Phoenix Fin. Solutions, Inc. v. Gonzales ( 2014 )

[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