Countrywide Home Loans Servicing, L.P. v. Davis
2016 Ohio 7421
Ohio Ct. App.2016Background
- Countrywide filed a foreclosure complaint in May 2009 against James P. Davis (mortgage and note debtor) and others; process server filed a return stating residence service on May 20, 2009, delivered to Davis’s "live-in sister" Linda Johnson.
- Only the county treasurer answered; the trial court entered default judgment in foreclosure against Davis on July 7, 2009.
- Countrywide later purchased the property; writ of possession issued in June 2014.
- In September 2014 (five years after the default), Davis moved to dismiss, asserting he was never served and the default judgment was void; he and Johnson submitted affidavits denying service.
- At an evidentiary hearing, the process-server’s company manager testified and introduced a written return stating service on a person identifying as Johnson at Davis’s residence; trial court found the return credible and rejected Davis and Johnson as not credible.
- The trial court denied the motion to dismiss; this appeal challenges whether Civ.R. 4.1(C) residence service requirements were met when the person served did not actually reside at Davis’s residence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was residence service under Civ.R. 4.1(C) valid? | Process server’s return and company records create a presumption of valid service; server delivered papers to someone identifying as Davis’s live-in sister. | Service was invalid because the person served (Johnson) did not reside at Davis’s residence; thus Civ.R. 4.1(C) requirements not satisfied. | Court affirmed: presumption of valid service established by return was not rebutted; trial court did not abuse discretion in finding service valid. |
| Can actual notice substitute for formal service? | N/A (addressed by appellee but not relied upon). | Davis argued lack of effective service despite other mailings. | Court reiterated actual notice does not dispense with required formal service. |
| Was trial court’s credibility finding reviewable? | Return and testimony supported court’s credibility determination. | Davis argued the trial court erred in accepting server’s account over affidavits denying receipt. | Court held credibility determinations are within trial court’s discretion and were not an abuse of discretion here. |
| Did denial of dismissal render a final, appealable order? | Countrywide noted appellateability under cited precedent. | Initially contested but ultimately treated as appealable. | Court proceeded and affirmed judgment; appeal allowed under Dairyland rationale. |
Key Cases Cited
- Samson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290 (due process requires service reasonably calculated to apprise parties)
- Maryhew v. Yova, 11 Ohio St.3d 154 (service required even if defendant has actual knowledge)
- Peoples Banking Co. v. Brumfield Hay & Grain Co., 172 Ohio St. 545 (default judgment without personal jurisdiction is void)
- Ohio Civ. Rights Comm. v. First Am. Properties, Inc., 113 Ohio App.3d 233 (valid service presumed when person at defendant’s residence receives summons)
- United Home Fed. v. Rhonehouse, 76 Ohio App.3d 115 (proper service required for valid default judgment)
- Haley v. Hanna, 93 Ohio St. 49 (service necessity despite defendant’s awareness of suit)
- Dairyland Ins. Co. v. Forgus, 58 Ohio App.3d 78 (appellateability principles cited for appealability)