U.S. Bank Natl. Assoc. v. Heller , 2011 Ohio 4410 ( 2011 )

[Cite as U.S. Bank Natl. Assoc. v. Heller, 2011-Ohio-4410.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95966
U.S. BANK NATIONAL ASSOCIATION
PLAINTIFF-APPELLEE
vs.
MICHAEL A. HELLER, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-702596

BEFORE: Boyle, P.J., Jones, J., and Rocco, J.
RELEASED AND JOURNALIZED: September 1, 2011
FOR APPELLANT
Michael A. Heller, pro se
333 Babbitt Road
Suite 323
Euclid, Ohio 44123
ATTORNEYS FOR APPELLEE
Sara M. Petersmann
Kimberlee S. Rohr
Joanne Wu
Lerner, Sampson & Rothfuss
120 East Fourth Street
8 Floor
ht
Cincinnati, Ohio 45202
MARY J. BOYLE, P.J.:

{¶ 1} Defendant-appellant, Michael Heller, appeals from the trial court’s judgment
granting summary judgment to plaintiff-appellee, U.S. Bank National Association (“U.S.
Bank”), and ordering that Heller’s home be foreclosed. We dismiss this appeal for lack of a
final appealable order.
{¶ 2} U.S. Bank filed a complaint for foreclosure in August 2009. In November
2009, Heller filed a petition for Chapter 7 bankruptcy, and the foreclosure action was
automatically stayed. The bankruptcy stay was lifted in April 2010.
{¶ 3} In May 2010, U.S. Bank moved for summary judgment, which a magistrate
granted in July 2010. Heller filed objections to the magistrate’s decision in August 2010.
In October 2010, the trial court adopted the magistrate’s decision and ordered a decree of
foreclosure to U.S. Bank. Significantly, the trial court failed to rule on Heller’s objections.
{¶ 4} Under Civ.R. 53(D)(4)(d), “[i]f one or more objections to a magistrate’s decision
are timely filed, the court shall rule on those objections.” This court has interpreted that
language as mandatory, i.e., a trial court is required to explicitly overrule or sustain any
timely filed objection. Peric v. Buccilli, 8th Dist. No. 80805, 2002-Ohio-6234, ¶5-8.
Other courts have determined the same. See Schueler v. Schubert, 9th Dist. No. 25192,
2010-Ohio-6495; In re J.V., 10th Dist. No. 04AP-621, 2005-Ohio-4925; Ludwick v. Ludwick,
12th Dist. No. CA2002-08-017, 2003-Ohio-2925; In re Talbert, 5th Dist. No. CT2008-0031,

2009-Ohio-4237; Chan v. Total Abatement Specialist & Remodelers, 1st Dist. No. C-070275,
2008-Ohio-1439; and In re F.D.M., 2d Dist. No. 23021, 2009-Ohio-5609.
{¶ 5} The record reveals that the trial court did not even state that it had considered
Heller’s objections, let alone overrule them. Accordingly, we find that the trial court’s
judgment adopting the magistrate’s decision is not a final appealable order.
Appeal dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, J., and
KENNETH A. ROCCO, J., CONCUR
KEY WORDS:
95966