Deutsche Bank Natl. Trust Co. v. Omar , 2019 Ohio 5224 ( 2019 )

[Cite as Deutsche Bank Natl. Trust Co. v. Omar, 2019-Ohio-5224.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
DEUTSCHE BANK NATIONAL TRUST C.A. No. 29300
COMPANY
Appellee
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
ZEKI OMAR, et al. COUNTY OF SUMMIT, OHIO
CASE No. CV 2015-05-2868
Appellant
DECISION AND JOURNAL ENTRY
Dated: December 18, 2019
TEODOSIO, Presiding Judge.
{¶1} Zeki Omar appeals the judgment of the Summit County Court of Common Pleas
overruling his objections, adopting the magistrate’s decision, and entering judgment against Mr.
Omar. We affirm.
I.
{¶2} In May 2015, Deutsche Bank National Trust Company, as Indenture Trustee for
American Home Mortgage Investment Trust 2005-1 (“Deutsche Bank”), filed its complaint in
foreclosure against Mr. Omar. A bench trial was held before the magistrate in August 2016.
After a magistrate’s decision was issued, Mr. Omar filed his objections, and the trial court
entered judgment on January 9, 2017. An attempted appeal to this Court followed, which we
dismissed because the trial court had failed to resolve all remaining issues involved in the
foreclosure.
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{¶3} The trial court again entered judgment on April 26, 2017, from which Mr. Omar
appealed to this Court. We reversed and remanded so that the trial court could expressly
consider and rule upon all of Mr. Omar’s objections to the magistrate’s decision. The trial court
entered judgment for the third time on December 26, 2018, finding Mr. Omar’s objections to be
without merit, and entering judgment in foreclosure against Mr. Omar.
{¶4} Mr. Omar now appeals, raising eleven assignments of error.
II.
{¶5} “Generally, the decision to adopt, reject, or modify a magistrate’s decision lies
within the discretion of the trial court and should not be reversed on appeal absent an abuse of
discretion.” Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5. An abuse
of discretion is more than an error of judgment; it means that the trial court was unreasonable,
arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219,
(1983). When applying this standard, a reviewing court is precluded from simply substituting its
own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621
(1993). However, “[i]n so doing, we consider the trial court’s action with reference to the nature
of the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-
Ohio-3139, ¶ 18.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF
PLAINTIFF’S RECORDS AND TESTIMONY BASED UPON IT[.]
{¶6} In his first assignment of error, Mr. Omar argues the trial court erred in admitting
Deutsche Bank’s business records into evidence. We disagree.
{¶7} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St. 3d 173 (1987), paragraph two of the
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syllabus. A trial court is afforded broad discretion in admitting evidence and we will not reject
an exercise of this discretion unless it has clearly been abused and the appealing party has
thereby suffered material prejudice. Packard v. Packard, 9th Dist. Summit No. 19870, 2000 WL
1729459, *2 (Nov. 22, 2000); accord State v. Long, 53 Ohio St. 2d 91, 98 (1978).
{¶8} Evid.R. 803(6) provides that records of regularly conducted business activity are
an admissible form of hearsay, stating:
A memorandum, report, record, or data compilation, in any form, of acts, events,
or conditions, made at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the testimony
of the custodian or other qualified witness or as provided by Rule 901(B)(10),
unless the source of information or the method or circumstances of preparation
indicate lack of trustworthiness.
{¶9} “To qualify for admission under Evid.R. 803(6), a business record must manifest
four essential elements: (i) the record must be one regularly recorded in a regularly conducted
activity; (ii) it must have been entered by a person with knowledge of the act, event or condition;
(iii) it must have been recorded at or near the time of the transaction; and (iv) a foundation must
be laid by the custodian of the record or by some other qualified witness.” PNC Bank, Natl.
Assn. v. West, 9th Dist. Wayne No. 12CA0061, 2014–Ohio–161, ¶ 12. The theory supporting the
business records exception is that such records are accurate and trustworthy because they are
“made in the regular course of business by those who have a competent knowledge of the facts
recorded and a self-interest to be served through the accuracy of the entries made and kept with
knowledge that they will be relied upon in a systematic conduct of such business[.]” Weis v.
Weis, 147 Ohio St. 416, 425–426 (1947).
{¶10} Proper authentication of a business record under Evid.R. 901(A) requires that a
proponent of a document produce evidence sufficient to support a finding that the matter in
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question is what the proponent claims it to be, and to accomplish this, a witness must testify as to
the regularity and reliability of the business activity involved in the creation of the record. State
v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012–Ohio–4047, ¶ 24. A witness authenticating a
business record must be “‘familiar with the operation of the business and with the circumstances
of the preparation, maintenance, and retrieval of the record in order to reasonably testify on the
basis of this knowledge that the record is what it purports to be, and was made in the ordinary
course of business.’” State v. Baker, 9th Dist. Summit No. 21414, 2003–Ohio–4637, ¶ 11,
quoting Keeva J. Kekst Architects, Inc. v. George, 8th Dist. Cuyahoga No. 70835, 1997 WL
253171, *5 (May 15, 1997). Evid.R. 803(6) does not require personal knowledge of the exact
circumstances of the preparation and production of the document or of the transaction giving rise
to the record. Bank of America, N.A. v. Jackson, 12th Dist. Warren No. CA2014–01–018, 2014–
Ohio–2480, ¶ 12.
{¶11} Mr. Omar contends that the entire business record was unreliable because
payment records are missing for the first three and one-half years of the loan and mortgage
statements were not provided for the years between 2005 and 2010, and that as a result, “the
source of information or the method or circumstances of preparation indicate lack of
trustworthiness.” See Evid.R. 803(6). This argument does not implicate the four elements
required for admission of a business record under Evid.R. 803(6), and Mr. Omar provides us
with no authority to support the notion that an incomplete record would render the entire record
inadmissible. The trial court found that the admitted records were properly identified and
authenticated. We cannot conclude the trial court abused its discretion on this basis.
{¶12} Mr. Omar next argues that the Internal Revenue Service Form 1098 for the years
2005, 2006, and 2007 were not provided to him by Deutsche Bank until 2011, and therefore “it is
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possible that the [forms] were created to satisf[y] a customer’s request for these documents made
in 2011 and were fabricated to avoid revealing errors by the bank.” Mr. Omar provided
testimony that he believed the forms were inaccurate, and points to the fact that the forms were
not provided in Deutsche Bank’s initial response to discovery, but rather, were provided in a
supplemental response. Mr. Omar’s testimony is unsupported by additional evidence, and his
speculation that the forms could have been fabricated is likewise unsupported. We cannot
conclude the trial court abused its discretion in admitting these documents.
{¶13} Mr. Omar further argues that the bank statements contained in the record should
not have been admitted into evidence because there were no statements from the time the loan
was issued in 2005 to 2010. He contends that as a result, the record fails to meet the requirement
under Evid.R. 803(6) that it “must be one regularly recorded in a regularly conducted activity.”
Once again, Mr. Omar fails to provide any authority that would support the theory that an
incomplete record renders the remaining record inadmissible. He has likewise failed to show
that the absence of a particular record or records was evidence that the remaining record was not
“regularly recorded in a regularly conducted activity.” See Evid.R. 803(6). Again, we cannot
conclude the trial court abused its discretion in admitting these documents.
{¶14} Mr. Omar’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED BY ADMITTING PAYMENT RECORDS
OFFERED BY THE BANK ON THE DEFENDANT[’]S NOTE.
{¶15} In his second assignment of error, Mr. Omar argues the trial court erred by
admitting the payment records proffered by Deutsche Bank. We disagree.
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{¶16} Mr. Omar contends that the payment record should not have been admitted
because the part of the record that would have covered the first three and one-half years of the
loan were missing. The trial court noted:
Although a portion of the payment history was missing from Mr. Omar’s loan
account (from origination in 2005 to July 2, 2008), [Deutsche Bank] still
evidenced the amount due and owing on the loan by a preponderance of the
evidence. [Deutsche Bank] produced a payment history covering over eight years
from July 2, 2008[,] to the present date. The loan was current at the time the
payment history begins. * * * The payment history covered the entire frame of
the default to the present date.
{¶17} Mr. Omar’s argument goes to the question of the weight of the evidence; he
provides us with no authority to support the notion that an incomplete payment history is
inadmissible. The trial court determined that despite the missing section of the payment history,
Deutsche Bank provided evidence of the amount due and owing. Moreover, as noted by the trial
court, the loan was current at the time the payment history began. We conclude the trial court
did not abuse its discretion in admitting the payment records into evidence.
{¶18} Mr. Omar’s second assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ERRED BY ALLOWING THE TESTIMONY OF
BENJAMIN VERDOOREN[,] THE REPRESENTATIVE OF THE BANK[.]
{¶19} In his third assignment of error, Mr. Omar argues the trial court erred by allowing
the testimony of Benjamin Verdooren because he had no personal knowledge relating to the
subject matter of the case. We disagree.
{¶20} Proper authentication of a business record under Evid.R. 901(A) requires that a
proponent of a document produce evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be, and to accomplish this, a witness must testify as to
the regularity and reliability of the business activity involved in the creation of the record. State
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v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012–Ohio–4047, ¶ 24. A witness authenticating a
business record must be “‘familiar with the operation of the business and with the circumstances
of the preparation, maintenance, and retrieval of the record in order to reasonably testify on the
basis of this knowledge that the record is what it purports to be, and was made in the ordinary
course of business.’” State v. Baker, 9th Dist. Summit No. 21414, 2003–Ohio–4637, ¶ 11,
quoting Keeva J. Kekst Architects, Inc. v. George, 8th Dist. Cuyahoga No. 70835, 1997 WL
253171, *5 (May 15, 1997). Evid.R. 803(6) does not require personal knowledge of the exact
circumstances of the preparation and production of the document or of the transaction giving rise
to the record. Bank of America, N.A. v. Jackson, 12th Dist. Warren No. CA2014–01–018, 2014–
Ohio–2480, ¶ 12.
{¶21} Mr. Omar provides us with no authority in support of his argument, nor does he
point to the record to support his contention that Mr. Verdooren had no personal knowledge
relating to the subject matter of the case. See App.R. 16(A)(7). As such, we may disregard this
argument. App.R. 12(A)(2). Moreover, Mr. Verdooren testified that he was a Senior Loan
Analyst for Ocwen Financial Corporation, that he has access to Ocwen’s business records, that
he was familiar with their record retention system, that he had viewed the original note in
question, and had reviewed the file in question. Mr. Omar has failed to show Mr. Verdooren was
not qualified to authenticate the business record.
{¶22} Mr. Omar’s third assignment of error is overruled.
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT’S DECISION GRANTING A FORECLOSURE AND A
JUDGMENT IN THE AMOUNT OF $357,488.77 [WAS] AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE[.]
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{¶23} In his fourth assignment of error, Mr. Omar argues the trial court erred because its
judgment in foreclosure was against the manifest weight of the evidence. Mr. Omar contends
that the incomplete payment record is insufficient to show a breach of the note. We disagree.
{¶24} “[B]efore an appellate court will reverse a judgment as against the manifest
weight of the evidence in a civil context, the court must determine whether the trier of fact, in
resolving evidentiary conflicts and making credibility determinations, clearly lost its way and
created a manifest miscarriage of justice.” Boreman v. Boreman, 9th Dist. Wayne No.
01CA0034, 2002-Ohio-2320, ¶ 10. “Only in the exceptional case, where the evidence presented
weighs heavily in favor of the party seeking reversal, will the appellate court reverse.” Id. In
weighing the evidence, the court of appeals must always be mindful of the presumption in favor
of the finder of fact. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 21.
{¶25} As we have noted, the loan was current at the time the payment history began.
Deutsche Bank provided evidence of the amount due and owing, offering the payment history,
multiple 1098 I.R.S. forms, mortgage statements, copies of checks sent from Mr. Omar for
payment on the debt, a debt validation letter, default notice letters, a divorce decree
acknowledging the debt due and owing as of September 2010, and the testimony of Benjamin
Verdooren, Senior Loan Analyst for Ocwen Financial Corporation. As noted by the trial court,
the payment history provided covered the entire frame of the default. In contrast, Mr. Omar
offered no evidence to support his testimony that he had made payments not indicated in the
bank records.
{¶26} We conclude that the trial court did not clearly lose its way or create a manifest
miscarriage of justice, and that this is not the exceptional case, where the evidence presented
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weighs heavily in favor of the party seeking reversal. Mr. Omar’s fourth assignment of error is
overruled.
ASSIGNMENT OF ERROR FIVE
THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE AND
CONSIDERING A LETTER PROPOSING A COMPROMISE SENT BY THE
ATTORNEY FOR THE DEFENDANT TO THE PLAINTIFF.
{¶27} In his fifth assignment of error, Mr. Omar argues the trial court erred when it
admitted into evidence a letter sent by Mr. Omar to Deutsche Bank. We disagree.
{¶28} “[We] review a trial court's admission of evidence for abuse of discretion.” State
v. Truitt, 9th Dist. Summit No. 25527, 2011–Ohio–6599, ¶ 30. An abuse of discretion is more
than an error of judgment; it means that the trial court was unreasonable, arbitrary, or
unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). When
applying this standard, a reviewing court is precluded from simply substituting its own judgment
for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621 (1993).
{¶29} Evid.R. 408 provides:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or
offering or promising to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to either validity or
amount, is not admissible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compromise negotiations is
likewise not admissible. This rule does not require the exclusion of any evidence
otherwise discoverable merely because it is presented in the course of
compromise negotiations. This rule also does not require exclusion when the
evidence is offered for another purpose, such as proving bias or prejudice of a
witness, negativing a contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
“Evid.R. 408 is applicable only to bar the admission of evidence which is offered to show that
because a settlement offer was made, the offeror must be liable, because people don't offer to pay
for things for which they are not liable.” Kane v. Inpatient Med. Servs., Inc., 9th Dist. Summit
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No. 29087, 2019-Ohio-1975, ¶ 18, quoting USCA/USA, Inc. v. High Tech Packaging, Inc., 6th
Dist. Wood Nos. WD-05-088 and WD-05-089, 2006-Ohio-6195, ¶ 34, quoting Boyle v. Daimler
Chrysler Corp., 2d Dist. Clark No. 2001-CA-81, 2002-Ohio-4199, ¶ 95.
{¶30} The letter in question is captioned as a “Request for the Removal of all Late
Fees.” The letter is not an offer of settlement, but rather, a request that late fees on the account
be removed. As such, the letter does not fall under Evid.R. 408 because it is not evidence of
“furnishing or offering or promising to furnish, or (2) accepting or offering or promising to
accept, a valuable consideration in compromising or attempting to compromise a claim which
was disputed as to either validity or amount.”
{¶31} Mr. Omar’s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR SIX
THE TRIAL COURT ERRED BY FINDING THAT THE DEFENDANT’S
DIVORCE DECREE [WAS] AN ADMISSION AS TO THE CORRECT
AMOUNT OWED[.]
{¶32} In his sixth assignment of error, Mr. Omar argues the trial court erred in finding
that his divorce decree was an admission as to the correct amount owed to Deutsche Bank. Mr.
Omar contends that “he did not pay attention to this document” at the time of his divorce, and
that the debt he acknowledged at that time was not, in fact, accurate.
{¶33} In its judgment entry, the trial court concluded Mr. Omar’s objection with regard
to the divorce decree was barred by the doctrine of res judicata, and noted that the divorce decree
acknowledged the debt and the amount due and owing as of September 2010, which was “more
than two years after Mr. Omar allegedly made additional payments.” The amount of the subject
mortgage debt listed in the divorce decree was $389,000.00. The trial court went on to grant
judgment against Mr. Omar in the amount of $357,488.77, plus interest from March 1, 2012,
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plus late fees and advances made for real estate taxes, insurance, assessments, and protection of
the property. Mr. Omar’s contention that the prior litigation occurred in a previous divorce and
measured the debt owed at a different date than the foreclosure trial is not contradicted by the
trial court’s entry of judgment, as indicated by the fact that the two amounts are not identical.
The trial court recognized the amount referenced in the divorce decree as an acknowledgment by
Mr. Omar of the amount due and owing in September 2010, and did not simply incorporate the
amount of debt listed in the decree into its judgment entry.
{¶34} Mr. Omar’s sixth assignment of error is overruled.
ASSIGNMENT OF ERROR SEVEN
THE TRIAL COURT ERRED BY FINDING THAT THE DEFENDANT
PROVIDED NO PROOF OF PAYMENTS AT TRIAL[.]
{¶35} In his seventh assignment of error, Mr. Omar argues the trial court erred by
finding that he had provided no proof that he had made payments not recorded in the payment
history. We disagree.
{¶36} In support of his argument, Mr. Omar points to his testimony that he sent sums of
money from Greece to pay off his mortgage in sums between $10,000.00 to $35,000.00 during
the years of 2005, 2006 and 2007. Mr. Omar further testified that he believed the mortgage had
either been paid, or close to being paid, and that the payment history produced by Deutsche Bank
was inaccurate.
{¶37} In its judgment entry, the trial court found that “[a]lthough Mr. Omar testified that
he made large payments from banks both in the United States and Greece to pay off the principal
amounts on this [m]ortgage, this unsupported testimony was not credible. There was no
evidence to support Mr. Omar’s position that he made payments to pay off the principal amounts
on this [m]ortgage.” The trial court further found that “Mr. Omar provided no evidence, other
12
than his own testimony, to challenge or question Mr. Verdooren’s testimony or the veracity of
the loan account.” (Emphasis added.) The trial court clearly recognized that Mr. Omar provided
testimony that he made payments not recorded in the payment history; it did not, however, find
said testimony credible, nor was it supported by additional evidence.
{¶38} Mr. Omar’s seventh assignment of error is overruled.
ASSIGNMENT OF ERROR EIGHT
THE TRIAL COURT ERRED BY CONCLUDING THAT THE
DEFENDANT’S BURDEN FOR THE AFFIRMATIVE DEFENSE OF
PAYMENT WAS NOT MET.
{¶39} In his eighth assignment of error, Mr. Omar argues the trial court “placed the
burden in this case upon the [d]efendant” and that Deutsche Bank “failed to establish the amount
of payments made on this loan for the first three[-]and[-]a[-]half years of the loan.” We disagree.
{¶40} Mr. Omar fails to support this contention with any reference to the record and
provides no authority in support of his argument. See App.R. 16(A)(7). As such, we may
disregard this argument. App.R. 12(A)(2). Moreover, as we have previously determined,
although the payment history was incomplete, the trial court determined that Deutsche Bank
provided evidence of the amount due and owing.
{¶41} Mr. Omar’s eighth assignment of error is overruled.
ASSIGNMENT OF ERROR NINE
THE TRIAL COURT ERRED BY RULING THAT THE ADMISSION OF A
LEDGER FOR A MORTGAGE IS PROPER [] IF IT STARTS WITH A ZERO
BALANCE[.]
{¶42} In his ninth assignment of error, Mr. Omar argues the trial court erred in
determining that an account in a foreclosure action is not required to start at zero. We disagree.
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{¶43} The only authority provided by Mr. Omar under this assignment of error is
WUPW TV–36 v. Direct Results Marketing, Inc., 70 Ohio App. 3d 710 (10th Dist.1990), which he
states is the “one case that suggests that it is proper for a [c]ourt in a credit card dispute to accept
a latter start on a balance than the beginning balance.” Mr. Omar fails, however, to point to any
authority in support of his argument. See App.R. 16(A)(7). Therefore, we may disregard this
argument. App.R. 12(A)(2).
{¶44} Mr. Omar’s ninth assignment of error is overruled.
ASSIGNMENT OF ERROR TEN
THE TRIAL COURT ERRED BY GIVING WEIGHT TO A DEBT
VALIDATION LETTER FROM THE PLAINTIFF TO THE DEFENDANT.
{¶45} In his tenth assignment of error, Mr. Omar contends the trial court erred by giving
weight to a debt validation letter. We disagree.
{¶46} The trial court noted that Deutsche Bank had sent Mr. Omar a debt validation
letter, dated March 4, 2013, indicating that the sum of $357,488.77 was due and owing on the
principal of the loan. Mr. Omar appears to argue that because the letter was “self[-]serving,” it
had no weight as evidence. Mr. Omar fails to point to any authority in support of his argument.
See App.R. 16(A)(7). As such, we may disregard this argument. App.R. 12(A)(2). Moreover, as
we have previously stated, the weight given to the evidence is a matter primarily for the trier of
fact to determine. Lumpkin v. Lumpkin, 9th Dist. Summit No. 21305, 2003–Ohio–2841, ¶ 20,
citing Bechtol v. Bechtol, 49 Ohio St. 3d 21, 23 (1990).
{¶47} Mr. Omar’s tenth assignment of error is overruled.
ASSIGNMENT OF ERROR ELEVEN
THE TRIAL COURT ERRED BY FINDING THAT EQUITY SUPPORTS A
FORECLOSURE IN THIS CASE[.]
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{¶48} In his eleventh assignment of error, Mr. Omar argues the trial court erred by
finding that equity supported foreclosure. We disagree.
{¶49} In its judgment entry, the trial court determined: “No equitable reason exists to
prohibit [Deutsche Bank] from going forward with this foreclosure action. Mr. Omar has lived
in the Property since 2012 without making any payments on the loan or paying property taxes.”
Mr. Omar again raises the issue of incomplete payment records, this time in support of his
argument that equity was not served. We find this argument without merit. This Court finds no
absence of equity in the trial court’s judgment.
{¶50} Mr. Omar’s eleventh assignment of error is overruled.
III.
{¶51} Mr. Omar’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
RANDALL D. WEISSFELD, Attorney at Law, for Appellant.
BROOKE TURNER BAUTISTA, Attorney at Law, for Appellee.