[Cite as Phoenix Fin. Solutions, Inc. v. Gonzales, 2014-Ohio-3897.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                              JUDGES:
PHOENIX FINANCIAL SOLUTIONS,                          :       Hon. W. Scott Gwin, P.J.
INC.                                                  :       Hon. Sheila G. Farmer, J.
                                                      :       Hon. Craig R. Baldwin, J.
                        Plaintiff-Appellant           :
                                                      :
-vs-                                                  :       Case No. CT2013-0056
                                                      :
APRIL GONZALES                                        :
                                                      :       OPINION
                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                  Civil appeal from the Muskingum County
                                                          Court, Case No. CVF-1201012




JUDGMENT:                                                 Reversed and Remanded




DATE OF JUDGMENT ENTRY:                                   September 5, 2014

APPEARANCES:

For Plaintiff-Appellant

JAMES BLUNT II
445 W. Longview Avenue
Mansfield, OH 44903
[Cite as Phoenix Fin. Solutions, Inc. v. Gonzales, 2014-Ohio-3897.]


Gwin, P.J.

        {¶1}     Appellant appeals the September 18, 2013 and November 5, 2013

judgment entries of the Muskingum County Court that released the wage garnishment

filed by appellant.

                                           Facts & Procedural History

        {¶2}     On December 27, 2012, appellant Phoenix Financial Solutions, an

assignee of Dutro Used Cars, Inc., filed a complaint against appellee April Gonzales.

The complaint alleged that appellee was in default of a retail installment sales contract

for the purchase of a 1994 Mercury Grand Marquis. After certified mail service was

completed on appellee on April 29, 2013, appellant filed a motion for default judgment

on May 31, 2013. On June 4, 2013, default judgment was granted in favor of appellant

against appellee in the amount of $3,351.41 plus interest at 21% from July 16, 2012.

        {¶3}     Appellant filed a garnishment on August 2, 2013. On August 19, 2013,

appellee filed a request for hearing stating that she never drove the car and that she

could not afford the debt. On September 5, 2013, the trial court set a garnishment

hearing for September 18, 2013.

        {¶4}     On September 11, 2013, appellant filed an affidavit in lieu of appearance

written by appellant’s attorney listing the remaining balance on the judgment and stating

that appellee’s wages are not exempt from garnishment, to the best of his knowledge.

On September 18, 2013, the trial court issued a release of garnishment and dissolution

of the order of attachment.

        {¶5}     Appellant filed a motion for findings of fact and conclusions of law on

September 26, 2013, requesting findings of fact and conclusions of law as to why the
Muskingum County, Case No. CT2013-0056                                                 3


garnishment was released. On November 5, 2013, the trial court issued a judgment

entry that stated as follows:

       The Plaintiff filed an Affidavit in Lieu of Appearance dated

       September 11, 2013. The Defendant appeared at said Hearing.

       The Plaintiff did not appear.   Therefore, the Court released the

       Wage Garnishment file dated August 12, 2013.

       {¶6}   Appellant appeals the September 18, 2013 and November 5, 2013

judgment entries of the Muskingum County Court and assigns the following as error:

       {¶7}   “I.   THE   TRIAL   COURT     ERRED     BY   RELEASING       THE WAGE

GARNISHMENT WHERE THE JUDGMENT CREDITOR FILED AN AFFIDAVIT IN LIEU

OF APPEARANCE AND THE JUDGMENT DEBTOR FAILED TO PROVIDE ANY

EVIDENCE THAT THE GARNISHMENT PROCEEDS WERE EXEMPT FROM

EXECUTION.”

                                               I.

       {¶8}   Appellant argues the trial court erred in dismissing its garnishment solely

for failing to appear at the hearing when they submitted an affidavit in lieu of

appearance. We agree.

       {¶9}   R.C. 2716.13 allows a judgment debtor to request a hearing for the

purpose of disputing the judgment creditor’s right to garnish the judgment debtor’s

personal earnings. The subject matter of the hearing is “* * * limited to a consideration

of the amount of the personal earnings of the judgment debtor, if any, that can be used

in satisfaction of the debt owed by the judgment debtor to the judgment creditor.” R.C.

2716.13.
Muskingum County, Case No. CT2013-0056                                                 4


      {¶10} The judgment debtor has the burden of proving the existence of an

exemption or defense to the garnishment. State of Ohio v. Cipriano, 5th Dist. Guernsey

No. 03CA000032, 2005-Ohio-249, quoting Monogram Credit Card Bank of Georgia v.

Hoffman, 3rd Dist. Union No. 14-02-24, 2003-Ohio-1578; Ashtabula County Med. Ctr.

v. Douglass, 11th Dist. Ashtabula No. 1331, 1988 WL 59836 (June 3, 1988).

Accordingly, the failure of a judgment creditor or his counsel “to attend the hearing

should not result in an automatic finding in favor of the judgment debtor due only to the

creditor’s failure to appear. The judgment debtor must still go forward and meet his

burden of proof.” Ashtabula County Med. Ctr. v. Douglass, 11th Dist. Ashtabula No.

1331, 1988 WL 59836 (June 3, 1988); Monogram Credit Card Bank of Georgia v.

Hoffman, 3rd Dist. Union No. 14-02-24, 2003-Ohio-1578; State of Ohio v. Cipriano, 5th

Dist. Guernsey No. 03CA000032, 2005-Ohio-249 (adopting the holding in Monogram

Credit Card).

      {¶11} By not appearing at the garnishment hearing, the creditor does waive his

right to challenge the claims of the judgment debtor; and the trial court, upon proper

presentation of evidence by the debtor, has the right to determine the debt to be all or

partially satisfied. Ashtabula County Med. Ctr. v. Douglass, 11th Dist. Ashtabula No.

1331, 1988 WL 59836 (June 3, 1988). “That is the risk the creditor runs when he fails to

appear.” Id.

      {¶12} We find the rationale in Ashtabula County Medical Center v. Douglass and

Monogram Credit Card Bank of Georgia v. Hoffman to be persuasive.             11th Dist.

Ashtabula No. 1331, 1988 WL 59836 (June 3, 1988); 3rd Dist. Union No. 14-02-24,

2003-Ohio-1578.     The trial court erred in issuing a release of garnishment and
Muskingum County, Case No. CT2013-0056                                                 5


dissolution of the order of attachment as it appears from the record that the trial court

vacated the garnishment solely because appellant filed an affidavit in lieu of appearance

instead of making a personal appearance at the hearing.

      {¶13} Based on the foregoing, appellant’s assignment of error is sustained. The

September 18, 2013 and November 5, 2013 judgment entries of the Muskingum County

Court are reversed and remanded for further proceedings in accordance with this

opinion.

By Gwin, P.J.,

Farmer, J., and

Baldwin, J., concur
