[Cite as Bank of Am. v. Moore , 2014-Ohio-1111.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY BANK OF AMERICA, N.A. Plaintiff-Appellee

v. RONALD MOORE, et al. Defendants-Appellants
Appellate Case No. 25762 Trial Court Case No. 2013-CV-1652 (Civil Appeal from ( Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 21st day of March, 2014.

. . . . . . . . . . . JASON A. WHITACRE, Atty. Reg. No. 0077330, a nd ASHLEY E. MUELLER, Atty. Reg. No. 0084931, 4500 Courthouse Boulevard, Suite 400, Stow, Ohio 44224 Attorneys for Plaintiff-Appellee RONALD MOORE, 121 Redder Avenue, Dayton, Ohio 45405 Defendant-Appellant-pro se DEBRA MOORE, 121 Redder Avenue, Dayton, Ohio 45405 Defendant-Appellant-pro se 2

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. . . . . . . . . . . . . WRIGHT, J., sitting by assignment.

{¶ 1} This appeal is from a default judgme nt in a foreclosure action before the Montgomery County Court of Common Pleas. Appe llants, Ronald and De bra Moore, maintain that the judgment must be reversed because they were never afforded proper notice that their home and property could be subject to foreclosure. For the following reasons, this court concludes that appe llants have failed to establish error. {¶ 2} The underlying case was instituted by a ppellee, Bank of America, N.A., on March 14, 2013. In its foreclosure complaint, appellee alleged it was entitled to enforce a promissory note and mortgage that appellants previously execu ted regarding real estate located at 121 Redder Avenue, Dayton, Ohio. Appellee al so alleged appellants were in default on the note as a result of failing to make necessary payments. {¶ 3} In its instructions for service, appellee requested that both a ppellants be personally served. Service of the complaint and summons was completed by a deputy sheriff on March 15, 2013. In the return of service, the deputy stated that he personally served Debra Moore at the residence. As to Ronald Moore, the deputy indi cated that he left a copy of the complaint and summons for Ronald at the residence with Debra. {¶ 4} Appellants did not file an answer or otherwise make an appearance in the case. As a result, on April 16, 2013, appellee filed a motion fo r a default judgment on its entire complaint. Three days later, the trial court rendered a final judgment granting appellee’s motion and entering a foreclosure order on the real propert y. Specifically, the c ourt ordered that, unless 3

 appellants exercised their equity of redemption within three days of the judgment, appellee could take the required steps to schedule a Sheriff’s sale for the property. {¶ 5} In appealing the default j udgment, appellants ha ve not filed an a ppellate brief, as expressly required under App.R. 16. Instead, they have only submitted a one-page statement in which they request that the default judgment be vacated due to a lack of proper notice. According to appellants, although they receive d a letter in early March 2013 from an attorney stating that he had been retained by appellee, th ey were not provided with an official notice that the attorney “had filed the documents to get a foreclosure started on our property.” {¶ 6} As a general proposition, a tria l court does not have the au thority to enter judgment against a defendant unless effectiv e service of process has been ma de, the defendant has made an appearance in the case, or service has been waived. Money Tree Loan Co. v. Williams , 169 Ohio App.3d 336, 2006-Ohio-5568, 862 N.E.2d 885, ¶ 8 (8th Dist .). As to the service of process, Civ.R. 4.1 provides for three methods of serving the complaint and summons in a civil case: service by certified or express mail, personal service, and residence service. Regarding the latter two methods, the rule states that , once service upon the defendant h imself or at his residence has been achieved, the person serving the documents must note the act upon the “process” and return it to the clerk of courts so that an appropria te entry can be made upon the appearance docket.
See Civ.R. 4.1 (B) & (C). {¶ 7} Civ.R. 4.1(B) further provides that if pers onal service has been requested in writing by the plaintiff, “service of process shall be by that method.” Howeve r, despite the express language of the rule, if pers onal service of the complaint and summons cannot be obtained, residence service can be used as a substitute method: “[A] de fendant has no va lid objection if 4

 residence service which is othe rwise proper is effected after the plaintiff requests personal service.” In re: Alexander-Segar , 2d Dist. Montgomery No. 22080, 2008-Ohio-1580, ¶ 12. {¶ 8} The plaintiff in a case bears the burden of achieving proper service on a defendant. * * *. In thos e instances where the plaintiff follows the Ohio Civil Rules governing service of process, courts presume that service is proper unless the defendant rebuts this presumption with sufficient evid ence of non-service. * * *. The “party attempting to avoid jurisd iction has the burden of showing a defect or irregularity in the process.” * * *. (Citations omitted.) Williams, supra , at ¶ 10. {¶ 9} In this action, the deputy sheriff returned two separate “processe s” to the clerk of courts. In the first, the deputy stated that he was able to personally serve Debra Moore with the complaint. In the second, the deputy indicated he completed residence service upon Ronald Moore by leaving another copy of the complaint w ith Debra at their residence. Given that the use of residence service is appropriate if Ronald Moore was not present to accept personal service, the presumption of effective servi ce maintains because Civ.R. 4.1 was followed by appellee and the deputy sheriff. {¶ 10} Appellants never sought to contest the completion of service through the filing of a pre-judgment or post-judgment motion. As a c onsequence, the record is void of any evidence supporting appellants’ asse rtion that they were never give n notice of the pendency of the foreclosure case. In light of th e fact that the “servi ce” issue has not been litigated before the trial court, the presumption of effective service is controlling. 5

 {¶ 11} In relation to appellee’s mo tion for a default judgment, Ci v.R. 55(A) states that if a defendant has already made an appearance in th e action, the trial court cannot go forward on the matter until the defendant has been served with written notice of the motion. However, if the defendant has made no appearance, the no tice requirement is not applicable. Darke Cty. CSEA
v. Weaver , 2d Dist. Darke No. 98-CA-1469, 1999 WL 249145, *3 (April 16, 1999). Accordingly, since appellants did not file an answer or otherwise appear, the trial court’s immediate issuance of the final judgme nt was permissible under Civ.R. 55(A). {¶ 12} Finally, as a separate contention in their one-page statement, appellants assert that the foreclosure order must be vacated because, during the pendency of this appeal, they have negotiated a modification of the lo an with appellee. In support of this assertion, they have attached to their statement copies of two lette rs they have received from appellee. Without commenting upon the merits of this point, the scope of our review is limited to materials set forth in the trial record; i.e., we cannot consider materials that were not before the trial court prior to the institution of the appeal. See Cincinnati Ins. Co v. Jacob , 2d Dist. Montgomery No. 25407, 2013-Ohio-2573, ¶ 13. To this extent , appellants’ statement, sub mitted in lieu of an appellate brief, fails to assert any viable argument for re versing the foreclosure order, as stated in the default judgment. {¶ 13} For the reasons discussed above, the j udgment of the Montgomery County Court of Common Pleas is hereby affirmed

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FROELICH, P.J., and FAIN, J., concur. (Hon. Thomas R. Wright, Eleventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to: Jason A. Whitacre Ashley E. Mueller Ronald Moore Debra Moore Hon. Gregory F. Singer