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CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 1 of 32
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY
STATE OF OHIO
KRISTEN SCALISE, as Fiscal Office of ) Case No. CV-2017-06-2700
Summit County, Ohio, )
) Judge: PAUL GALLAGHER
Plaintiff, )
) 1. OPPOSITION OF DEFENDANT
-vs.- ) VENTURE CAPITOL HOLDINGS,
) LLC, TRUSTEE OF THE 71
VENTURE CAPITOL HOLDINGS, LLC, ) COTTER LAND TRUST, TO
TRUSTEE OF THE 71 COTTER LAND ) MOTION FOR DEFAULT
TRUST, et al., ) JUDGMENT
)
Defendants. ) 2. EXHIBITS A – I
)
) 3. CERTIFICATE OF SERVICE
Now comes, VENTURE CAPITOL HOLDINGS, LLC, TRUSTEE OF THE 71 COTTER
LAND TRUST, Defendant herein, by and through its attorney, Robert C. Meeker, of Blakemore,
Meeker & Bowler Co., L.P.A., and hereby submits its opposition to the Motion for Default
Judgment, filed by KRISTEN SCALISE, as Fiscal Office of Summit County, Ohio, Plaintiff herein.
This opposition is made pursuant to Rules 4.1, 4.4, 4.6 and 6 of the Ohio Rules of Civil Procedure
(Civ.R.), the Due Process Clause of the Fourteenth Amendment to the United State Constitution and
memorandum, below.
MEMORANDUM IN SUPPORT OF MOTION
A. PROCEDURAL BACKGROUND
The complaint in this case was filed on June 29, 2017. On June 29, 2017, Plaintiff caused
service of the summons and complaint, through the Summit County Clerk of Courts, upon
Defendant, via certified mail, with Tracking ID No. 92148901577446000000395446, to c/o Donald
B. Hallowes, at 6100 East Main Street, Ste. 108, Columbus, Ohio 43213. (See Service online page
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of the website of the Summit County Clerk of Courts, attached as Exhibit A) The attempted service,
via certified mail, was returned to the Clerk of Courts, the sender, on August 4, 2017 because,
according to the U. S. Postal Service (USPS), it was not deliverable as addressed. (See copy of
online receipt retrieved from the USPS website and envelope, attached as Exhibit B)
In the meantime, prior to learning the failure of delivery of the certified mail, Plaintiff
amended her complaint on July 11, 2017. On the same day, Plaintiff filed an amended instructions
for service, requesting the Summit County Clerk of Courts to serve Defendant with the summons
and amended complaint, via certified mail and regular mail. (See copy of instructions for service,
filed July 11, 2017, attached as Exhibit C) On July 12, 2017, Plaintiff amended her complaint for
the second time. No instructions for service of the second amended complaint was filed by Plaintiff.
On July 14, 2017, the Clerk of Courts issued two summonses, which purport to be summonses for
the amended complaint. (See copy of the online Docket of the Summit County Clerk of Courts,
attached as Exhibit D) The summonses, however, were for service of the “Complaint” and not the
Amended Complaint or Second Amended Complaint. (See copy of Summonses, filed July 14, 2017,
attached as Exhibit E) The Clerk of Courts attempted to serve Defendant with the summonses and
“Complaint,” via certified mail, with Tracking ID No. 92148901577446000000404391, to c/o Gary
Thomas, 71 Cotter Avenue, Akron, Ohio 44305. (Exhibit A) On August 9, 2017, the certified mail
was returned to the Clerk of Courts because it was “refused.” (See copy of online receipt retrieved
from the USPS website and envelope, attached as Exhibit F) The record does not indicate the
identity of the individual who refused the certified mail. On July 21, 2017, prior to learning the
refusal of the certified mail, the Clerk of Courts served the summonses and a copy of the complaint,
rather than the amended complaint and/or second amended complaint, by regular mail, to c/o Gary
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Thomas, 71 Cotter Avenue, Akron, Ohio 44305. (Exhibits A and D)
On July 20, 2017, before causing service by regular mail, Plaintiff’s counsel, Peter Nischt,
filed an Affidavit for Service by Publication. The affidavit states, in part:
Peter Nischt, Assistant Prosecuting Attorney, being first duly sworn according to law,
deposes and says that he is the attorney for Plaintiff Kristen M. Scalise, as Summit County
Fiscal Officer, that service of summons cannot be made upon the Defendant(s) Venture
Capitol Holdings LLC., Trustee of the 71 Cotter Land Trust, . . . the address(es) of said
Defendant(s) is/are unknown to the affiant and cannot, with reasonable diligence, be
ascertained. In compliance with the provision of ORCP section 4.4 (a) stating that “all of
the efforts made on behalf of the party to ascertain the residence of the defendant”, the
affiant submits the following as a description of the efforts made to ascertain Defendant’s
address:
Summit County Fiscal Officer’s Tax Records
Summit County Clerk of Courts computer
Akron Municipal Court website
Barberton Municipal Court website
Clear Public Records search
Summit County Probate Records.
This notice should be published once a week for three (3) consecutive weeks, pursuant to
O.R.C. 5721.18(A).
(See Affidavit for Service by Publication, filed July 20, 2017, attached as Exhibit G)
On September 7, 2017, Proof of Publication was filed with the Court by the Akron Legal
News, the publisher in this case, which states, in part:
The undersigned, being first duly sworn, says that he/she is employed by The Akron Legal
News, a daily newspaper, and of general circulation in Summit County, Ohio; that he/she
checks the legal notices published in said newspaper; that the annexed notice was published
in said AKRON LEGAL NEWS, once each week for;
3 consecutive weeks, beginning on the
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8TH day of AUGUST, 2017
and that each insertion of said notice in said newspaper was on the same day of each week.
***
Venture Capitol Holdings LLC, Trustee of the 810 Land Trust, . . . whose addresses cannot
with the exercise of reasonable diligence be ascertained and upon whom service of summons
cannot be had in the State of Ohio, will take notice that on June 30, 2017, Kristen M. Scalise,
Summit County Fiscal Officer, Plaintiff, filed a Complaint in the Common Pleas Court of
Summit County, Ohio, being Case Number: CV2017 06 2716, to foreclose the tax liens on
permanent parcel number 67-43916. ***
***
The defendants are hereby required to answer and set up any claim that they may have in
said premises or be forever barred, that the Plaintiff be found to have a first and best lien on
said premises for the amount so owing.
Said above named defendants will further take notice that they are required to answer the
Complaint on or before 19th day of September, 2017.
(See Proof of Publication, filed September 7, 2017, attached as Exhibit H)
On October 12, 2017, Plaintiff moved for default judgment. The motion is grounded on
service of process by publication upon Defendant. Plaintiff is not entitled to a default judgment, as
service of process has not been properly made. As such, this Court lacks jurisdiction over
Defendant.
B. LAW AND ANALYSIS
1. Service by Certified Mail and Ordinary Mail
Civ.R. 4.1, Process: Methods of Service, states, in part:
All methods of service within this state, except service by publication as provided in Civ.R.
4.4(A), are described in this rule. ***
(A) Service by clerk.
(1) Methods of service.
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(a) Service by United States certified or express mail. Evidenced by
return receipt signed by any person, service of any process shall be
by United States certified or express mail unless otherwise permitted
by these rules. The clerk shall deliver a copy of the process and
complaint or other document to be served to the United States Postal
Service for mailing at the address set forth in the caption or at the
address set forth in written instructions furnished to the clerk as
certified or express mail return receipt requested, with instructions to
the delivering postal employee to show to whom delivered, date of
delivery, and address where delivered.
***
(2) Docket entries; Return. The clerk shall forthwith enter on the
appearance docket the fact of delivery to the United States Postal Service for
mailing . . ., and make a similar entry when the return receipt is received. If
the return shows failure of delivery, the clerk shall forthwith notify the
attorney of record . . . and enter the fact and method of notification on the
appearance docket. The clerk shall file the return receipt or returned
envelope in the records of the action.
Civ.R. 4.6, Process: Limits; Amendment; Service Refused; Service Unclaimed, states, in part:
***
(C) Service refused. If attempted service of process by United States certified or
express mail . . . within or outside the state is refused, and the certified or express
mail envelope . . . shows such refusal, .. ., the clerk shall forthwith notify the
attorney of record . . . and enter the fact and method of notification on the appearance
docket. If the attorney, or serving party, after notification by the clerk, files with the
clerk a written request for ordinary mail service, the clerk shall send by United States
ordinary mail a copy of the summons and complaint or other document to be served
to the defendant at the address set forth in the caption, or at the address set forth in
written instructions furnished to the clerk. The mailing shall be evidenced by a
certificate of mailing which shall be completed and filed by the clerk. Answer day
shall be twenty-eight days after the date of mailing as evidenced by the certificate of
mailing. The clerk shall endorse this answer date upon the summons which is sent
by ordinary mail. Service shall be deemed complete when the fact of mailing is
entered of record. Failure to claim United States certified or express mail . . . is not
refusal of service within the meaning of this division. This division shall not apply
if any reason for failure of delivery other than “Refused” is also shown on the United
States certified or express mail envelope.
Civ.R. 4.1 and Civ.R. 4.6 provide sequential steps to follow in the event that a plaintiff selects the
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Clerk of Courts to effect service by certified or express mail. Pursuant to Civ.R. 4.6(C), or
subsection (D), if the certified mail is returned “unclaimed,” Plaintiff or her counsel must first be
notified of the failure of service by certified mail prior to requesting service by ordinary mail.
In this case, Plaintiff, who is responsible for effecting proper service of process upon a
defendant, failed to comply with the requirements of Civ.R. 4.1 and Civ.R. 4.6. Plaintiff attempted
service of the initial complaint upon Defendant, via certified mail, on June 29, 2017. Before this
service could be accomplished under Civ.R. 4.1 and Civ.R. 4.6, Plaintiff amended her complaint on
July 11, 2017. Plaintiff then amended her complaint for the second time on July 12, 2017. As a
result, the second amended complaint superseded the initial and amended complaints. See Hidey
v. Ohio State Highway Patrol, 116 Ohio App.3d 744, 748 ( 10th Dist. 1996), citing Abram & Tracy,
Inc. v. Smith (1993), 88 Ohio App.3d 253, 263; Steiner v. Steiner (1993), 85 Ohio App.3d 513, 519.
[Parallel cites omitted.] Thus, the initial and amended complaints are treated as if they did not exist.
See Morris v. Morris, 189 Ohio App.3d 608, ¶32 (10th Dist. 2010), citing Carlock v. Coleman, No.
89 C.A. 121, 1990 WL 121874 (7th Dist. 1990), quoting 75 Ohio Jurisprudence Pleading, 343,
Section 469 (“‘it is hornbook law that an amended pleading supersedes the original, the latter being
[treated] thereafter as nonexistent’”). No proper service was effected on the initial or amended
complaint.
Plaintiff then attempted service of process, via certified mail on July 14 and ordinary mail
on July 21, 2017. The Clerk of Courts issued summonses, which purported to be the “amended”
complaint. However, the summonses refer to a “Complaint,” rather than “Amended Complaint” or
“Second Amended Complaint.” Thus, the record indicates that, although Plaintiff requested that the
Amended Complaint be served upon Defendant, the Clerk of Courts was attempting to serve the
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original complaint. The Amended Complaint, however, was superseded by the Second Amended
Complaint. The record does not show that Plaintiff ever requested that the Second Amended
Complaint be served on Defendant. Further, the Clerk of Courts was attempting to effect service,
via ordinary mail on July 21, 2017, prior to learning of the failure of service by certified mail, about
which the Clerk of Courts or Plaintiff did not learn until August 9, 2017.
Service upon Defendant, pursuant to Civ.R. 4.1 and Civ.R. 4.6, was defective for several
reasons. First, Plaintiff failed to comply with the sequential steps under Civ.R. 4.1 and Civ.R. 4.6.
Second, because the original complaint and amended complaint were superseded, the record does
not show that Defendant was served with the Second Amended Complaint.
2. Service by Publication
On July 20, 2017, Plaintiff’s counsel filed an Affidavit for Service by Publication. The
affidavit essentially indicates that publication is the only necessary means to effectuate service
because “all . . . efforts [were] made on behalf of the party to ascertain the residence of the
defendant.” Accordingly, the affidavit suggests that Defendant’s address could not be found.
Search for Defendant’s address were made in and at the following areas:
1. Summit County Fiscal Officer’s Tax Records.
2. Summit County Clerk of Courts computer.
3. Akron Municipal Court website.
4. Barberton Municipal Court website.
5. Clear Public Records search.
6. Summit County Probate Records.
Civ.R. 4.4, Process: Service by Publication, states, in part:
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(A) Residence unknown.
(1) Except in an action governed by division (A)(2) of this rule, if the residence
of a defendant is unknown, service shall be made by publication in actions
where such service is authorized by law. Before service by publication can
be made, an affidavit of a party or his counsel shall be filed with the court.
The affidavit shall aver that service of summons cannot be made because the
residence of the defendant is unknown to the affiant, all of the efforts made
on behalf of the party to ascertain the residence of the defendant, and that the
residence of the defendant cannot be ascertained with reasonable diligence.
***
(B) Residence known. If the residence of a defendant is known, and the action is one
in which service by publication is authorized by law, service of process shall be
effected by a method other than by publication as provided by:
(1) Rule 4.1, if the defendant is a resident of this state,
(2) Rule 4.3(B) if defendant is not a resident of this state, or
(3) Rule 4.5, in the alternative, if service on defendant is to be effected in a
foreign country.
If service of process cannot be effected under the provisions of this subdivision or
Rule 4.6(C) or Rule 4.6(D), service of process shall proceed by publication.
In this case, a brief search of Google’s internet search engine reveals the address of
Defendant. Google directs the searcher to the website of Ohio Corporates – Company Profiles of
Ohio. The website of Ohio Corporates – Company Profiles of Ohio provides the address of
Defendant’s agent, Gary Thomas. Mr. Thomas’s address is located at 71 Cotter Avenue, Akron,
Ohio 44305. (See copy of the websites page of Ohio Corporates – Company Profiles of Ohio,
showing Defendant’s agent’s address, attached as Exhibit I) Indeed, Plaintiff located and had
knowledge of this address, as it attempted to serve Defendant with the alleged amended and/or
second amended complaint to Gary Thomas, at 71 Cotter Avenue, Akron, Ohio 44305. Because the
address of Defendant is known in this case, service by publication is unavailable for Plaintiff to
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effectuate service of process.
As recent as July 31, 2017, Judge Mary Margaret Rowlands vacated the service by
publication initiated by the Plaintiff herein because it was conducted prematurely, in that Plaintiff
failed to comply with Civ.R. 4.1 and Civ.R. 4.6. See Kristen M. Scalise v. MGR Construction LC,
et al., Summit County Court of Common Pleas, Case No. CV-2017-07-2729, Order entered on July
31, 2017. Also, on August 24, 2017, the service by publication initiated by Plaintiff herein was
vacated by Judge Alison McCarty on similar ground. See Kristen M. Scalise v. Marcia Realty, LLC,
et al, Summit County Court of Common Pleas, Case No. CV-2017-07-2728, Order entered on
August 24, 2017. Here, Plaintiff sought service by publication, despite having knowledge of the
address of Defendant. Plaintiff has failed to demonstrate that Defendant cannot be served at 71
Cotter Avenue, Akron, Ohio. Service by publication under the circumstances of this case was, and
is, not only premature, but also unavailable.
3. Fourteenth Amendment to the U. S. Constitution
Assuming arguendo, without admitting, that service by publication was available to Plaintiff.
Defendant’s constitutional right to due process was violated. The Fourteenth Amendment to the U.
S. Constitution states, in part:
[No] shall . . . State deprive any person of life, liberty, or property, without due process of
law[.]
Civ.R. 12(A)(1) provides the process that is due with regard to responsive pleadings, upon service
of the summons and complaint or service by publication. It states:
The defendant shall serve his answer within twenty-eight days after service of the summons
and complaint upon him; if service of notice has been made by publication, he shall serve
his answer within twenty-eight days after the completion of service by publication.
The first clause of Civ.R. 12(A)(1) is inapplicable because Defendant was not properly served under
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Civ.R. 4.1 and Civ.R. 4.6. As to the second clause, Defendant’s constitutional rights were violated
because, pursuant to Civ.R. 12(A)(1), and Civ.R. 4.4, it was not provided with the full 28 days in
which to answer the complaint, or as amended.
This action, in rem, is brought pursuant to Sections 323.25 and 5721.18(A) of the Ohio
Revised Code (R.C.). R.C. §5721.18(A) states, in part:
(A) This division applies to all foreclosure proceedings not instituted and prosecuted
under section 323.251 of the Revised Code or division (B) or (C) of this section. The
foreclosure proceedings shall be instituted and prosecuted in the same manner as is
provided by law for the foreclosure of mortgages on land, except that, if service by
publication is necessary, such publication shall be made once a week for three
consecutive weeks instead of as provided by the Rules of Civil Procedure, and the
service shall be complete at the expiration of three weeks after the date of the first
publication. * * *2
Here, the Proof of Publication submitted by Akron Legal News states that publication
commenced on August 8, 2017 for three consecutive weeks. The Proof of Publication also states
that the defendants must “answer the Complaint on or before 19th day of September, 2017.”
Defendant in this case had not been provided with 28 days in which to file an answer, since the
expiration of three weeks after the date of the first publication was August 29, 2017. The 28th day
from August 29, 2017 falls on September 26, 2017. Requiring Defendant to file the answer on or
before September 19, 2017 was a violation of its constitutional right to due process.
1
Because Plaintiff has brought this action under R.C. §323.25, there is a question whether R.C. §5721.18(A)
applies.
2
The last sentence of the first paragraph of R.C. §5721.18(A) states:
In any proceeding prosecuted under this section, if the prosecuting attorney determines that service upon a
defendant may be obtained ultimately only by publication, the prosecuting attorney may cause service to be
made simultaneously by certified mail, return receipt requested, ordinary mail, and publication.
Although service may be made simultaneously by certified mail, return receipt requested, ordinary mail, and publication,
this procedure is unavailable because service can be made upon Defendant under Civ.R. 4.1 and Civ.R. 4.6.
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C. CONCLUSION
Based on the above, the motion for default judgment should be denied. Further, service by
publication was premature and should be vacated. Because service of process has not been properly
made, this Court does not have jurisdiction over Defendant.3
DATED: Akron, Ohio, October 17, 2017.
Respectfully submitted,
/s/ Robert C. Meeker
ROBERT C. MEEKER (#0013019)
rcmeeker@bmblaw.com
Blakemore, Meeker & Bowler Co., L.P.A.
495 Portage Lakes Drive
Akron, Ohio 44319
330-253-3337 [voice]
330-253-4131 [facsimile]
Attorney for Defendant
VENTURE CAPITOL HOLDINGS, LLC,
TRUSTEE OF THE 71 COTTER LAND
TRUST
3
Notwithstanding the failure of service, without waiver, Defendant is filing concurrently herewith its answer
to the Second Amended Complaint.
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CERTIFICATE OF SERVICE
A true and accurate copy of the document(s) attached hereto was/were filed electronically
on the date indicated below. Notice and service of this filing will be sent by and through the
operation of the Court’s electronic filing system to all parties participating in the Court’s electronic
filing system, pursuant to Rule 5(B)(2) of the Ohio Rules of Civil Procedure. Parties may access
a copy of this filing through the Court’s system.
DATED: Akron, Ohio, October 17, 2017.
Respectfully submitted,
/s/ Robert C. Meeker
ROBERT C. MEEKER (#0013019)
rcmeeker@bmblaw.com
Blakemore, Meeker & Bowler Co., L.P.A.
495 Portage Lakes Drive
Akron, Ohio 44319
330-253-3337 [voice]
330-253-4131 [facsimile]
Attorney for Defendant
VENTURE CAPITOL HOLDINGS, LLC,
TRUSTEE OF THE 71 COTTER LAND
TRUST
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Case Detail PM GALLAGHER, PAUL Page 13 of 32
Summit County Clerk of Courts
KRISTEN SCALISE VS VENTURE CAPITOL HOLDINGS LLC, TRUSTEE
Case Number: CV-2017-06-2700 File Date: 06/29/2017 Case Type: FORECLOSURE Judge: PAUL GALLAGHER
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Issued Writ Service Service
Party Name Status Tracking ID Document
Date Type Date Type
MERS, ACTING AS NOMINEE
FOR BNC MORTGAGE Certified Document
06/29/2017 07/05/2017 Served 92148901577446000000395422
Mail 1
P.O. BOX 2026 FLINT MI 48501-
MERS, ACTING AS NOMINEE
FOR BNC MORTGAGE Certificate Document
06/29/2017 Mailed n/a
of Mailing 2
P.O. Box 2026 Flint MI 48501
OCCUPANTS, UNKNOWN
Certified Document
71 COTTER AVE. AKRON OH 06/29/2017 Unclaimed 92148901577446000000395439
Mail 3
44305-
OCCUPANTS, UNKNOWN Certificate Document
06/29/2017 Mailed n/a
71 Cotter Ave. Akron OH 44305 of Mailing 4
VENTURE CAPITOL HOLDINGS
LLC, TRUSTEE
Not Delv. Certified Document
C/O DONALD B. HALLOWES 06/29/2017 92148901577446000000395446
As Addr. Mail 5
6100 EAST MAIN ST., STE 108
COLUMBUS OH 43213-
VENTURE CAPITOL HOLDINGS
LLC, TRUSTEE
Unable To Certificate Document
c/o Donald B. Hallowes 6100 East 06/29/2017 n/a
Forward of Mailing 6
Main St., STE 108 Columbus OH
43213
THOMAS, BARBARA
AKA BARBARA A. THOMAS Certified
07/14/2017 Sent 92148901577446000000404346 No Image
5450 STATE ROAD Mail
WADSWORTH OH 44281-
BNC MORTGAGE INC.
Unable To Certified Document
P.O. BOX 19656 IRVINE CA 07/14/2017 92148901577446000000404353
Forward Mail 7
92623-
THOMAS, GARY L.
Certified Document
5450 STATE ROAD 07/14/2017 Unclaimed 92148901577446000000404360
Mail 8
WADSWORTH OH 44281-
MERS, ACTING AS NOMINEE
FOR BNC MORTGAGE Certified Document
07/14/2017 07/21/2017 Served 92148901577446000000404377
Mail 9
P.O. BOX 2026 FLINT MI 48501-
OCCUPANTS, UNKNOWN
Unable To Certified Document
71 COTTER AVE. AKRON OH 07/14/2017 92148901577446000000404384
Forward Mail 10
44305-
VENTURE CAPITOL HOLDINGS
LLC, TRUSTEE Certified Document
07/14/2017 Refused 92148901577446000000404391
C/O GARY THOMAS 71 COTTER Mail 11
AVE AKRON OH 44305-
THOMAS, BARBARA 07/14/2017 Mailed Certificate n/a Document
of Mailing 12
aka Barbara A. Thomas 5450
https://clerkweb.summitoh.net/PublicSite/CaseDetail.aspx EXHIBIT A 1/2
Sandra Kurt, Summit County Clerk of Courts
CV-2017-06-2700
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Case Detail PM GALLAGHER, PAUL Page 14 of 32
State Road Wadsworth OH 44281
BNC MORTGAGE INC. Unable To Certificate Document
07/14/2017 n/a
P.O. BOX 19656 Irvine CA 92623 Forward of Mailing 13
THOMAS, GARY L.
Certificate Document
5450 State Road Wadsworth OH 07/14/2017 Mailed n/a
of Mailing 14
44281
MERS, ACTING AS NOMINEE
FOR BNC MORTGAGE Certificate Document
07/14/2017 Mailed n/a
of Mailing 15
P.O. Box 2026 Flint MI 48501
OCCUPANTS, UNKNOWN Certificate Document
07/14/2017 Mailed n/a
71 Cotter Ave. Akron OH 44305 of Mailing 16
VENTURE CAPITOL HOLDINGS
LLC, TRUSTEE Certificate Document
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CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 1 of 32 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY STATE OF OHIO KRISTEN SCALISE, as Fiscal Office of ) Case No. CV-2017-06-2700 Summit County, Ohio, ) ) Judge: PAUL GALLAGHER Plaintiff, ) ) 1. OPPOSITION OF DEFENDANT -vs.- ) VENTURE CAPITOL HOLDINGS, ) LLC, TRUSTEE OF THE 71 VENTURE CAPITOL HOLDINGS, LLC, ) COTTER LAND TRUST, TO TRUSTEE OF THE 71 COTTER LAND ) MOTION FOR DEFAULT TRUST, et al., ) JUDGMENT ) Defendants. ) 2. EXHIBITS A – I ) ) 3. CERTIFICATE OF SERVICE Now comes, VENTURE CAPITOL HOLDINGS, LLC, TRUSTEE OF THE 71 COTTER LAND TRUST, Defendant herein, by and through its attorney, Robert C. Meeker, of Blakemore, Meeker & Bowler Co., L.P.A., and hereby submits its opposition to the Motion for Default Judgment, filed by KRISTEN SCALISE, as Fiscal Office of Summit County, Ohio, Plaintiff herein. This opposition is made pursuant to Rules 4.1, 4.4, 4.6 and 6 of the Ohio Rules of Civil Procedure (Civ.R.), the Due Process Clause of the Fourteenth Amendment to the United State Constitution and memorandum, below. MEMORANDUM IN SUPPORT OF MOTION A. PROCEDURAL BACKGROUND The complaint in this case was filed on June 29, 2017. On June 29, 2017, Plaintiff caused service of the summons and complaint, through the Summit County Clerk of Courts, upon Defendant, via certified mail, with Tracking ID No. 92148901577446000000395446, to c/o Donald B. Hallowes, at 6100 East Main Street, Ste. 108, Columbus, Ohio 43213. (See Service online page -1- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 2 of 32 of the website of the Summit County Clerk of Courts, attached as Exhibit A) The attempted service, via certified mail, was returned to the Clerk of Courts, the sender, on August 4, 2017 because, according to the U. S. Postal Service (USPS), it was not deliverable as addressed. (See copy of online receipt retrieved from the USPS website and envelope, attached as Exhibit B) In the meantime, prior to learning the failure of delivery of the certified mail, Plaintiff amended her complaint on July 11, 2017. On the same day, Plaintiff filed an amended instructions for service, requesting the Summit County Clerk of Courts to serve Defendant with the summons and amended complaint, via certified mail and regular mail. (See copy of instructions for service, filed July 11, 2017, attached as Exhibit C) On July 12, 2017, Plaintiff amended her complaint for the second time. No instructions for service of the second amended complaint was filed by Plaintiff. On July 14, 2017, the Clerk of Courts issued two summonses, which purport to be summonses for the amended complaint. (See copy of the online Docket of the Summit County Clerk of Courts, attached as Exhibit D) The summonses, however, were for service of the “Complaint” and not the Amended Complaint or Second Amended Complaint. (See copy of Summonses, filed July 14, 2017, attached as Exhibit E) The Clerk of Courts attempted to serve Defendant with the summonses and “Complaint,” via certified mail, with Tracking ID No. 92148901577446000000404391, to c/o Gary Thomas, 71 Cotter Avenue, Akron, Ohio 44305. (Exhibit A) On August 9, 2017, the certified mail was returned to the Clerk of Courts because it was “refused.” (See copy of online receipt retrieved from the USPS website and envelope, attached as Exhibit F) The record does not indicate the identity of the individual who refused the certified mail. On July 21, 2017, prior to learning the refusal of the certified mail, the Clerk of Courts served the summonses and a copy of the complaint, rather than the amended complaint and/or second amended complaint, by regular mail, to c/o Gary -2- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 3 of 32 Thomas, 71 Cotter Avenue, Akron, Ohio 44305. (Exhibits A and D) On July 20, 2017, before causing service by regular mail, Plaintiff’s counsel, Peter Nischt, filed an Affidavit for Service by Publication. The affidavit states, in part: Peter Nischt, Assistant Prosecuting Attorney, being first duly sworn according to law, deposes and says that he is the attorney for Plaintiff Kristen M. Scalise, as Summit County Fiscal Officer, that service of summons cannot be made upon the Defendant(s) Venture Capitol Holdings LLC., Trustee of the 71 Cotter Land Trust, . . . the address(es) of said Defendant(s) is/are unknown to the affiant and cannot, with reasonable diligence, be ascertained. In compliance with the provision of ORCP section 4.4 (a) stating that “all of the efforts made on behalf of the party to ascertain the residence of the defendant”, the affiant submits the following as a description of the efforts made to ascertain Defendant’s address: Summit County Fiscal Officer’s Tax Records Summit County Clerk of Courts computer Akron Municipal Court website Barberton Municipal Court website Clear Public Records search Summit County Probate Records. This notice should be published once a week for three (3) consecutive weeks, pursuant to O.R.C. 5721.18(A). (See Affidavit for Service by Publication, filed July 20, 2017, attached as Exhibit G) On September 7, 2017, Proof of Publication was filed with the Court by the Akron Legal News, the publisher in this case, which states, in part: The undersigned, being first duly sworn, says that he/she is employed by The Akron Legal News, a daily newspaper, and of general circulation in Summit County, Ohio; that he/she checks the legal notices published in said newspaper; that the annexed notice was published in said AKRON LEGAL NEWS, once each week for; 3 consecutive weeks, beginning on the -3- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 4 of 32 8TH day of AUGUST, 2017 and that each insertion of said notice in said newspaper was on the same day of each week. *** Venture Capitol Holdings LLC, Trustee of the 810 Land Trust, . . . whose addresses cannot with the exercise of reasonable diligence be ascertained and upon whom service of summons cannot be had in the State of Ohio, will take notice that on June 30, 2017, Kristen M. Scalise, Summit County Fiscal Officer, Plaintiff, filed a Complaint in the Common Pleas Court of Summit County, Ohio, being Case Number: CV2017 06 2716, to foreclose the tax liens on permanent parcel number 67-43916. *** *** The defendants are hereby required to answer and set up any claim that they may have in said premises or be forever barred, that the Plaintiff be found to have a first and best lien on said premises for the amount so owing. Said above named defendants will further take notice that they are required to answer the Complaint on or before 19th day of September, 2017. (See Proof of Publication, filed September 7, 2017, attached as Exhibit H) On October 12, 2017, Plaintiff moved for default judgment. The motion is grounded on service of process by publication upon Defendant. Plaintiff is not entitled to a default judgment, as service of process has not been properly made. As such, this Court lacks jurisdiction over Defendant. B. LAW AND ANALYSIS 1. Service by Certified Mail and Ordinary Mail Civ.R. 4.1, Process: Methods of Service, states, in part: All methods of service within this state, except service by publication as provided in Civ.R. 4.4(A), are described in this rule. *** (A) Service by clerk. (1) Methods of service. -4- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 5 of 32 (a) Service by United States certified or express mail. Evidenced by return receipt signed by any person, service of any process shall be by United States certified or express mail unless otherwise permitted by these rules. The clerk shall deliver a copy of the process and complaint or other document to be served to the United States Postal Service for mailing at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk as certified or express mail return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. *** (2) Docket entries; Return. The clerk shall forthwith enter on the appearance docket the fact of delivery to the United States Postal Service for mailing . . ., and make a similar entry when the return receipt is received. If the return shows failure of delivery, the clerk shall forthwith notify the attorney of record . . . and enter the fact and method of notification on the appearance docket. The clerk shall file the return receipt or returned envelope in the records of the action. Civ.R. 4.6, Process: Limits; Amendment; Service Refused; Service Unclaimed, states, in part: *** (C) Service refused. If attempted service of process by United States certified or express mail . . . within or outside the state is refused, and the certified or express mail envelope . . . shows such refusal, .. ., the clerk shall forthwith notify the attorney of record . . . and enter the fact and method of notification on the appearance docket. If the attorney, or serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by United States ordinary mail a copy of the summons and complaint or other document to be served to the defendant at the address set forth in the caption, or at the address set forth in written instructions furnished to the clerk. The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk. Answer day shall be twenty-eight days after the date of mailing as evidenced by the certificate of mailing. The clerk shall endorse this answer date upon the summons which is sent by ordinary mail. Service shall be deemed complete when the fact of mailing is entered of record. Failure to claim United States certified or express mail . . . is not refusal of service within the meaning of this division. This division shall not apply if any reason for failure of delivery other than “Refused” is also shown on the United States certified or express mail envelope. Civ.R. 4.1 and Civ.R. 4.6 provide sequential steps to follow in the event that a plaintiff selects the -5- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 6 of 32 Clerk of Courts to effect service by certified or express mail. Pursuant to Civ.R. 4.6(C), or subsection (D), if the certified mail is returned “unclaimed,” Plaintiff or her counsel must first be notified of the failure of service by certified mail prior to requesting service by ordinary mail. In this case, Plaintiff, who is responsible for effecting proper service of process upon a defendant, failed to comply with the requirements of Civ.R. 4.1 and Civ.R. 4.6. Plaintiff attempted service of the initial complaint upon Defendant, via certified mail, on June 29, 2017. Before this service could be accomplished under Civ.R. 4.1 and Civ.R. 4.6, Plaintiff amended her complaint on July 11, 2017. Plaintiff then amended her complaint for the second time on July 12, 2017. As a result, the second amended complaint superseded the initial and amended complaints. See Hidey v. Ohio State Highway Patrol, 116 Ohio App.3d 744, 748 ( 10th Dist. 1996), citing Abram & Tracy, Inc. v. Smith (1993), 88 Ohio App.3d 253, 263; Steiner v. Steiner (1993), 85 Ohio App.3d 513, 519. [Parallel cites omitted.] Thus, the initial and amended complaints are treated as if they did not exist. See Morris v. Morris, 189 Ohio App.3d 608, ¶32 (10th Dist. 2010), citing Carlock v. Coleman, No. 89 C.A. 121, 1990 WL 121874 (7th Dist. 1990), quoting 75 Ohio Jurisprudence Pleading, 343, Section 469 (“‘it is hornbook law that an amended pleading supersedes the original, the latter being [treated] thereafter as nonexistent’”). No proper service was effected on the initial or amended complaint. Plaintiff then attempted service of process, via certified mail on July 14 and ordinary mail on July 21, 2017. The Clerk of Courts issued summonses, which purported to be the “amended” complaint. However, the summonses refer to a “Complaint,” rather than “Amended Complaint” or “Second Amended Complaint.” Thus, the record indicates that, although Plaintiff requested that the Amended Complaint be served upon Defendant, the Clerk of Courts was attempting to serve the -6- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 7 of 32 original complaint. The Amended Complaint, however, was superseded by the Second Amended Complaint. The record does not show that Plaintiff ever requested that the Second Amended Complaint be served on Defendant. Further, the Clerk of Courts was attempting to effect service, via ordinary mail on July 21, 2017, prior to learning of the failure of service by certified mail, about which the Clerk of Courts or Plaintiff did not learn until August 9, 2017. Service upon Defendant, pursuant to Civ.R. 4.1 and Civ.R. 4.6, was defective for several reasons. First, Plaintiff failed to comply with the sequential steps under Civ.R. 4.1 and Civ.R. 4.6. Second, because the original complaint and amended complaint were superseded, the record does not show that Defendant was served with the Second Amended Complaint. 2. Service by Publication On July 20, 2017, Plaintiff’s counsel filed an Affidavit for Service by Publication. The affidavit essentially indicates that publication is the only necessary means to effectuate service because “all . . . efforts [were] made on behalf of the party to ascertain the residence of the defendant.” Accordingly, the affidavit suggests that Defendant’s address could not be found. Search for Defendant’s address were made in and at the following areas: 1. Summit County Fiscal Officer’s Tax Records. 2. Summit County Clerk of Courts computer. 3. Akron Municipal Court website. 4. Barberton Municipal Court website. 5. Clear Public Records search. 6. Summit County Probate Records. Civ.R. 4.4, Process: Service by Publication, states, in part: -7- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 8 of 32 (A) Residence unknown. (1) Except in an action governed by division (A)(2) of this rule, if the residence of a defendant is unknown, service shall be made by publication in actions where such service is authorized by law. Before service by publication can be made, an affidavit of a party or his counsel shall be filed with the court. The affidavit shall aver that service of summons cannot be made because the residence of the defendant is unknown to the affiant, all of the efforts made on behalf of the party to ascertain the residence of the defendant, and that the residence of the defendant cannot be ascertained with reasonable diligence. *** (B) Residence known. If the residence of a defendant is known, and the action is one in which service by publication is authorized by law, service of process shall be effected by a method other than by publication as provided by: (1) Rule 4.1, if the defendant is a resident of this state, (2) Rule 4.3(B) if defendant is not a resident of this state, or (3) Rule 4.5, in the alternative, if service on defendant is to be effected in a foreign country. If service of process cannot be effected under the provisions of this subdivision or Rule 4.6(C) or Rule 4.6(D), service of process shall proceed by publication. In this case, a brief search of Google’s internet search engine reveals the address of Defendant. Google directs the searcher to the website of Ohio Corporates – Company Profiles of Ohio. The website of Ohio Corporates – Company Profiles of Ohio provides the address of Defendant’s agent, Gary Thomas. Mr. Thomas’s address is located at 71 Cotter Avenue, Akron, Ohio 44305. (See copy of the websites page of Ohio Corporates – Company Profiles of Ohio, showing Defendant’s agent’s address, attached as Exhibit I) Indeed, Plaintiff located and had knowledge of this address, as it attempted to serve Defendant with the alleged amended and/or second amended complaint to Gary Thomas, at 71 Cotter Avenue, Akron, Ohio 44305. Because the address of Defendant is known in this case, service by publication is unavailable for Plaintiff to -8- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 9 of 32 effectuate service of process. As recent as July 31, 2017, Judge Mary Margaret Rowlands vacated the service by publication initiated by the Plaintiff herein because it was conducted prematurely, in that Plaintiff failed to comply with Civ.R. 4.1 and Civ.R. 4.6. See Kristen M. Scalise v. MGR Construction LC, et al., Summit County Court of Common Pleas, Case No. CV-2017-07-2729, Order entered on July 31, 2017. Also, on August 24, 2017, the service by publication initiated by Plaintiff herein was vacated by Judge Alison McCarty on similar ground. See Kristen M. Scalise v. Marcia Realty, LLC, et al, Summit County Court of Common Pleas, Case No. CV-2017-07-2728, Order entered on August 24, 2017. Here, Plaintiff sought service by publication, despite having knowledge of the address of Defendant. Plaintiff has failed to demonstrate that Defendant cannot be served at 71 Cotter Avenue, Akron, Ohio. Service by publication under the circumstances of this case was, and is, not only premature, but also unavailable. 3. Fourteenth Amendment to the U. S. Constitution Assuming arguendo, without admitting, that service by publication was available to Plaintiff. Defendant’s constitutional right to due process was violated. The Fourteenth Amendment to the U. S. Constitution states, in part: [No] shall . . . State deprive any person of life, liberty, or property, without due process of law[.] Civ.R. 12(A)(1) provides the process that is due with regard to responsive pleadings, upon service of the summons and complaint or service by publication. It states: The defendant shall serve his answer within twenty-eight days after service of the summons and complaint upon him; if service of notice has been made by publication, he shall serve his answer within twenty-eight days after the completion of service by publication. The first clause of Civ.R. 12(A)(1) is inapplicable because Defendant was not properly served under -9- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 10 of 32 Civ.R. 4.1 and Civ.R. 4.6. As to the second clause, Defendant’s constitutional rights were violated because, pursuant to Civ.R. 12(A)(1), and Civ.R. 4.4, it was not provided with the full 28 days in which to answer the complaint, or as amended. This action, in rem, is brought pursuant to Sections 323.25 and 5721.18(A) of the Ohio Revised Code (R.C.). R.C. §5721.18(A) states, in part: (A) This division applies to all foreclosure proceedings not instituted and prosecuted under section 323.251 of the Revised Code or division (B) or (C) of this section. The foreclosure proceedings shall be instituted and prosecuted in the same manner as is provided by law for the foreclosure of mortgages on land, except that, if service by publication is necessary, such publication shall be made once a week for three consecutive weeks instead of as provided by the Rules of Civil Procedure, and the service shall be complete at the expiration of three weeks after the date of the first publication. * * *2 Here, the Proof of Publication submitted by Akron Legal News states that publication commenced on August 8, 2017 for three consecutive weeks. The Proof of Publication also states that the defendants must “answer the Complaint on or before 19th day of September, 2017.” Defendant in this case had not been provided with 28 days in which to file an answer, since the expiration of three weeks after the date of the first publication was August 29, 2017. The 28th day from August 29, 2017 falls on September 26, 2017. Requiring Defendant to file the answer on or before September 19, 2017 was a violation of its constitutional right to due process. 1 Because Plaintiff has brought this action under R.C. §323.25, there is a question whether R.C. §5721.18(A) applies. 2 The last sentence of the first paragraph of R.C. §5721.18(A) states: In any proceeding prosecuted under this section, if the prosecuting attorney determines that service upon a defendant may be obtained ultimately only by publication, the prosecuting attorney may cause service to be made simultaneously by certified mail, return receipt requested, ordinary mail, and publication. Although service may be made simultaneously by certified mail, return receipt requested, ordinary mail, and publication, this procedure is unavailable because service can be made upon Defendant under Civ.R. 4.1 and Civ.R. 4.6. -10- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 11 of 32 C. CONCLUSION Based on the above, the motion for default judgment should be denied. Further, service by publication was premature and should be vacated. Because service of process has not been properly made, this Court does not have jurisdiction over Defendant.3 DATED: Akron, Ohio, October 17, 2017. Respectfully submitted, /s/ Robert C. Meeker ROBERT C. MEEKER (#0013019) rcmeeker@bmblaw.com Blakemore, Meeker & Bowler Co., L.P.A. 495 Portage Lakes Drive Akron, Ohio 44319 330-253-3337 [voice] 330-253-4131 [facsimile] Attorney for Defendant VENTURE CAPITOL HOLDINGS, LLC, TRUSTEE OF THE 71 COTTER LAND TRUST 3 Notwithstanding the failure of service, without waiver, Defendant is filing concurrently herewith its answer to the Second Amended Complaint. -11- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 OPPO 10/17/2017 15:00:25 PM GALLAGHER, PAUL Page 12 of 32 CERTIFICATE OF SERVICE A true and accurate copy of the document(s) attached hereto was/were filed electronically on the date indicated below. Notice and service of this filing will be sent by and through the operation of the Court’s electronic filing system to all parties participating in the Court’s electronic filing system, pursuant to Rule 5(B)(2) of the Ohio Rules of Civil Procedure. Parties may access a copy of this filing through the Court’s system. DATED: Akron, Ohio, October 17, 2017. Respectfully submitted, /s/ Robert C. Meeker ROBERT C. MEEKER (#0013019) rcmeeker@bmblaw.com Blakemore, Meeker & Bowler Co., L.P.A. 495 Portage Lakes Drive Akron, Ohio 44319 330-253-3337 [voice] 330-253-4131 [facsimile] Attorney for Defendant VENTURE CAPITOL HOLDINGS, LLC, TRUSTEE OF THE 71 COTTER LAND TRUST -12- Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 10/16/2017 OPPO 10/17/2017 15:00:25 Case Detail PM GALLAGHER, PAUL Page 13 of 32 Summit County Clerk of Courts KRISTEN SCALISE VS VENTURE CAPITOL HOLDINGS LLC, TRUSTEE Case Number: CV-2017-06-2700 File Date: 06/29/2017 Case Type: FORECLOSURE Judge: PAUL GALLAGHER Home Parties Dockets/Motions Judges/Magistrates Service Printer Friendly Issued Writ Service Service Party Name Status Tracking ID Document Date Type Date Type MERS, ACTING AS NOMINEE FOR BNC MORTGAGE Certified Document 06/29/2017 07/05/2017 Served 92148901577446000000395422 Mail 1 P.O. BOX 2026 FLINT MI 48501- MERS, ACTING AS NOMINEE FOR BNC MORTGAGE Certificate Document 06/29/2017 Mailed n/a of Mailing 2 P.O. Box 2026 Flint MI 48501 OCCUPANTS, UNKNOWN Certified Document 71 COTTER AVE. AKRON OH 06/29/2017 Unclaimed 92148901577446000000395439 Mail 3 44305- OCCUPANTS, UNKNOWN Certificate Document 06/29/2017 Mailed n/a 71 Cotter Ave. Akron OH 44305 of Mailing 4 VENTURE CAPITOL HOLDINGS LLC, TRUSTEE Not Delv. Certified Document C/O DONALD B. HALLOWES 06/29/2017 92148901577446000000395446 As Addr. Mail 5 6100 EAST MAIN ST., STE 108 COLUMBUS OH 43213- VENTURE CAPITOL HOLDINGS LLC, TRUSTEE Unable To Certificate Document c/o Donald B. Hallowes 6100 East 06/29/2017 n/a Forward of Mailing 6 Main St., STE 108 Columbus OH 43213 THOMAS, BARBARA AKA BARBARA A. THOMAS Certified 07/14/2017 Sent 92148901577446000000404346 No Image 5450 STATE ROAD Mail WADSWORTH OH 44281- BNC MORTGAGE INC. Unable To Certified Document P.O. BOX 19656 IRVINE CA 07/14/2017 92148901577446000000404353 Forward Mail 7 92623- THOMAS, GARY L. Certified Document 5450 STATE ROAD 07/14/2017 Unclaimed 92148901577446000000404360 Mail 8 WADSWORTH OH 44281- MERS, ACTING AS NOMINEE FOR BNC MORTGAGE Certified Document 07/14/2017 07/21/2017 Served 92148901577446000000404377 Mail 9 P.O. BOX 2026 FLINT MI 48501- OCCUPANTS, UNKNOWN Unable To Certified Document 71 COTTER AVE. AKRON OH 07/14/2017 92148901577446000000404384 Forward Mail 10 44305- VENTURE CAPITOL HOLDINGS LLC, TRUSTEE Certified Document 07/14/2017 Refused 92148901577446000000404391 C/O GARY THOMAS 71 COTTER Mail 11 AVE AKRON OH 44305- THOMAS, BARBARA 07/14/2017 Mailed Certificate n/a Document of Mailing 12 aka Barbara A. Thomas 5450 https://clerkweb.summitoh.net/PublicSite/CaseDetail.aspx EXHIBIT A 1/2 Sandra Kurt, Summit County Clerk of Courts CV-2017-06-2700 10/16/2017 OPPO 10/17/2017 15:00:25 Case Detail PM GALLAGHER, PAUL Page 14 of 32 State Road Wadsworth OH 44281 BNC MORTGAGE INC. Unable To Certificate Document 07/14/2017 n/a P.O. BOX 19656 Irvine CA 92623 Forward of Mailing 13 THOMAS, GARY L. Certificate Document 5450 State Road Wadsworth OH 07/14/2017 Mailed n/a of Mailing 14 44281 MERS, ACTING AS NOMINEE FOR BNC MORTGAGE Certificate Document 07/14/2017 Mailed n/a of Mailing 15 P.O. Box 2026 Flint MI 48501 OCCUPANTS, UNKNOWN Certificate Document 07/14/2017 Mailed n/a 71 Cotter Ave. Akron OH 44305 of Mailing 16 VENTURE CAPITOL HOLDINGS LLC, TRUSTEE Certificate Document