Reliable Auto Fin. v. Kelly

Full title: Reliable Auto Finance, Inc., Plaintiff-Appellee, v. Karen L. Kelly, Defendant-Appellant.

Court: Court of Appeals of Ohio, Tenth District

Date published: Aug 19, 2021

Facts

On October 17, 2017, appellee filed in the trial court a complaint asserting claims for breach of contract and unjust enrichment arising out of a retail installment agreement (“Agreement”) for the financing of the purchase of an automobile. (Oct. 17, 2017 Compl.) Appellee alleged appellant was liable for a deficiency under the Agreement in the principal amount of $9, 138.34 and accrued interest in the amount of $95.00. Id. Summons was issued on October 24, 2017, to the address 2217 Sunshine Place, Columbus,  Ohio, 43232, but was returned as “unclaimed” on November 29, 2017. On January 4, 2018, service was reissued via ordinary mail to the same address; this, too, was returned to the clerk as “unsuccessful” on January 8, 2018.

On February 5, 2018, appellee requested service be issued via certified mail to 514 Elwood Avenue, Columbus, Ohio, 43207. The docket does not reflect an entry indicating that this service was either successful or unsuccessful.

On July 16, 2018, the appellee requested service be issued via certified mail to 2171 Sunshine Place, Columbus, Ohio, 43232, which was returned “unclaimed” on August 15, 2018. Service to this address was reissued via ordinary mail on September 18, 2018, and the docket does not contain any entry showing the mailing was returned to the clerk or was otherwise unsuccessful. No answer was filed by the appellant.

Thereafter, on January 11, 2019, appellee filed a motion for default judgment. The trial court granted the motion on January 22, 2019, and entered judgment in favor of the appellee in the amount of $9, 138.34, plus accrued interest of $95.00, post-judgment interest at the statutory rate, and court costs. (Jan. 22, 2019 Entry Granting Default Jgmt.)

On September 4, 2020, the appellant, through counsel, filed a motion to vacate judgment and an emergency motion to stay garnishment. (Mot. to Vacate.) In support of her motion to vacate judgment, the appellant included her affidavit with supporting materials whereby she attests that she did not receive the summons and complaint in this case. (Kelly Aff. at ¶ 3.) Appellant further attests that since approximately November 1, 2017, she lived at 514 Elwood Avenue, Columbus, Ohio, 43207, and was not living at 2171 Sunshine Place, Columbus, Ohio, 43232, which was her mother’s residence, during the pendency of the lawsuit. Id. at ¶ 4, 5. The appellant further attests that she was not aware of the pending lawsuit until her wages began to be garnished in the summer of 2019. Id. at ¶ 6.

On March 24, 2020, without holding a hearing, the trial court issued an entry denying the motion to vacate judgment. (Oct. 13, 2020, Decision Entry.)

Issue

Decision

We have already found that the trial court erred in denying the appellant’s motion to vacate judgment without having conducted a hearing. Accordingly, the appellant’s first assignment of error is moot.

For the foregoing reasons, the trial court erred in denying the motion of the appellant to vacate judgment without first conducting an evidentiary hearing. Having sustained the appellant’s second assignment of error, and having found the appellant’s first assignment of error moot, we reverse the judgment of the Franklin County Municipal Court and remand this matter to that court for further proceedings consistent with this decision.

Judgment reversed; cause remanded with instructions.

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