Fin. Freedom Acquisition, L.L.C. v. Heirs of Thomas
2012 Ohio 3845
Ohio Ct. App.2012Background
- Foreclosure action filed by FFA against The Unknown Heirs of Thelma V. Thomas based on a December 2006 mortgage signed by Thelma through her power of attorney; Thelma owned the property at loan origination.
- The power of attorney and mortgage were recorded December 18, 2006.
- Thelma died December 9, 2009; probate estate opened August 23, 2011 with Thomas as executor.
- FFA sought service by publication against unknown heirs; a January 27, 2011 default judgment followed; an order of sale was issued for February 24, 2011, with sale scheduled May 20, 2011.
- Thomas claimed he was an heir with known address and that service was improper; he filed Civ.R. 60(B) motion May 9, 2011 to set aside judgment and to stop sale; the court cancelled the sale but the sheriff’s sale occurred May 20, 2011.
- The trial court later confirmed sale and issued a deed; Thomas appealed, arguing lack of proper service and lack of jurisdiction; the appellate court reversed, holding the action not commenced due to improper service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service improper so the court lacked personal jurisdiction? | Thomas argues he is a known heir; service via unknown-heir language failed. | FFA contends service by publication was sufficient. | Yes; service was improper because Thomas was a known heir and should have been named and served. |
| Did lack of proper service render the foreclosure judgment void and void all related orders? | Lack of service voids jurisdiction; judgment should be set aside. | FFA contends service valid or cured by other notices. | Yes; lack of perfect service means no valid commencement and voided the judgment and related orders. |
Key Cases Cited
- Erwin v. Bryan, 125 Ohio St.3d 519 (Ohio Supreme Court, 2010) (Civ.R. 15(D) and known identity cannot be listed as unknown)
- LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324 (Ohio Supreme Court, 2008) (Failure to perfect service defeats jurisdiction; action not commenced)
- Maryhew v. Yova, 11 Ohio St.3d 154 (Ohio Supreme Court, 1984) (Actual knowledge does not excuse improper service)
- Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141 (Ohio Supreme Court, 2007) (Jurisdictional defect due to improper service requires reversal)
- Ohio Elec. Ry. Co. v. United States Express Co., 105 Ohio St. 331 (Ohio Supreme Court, 1922) (Addressing effect of failure to obtain service)
- Thornton v. Conrad, 194 Ohio App.3d 34 (Ohio App. 8th Dist., 2011) (Motion/Rule 60(B) ruling deemed overruled when not timely ruled)