Wells Fargo Bank, N.A. v. Rahman , 2013 Ohio 5037 ( 2013 )

[Cite as Wells Fargo Bank, N.A. v. Rahman, 2013-Ohio-5037.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Wells Fargo Bank, N.A., :
Plaintiff-Appellee, :
No. 13AP-376
v. : (C.P.C. No. 11CVE-1-1095)
Akim M. Rahman, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 14, 2013
Thompson Hine LLP, Scott A. King, and John B. Kopf, for
appellee.
Akim M. Rahman, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Akim M. Rahman ("appellant"), appeals from the May
2, 2013 judgment of the Franklin County Court of Common Pleas, wherein the trial court
adopted the magistrate's decision granting judgment and foreclosure in favor of Wells
Fargo Bank, N.A. ("Wells Fargo"). For the following reasons, we affirm.
{¶ 2} The present appeal stems from an action filed on January 25, 2011 by Wells
Fargo seeking to recover the balance due on a promissory note and to foreclose upon a
mortgage securing note by real property located at 4428 Trailane Drive, Hilliard, Ohio
43026. In its complaint, Wells Fargo alleged that appellant defaulted under the terms of
the note secured by the mortgage, and the mortgage itself, owing $178,333.81, together
with interest, plus court costs, advances, and other charges as allowed by law. The record
No. 13AP-376 2
reflects appellant was served with the complaint on February 3, 2011, and his answer was
due March 3, 2011.
{¶ 3} Prior to the deadline for filing his answer, on February 22, 2011, appellant
filed with the court a copy of a letter he had sent to counsel for Wells Fargo in response to
a letter Wells Fargo's counsel had sent to him. Appellant disputed the amount requested
by Wells Fargo's counsel and requested additional information. His letter did not refer to
the complaint, nor did it respond to the allegations in the complaint. Several months
later, on August 8, 2011, appellant filed a document titled "Disclosure," in which he stated
he was trying to reinstate the loan but had been unable to obtain information regarding
the amount due. Once again, the document did not refer to the complaint, nor did it
dispute the allegations in the complaint. The document indicated he was trying to obtain
additional information. Three days later, appellant filed a motion to order Wells Fargo to
release detailed account information. However, the motion did not indicate that
appellant had requested the same information via discovery. Appellant filed a second
motion for the same on August 30, 2011. On September 14, 2011, Wells Fargo filed a
response, stating there was no need for an order because they had been providing
appellant with information and they would comply with discovery requests if appellant
served such requests upon Wells Fargo.
{¶ 4} On February 8, 2012, Wells Fargo moved for summary judgment.
Ultimately, this motion was stricken from the record as untimely. However, in response,
on February 24, 2012, appellant filed a "Motion to include the attachment in the Court
record of proceedings for future reference in case of justifying plaintiff's illegal ongoing
acts that have so far created a miserable life to the Defendant." He attached a copy of a
letter addressed to Wells Fargo's counsel regarding Wells Fargo's "ongoing activities,"
including photographing his home and again requesting a breakdown of principal,
interest, late fees, insurance, and property taxes from the date of default. On March 5,
2012, Wells Fargo filed a reply brief.
{¶ 5} On March 19, 2012, appellant filed two more motions to request
information from Wells Fargo and to inform the court of an "intruder" who broke the lock
on his front door and entered the property several days prior. Appellant moved to dismiss
the complaint on June 21, 2012. In this motion, without requesting leave to file a
No. 13AP-376 3
counterclaim for the same, appellant requested damages for trespass to his property.
Wells Fargo filed a memorandum contra. Appellant filed a reply but did not file a motion
for leave to file a counterclaim.
{¶ 6} On October 2, 2012, appellant moved for a jury trial. Wells Fargo filed a
memorandum contra. Appellant filed a reply. The trial court referred the case to a
magistrate for a bench trial. Several months prior to the bench trial, on November 13,
2012, appellant filed a motion for findings of fact and conclusions of law. The court
denied the motion as premature. Numerous other motions and documents were filed by
appellant.
{¶ 7} The bench trial was held on March 11, 2013. On that date, the magistrate
issued a decision, including findings of fact and conclusions of law. The magistrate found
appellant to be liable on the note and in favor of Wells Fargo on the foreclosure claim.
{¶ 8} On March 15, 2013, appellant filed objections to the magistrate's decision,
which we summarize: (1) appellant objects the trial conducted by magistrate was biased;
(2) he objects the magistrate did not give any weight to evidence presented by him; (3) he
objects the magistrate excluded/suppressed cross-examination of Wells Fargo's witnesses
regarding (a) trespass, (b) unfair practices, and (c) abuse of process. Further, he objects
the magistrate threatened to hold him in contempt of court for his efforts to continue
cross-examination regarding the same. Further, objects the magistrate supported its
ruling to exclude/suppress evidence by referring to a ruling by Judge Bender which he
asserts does not exist; (4) he objects the trial was conducted by a magistrate and not
before a jury; (5) he objects the magistrate excluded/suppressed cross-examination of fees
and penalties; (6) he objects he was precluded from testifying; and (7) he objects the
magistrate's decision was short and pre-determined.
{¶ 9} Wells Fargo filed a response. On March 18, 2013, appellant filed a renewed
motion for a jury trial. The trial court denied the motion, noting a bench trial had already
been held. The trial court also found to be moot appellant's motion for findings of fact
and conclusions of law, as the magistrate's decision already contained the same. The trial
court noted appellant's objections to the magistrate's decision were pending. On March
21, 2013, appellant filed a "Motion for Dismissal of the Foreclosure Case and Grant a
Recovery Judgment." On March 22 and 26, 2013, appellant filed motions requesting
No. 13AP-376 4
leave to file counterclaims. On May 2, 2013, the trial court issued a decision denying
appellant's objections and adopting the magistrate's decision. The court entered
judgment in favor of Wells Fargo and issued a decree in foreclosure. This appeal followed.
{¶ 10} Appellant sets forth the following assignments of error:
Assignment of error one (Improper application of rules,
provisions, rights etc.)
a. The Court entry judgment should have granted a mistrial
and / or fashioned another appropriate remedy when the
Court rulings (Judge Travis's ruling on Jury Trail, Judge
Bender's ruling for Magistrate trial, Magistrate trial
proceeding itself etc.) erred from.
i. Not applying properly the provisions of the Civ. R. 15 (B);
Civ. R. 39(A)(1) & Civ. R. 39 (B): A de novo standard of
review to questions of law, discretion, and Judgment and
other issues.
ii. The denial of the US Constitutional rights (Amendment
VII, Amendment VI and Amendment V & Amendment XIV),
and individual rights under the Constitution of the State of
Ohio.
iii. Violation of Fair Credit Reporting (FCRA): after returning
checks, the fees / charges / late fees were justified by the
Appellee and it was reported to credit bureaus, which has
caused a declined of credit score of Appellant.
iv. Not observing Court's own ruling (rendered by Travis on
time slot arrangement and its application (not observed by
the bench trial) (a plain error in rulings).
b. The utilization of Exclusionary Rule is contradictory to
the ruling of the US Supreme Court (See Scott, 524 U.S. at
369; Lopez-Mendoza, 468 U.S. at 1050; Janis, 428 U.S. at
460; Calandra, 414 U.S. at 354; and 578 F.3d 627, 630 (7th
Cir. 2009), which makes the ruling defective.
Assignment of error two (Plain errors)
a. Trial bench's decision was plain error and manifestly
against the weight of the evidence for not finding that
Appellee had motivationally returned the mortgage payment
checks (three) to the Appellant in aim to justify its foreclosure
No. 13AP-376 5
commencement and to undermine Appellant's credit
worthiness in the financial market. However, the Court entry
judgment relied on the defective bench trial ruling, which
makes the entry judgment defective where the objections of
trial bench ruling was filed on time under the Civ. R. 53 (D)
(3)(b).
b. Trial bench's decision was plain error and manifestly
against the weight of the evidence for not finding that
Appellee had motivationally took over the property tax
payment responsibility while Appellant's petition for penalty
waiver was pending with the County Auditor Office. A note
here is that since Appellant fell behind paying property taxes
on time for the first time, the Appellant was entitled for
penalty-waived by the Auditor Office. However, the Court
entry judgment relied on the defective trial bench ruling,
which makes the entry judgment defective where the
objections of trial bench ruling was filed on time under the
Civ. R. 53 (D) (3)(b).
c. In the Court entry judgment, the Court referred to
defendant "Franklin County Treasurer's answers but did not
appear ..." where the Court has weighted treasurer office's
decision in this perspective mostly in the ruling. However,
the Court failed acknowledging the fact that now the
Treasurer office does not have answer on how the Appellee
had taken over the tax payment responsibility while
Appellant's petition for late fees waiver was pending for its
decision. The concerns of this issue were raised in various
motions and in bench trial; however, the Treasurer office is
not addressing the issue. Therefore, treasurer office's
decision in this perspective is not controversy free, which
makes it to be defective. However, the Court mainly relied
on it. Therefore, the Court entry judgment is defective.
Assignment of error three (Plain error or Omission of facts in
Court rulings)
a. The claim of "no counter claim filed" in Court rulings is
absolutely without merit, on which the Court entry judgment
as well as the Magistrate rulings relied on. Therefore, trial
bench ruling is defective on which the entry judgment relied
on, therefore, the entry judgment is defective and incomplete
where the objections of trial bench ruling was filed on time
under the Civ. R. 53 (D) (3)(b).
No. 13AP-376 6
b. The trespass was committed by the Appellee while the case
was pending before the Court, therefore, the Appellee has
committed Contempt of Court --- an act of deliberate
disobedience or disregard for the laws, regulations, or
decorum of a public authority, where few motions including
counter claims were filed with the Court by the Appellant;
however, the Court rulings have overlooked this issue without
merit.
c. Violation of the Court's own ruling (rendered by Judge
Travis) on time slot arrangement and its application for cross
examination. The Appellant was barred cross examining the
Appellee witness. Furthermore, Appellant was never allowed
to present its side as a witness where Appellant is Pro Se,
therefore, Appellant has rights to present as a Counsel as well
as a witness of the Appellant claim. However, the Court failed
acknowledging this, which might be an omission of facts in
the ruling.
d. The captioned foreclosure case was tried by a bench trial,
which makes the trial to be defective because the damage
claim was over $500,000.00 + (See: Motion filed by
Appellant with the Court on June 21 & 22 of 2012); however,
a Magistrate trial jurisdiction only claim valued at $7500.00
or less.
Assignment of error four (ignorance of trespass issue: a plain
error)
The fact of the trespass committed by the Appellee was
absolutely ignored in both rulings of the Court and the bench
trial, which makes the both rulings to be provocative and
dubious in any legal definitions as well as in any public
opinions. Since the magnitudes of the influences by Appellee
on suppressing the issue of trespass and its consequences are
still unknown and on, it can be claimed here that the both
rulings are suffered with plain error and manifestly against
the weight of the evidence for not finding that Appellee had
motivationally trespassed, caused damages and now its
influences are on.
(Sic passim.)
{¶ 11} Initially, we note that, if objections are filed, a trial court undertakes a de
novo review of a magistrate's decision. See Mayle v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 09AP-541, 2010-Ohio-2774, ¶ 15. "However, the appellate standard of review
No. 13AP-376 7
when reviewing a trial court's adoption of a magistrate's decision is an abuse of
discretion." Id. Therefore, we will only reverse a trial court's adoption of a magistrate's
report if the trial court acted in an unreasonable or arbitrary manner. Id.{¶ 12} Upon filing objections to the magistrate's decision, appellant had a duty to
file a transcript or affidavit of the evidence presented, as well. "An objection to a factual
finding, whether or not specifically designated as a finding of fact under Civ.R.
53(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to the
magistrate relevant to that finding or an affidavit of that evidence if a transcript is not
available." Civ.R. 53(D)(3)(b)(iii).
{¶ 13} Appellant had a similar duty when he filed this appeal pursuant to App.R. 9.
"The duty to provide a transcript for appellate review falls upon the appellant." Knapp v.
Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). This is so because it is the
appellant's burden to demonstrate error by reference to matters in the record. Id., citing
State v. Skaggs, 53 Ohio St.2d 162 (1978). "When portions of the transcript necessary for
resolution of assigned errors are omitted from the record, the reviewing court has nothing
to pass upon and thus, as to those assigned errors, the court has no choice but to presume
the validity of the lower court's proceedings, and affirm." Knapp at 199. Charlot v.
Desinor, 10th Dist. No. 12AP-76, 2012-Ohio-3921. We understand that throughout this
process, appellant has represented himself and, thus, we say he has proceeded pro se.
Nevertheless, the Supreme Court of Ohio has held that "the mere fact that he is a pro se
litigant does not entitle him to ignore the requirements of the local appellate rule[s].
' "[P]ro se litigants * * * are held to the same standard as litigants who are represented by
counsel." ' " State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d
124, 2009-Ohio-4688, ¶ 1, quoting State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352,
2003-Ohio-6448, ¶ 10, quoting Sabouri v. Ohio Dept. of Job & Family Servs., 145 Ohio
App.3d 651, 654 (10th Dist.2001).
{¶ 14} Appellant provided the trial court and this court with an excerpt of the
transcript of the trial, pages 101 through 105, and nothing more. This excerpt reveals a
dialogue between the magistrate and appellant where the magistrate tells appellant that
his questions regarding trespass are irrelevant. The magistrate further tells appellant that
Judge Bender decided the trespass would not be an issue at the trial. She informs him
No. 13AP-376 8
that he is not permitted to ask questions regarding trespass and that his exhibits would
not be admitted. The magistrate also tells appellant that he did not file a counterclaim,
and appellant responds that he did file a counterclaim. Appellant persists with his
questioning regarding trespass, unfair practice, and abuse of process, and the magistrate
instructs the witness not to answer the questions. The magistrate informs appellant that
he cannot testify without being under oath. The magistrate continues to tell appellant
that his questions regarding trespass, unfair practice, and abuse of process are not
relevant. Appellant continues to insist that they are. The magistrate warns appellant that,
if he mentions trespass, unfair practice, and abuse of process again, she will hold him in
contempt. She again informs him that Judge Bender has ruled these issues are not
relevant. Appellant concludes his questions, and the magistrate dismisses the witness. It
is unclear from this excerpt the identity of the witness being questioned and whether the
questioning was taking place as direct or cross-examination.
{¶ 15} Assignment of error one (a)(i) (regarding Civ.R. 15(B) only), (a)(iii), and (b),
assignment of error three (a) and (b), and assignment of error four can be summarized as
appellant's assertion that the trial court erred: (1) in denying his motion for leave to file a
counterclaim for trespass, unfair practices, and abuse of process, (2) in excluding
questions and evidence regarding the same, and (3) in not holding Wells Fargo in
contempt for the same.
{¶ 16} A review of the trial court record shows that, in response to the complaint,
appellant filed a letter, which met the criteria of an appearance. However, even if
considered an answer, nothing therein could be construed as a counterclaim. Thus, at
that point, the pleadings were closed. Once the pleadings were closed, he was required to
seek leave of the court to file a counterclaim. Civ.R. 13(A), (E), and (F), and Civ.R. 15(A).
{¶ 17} On March 16, 2012, appellant filed a motion for "an order for the inclusion
of the fact of recent incident that took place at my house." On June 21, 2012, appellant
filed a "Motion to dismiss the captioned foreclosure case and grant a Recovery-Judgment
for the damages including exemplary damages resulting from the trespass committed by
the Plaintiff." On June 22, 2012, appellant filed a "Prehearing Brief on trespassing issue."
On July 5, 2012, appellant filed a "Reply-memo: Plaintiff's claims are disputed." In all of
these documents, he made allegations that the "mortgage company" trespassed in his
No. 13AP-376 9
home, and, in some of these documents, he requested damages. Even if, for the sake of
argument, we were to construe these documents as an effort on behalf of appellant to file
a counterclaim, we do not see a request for leave to file such a counterclaim.
Furthermore, although, as summarized above, the five-page excerpt of the transcript
provided by appellant reveals a dialogue between the magistrate and appellant addressing
this issue, without the entire transcript, we do not know whether, during the course of the
trial, if appellant requested leave to file these documents to be deemed a counterclaim,
made a motion pursuant to Civ.R. 15(B), or if the magistrate addressed the matter further.
{¶ 18} Also, although we do not see anything in the trial court record in the form of
a written court order excluding references to trespass, unfair practices, and abuse of
process, without the entire transcript, it is impossible for us to determine if the trial court
ruled on this issue and any motion for leave to file a counterclaim orally at one of the pre-
trial status conferences. Therefore, we have no choice but to presume the validity of the
magistrate's reference to a ruling Judge Bender made to exclude/suppress questions and
evidence regarding trespass, unfair practices, and abuse of process. Furthermore, when a
trial court does not expressly rule on a motion, it is presumed the court denied it. State ex
rel. Forsyth v. Brigner, 86 Ohio St.3d 299, 300 (1999) ("it is evident here that even
assuming no express ruling on the pretrial motion, the trial court overruled" it);
Huntington Natl. Bank v. Bywood, Inc., 10th Dist. No. 12AP-994, 2013-Ohio-2780, ¶ 5
("Generally, when a trial court enters judgment without expressly ruling on a pending
motion, it is presumed that the court overruled the motion.").
{¶ 19} We also do not see anything in the trial record or the transcript that
appellant moved for contempt of court against Wells Fargo. Thus, with respect to these
assignments of error, we find the trial court did not abuse its discretion in denying the
objections and adopting the magistrate's decision. Accordingly, we overrule appellant's
assignment of error one (a)(i) (regarding Civ.R. 15(B) only), (a)(iii), and (b), assignment
of error three (a) and (b), and assignment of error four.
{¶ 20} Assignments of error one (a)(iv) and three (c) can be summarized as
appellant's assertion that the trial court erred in applying court rules to the trial. Here,
once again, without the entire transcript, we have no choice but to presume the validity of
the trial court's proceedings. Thus, with respect to this assignment of error, we find the
No. 13AP-376 10
trial court did not abuse its discretion in denying the objections and adopting the
magistrate's decision. Therefore, we find the trial court did not err and overrule
appellant's assignment of error one (a)(iv) and 3(c).
{¶ 21} Assignments of error one (a)(i) (regarding Civ.R. 39(A)(1) and (B)) and
three (d) can be summarized as appellant's assertion that the trial court erred in not
conducting a jury trial because: (1) appellant requested the same, and (2) the damages
exceeded the $7,500 limit for trials before a magistrate. Trial by jury is a substantive,
fundamental right protected by the Seventh Amendment to the U.S. Constitution and
Ohio Constitution, Article I, Section 5. Soler v. Evans, St. Clair & Kelsey, 94 Ohio St.3d
432, 437 (2002). Civ.R. 38 states that the right to trial by jury shall be preserved to the
parties inviolate. "Any party may demand a trial by jury on any issue triable of right by a
jury by serving upon the other parties a demand therefor at any time after the
commencement of the action and not later than fourteen days after the service of the last
pleading directed to such issue." (Emphasis added.) Civ.R. 38(B). However, "[t]he
failure of a party to serve a demand as required by this rule and to file it as required by
Rule 5(D) constitutes a waiver by him of trial by jury." Civ.R. 38(D). Appellant points us
to Civ.R. 39(A)(1) and (B). Civ.R. 39(A) does state: "When trial by jury has been
demanded as provided in Rule 38, the action shall be designated upon the docket as a jury
action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their
attorneys of record, by written stipulation filed with the court or by an oral stipulation
made in open court and entered in the record, consent to trial by the court sitting without
a jury." Civ.R. 39(A), however, also allows a court to not proceed with a jury trial if "(2)
the court upon motion or of its own initiative finds that a right of trial by jury of some or
all of those issues does not exist." Furthermore, Civ.R. 38(B) states: "Issues not
demanded for trial by jury as provided in Rule 38 shall be tried by the court."
{¶ 22} Appellant filed a motion to request a jury trial on October 2, 2012. If we
consider appellant's appearance filed on February 22, 2011 to be an answer and therefore
the close of pleadings, this request would be filed well after the deadline for filing a jury
demand. We see also from the record that, on February 26, 2013, appellant filed a notice
of jury deposit. However, there was no attestation that the clerk of courts received the
$300 deposit and no receipt number indicated on the form. The notice was not signed by
No. 13AP-376 11
a deputy clerk, leading us to believe that no such deposit was made. On March 18, 2013,
after the bench trial was held, appellant filed a renewed motion for jury trial. Appellant's
demand for jury trial was untimely; thus, he waived his right to a jury trial, and the trial
court did not err in conducting a bench trial.
{¶ 23} Appellant also argues that the court was required to hold a jury trial because
the damages claimed exceeded the $7,500 limit for trials before a magistrate. We are
unaware of any such limit. On November 7, 2012, the trial court filed an order of
reference, pursuant to Civ.R. 53 and Loc.R. 99.02 of the Franklin County Court of
Common Pleas, and referred the case to the magistrate for a bench trial. Civ.R. 53(A)
authorizes the appointment of magistrates. Civ.R. 53(C)(1) provides: "To assist courts of
record and pursuant to reference under Civ.R. 53(D)(1), magistrates are authorized,
subject to the terms of the relevant reference, to do any of the following: * * * (b) Conduct
the trial of any case that will not be tried to a jury." Loc.R. 99.02(A) states that a
magistrate shall hear any trial or hearing which is referred to him or her by the trial judge
on any issue or issues as to which the jury right has been waived. Here, because appellant
waived his right to a jury trial by not demanding such right in a timely manner, we find no
error in the trial court referring the case to the magistrate for a bench trial. Thus, with
respect to these assignments of error, we find the trial court did not abuse its discretion in
denying the objections and adopting the magistrate's decision.
{¶ 24} Accordingly, we overrule assignment of error one (a)(i) (regarding Civ.R.
39(A)(1) and (B)) and assignment of error three (d).
{¶ 25} Assignment of error two (a), (b), and (c) can be summarized as appellant's
assertion that the trial court erred in adopting the magistrate's decision because it was
against the manifest weight of the evidence. Again, without a transcript, we cannot
address assignment of error two, as we have nothing to pass upon, and, thus, we must
presume the validity of the trial court's weighing of the evidence presented and affirm.
Therefore, with respect to this assignment of error, we find the trial court did not abuse its
discretion in denying the objections and adopting the magistrate's decision.
{¶ 26} Accordingly, we overrule assignment of error two (a), (b), and (c).
{¶ 27} Finally, as we have found no error, we also find no violation of due process
as asserted in assignment of error one (a)(ii) and no error in not granting a mistrial as
No. 13AP-376 12
asserted in assignment of error one (a). Also, due to lack of a transcript, we do not know
whether appellant even moved for a mistrial. Accordingly, we overrule assignment of
error one (a)(ii) and one (a).
{¶ 28} For the foregoing reasons, all of appellant's assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
TYACK and CONNOR, JJ., concur.
_____________