2013 Ohio 2576
Ohio Ct. App.2013Background
- KeyBank sued Eid Y. Sarameh on April 23, 2012, seeking foreclosure on a mortgage securing a $50,000 Key Equity Options Agreement; it alleged Sarameh defaulted and owed about $31,197.49 plus interest and costs.
- The complaint included the signed Options Agreement (Apr. 6, 2004), recorded mortgage (Apr. 19, 2004), and a preliminary judicial report.
- After difficulties effecting personal service, the trial court authorized service by publication. On June 15, 2012 an “Answer and Request for Mediation” was filed with Sarameh’s name hand-printed and signed by Ismail Gula with the notation “P.o.A.”
- KeyBank moved to strike the Answer, asserting Gula was not a licensed attorney and his filing constituted unauthorized practice of law; the trial court granted the motion on Aug. 9, 2012.
- KeyBank then moved for default judgment. The trial court found no proper appearance or defense by Sarameh, entered default judgment, ordered foreclosure and sale, and Sarameh appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment was improper because defendant "otherwise defended" | KeyBank: No valid appearance occurred; the struck filing was unauthorized and therefore no defense was made | Sarameh: An Answer was filed (by Gula under power of attorney), so he at least "otherwise defended" and default was improper | Court: The document was filed by a non‑attorney; a power of attorney does not authorize non‑attorney to file pleadings; Sarameh did not sign or otherwise appear, so default was proper |
Key Cases Cited
- Cuyahoga Cty. Bar Assn. v. Spurlock, 96 Ohio St.3d 18 (2002) (a power of attorney does not permit a non‑attorney to prepare and file pleadings for another)
- Disciplinary Counsel v. Brown, 121 Ohio St.3d 423 (2009) (reaffirming that a power of attorney cannot be used to authorize non‑attorney court representation)
- Disciplinary Counsel v. Coleman, 88 Ohio St.3d 155 (2000) (private contract cannot circumvent statutory prohibition on unauthorized practice of law)
- Miamisburg Motel v. Huntington Natl. Bank, 88 Ohio App.3d 117 (1993) (a party has appeared for Civ.R. 55 purposes only when they clearly express intent to defend)