IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Bank One, N.A.,
:
Plaintiff-Appellee,
:
No. 99AP-1359
v.
:
(REGULAR CALENDAR)
M. Randall Winn,
:
Defendant-Appellant,
:
Jane Doe, Unknown spouse of M. Randall :
Winn, et al.,
:
Defendants-Appellees.
:
O P I N I O N
Rendered on August 29, 2000
Weltman, Weinberg & Reis Co., L.P.A., Angela M. Hay den,
D. L. Mains, Jr., and Monette W. Cope, for plaintiff-appellee.
Feinstein, Mulligan, Fromson & Swick, and Jeffrey D. Swick,
for defendant-appellant.
Shapiro & Felty, LLP, and Kriss D. Felty, for defendant-
appellee Federal Home Loan Mortgage Corp.
APPEAL from the Franklin County Court of Common Ple as.
PETREE, J.
Defendant-appellant, Randall Winn (“Winn”), appeals a November 22, 1999
judgment of the Franklin County Court of Common Ple as raising the following assignment
of error:
The trial court committed erred [ sic] by failing to grant
defendant, M. Randall Winn’s motion for relief from , or to
No. 99AP-1359
2
vacate, judgment and motion of defendant, M. Randal l Winn,
to vacate entry confirming sale.
On or about December 11, 1986, Winn obtained a loan from plaintiff Bank
One in the amount of $110,800. Winn used the proce eds of this loan to purchase his
home at 6796 Heathview Drive in Worthington, Ohio.
Winn’s note, and the
accompanying first mortgage, were later assigned to defendant Federal Home Loan
Mortgage Corporation (“FHLMC”).
Approximately five years later, Winn obtained a hom e equity line of credit
from the plaintiff in the amount of $35,000. Altho ugh he initially began making payments
on this line of credit, Winn maintains that he beca me confused when he allegedly found
two accounts under his name on the internet. By hi s own testimony, Winn admits that he
ceased making payments on his line of credit in Apr il 1998, while he awaited a
clarification from the plaintiff. In the meantime, Winn continued to receive monthly
statements from the plaintiff as his balance became due.
As a result of the Winn’s failure to continue payme nts, plaintiff initiated this
foreclosure action on February 8, 1999. At that ti me, FHLMC still held a first mortgage on
Winn’s home in the approximate amount of $96,000.
In addition, defendant, State of
Ohio, Department of Taxation, held a valid tax lien on the premises in the approximate
amount of $5,000, and defendant, United States of A merica, also held a tax lien
amounting to almost $290,000.
Winn failed to move or plead in response to the pla intiff’s complaint, and on
May 6, 1999, plaintiff was granted default judgment by the trial court. An order of sale
was issued, notice was posted, and on August 13, 19 99, Winn’s residence was sold at a
No. 99AP-1359
3
Franklin County Sheriff’s sale. An entry confirmin g the sale of the property to Repo, Inc.,
and the distribution of proceeds to Winn’s creditor s was filed on October 8, 1999.
On October 22, 1999, Repo, Inc., filed a praecipe f or a writ of possession
requesting the court to authorize the sheriff to re move Winn from the premises.
Immediately thereafter, Winn obtained counsel and m oved the trial court to vacate the
default judgment, and set aside the sale, on the gr ounds that he was not served with the
plaintiff’s complaint. The court then issued a tem porary restraining order conditioned
upon Winn’s posting of a $50,000 bond. However, th at bond was never posted.
Winn’s motion for relief from judgment came before the trial court on
November 9, 1999, at which time the court took test imony, received exhibits, and heard
the arguments offered by counsel. In a written dec ision issued on November 22, 1999,
the court found that Winn had been properly served. Accordingly, it denied Winn’s motion
to vacate, after which Winn initiated this appeal.
The issue before the court is a simple one―has Winn come forward with
evidence sufficient to rebut the presumption of ser vice which arises under Civ.R. 4.6.
Civ.R. 4.1 requires plaintiffs to first attempt ser vice of process by certified mail. In this
case, the record shows that the plaintiff’s complai nt was sent by certified mail and that
notice of the mailing was delivered to Winn’s resid ence on February 11, February 16, and
February 26, 1999. Despite notice, Winn failed to claim the certified mail which was later
returned by the postal authorities as unclaimed.
Plaintiff then served a copy of the summons and com plaint upon Winn by
ordinary first class mail. Civ.R. 4.6(D) provides:
If a certified or express mail envelope is returned with an
endorsement showing that the envelope was unclaimed , the
clerk shall forthwith notify, by mail, the attorney of record or, if
No. 99AP-1359
4
there is no attorney of record, the party at whose instance
process was issued. If the attorney, or serving pa rty, after
notification by the clerk, files with the clerk a w ritten request
for ordinary mail service, the clerk shall send by ordinary mail
a copy of the summons and complaint or other docume nt to
be served to the defendant at the address set forth in the
caption, or at the address set forth in written ins tructions
furnished to the clerk. The mailing shall be evide nced by a
certificate of mailing which shall be completed and filed by the
clerk. *** Service shall be deemed complete when the fact of
mailing is entered of record, provided that the ord inary mail
envelope is not returned by the postal authorities with an
endorsement showing failure of delivery. ***
Pursuant to Civ.R. 4.6(D), service is presumed comp lete when the
certificate of mailing is entered in the record, so long as the envelope containing the
service is not returned and, further, so long as se rvice was sent to the defendant’s
address, or to an address where there is a reasonab le expectation that service will be
delivered to the defendant. Taris v. Jordan (Feb. 20, 1996), Franklin App. No. 95APE08-
1075, unreported. In this case, plaintiff served t he defendant by ordinary mail on
March 29, 1999. This mailing was sent by the court to the defendant’s admitted
residence and was not returned. Thus, the trial co urt correctly found that a presumption
of valid and effective service arises.
Id. The trial court also correctly noted that this
presumption may be rebutted, provided the defendant is able to come forward with
sufficient evidence showing that service failed.
Id. citing Grant v. Ivy (1980), 69 Ohio
App.2d 40, 42.
At the November 9, 1999 hearing on his motion for r elief, Winn claimed that
he did not receive a single piece of correspondence regarding this action, and despite his
failure to make payments to the plaintiff for over eighteen months, had no idea that any
foreclosure proceedings had been initiated. The co urt found Winn to be untruthful in his
testimony, explaining:
No. 99AP-1359
5
[Winn] testified that he retrieved his mail from th e post office
sometime in May and on August 30
th
and that there were
absolutely no notices from the Court or the other p arties
regarding this lawsuit.
To further buttress his affidavit, Defendant Winn t estified that
he is an educated man who understands the legal
significance of service of process. He further sta ted that by
virtue of his having defended the prior lawsuit fil ed by FHLMC,
he has demonstrated that he knows what to do when h e is
served with a lawsuit. Additionally, he stated tha t at all times
he has paid on his mortgage with FHLMC, and further more
has made repairs to his house. Specifically, he ha d the roof
replaced in September and the carpets cleaned in Oc tober.
Bank One, FHLMC, and Repo, Inc. presented the follo wing
evidence to controvert Defendant Winn’s claim. Cer tified mail
notices were sent to Defendant Winn’s address on
February 11, 16, and 26. Ordinary mail was sent on
March 24, and 30. FHLMC mailed a copy of its Answe r and
Cross-Claim to Defendant Winn on March 2, 1999. Th e State
of Ohio, Department of Taxation mailed its Answer t o
Defendant Winn on March 5, 1999. On April 6, 1999, the
United States of America also mailed its Answer to Defendant
Winn. On April 21, 1999, Bank One mailed its Motion for
Default Judgment, and on July 15, 1999, it mailed a Notice of
Sheriff’s Sale to Defendant Winn. Therefore, at le ast ten
correspondences were sent to Defendant Winn regardi ng this
action, yet he claims to have received none of them .
Additionally, Lee Wallen, a representative of Repo, Inc.
testified that he left his business card, upon whic h he had
handwritten that he had purchased the property, on
Defendant Winn’s from door on August 13, 1999. He also
called Defendant Winn and left him a message to tha t effect
on August 15 and 29. However, Defendant Winn testi fied that
he never checked his answering machine messages. H e
further stated that, although a friend was staying at his
residence during that time, his friend entered the house
through the garage door and not the front door.
Defendant Winn was cross-examined as to whether he had
not received any other mail that was to be held by the Post
Office. He testified that the Court notices were n ot the only
pieces of mail that he had not received, but he cou ld not
name any specific item that was lost. He further t estified that
he received his utility bills and monthly bank stat ements. He
No. 99AP-1359
6
also was cross-examined with regards to an IRS tax lien of
$288,000 upon his property. He stated that he had a defense
to that action as he had never received any notice from the
IRS concerning unpaid taxes.
Upon review of the testimony, the Court finds that sufficient
evidence of service upon Defendant Winn has been se t forth
by the non-moving parties to controvert his affidav it. It is
simply not credible that Defendant Winn never recei ved any
of the numerous correspondences regarding this matt er when
none of them have been returned as undeliverable.
His
testimony might be more believable if he had assert ed that he
did not receive only Bank One’s Complaint; however,
Defendant Winn would have this Court believe that e very
single letter pertaining to this action was misplac ed or lost by
the Post Office. ***
On appeal, Winn specifically states that he does no t challenge the trial
court’s factual finding that he received summons an d the plaintiff’s complaint by ordinary
mail. Instead, Winn seizes upon the court’s allege d “finding” that he was out of town
between February 1, 1999, and May 10, 1999, and fro m that point, argues that it was
impossible for the plaintiff to have served him bec ause he was not at home to read his
mail.
While Winn’s alleged failure to check his mail for over three months might
go to the issue of excusable neglect, Winn has fail ed to come forward with any authority
for the proposition that he cannot be served as a r esult of his failure to attend to his
affairs. As noted by the trial court, Winn is an educated man. Although Winn has a
Ph.D., and is the CEO of a purportedly successful c onsulting company which helps
nonprofit organizations raise and manage money, he would have this court believe that
he almost completely neglects his personal affairs.
For example, Winn testified that his work routinely takes him out of town for
extended periods of time; however, Winn claims that he makes no effort whatsoever to
No. 99AP-1359
7
receive or review his mail while away from home. W inn also claimed that he failed to
receive a single piece of mail relating to this lit igation, including: any of the three notices
for certified mail; ordinary mail service of plaint iff’s complaint; service of FHLMC’s cross-
claim and answer; answers of the State of Ohio and the United States; and plaintiff’s
motion for default judgment. Winn also claims that he did not receive any foreclosure
notice, nothing from the trial court, nothing from the plaintiff’s law firm, nothing from the
Sheriff’s Office, and none of the messages or busin ess cards left by Repo, Inc. While all
of these claims do not touch directly upon the issu e of service, they do all shed light upon
Winn’s veracity and the credibility of his testimon y.
However, even if Winn’s testimony was worthy of bel ief, the issue of
excusable neglect was not before the trial court an d is not before this court on appeal. In
this case, the plaintiff properly served Winn in ac cordance with the civil rules. In harmony
with those rules and the case law of this state, a presumption of valid service arose.
Winn was given a full and fair opportunity to rebut this presumption. According to the trial
court, however, Winn’s testimony that he failed to receive service was not worthy of belief.
Winn has not challenged this finding on appeal, nor has he come forward with any
authority for the proposition that an individual ca n avoid or postpone service by voluntarily
neglecting to check his or her mail.
Having found no error in the trial court’s decision or analysis, Winn’s
assignment of error is overruled, and the judgment of the Franklin County Court of
Common Pleas is hereby affirmed.
Judgment affirmed.
BROWN and TYACK, JJ., concur.
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