[Cite as JPMorgan Chase Bank, N.A. v. Taylor, 2013-Ohio-2760.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

JPMORGAN CHASE BANK, N.A.                             :

        Plaintiff-Appellee                            :          C.A. CASE NO.    25568

v.                                                    :          T.C. NO.   12CV7758

CHARLES TAYLOR, et al.                                :            (Civil appeal from
                                                                   Common Pleas Court)
        Defendant-Appellants                          :

                                                      :

                                            ..........

                                          OPINION

                        Rendered on the        28th       day of         June       , 2013.

                                            ..........

ANNE MARIE SFERRA, Atty. Reg. No. 0030855 and NELSON M. REID, Atty. Reg. No.
0068434, 100 S. Third Street, Columbus, Ohio 43215
      Attorneys for Plaintiff-Appellee

EDWARD J. DUFFY, JR., Atty. Reg. No. 0018980, P. O. Box 76, 32 N. Dixie Drive,
Vandalia, Ohio 45377
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

        {¶ 1}     Charles Taylor appeals from a judgment of the Montgomery County Court
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of Common Pleas, which granted a default judgment in the foreclosure action brought by JP

Morgan Chase Bank, N.A. (Chase). For the following reasons, the trial court’s judgment

will be affirmed.

                                               I. Procedural History

         {¶ 2}        According to the complaint and Preliminary Judicial Report filed in this

case, William Gunsauley, Jr., signed a note in connection with the property located at 5285

Cypress Drive, Dayton, Ohio.                  The note was secured by a mortgage signed by Mr.

Gunsauley and his wife, Carol Gunsauley. The documents were signed on April 15, 2003,

and indicate that Gunsauley promised to pay to Bank One, N.A., over a period of 20 years,

the principal amount of $65,301.00, plus interest, at a rate of 5.25% per year. The mortgage

named William Gunsauley, Jr. as the borrower and Bank One, N.A., as the lender. Bank

One, N.A. subsequently merged with JP Morgan Chase Bank, N.A. Sometime after the

signing of the note, Mr. Gunsauley died and the title to the property was conveyed to Alyxx

Michael William Gunsauley, who then conveyed the title to Charles Taylor, through means

of a warranty deed dated July 18, 2011, and recorded the following day.

         {¶ 3}        On October 30, 2012, Chase filed its Complaint in Foreclosure against

Taylor1, claiming that Gunsauley had defaulted on the note concerning the property. Chase

alleged that it is the holder of the note executed by Gunsauley and that the note was in

default in the amount of $27,729.16, plus interest. Chase alleged it had complied with all

conditions precedent, and was entitled to judgment on the note, foreclosure of the mortgage,


             1
                The complaint named other potentially interested parties, including Jane Doe, name unknown, spouse of Charles
   Taylor, the State of Ohio, Estate Tax Division, and the Montgomery County Treasurer. These parties are not relevant to this
   appeal.
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and sale of the property. As the title holder of record, Taylor was named as a defendant to

the action.

       {¶ 4}     On October 31, 2012, Taylor was served the Summons and Complaint by

certified mail. Taylor did not respond, move, or plead to the Complaint. On December 6,

2012, Chase moved for default judgment, and the court entered judgment on the note and a

decree in foreclosure on December 10, 2012. The Judgment Entry included language under

Civ.R. 54(B) to certify the judgment as immediately appealable.

       {¶ 5}     On December 29, 2012, Taylor moved to vacate the default judgment and

to dismiss the Complaint. The trial court issued a briefing schedule on Taylor’s combined

motion. Taylor filed a notice of appeal from the default judgment on January 9, 2013, and

the trial court has not ruled on Taylor’s motion to vacate and dismiss.

                                   II. Assignments of Error

       {¶ 6}     The trial court’s judgment is governed by Civ.R. 55, which states in

pertinent part: “When a party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend as provided by these rules, the party entitled to a

judgment by default shall apply in writing or orally to the court therefor * * * .” A default

judgment must not be disturbed on appeal unless there is an abuse of discretion by the trial

court. Wright State Univ. v. Williams, 2d Dist. Greene No. 12 CA 37, 2012-Ohio-5095, ¶ 5.

 An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or

unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 7}     Taylor’s first assignment of error states that the trial court erred on its

December 10, 2012 judgment entry against Charles Taylor because “[t]he first and second
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lines in said decree find ‘for default of the Plaintiff.’”

        {¶ 8}     In his appellate brief and at oral argument, Taylor claims that the trial court

erred by finding the Plaintiff (Chase) in default since the judgment entry states “[t]his matter

is before the Court on the Motion for Default of the Plaintiff * * *.” We do not believe this

phrasing means the court found Chase in default. The motion ruled on is the “Motion for

Default” of the Plaintiff. The language simply means that the matter was before the court

on plaintiff Chase’s motion for a default judgment.

        {¶ 9}     In the same judgment entry, there is additional language that makes it clear

that the court did not intend to and did not find that Chase was in default. For example, on

the same page as the statement in question, the entry reads: “* * * the allegations contained

in the Complaint are true and that there is due and owing to the Plaintiff, upon the subject

Note the principal balance of $27,729.16, for which judgment is hereby rendered in favor of

the Plaintiff.”

        {¶ 10} There was no abuse of discretion by the trial court in the language of the

judgment entry. Both the individual sentence and the judgment as a whole, reflect that the

trial court found in favor of Chase on its motion for default judgment.

        {¶ 11} The first assignment of error is overruled.

        {¶ 12}    Taylor’s second assignment of error states “[t]he full complaint of

foreclosure of which less than one half was served on Charles Taylor nowhere mentions the

notice required by Fair Debt Collection Act [sic] 15 USC Section 1692, making the

complaint a nullity.”

        {¶ 13} Taylor claims that failure to provide the notice as required by the Fair Debt
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Collection Practices Act (FDCPA), specifically 15 U.S.C. 1692, makes the complaint a

nullity and as a result, the trial court erred, as a matter of law, in finding that Chase was

entitled to a judgment because Chase had not given notice of certain rights in its (Chase)

initial communication. 15 U.S.C. 1692 provides in pertinent part:

       (a) Notice of debt; contents. Within five days after the initial communication

       with a consumer in connection with the collection of any debt, a debt

       collector shall, unless the following information is contained in the initial

       communication or the consumer has paid the debt, send the consumer a

       written notice containing-

       (1) the amount of the debt;

       (2) the name of the creditor to whom the debt is owed;

       (3) a statement that unless the consumer, within thirty days after receipt of the

       notice, disputes the validity of the debt, or any portion thereof, the debt will

       be assumed to be valid by the debt collector;

       {¶ 14} The FDCPA “is directed at independent debt collectors and not creditors

attempting to collect on their own debts.” Bank of New York Trustee v. Damnsel, 10th Dist.

Franklin No. 00AP-46, 2006-Ohio-4071, ¶ 13. Additionally, “[a]s a matter of law, the

FDCPA does not apply to creditors, their employees or officers, or their affiliates.” Id. at ¶

13. In Bank of New York v. Barclay, 10th Dist. Franklin No. 03AP-844, 2004-Ohio-1217,

the court noted that:

       The stated purpose of the [FDCPA] is to eliminate abusive debt collection

       practices, Section 1692e, Title 15, U.S.Code, and to that end the Act prohibits
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        certain actions by debt collectors, such as improper communications,

        harassing or oppressive behavior, and false or misleading representations, as

        well as imposing other restrictions and obligations on debt collectors, such as

        the verification requirement of Section 1692b.

Barclay at ¶ 18, citing 15 U.S.C. 1692c, 1692d, and 1692e. Moreover, Chase alleged in the

complaint that it had complied with all conditions precedent and this was not contested.

The trial court did not abuse its discretion in granting a default judgment because of the

FDCPA.

        {¶ 15} The second assignment of error is overruled.

        {¶ 16} Taylor’s third assignment of error states that “no where in caption [sic] lists

a William Gunsauley as a defendant, now deceased.”

        {¶ 17}   Taylor argues that because William Gunsauley, deceased, was not listed as

a defendant and no effort was made to serve process upon him, the trial court made an error

in granting the default judgment. Gunsauley and his wife signed the mortgage on April 15,

2003.    Sometime after, Gunsauley died and the title to the Property was eventually

transferred to Charles Taylor by warranty deed, dated July 18, 2011, and recorded the

following day.

        {¶ 18}   It is a generally accepted principle that a decedent may not be a party to an

action. Hicks v. Estate of Mulvaney, 2d Dist. Montgomery No. 22721, 2008-Ohio-4391, ¶

26. This court has recently held that a deceased’s estate is not required to be named as a

party when the estate had no interest in the foreclosure action. James B. Nutter & Co. v.

Phillips, 2d Dist. Montgomery No. 25327, 2013-Ohio-184, ¶ 7. Gunsauley’s estate did not
                                                                                                7

own the property in question, and Chase did not seek to hold the estate liable for the debt

under the note. Gunsauley was neither alive nor was his estate an interested party. Chase

had no obligation to include Gunsauley or the estate as a party to the action in foreclosure.

       {¶ 19}    The third assignment of error is overruled.

       {¶ 20}    The fourth assignment of error states that the complaint served upon

Charles Taylor “lists a faulty caption page and a second page and [sic] only the 6th page of

Exhibit A, the purported mortgage.”

       {¶ 21}    In his brief, Taylor contends the complaint served upon him was

incomplete in that it only contained pages one and two of the four page document.

Additionally, Taylor contends that only page six of the mortgage was attached to the

complaint that was served on him. Taylor was served with process on October 31, 2012 by

certified mail and the receipt in the record shows it was received and signed for by Doris

Lawson, an agent. Additionally, the process server signed and dated the Return Summons

stating that personal service had been successfully completed. “In those instances where

the plaintiff follows the Civil Rules governing service of process, courts presume that

service is proper unless the defendant rebuts this presumption with sufficient evidence of

non-service.”   Carter-Jones Lumber Co. v. Meyers, 2d Dist. Clark No. 2005 CA 97,

2006-Ohio-5380, ¶ 11.      Since this was a default judgment, there was no evidence of

non-service before the trial court.

       {¶ 22}    Taylor has not argued that the service itself was faulty, but that the

complaint and mortgage were missing pages. Again, because no answer to the complaint

was ever filed, Taylor cannot now argue on appeal that certain pages were missing from
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some of the documents he received, and that therefore the trial court erred in granting default

judgment.

       {¶ 23} The fourth assignment of error is overruled.

       {¶ 24}    There is no indication from the trial court record before us that the trial

court erred in granting Chase’s motion for default judgment. In conducting an appellate

review, this court is limited to the trial court record as it existed at the time the trial court

rendered judgment.     E.g., Fifth Third Bank v. Fin. S. Office Partners, Ltd., 2d Dist.

Montgomery No. 23762, 2010-Ohio-5638. Taylor has filed a motion to vacate and dismiss

with the trial court, but this appeal was filed prior to that court’s ruling, and the motion is

pending. This court expresses no opinion on the merits of that motion.

                                        III. Conclusion

       {¶ 25}    “[A] defendant in a foreclosure action who has been properly served with

the complaint may not sit on his rights.” Bank of New York v. Baird, 2d Dist. Clark No.

2012-CA-28, 2012-Ohio-4975, at ¶ 29, citing GMAC Mortgage, L.L.C. v. Herring,189 Ohio

App.3d 200, 2010-Ohio-3650, 937 N.E.2d 1077, ¶ 47-50 (2d Dist.). Rather, he or she is

“required to respond to the complaint, either by filing an answer or by challenging the

allegations in the complaint by motion, such as a motion to dismiss, pursuant to Civ.R.

12(B), a motion for a more definite statement under Civ.R. 12(E), or a motion to strike,

pursuant to Civ.R. 12(F).” Herring at ¶ 50.

       {¶ 26}    In the case before us, we cannot find that the trial court abused its

discretion in granting the default judgment. The assignments of error are overruled, and the

trial court’s judgment will be affirmed.
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                                      ..........

FAIN, P.J. and WELBAUM, J., concur.




Copies mailed to:

Anne Marie Sferra
Nelson M. Reid
Edward J. Duffy, Jr.
Hon. Dennis J. Langer
