whether appellee properly achieved certified mail

service on appellant.

              Service of process, which is governed by Civ.R. 4.1 through 4.6, must

be made in a manner reasonably calculated to apprise the defendant of the action

and to afford him or her an opportunity to respond. Akron-Canton Regional

Airport Auth. v. Swinehart, 

, 

 (1980). As is

relevant here, service by certified mail is “[e]videnced by return receipt signed by

any person” “at the address set forth in the caption or at the address set forth in

written instructions furnished to the clerk.” Civ.R. 4.1(A)(1)(a). “Individuals must

be served at their ‘usual place of residence,’ and any person residing at that address

who is of ‘suitable age and discretion’ may receive such service.” Hook v. Collins,

8th Dist. Cuyahoga No. 104825, 

, ¶ 13, quoting Civ.R. 4.1.

              In Castellano v. Kosydar, 

, 

 (1975),

the Ohio Supreme Court elaborated on service by certified mail, stating,

      It should also be noted that certified mail, under the Rules of Civil
      Procedure, no longer requires actual service upon the party receiving
      the notice, but is effective upon certified delivery. Prior to its
      amendment in 1971, Civ. R. 4.1(1) stated that “* * * if the return receipt
      shows failure of delivery to the addressee the clerk shall forthwith
      notify, by mail, the attorney of record * * *.” However, the above-
      italicized words were subsequently deleted, evidencing an intent to
      avoid the impression that certified mail, to be effective, had to be
      delivered to and signed by the addressee only.                The above
      considerations, and the recognition that a need for actual notice would
      be contradictory to modern service requirements, represent persuasive
      arguments for the rejection of appellants’ position.


.

              The plaintiff bears the burden of obtaining proper service on a

defendant. Cincinnati Ins. Co. v. Emge, 

, 

(1st Dist.1997). Where the plaintiff follows the civil rules governing service of

process, courts presume that service is proper unless the defendant rebuts this

presumption with sufficient evidence of nonservice. Hook, at ¶ 14, citing Carter-

Jones Lumber Co. v. Meyers, 2d Dist. Clark No. 2005 CA 97, 

.

“In order to rebut the presumption of proper service, the other party must produce

evidentiary-quality information demonstrating that he or she did not receive

service.” Hook at 

 citing McWilliams v. Schumacher, 8th Dist. Cuyahoga Nos.

98188, 98288, 98390, and 98423, 

, citing Thompson v. Bayer,

5th Dist. Fairfield No. 2011-CA-00007, 

.

              We review the trial court’s judgment regarding the validity of service

for an abuse of discretion. GGNSC Lima, L.L.C., 8th Dist. Cuyahoga No. 105910,

. Trial courts have inherent authority to vacate a void

judgment, and a party asserting lack of jurisdiction due to lack of service does not

need to meet the requirements of Civ.R. 60(B). 

              In Hook, a summons and complaint by certified mail was sent to the

defendant at an address in Kent, Ohio in November 2014. The defendant claimed

he was never served and submitted an affidavit that (1) he has not resided at, or

worked out of, the Kent address since December 2011, (2) he was not served with

the complaint in this case prior to the default judgment, and (3) he only became
aware of the complaint and default judgment when he was served with a summons

at his current address in December 2015.         This court found the defendant’s

averments sufficient to rebut valid service.

               Here, appellant averred that (1) she never received a summons or

complaint in 2011, (2) she never signed for receipt of a summons or complaint in

2011, (3) the return service card shows her father, who is now deceased, signed for

service, (4) she was never served with a copy of the 2011 complaint, and (5) she was

never served with the motion for default judgment.          Appellant’s affidavit was

insufficient to rebut the presumption of service. She did not aver that she did not

live at the Westlake address and, further, admitted that her father signed for service.

Appellant’s father was of suitable age and discretion to receive service.

               Appellant’s first and second assignments of error are overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment

into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



CORNELIUS J. O’SULLIVAN, JR., JUDGE

ANITA LASTER MAYS, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR