OMNI CREDIT SERVICES v. D‘AUN E. LESTON
C.A. CASE NO. 25287
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
February 1, 2013
[Cite as Omni Credit Servs. v. Leston, 2013-Ohio-304.]
T.C. NO. 03CVF5456 (Civil appeal from Municipal Court)
Rendered on the 1st day of February, 2013.
. . . . . . . . . .
MATTHEW G. BURG, Atty. Reg. No. 0072556, Lakeside Place, Suite 200, 323 W. Lakeside Avenue, Cleveland, Ohio 44113
and
JAMES G. KOZELEK, Atty. Reg. No. 0073615, 175 S. Third Street, Suite 900, Columbus, Ohio 43215
Attorneys for Plaintiff-Appellee
D’AUN E. LESTON, P. O. Box 1753, Kodak, TN 37764
Defendant-Appellant
. . . . . . . . . .
{¶ 1} This matter is before the Court on the pro se “Motion to Appeal Decision & Entry / Motion to Vacate Judgment” of D‘Aun Loomis, which was initially filed in Dayton Municipal Court and subsequently transferred to this Court on July 19, 2012. Loomis appeals from the June 22, 2012 decision of the municipal court which denied her pro se “Motion and Declaration to Vacate Judgment / Motion and Declaration to Vacate Bank Levy” filed by Loomis after the municipal court revived a 2003 dormant judgment against Loomis in favor of Omni Credit Services of Illinois, Inc. (“Omni“).
{¶ 2} On May 13, 2003, Omni filed a Complaint against Loomis, who was then known as D‘aun Leston, seeking judgment on a promissory note in the amount of $5,756.35, plus interest. The record reflects proof of service that indicates that the Complaint was received by D‘aun Leston. On June 26, 2003, Omni filed a motion for default judgment against Loomis, with an accompanying affidavit, after Loomis failed to answer the complaint, which the trial court granted on the same day, in the principal sum of $5,756.35, together with accrued interest of $5,629.62, through March 19, 2003, plus interest thereafter on the principal balance at the rate of 24.98%.
{¶ 3} On January 7, 2004, the municipal court issued an Order for Debtor‘s Examination, and the record reflects that the Order was personally served on D‘aun Leston on January 8, 2004. On March 30, 2004, a Certificate of Judgment was issued in favor of Omni.
{¶ 4} On July 13, 2011, counsel for Omni filed a Praecipe requesting service of a “Conditional Order of Revivor” upon D‘aun Leston at the address of 7949 Irvington Ave., Dayton, Ohio 45415, as well as “Plaintiff‘s Motion to Revive Dormant Judgment,” in
{¶ 5} On August 5, 2011, counsel for Omni filed a praecipe requesting service by certified mail of the motion to revive to D‘aun Leston at the address of 541 Johnston Rd., Kodak, TN, 37764. The “Civil Summons (Motion to Revive)” contains identical language to that quoted above regarding the filing of a written answer. Proof of service was returned August 12, 2011, in the name of David Loomis. We note that in Loomis’ Reply Brief herein, she states that she was not personally served with the motion to revive judgment, but that her “current spouse was served. In turn, Mr. Loomis gave the paperwork to Loomis/Leston that same day when she arrived home for the day.”
{¶ 6} On August 18, 2011, Loomis filed a pro se Answer in which she requested dismissal of the matter. Loomis asserted that she is no longer a resident of Ohio, and that her attempts to contact Omni have failed. Loomis further asserted that the “original
{¶ 7} On February 17, 2012, the municipal court issued an Order setting the matter for a “Revivor Judgment Hearing” on March 7, 2012. The Order provides, “The presence of the parties and of the attorney is required and by this notice, the same is ordered, unless otherwise indicated.” The Order also provides, “No continuance will be considered unless requested in writing, filed no less than forty-eight hours before the time set for trial or hearing.” Finally, the Order provides that Notice of the hearing was sent to Loomis at the Johnston Rd., Kodak, Tennessee address.
{¶ 8} On April 11, 2012, the municipal court issued an “Order Granting Motion for Revivor of Judgment,” which provides that Loomis “has been fully served with Notice of the Conditional Order of Revivor herein before made and has failed to show sufficient cause why said Judgment should not be revived.” The court ordered “that said Judgment for the
{¶ 9} On May 9, 2012, Omni filed a request for a Certificate of Judgment, and the court‘s docket reflects that it was prepared and issued on the same day. On May 17, 2012 Omni filed an “Affidavit and Order and Notice of Garnishment of Property Other than Personal Earnings and Answer of Garnishee” directed at ORNL Federal Credit Union (“ORNL“), pursuant to which ORNL was ordered to complete and return the “Answer of Garnishee” section of the document. On May 21, 2012, the court‘s docket reflects that “Notice to The Defendant (Bank Attachment), Certificate of Service Completed by Ordinary Mail Filed.” On May 30, 2012, the record reflects that an “Answer of Garnishee” was returned that provides that $6,237.28 in a “savings and checking account” is “to be sent” from ORNL.
{¶ 10} On June 4, 2012, Loomis’ “Motion and Declaration to Vacate Judgment / Motion and Declaration to Vacate Bank Levy” was filed. The document indicates it was faxed to the court on May 23, 2012, and it lists the following “grounds“:
- Defendant was not properly notified of motion to award revivor judgment.
- Defendant was not served notice of revivor judgment.
- Defendant was not served notice of hearing of revivor judgment.
- Defendant was not served notice of bank levy/ judgment.
- Defendant was not properly notified of judgment filed in 2003.
- Defendant was not furnished verification of debt, which was requested in August of 2011.
- Defendant disputes original debt.
- Defendant alleges verbal harassment against Plaintiff‘s legal counsel.
Finally, the motion requested that the court “immediately RELEASE the bank levy * * * through ORNL Federal Credit Union * * * [which] is a joint account and Defendant‘s husband is not a party to this judgment.”
{¶ 11} On May 31, 2012, Omni opposed Loomis’ motion, asserting that Loomis “failed to set forth any grounds that merit relief.” On June 7, 2012, Loomis filed “Defendant‘s Memorandum Contra Plaintiff‘s Motion to Deny Vacating Judgment and Vacating Bank Levy.”
{¶ 12} On June 22, 2012, the trial court issued a Decision and Entry that provides in part:
The Court record reflects that Defendant was duly served with the Complaint on May 20, 2003 and Defendant failed to answer. Further, Defendant was given notice of the revivor hearing and failed to appear. Service of the Bank Levy was issued on May 21, 2012.
In the case at bar, Defendant failed to demonstrate in her motion that she has a meritorious defense or claim to present if relief is granted. In fact Defendant in her motion does not set forth facts that dispute the merits of Plaintiff‘s claim. Further, the Defendant has failed to state operative facts
in her motion showing that she is entitled to relief under any of the grounds listed in Civil Rule 60(B)(1) through (5) * * *.
The court overruled Loomis’ motions. The Decision and Entry reflects that a copy of the decision was sent to Loomis at the Johnston Rd., Kodak, Tennessee address.
{¶ 13} Also on June 22, 2012, the court issued an “Order Granting Motion for Revivor of Judgment” identical to that issued on April 11, 2012.
{¶ 14} The municipal court‘s docket indicates receipt of $6,237.28, from “ORNL Federal Credit Union,” on June 27, 2012.
{¶ 15} On July 2, 2012, Loomis filed a pro se “Motion to Turnover (sic) Funds,” in which she moved the court to “turnover (sic) the funds received by this Court on June 27, 2012 from Defendant‘s joint bank account in the amount of $6237.28, listed on the docket from this Court as receiving receipt # 12018222, back to Defendant.” Loomis asserted that she “was not properly served notice, according to
{¶ 16} On July 19, 2012, Loomis filed a notice of appeal of the municipal court‘s June 22, 2011 order which denied her “Motion and Declaration to Vacate Judgment / Motion and Declaration to Vacate Bank Levy.” On September 24, 2012, Loomis filed a “Motion to Submit Case without Brief of Appellee.” On October 10, 2012, after this Court ordered
{¶ 17} Loomis’ brief does not set forth specific assignments of error as required by the Ohio Rules of Appellate Procedure. She asks this Court to “vacate the revivor judgment as Defendant was not served notification of hearing nor was she notified of award of the revivor judgment.” Loomis also asks this Court to vacate the “Bank Levy and return the funds back to Defendant in the amount of $6,237.28.” Finally, she asks this Court to vacate “the original judgment filed on May 13, 2003.”
{¶ 18} We will begin our analysis with Loomis’ request that we vacate the original judgment filed on May 13, 2003.
{¶ 19} As set forth by the Tenth District in Columbus Check Cashers, Inc. v. Cary, 196 Ohio App.3d 132, 2011-Ohio-1091, 962 N.E.2d 812, ¶ 19 (10th Dist.):
In Bartol v. Eckert (1893), 50 Ohio St.31, 33 N.E. 294, the Supreme Court of Ohio stated that “[s]eeking to revive a judgment does not involve the creation of a new action, but merely the institution of a special proceeding within the original action.” Id. at 45. Further, “[i]n a proceeding in revivor it is not competent to relitigate the question involved in the original suit or to collaterally impeach the record and judgment. Nestlerode v. Foster (1893), 8 Ohio C.C. 70. In Van Nover v. Eshelman (1911), 14 Ohio C.C. (N.S.) 348, 349, the court stated that “[a] conditional order of revivor is a revivor of the judgment subject to be defeated by the judgment debtor showing that the judgment has been paid, settled or barred by the statute of limitations, as these are practically the only defenses that can be made to the revivor of a dormant judgment. * * * Therefore, upon the granting of a conditional order of revivor, it is incumbent upon the judgment debtor to challenge the existing judgment, if applicable, by presenting the defenses set forth above to the trial court for review.
See also, State v. Jones, 12th Dist. Warren No. CA2000-02-015, 2000 WL 1534701 (Oct. 16, 2000) (“A proceeding to revive a judgment is not a new action, but merely a motion in the original action. * * * Consequently, an alleged error in the rendition of the judgment may not be offered in defense in a proceeding to revive a judgment. Rather, a collateral attack against a judgment must be made directly on appeal or through a motion to vacate judgment.“)
{¶ 20} Loomis did not directly appeal the original judgment against her, or move the court to vacate it. In other words, it is too late to challenge the validity of that judgment, and her arguments addressed thereto are not properly before us and are accordingly overruled.
{¶ 21} Regarding the validity of the revivor of the original judgment, as further set forth by Columbus Check Cashers, ¶ 4: “‘Revivor of a dormant judgment is a statutory proceeding.’ ” * * * ” ‘[W]hen an appellate court is called upon to review a lower court‘s
{¶ 22}
(A)(1) If neither execution on a judgment rendered in a court of record * * * nor a certificate of judgment for obtaining a lien upon lands and tenements is issued and filed, as provided in sections
2329.02 and2329.04 of the Revised Code, within five years from the date of the judgment or within five years from the date of the issuance of the last execution thereon or the issuance and filing of the last such certificate, whichever is later, then, * * * the judgment shall be dormant and shall not operate as a lien upon the estate of the judgment debtor.
{¶ 23}
If sufficient cause is not shown to the contrary, the judgment or finding mentioned in section
2325.15 of the Revised Code shall stand revived, and thereafter may be made to operate as a lien upon the lands andtenements of each judgment debtor for the amount which the court finds to be due and unsatisfied thereon to the same extent and in the same manner as judgment or findings rendered in any other action. (Emphasis added).
{¶ 24} In Leroy Jenkins Evangelistic Assoc., Inc. v. Equities Diversified, Inc., 64 Ohio App.3d 82, 88, 580 N.E. 2d 812 (10th Dist. 1989), the Tenth District held as follows:
Clearly,
R.C. 2325.17 requires the judgment debtor be granted an opportunity to show cause why the judgment should not be revived, which could only be done at a hearing before the court. The obligation to give notice of a hearing to show cause is that of the court when granting the conditional order revivor and it is not, as Jenkins would seem to argue, incumbent upon the judgment debtor to seek such a hearing. Although an action to revive a judgment and a show cause hearing may be summary in nature, such an opportunity must be granted to meet fundamental requirements of due process.
{¶ 25} Loomis asserts that she did not receive adequate notice of the Order scheduling the revivor hearing nor of the revivor of the judgment against her. We note that the municipal‘s court‘s file contains faxed correspondence from Loomis to the municipal court judge, dated June 12, 2012, which indicates an address for Loomis of P.O. Box 1753, Kodak, TN 37764, and also copies of the April 11, 2012 order granting the motion for revivor and the February 17, 2012 order scheduling the revivor hearing, along with two envelopes. One envelope, postmarked April 20, 2012, is addressed to Daun Leston at 541 Johnston Rd, Kodak, TN, and it bears a sticker that provides: “return to sender/ vacant/
{¶ 26}
“In [Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Ass‘n., 28 Ohio St.3d 118, 502 N.E.2d 599 (1986)], the Supreme Court of Ohio held that
Civ.R. 5(A) did not require a trial court to serve the parties with notice of a scheduled trial date, provided that the parties received ‘some form’ of reasonable notice. The court explained:“The service of pleadings, written motions, and other papers, then, is a task imposed by the Civil Rules on the attorneys. A court, on the other hand, generally acts and speaks only through its journal by means of orders.
Civ.R. 5(A) does not require the service of orders unless the order is ‘required by its terms to be served.’ * * *“* * * Ohio courts have traditionally held that while some form of notice of a trial date is required to satisfy due process, an entry of the date of trial on the court‘s docket constitutes reasonable, constructive notice of that
fact. * * *” Ohio Valley Radiology Assocs., 28 Ohio St.3d at 124, 502 N.E.2d 599.
We have noted, citing Ohio Radiology Assocs., that “parties are expected to keep themselves informed of the progress of a case once they are served with process.” Pearl v. J & W Roofing and General Contracting (Feb. 28, 1997), Montgomery App. No. 16045.
{¶ 27} The record reflects that Loomis was clearly on notice that Omni sought to revive the June 26, 2003 judgment. In her Reply brief, as mentioned above, Loomis acknowledges that she received the “Civil Summons (Motion to Revive),” and she filed an answer thereto, as instructed by the court, on August 18, 2011. Thereafter, Loomis is expected to have kept herself informed of the progress of her case. As this Court has previously noted:
“Litigants who choose to proceed pro se are presumed to know the law and correct procedure, and are held to the same standard as other litigants. See, e.g., Kilroy v. B.H. Lakeshore Co. (1996), 111 Ohio App.3d 357, 363, 676 N.E.2d 171. As the Eighth District Court of Appeals aptly noted in Kilroy, a pro se litigant ‘cannot expect or demand special treatment from the judge, who is to sit as an impartial arbiter.’ Id.” Yocum v. Means, 2d Dist. Darke No. 1576, 2002-Ohio-3803, ¶ 20.
{¶ 28} The court‘s docket, on February 17, 2012, reflects the court‘s order scheduling the revivor hearing for March 7, 2012, and the order itself indicates that Loomis was sent notice of the revivor hearing by ordinary mail. To the extent that Loomis suggests
{¶ 29} Based upon the foregoing, we conclude that the municipal court properly granted Loomis an opportunity to show cause why the dormant judgment against her should not be revived, pursuant to
{¶ 30} Finally, we note that
At the time of the filing of a proceeding in garnishment of property, other than personal earnings, under section
2716.11 of the Revised Code, the judgment creditor also shall file with the clerk of the court a praecipe instructing the clerk to issue to the judgment debtor a notice to the judgment debtor form and a request for hearing form. Upon receipt of the praecipe and the scheduling of a hearing relative to an action in garnishment of property, other than personal earnings, under division (A) of this section, the clerk ofthe court immediately shall serve upon the judgment debtor, in accordance with division (D) of this section, two copies of the notice to the judgment debtor form and of the request for hearing form. The copies of the notice to the judgment debtor form and of the request for hearing form shall not be served later than seven days prior to the date on which the hearing is scheduled.
{¶ 31}
{¶ 32} Finally, the sample form provides as follows:
If you dispute the judgment creditor‘s right to garnish your property and believe that the judgment creditor should not be given your money, property, or credits, other than personal earnings, now in the possession of the garnishee because they are exempt or if you feel that this order is improper for any other reason, you may request a hearing before this court by disputing the claim in the request for hearing form appearing below, or in a substantially similar form, and delivering the request for hearing to this court at the above address, at the office of the clerk of this court no later than the
end of the fifth business day after you receive this notice. You may state your reasons for disputing the judgment creditor‘s right to garnish your property in the space provided on the form; however, you are not required to do so. If you do state your reasons for disputing the judgment creditor‘s right, you are not prohibited from stating any other reason at the hearing. If you do not state your reasons, it will not be held against you by the court, and you can state your reasons at the hearing. NO OBJECTIONS TO THE JUDGMENT ITSELF WILL BE HEARD OR CONSIDERED AT THE HEARING. If you request a hearing, the hearing will be limited to a consideration of the amount of your money, property, or credits, other than personal earnings, in the possession or control of the garnishee, if any, that can be used to satisfy all or part of the judgment you owe to the judgment creditor. If you request a hearing by delivering your request for hearing no later than the end of the fifth business day after you receive this notice, it will be conducted in ________courtroom, (address of court) at __m. on _______,_______. You may request the court to conduct the hearing before this date by indicating in the space provided on the form; the court then will send you notice of any change in the date, time or place of the hearing. If you do not request a hearing by delivering your request for a hearing no later than the end of the fifth business day after you receive this notice, some of your money, property, or credits, other than personal earnings, will be paid to
the judgment creditor.
{¶ 33} To the extent that Loomis’ brief suggests that she was denied due process in relation to the garnishment proceeding, we agree.
{¶ 34} Based upon the foregoing, the judgment of the trial court reviving the dormant judgment of June 26, 2003 is affirmed. The garnishment is vacated, and the funds deposited by the garnishee, ORNL, should be immediately released and returned. Remanded for proceedings consistent with this court‘s opinion.
. . . . . . . . . .
FAIN, P.J. and HALL, J., concur.
Copies mailed to:
Matthew G. Burg
James G. Kozelek
D‘Aun E. Leston
Hon. Carl Sims Henderson