[Cite as U.S. Bank Natl. Assn. v. Maxfield, 2016-Ohio-3396.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




U.S. BANK NATIONAL ASSOCIATION,                         :
AS TRUSTEE FOR STRUCTURED                                      CASE NO. CA2015-06-120
ASSET MORTGAGE INVESTMENTS II,                          :
INC., BEAR STERN ARM TRUST,                                         OPINION
MORTGAGE PASS-THROUGH                                   :            6/13/2016
CERTIFICATES, SERIES 2004-12,
                                                        :
        Plaintiff-Appellee,
                                                        :
   - vs –
                                                        :
DAVID Z. MAXFIELD, et al.,
                                                        :
        Defendants-Appellants.
                                                        :



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV2015-01-0230



Blank Rome, Chrissy M. Dun Dutton and John R. Wirthlin, 1700 PNC Center, 201 East Fifth
Street, Cincinnati, Ohio 45202, for appellee

Kendo, Alexander, Cooper & Engel, LLP, Andrew M. Engel, 7925 Paragon Road, Dayton,
Ohio 45459, for appellants, David Z. Maxfield, Renee M. Maxfield and Itti Bitti Company LLC

Robert J. Byrne, 150 East Gay Street, 21st Floor, Columbus, Ohio 43215, for defendant,
State of Ohio Department of Taxation



        M. POWELL, P.J.

        {¶ 1} Defendants-appellants, David Z. Maxfield, Renee M. Maxfield, and Itti Bitti

Company LLC, appeal from the decision of the Butler County Court of Common Pleas
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awarding default judgment to plaintiff-appellee, U.S. Bank ("USB") National Association, as

Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns ARM Trust,

Mortgage Pass-Through Certificates, Series 2004-12. For the reasons that follow, we

reverse the judgment of the trial court and remand this matter for further proceedings.

       {¶ 2} On January 28, 2015, USB filed a complaint for foreclosure against appellants

alleging appellants had defaulted on their payment obligations under the terms of the parties'

promissory note. On February 4, 2015, appellants were served by residential service, but

they never served or filed an answer to the complaint for foreclosure.

       {¶ 3} On April 15, 2015, the trial court issued an entry captioned "Notice of Report"

that stated, in pertinent part, "your report hearing has been SET * * * [for] June 4, 2015[,]"

and that "PERSONAL APPEARANCE IS REQUIRED AT THE FIRST STATUS REPORT

HEARING." (Bold emphasis and capitalization sic.)

       {¶ 4} On May 19, 2015, appellants' counsel entered a notice of appearance on

appellants' behalf. On May 22, 2015, a notice of substitution of counsel was filed on

appellants' behalf.

       {¶ 5} On May 28, 2015, USB served its motion for default judgment on appellants'

counsel by ordinary mail. The motion for default judgment was docketed on June 1, 2015.

       {¶ 6} On June 4, 2015, the trial court entered default judgment in favor of USB

against appellants, determining that appellants owed $266,833.50 plus interest to USB and

ordering that unless the sum was paid within three days, "the equity of redemption and dower

of all [appellants] shall be foreclosed" and USB would be permitted to cause the property that

had been mortgaged to secure appellants' indebtedness to be sold at a sheriff's sale.

       {¶ 7} Appellants now appeal and assign the following as error:

       {¶ 8} THE TRIAL COURT ERRED IN GRANTING DEFAULT JUDGMENT TO

PLAINTIFF.

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       {¶ 9} Appellants argue the trial court erred in awarding USB default judgment,

because, among other things, the court awarded such judgment without ensuring that USB

provided appellants with proper notice of the hearing on USB's motion or application for

default judgment, as required by Civ.R. 55(A). We find this argument persuasive.

       {¶ 10} An appellate court reviews a trial court's decision to grant a motion for default

judgment under an abuse-of-discretion standard. Complete Lawn Servs. v. Chimney Hill,

L.L.C., 12th Dist. Butler No. CA2015-08-149, 2016-Ohio-997, ¶ 21. "An abuse of discretion

is more than an error of law or judgment; it implies that the court's attitude is unreasonable,

arbitrary or unconscionable." Nix v. Robertson, 12th Dist. Butler No. CA2012-08-157, 2013-

Ohio-777, ¶ 9, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Despite this

deferential standard of review, courts of appeals and trial courts, alike, must be mindful that

"[g]enerally, the law disfavors default judgments" and "[t]he general policy in Ohio is to decide

cases on their merits whenever possible." Baines v. Harwood, 87 Ohio App.3d 345, 347

(12th Dist.1993).

       {¶ 11} Civ.R. 55(A) provides, in pertinent part, "[i]f the party against whom judgment

by default is sought has appeared in the action, he (or, if appearing by representative, his

representative) shall be served with written notice of the application for judgment at least

seven days prior to the hearing on such application."

       {¶ 12} In Producers Credit Corp. v. Voge, 12th Dist. Preble No. CA2002-06-009,

2003-Ohio-1067, ¶ 17, this court held that "Civ.R. 55(A) clearly requires that before it enters a

default judgment against a defendant who has appeared, a trial court must hold a hearing

and provide the defendant with seven days' notice of the hearing on the motion for default

judgment."

       {¶ 13} Here, while appellants did not file an answer to USB's complaint for

foreclosure, appellants, nevertheless, made an "appearance" in this action, for purposes of

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Civ.R. 55(A), since their first counsel filed a notice of appearance on May 19 and their

second counsel filed a notice of substitution of counsel on May 22. USB's motion for default

judgment, according to the certificate of service attached thereto, was served on appellants'

second counsel by ordinary mail on May 28 and filed with the trial court on June 1.

Therefore, under Civ.R. 55(A), USB was required to serve appellants with written notice of its

application for default judgment at least seven days prior to the hearing on such application."

       {¶ 14} An application for a default judgment can be served on a party who is

represented by an attorney by mailing it to that attorney's "last known address by United

States mail, in which event service is complete upon mailing[.]" Civ.R. 5(B)(1) and (2)(c).

Civ.R. 55(D) requires that the written notice of the application for default judgment be served

at least seven days prior to the hearing on the application, which means that the party

allegedly in default has "seven full days" before the day of the hearing on the application for

default judgment. (Emphasis added.) 2 James M. Klein, Stanton G. Darling II, and Dennis

G. Terez, Baldwin's Ohio Practice, Civil Practice, Section 55:14. (Database updated

December 2014.)

       {¶ 15} Here, USB contends that it served appellants with written notice of its

application for default judgment seven days prior to the hearing on the application as

required under Civ.R. 55(A), because (1) it served appellants' counsel by ordinary mail on

May 28, thus making service complete on that date pursuant to Civ.R. 5(B)(2)(c), and (2) the

trial court did not hold a hearing on its application for default judgment nor grant USB default

judgment until seven days later on June 4, thus providing appellants with seven-day notice of

the application. However, USB's argument ignores that it was required to give appellants

notice of "seven full days" before the day of the hearing on the application for default

judgment, and in this case, USB gave appellants less than seven days of notice. Klein,

Darling II, and Terez, Section 55:14.

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       {¶ 16} Civ.R. 6(A) provides that "[i]n computing any period of time prescribed or

allowed by these rules, by the local rules of any court, by order of court, or by any applicable

statute, the day of the act, event, or default from which the designated period of time begins

to run shall not be included." Applying Civ.R. 6(A) to the facts of this case, May 28 cannot be

counted as the first day of the seven-day notice period to which appellants were entitled

under Civ.R. 55(A). Instead, the first day of the seven-day notice period fell on May 29.

Klein, Darling II, and Terez, Section 55:14. As a result, the seven-day notice period to which

appellants were entitled ran from May 29 to June 4.

       {¶ 17} Furthermore, to provide appellants with the "full seven days" notice to which

they were entitled, the trial court was required to schedule the hearing on USB's application

for default judgment no earlier than June 5. By holding the hearing on USB's application on

June 4, the trial court failed to afford appellants at least seven, full days of notice prior to the

hearing on USB's application for default judgment in violation of Civ.R. 55(A). See Ebbing v.

Mathis, 12th Dist. Butler No. CA2012-10-201, 2013-Ohio-2273, ¶ 11 and 19, citing Wintrow v.

Smith, 32 Ohio Misc.2d 12 (M.C.1987) (in calculating the three-day notice period required in

forcible entry and detainer actions under R.C. 1923.04[A], the first day is excluded and the

last day is included under R.C. 1.14 and Civ.R. 6[A]; additionally, the tenant is entitled to

three, full days' notice to vacate the premises before the landlord is permitted to file an FED

action against the tenant).

       {¶ 18} Even if we assume appellants were provided with the requisite seven-day

notice of USB's application for default judgment prior to the hearing on the application,

appellants still would not have received all of the notice of the hearing on the application to

which they were entitled, since appellants were entitled to an additional three days of notice

under Civ.R. 6(D) due to the fact that USB served them with notice of its application for

default judgment by ordinary mail.

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       {¶ 19} Civ.R. 6(D) states as follows:

              (D) Time: additional time after service by mail or commercial
              carrier service
              Whenever a party has the right or is required to do some act or
              take some proceedings within a prescribed period after the
              service of a notice or other document upon that party and the
              notice or paper is served upon that party by mail or commercial
              carrier service under Civ.R. 5(B)(2)(c) or (d), three days shall be
              added to the prescribed period. This division does not apply to
              responses to service of summons under Civ.R. 4 through Civ.R.
              4.6.

       {¶ 20} Here, appellants' attorney was served with notice of USB's application for

default judgment by ordinary mail on May 28. Therefore, appellants were entitled under

Civ.R. 6(D) to have an additional three days added to the seven-day notice period in Civ.R.

55(A) prior to the hearing on USB's application for default judgment, giving them a ten-day

notice period. Klein, Darling II, and Terez, Section 55:14. Furthermore, under Civ.R. 6(A),

appellants were entitled to have this ten-day notice period counted from the day after service

was completed on May 28. Id. As a result, the trial court clearly failed to give appellants the

proper amount of notice of USB's application for default judgment prior to the hearing the

court held on the application.

       {¶ 21} USB spends considerable time in its brief addressing whether appellants were

properly served with the summons and complaint for foreclosure, which would subject them

to the personal jurisdiction of the trial court. USB argues that appellants waived any defect

with service of process and personal jurisdiction by entering an appearance and failing to

contest service of process and personal jurisdiction. However, while appellants mentioned

alleged defects with regards to service of the summons and complaint on them in the

statement-of-facts portion of their brief, they are not challenging the sufficiency of service nor

claiming the trial court failed to obtain personal jurisdiction over them. Instead, appellants'

argument is restricted to whether they were afforded, as required by Civ.R. 55(A), written



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notice of USB's application for default judgment at least seven days prior to the hearing on

the application, as well as the hearing, itself, prior to the trial court awarding default judgment

against them, which we have concluded, for the reasons set forth above, that they were not.

         {¶ 22} USB also argues that appellants forfeited any defect with regard to the

granting of default judgment by not raising the issue in the trial court pursuant to a Civ.R.

60(B) motion "or otherwise." We find this argument unpersuasive. A Civ.R. 60(B) motion is

a collateral attack on a judgment. See Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 78-

79, 2014-Ohio-4275, ¶ 15-16. Civ.R. 55(B) provides that "[i]f a judgment by default has been

entered, the court may set it aside in accordance with Rule 60(B)." However, there is nothing

in Civ.R. 55(B) that prohibits a party from filing a direct appeal from a final order awarding

default judgment without first filing a motion to vacate the default judgment under Civ.R.

60(B).

         {¶ 23} The basic precepts of due process require that, before granting default

judgment against a party, the party must be afforded a fair hearing on the matter and receive

fair notice of the hearing. See In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 13,

quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652 (1950) ("'[a]n

elementary and fundamental requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present

their objections'"). The trial court erred in entering default judgment against appellants

without complying with the notice and hearing requirements in Civ.R. 55(A). Accordingly,

appellants' assignment of error is sustained.

         {¶ 24} The judgment of the trial court is reversed, and this matter is remanded for

further proceedings consistent with this opinion.


         S. POWELL and RINGLAND, JJ., concur.
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