Fifth Third Mtge. Co. v. Berman ( 2019 )

[Cite as Fifth Third Mtge. Co. v. Berman, 2019-Ohio-1068.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Fifth Third Mortgage Company, :
Plaintiff-Appellee, : No. 17AP-563
(C.P.C. No. 16CV-2400)
v. :
(REGULAR CALENDAR)
Jeffrey C. Berman, :
Defendant-Appellant, :
Unknown Spouse, if any, of Jeffrey C. :
Berman et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on March 26, 2019
On brief: Lerner, Sampson & Rothfuss, Rick D. DeBlasis, and
William P. Leaman, for appellee. Argued: Rick D. DeBlasis.
On brief: Jeffrey C. Berman, pro se. Argued: Jeffrey C.
Berman.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Jeffrey C. Berman, from a
judgment of the Franklin County Court of Common Pleas finding in favor of plaintiff-
appellee, Fifth Third Mortgage Company, in its foreclosure action arising from appellant's
default on a note and mortgage.
{¶ 2} On August 12, 2004, appellant executed a promissory note in favor of
appellee in the amount of $132,500, secured by a first mortgage. On September 30, 2009,
appellee filed a complaint in foreclosure in Franklin C.P. No. 09CV-14673, naming as
No. 17AP-563 2
defendants appellant and various governmental entities with potential competing tax liens
against the property. The complaint alleged appellee was the owner and holder of a
promissory note executed by appellant, and that the note was in default; it was further
alleged a balance of $124,175.86 was due on the note, and appellee was entitled to judgment
on that amount and to sale of the property pursuant to the mortgage securing the note.
{¶ 3} Appellant filed an answer, asserting appellee had not provided him with
proper notice of default and acceleration as required by the terms of the note and mortgage.
Appellee subsequently filed a motion for summary judgment. On June 30, 2011, the trial
court granted summary judgment in favor of appellee. Appellant appealed the trial court's
grant of summary judgment asserting a genuine issue of material fact existed as to whether
appellee provided the requisite notice of default and acceleration under the terms of the
note and mortgage.
{¶ 4} In Fifth Third Mtge. Co. v. Berman, 10th Dist. No. 11AP-637, 2012-Ohio-
4411, ¶ 18 ("Berman I"), this court found there remained a genuine issue of material fact as
to whether appellee complied with the terms of the note and mortgage before proceeding
with foreclosure. More specifically, we held that the copy of the default notice, mailed by
appellee in August 2009, "supports the proposition that [appellee] mailed it to a post office
box rather than the address of the subject property." Id. at ¶ 19. Accordingly, this court
reversed the trial court's grant of summary judgment in favor of appellee. Following
remand, appellee filed a notice of dismissal on April 19, 2013 pursuant to Civ.R. 41(A).
{¶ 5} On April 8, 2013, appellee sent appellant a notice of default and acceleration.
On April 30, 2013, appellee filed a complaint in foreclosure against appellant in Franklin
C.P. No. 13CV-4804. The complaint sought judgment against appellant on the note in the
amount of $124,175.86, plus interest.
{¶ 6} On September 11, 2014, appellee filed a motion for summary judgment. On
November 20, 2014, appellant filed a memorandum in opposition. On December 25, 2014,
appellant filed a motion to dismiss, pursuant to Civ.R. 9(C), for failure to satisfy a condition
precedent; specifically, appellant asserted appellee failed to provide him with at least 30
days to cure the default before accelerating the sums secured by the note and seeking
foreclosure by judicial proceedings.
No. 17AP-563 3
{¶ 7} On March 11, 2015, the trial court issued a decision and entry denying
appellee's motion for summary judgment, and also denying appellant's motion to dismiss.
Further, the trial court granted summary judgment sua sponte in favor of appellant based
on the fact appellee filed its complaint for foreclosure eight days prior to the expiration of
the 30-day window provided to appellant to cure the default. The trial court's entry
dismissed the case with prejudice.
{¶ 8} Appellee filed an appeal with this court, asserting the trial court erred in
dismissing the action with prejudice after sua sponte entering summary judgment in favor
of appellant. In Fifth Third Mtge. Co. v. Berman, 10th Dist. No. 15AP-394, 2015-Ohio-
4466 ("Berman II"), this court reversed the judgment of the trial court and remanded the
case for the court to issue a new judgment entry dismissing the action without prejudice.
On October 28, 2015, the trial court filed a judgment entry dismissing case No. 13CV-4804
without prejudice.
{¶ 9} On March 9, 2016, appellee filed the instant foreclosure complaint against
appellant. The complaint alleged appellee was the owner and holder of a promissory note
executed by appellant on August 12, 2004; further, the note was secured by a mortgage on
the real property located at 324 N. Stanwood Road, Bexley, Ohio. It was alleged that the
original promissory note had been lost or destroyed, and that such note was in appellee's
possession when the loss of possession occurred. Appellee alleged appellant was in default
on the promissory note and the mortgage securing the note, and that the sum of
$124,175.86 was due from May 1, 2009.
{¶ 10} On May 23, 2016, appellant filed a motion to dismiss, pursuant to Civ.R.
12(B)(6), asserting the applicable statute of limitations had expired and appellee was
unable to avail itself of Ohio's savings statute. On June 20, 2016, appellee filed a
memorandum contra appellant's motion to dismiss. By decision and entry filed
September 20, 2016, the trial court denied appellant's motion to dismiss. The parties
subsequently filed cross-motions for summary judgment. By decision and entry filed
January 19, 2017, the trial court denied the cross-motions for summary judgment. On
February 2, 2017, appellant filed a motion to dismiss pursuant to Civ.R. 12(B)(6). By
decision and entry filed February 6, 2017, the trial court denied appellant's motion to
dismiss.
No. 17AP-563 4
{¶ 11} On June 26, 2017, the trial court conducted a bench trial. By decision and
entry filed July 10, 2017, the trial court entered judgment in favor of appellee on its claim
for judgment on the note in the amount of $124,275.86, and found appellee was entitled to
foreclosure on the property.
{¶ 12} On appeal, appellant, pro se, sets forth the following two assignments of error
for this court's review:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY GRANTING JUDGMENT TO PLAINTIFF-APPELLEE ON
THE SUBJECT NOTE AND MORTGAGE.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY GRANTING TO PLAINTIFF-APPELLEE A DECREE IN
FORECLOSURE ON THE SUBJECT PROPERTY.
{¶ 13} Appellant's assignments of error are interrelated and will be considered
together. Appellant argues, generally, under these assignments of error, the trial court
erred in granting judgment in favor of appellee on the note and mortgage and in granting
appellee a decree in foreclosure.1 The primary issues raised by appellant are whether the
trial court erred in holding that appellee's lawsuit was filed within the applicable statute of
limitations period, and whether the court erred in its interpretation of Ohio's savings
statute.
{¶ 14} In general, in reviewing a civil appeal from a bench trial, this court applies a
"manifest weight standard of review." Benton Village Condominium Owners Assn. v.
Bridge, 8th Dist. No. 106892, 2018-Ohio-4896, ¶ 13. A reviewing court "will not reverse
the judgment as being against the manifest weight of the evidence if some competent,
credible evidence supports all the essential elements of the case." Huntington Natl. Bank
v. Miller, 10th Dist. No. 14AP-586, 2016-Ohio-5860, ¶ 13, citing C.E. Morris v. Foley
Constr. Co., 54 Ohio St. 2d 279, 280 (1978). Further, "[i]n determining whether a civil
judgment is against the manifest weight of the evidence, an appellate court is guided by a
1 On page three of his pro se brief, appellant's statement of the assignments of error sets forth two assignments
of error. On page four of the brief, in his statement of the issues presented for review, appellant sets forth five
issues; however, in the body of the brief, appellant references the same statement of the issues presented for
review as five separate assignments of error. While this court will address each of the five issues presented for
review, we will consider those issues in the context of arising under either the first or second assignments of
error as set forth in his statement of the assignments of error.
No. 17AP-563 5
presumption that the findings of the trial court are correct." Id., citing Seasons Coal Co.,
Inc. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984).
{¶ 15} As indicated under the facts, the trial court conducted a bench trial in this
matter on June 26, 2017. We note, however, appellant has not provided this court with a
complete trial transcript of those proceedings. Specifically, the record on appeal with
respect to the court's proceedings of June 26, 2017 consists of limited excerpts pertaining
solely to "pretrial matters" and "Mr. Berman's closing argument."
{¶ 16} Under Ohio law, "[t]he appellant bears the burden of demonstrating error by
reference to the record of proceedings below, and it is the appellant's duty to provide the
reviewing court with an adequate transcript." Ciura v. Carletti, 7th Dist. No. 02-CA-212,
2003-Ohio-4460, ¶ 6, citing Burrell v. Kassicieh, 128 Ohio App. 3d 226, 232 (3d Dist.1998),
citing Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199 (1980). Absent a trial
transcript, "this court must presume regularity in the proceedings of any finding of fact
made by the trial court." Calabrese v. Zmijewski, 8th Dist. No. 86185, 2006-Ohio-2322,
¶ 10, citing Knapp. See also James v. Apel, 11th Dist. No. 98-T-0089 (June 30, 1999) (In
the absence of a trial transcript, a reviewing court "must presume the regularity of the
proceedings and that the trial court correctly interpreted the facts."). Where a transcript or
a substitute statement of the evidence has not been made available, "an appellate court will
presume that the judgment of the trial court was valid." New Waterford Bank v. Austin
Agency, 11th Dist. No. 94-T-5174 (Mar. 22, 1996), citing Knapp at 199. A reviewing court,
however, "can * * * analyze the legal conclusions reached by the trial court based on its
factual findings." Id.
{¶ 17} We initially consider appellant's contention that the trial court erred in its
interpretation and application of the applicable statute of limitations. Because we lack a
full transcript of the bench trial, we note the following summary of the trial evidence as set
forth in the trial court's decision and entry of July 10, 2017. At trial, appellee called one
witness, Michelle Fancher, appellee's "default and special servicing supervisor," while
appellant testified on his own behalf. (July 10, 2017 Decision & Entry at 3.)
{¶ 18} Fancher testified that appellee "is the holder of the Note" on the subject
property. (July 10, 2017 Decision & Entry at 3.) During the bench trial, appellee "presented
a copy of the Note, admitted as Plaintiff's Exhibit 2." (July 10, 2017 Decision & Entry at 3.)
No. 17AP-563 6
Appellee "does not possess the original note, which * * * Fancher states was lost sometime
during the Second Lawsuit." (July 10, 2017 Decision & Entry at 3.) The certified copy of
the note "contains a copy of a signature from Jeffrey Berman dated August 12, 2004 with a
promise to pay Fifth Third the sum of $132,500 in monthly installments." (July 10, 2017
Decision & Entry at 3.) According to the testimony of Fancher, appellee is the holder of the
note as well as the servicer of the note. The trial court found that the copy of the note
"presented to the Court is a true and accurate copy of the original Note as it was scanned."
(July 10, 2017 Decision & Entry at 4.)
{¶ 19} Appellee also presented at trial a "certified copy of the Mortgage as Plaintiff's
Exhibit 4, which was signed by Mr. Berman in favor of Fifth Third on August 12, 2004."
(July 10, 2017 Decision & Entry at 5.) The mortgage "was filed for record with the Franklin
County Recorder's Office and contains no assignments or transfers." (July 10, 2017
Decision & Entry at 5.)
{¶ 20} The trial court observed that "Plaintiff's Exhibit 5 contains the payment
history report for the Note at issue from the time of its origination to just before the trial
date," and the report "details the debits and credits as part of the servicing of the loan."
(July 10, 2017 Decision & Entry at 5.) According to that report, appellant "made his last
payment on the Note on May 15, 2009. Since that time, and with interest accruing since
the last payment, the current balance on the Note is $124,275.86." (July 10, 2017 Decision
& Entry at 5.)
{¶ 21} On July 31, 2009, appellee "sent a Notice of Default * * * to Mr. Berman at
'324 N Stanwood Rd., PO Box 9866, Columbus, OH 43209-1109.' (Plaintiff's Ex. 8)."
(July 10, 2017 Decision & Entry at 5.) The notice of default "gave Mr. Berman '30 days' to
cure the default from the date of the letter. Failure to cure the default would, according to
the First Notice, 'result in acceleration of your loan and the foreclosure of the property.' "
(July 10, 2017 Decision & Entry at 5.)
{¶ 22} The trial court noted that the dispositive issue in the first lawsuit was whether
the first notice of default sent by appellee on July 31, 2009 "was sufficient to establish a
proper notice of default under the terms of the Note and Mortgage." (July 10, 2017 Decision
& Entry at 5.) The trial court's decision recited several provisions of the note regarding
default and the manner in which notice was to be provided. Section 7 of the note at issue
No. 17AP-563 7
provides in part: "Unless applicable law requires a different method, any notice that must
be given to me under this Note will be given by delivering it or by mailing it by first class
mail to me at the Property Address above or at a different address if I give the Note Holder
a notice of my different address."
{¶ 23} At trial, appellant "testified he never reported a change of address to
[appellee] prior to the First Notice," and also "admitted he argued in the First Lawsuit that
the First Notice was an insufficient attempt to notify him of a default on his payments."
(July 10, 2017 Decision & Entry at 7.) Further, appellee "conceded at trial that [appellant]
did not report a change of address from the Property address to the post office box listed
on the First Notice." (July 10, 2017 Decision & Entry at 7.)
{¶ 24} On April 8, 2013, appellee sent appellant a second notice of default letter.
This letter, which was "identical in its substance as the First Notice, was sent to [appellant]
at the Property address." (July 10, 2017 Decision & Entry at 7.)
{¶ 25} The trial court found, based on the evidence presented, that appellee "has
established that [appellant] is in default of his obligation under the Note," and that
appellant "admitted that he has not cured the default." (July 10, 2017 Decision & Entry at
7.) The court further found there was "no dispute that [appellee] met its conditions
precedent, which includes sending a proper notice of default to [appellant] in April 2013 to
accelerate the balance of the Note." (July 10, 2017 Decision & Entry at 7.)
{¶ 26} The trial court then addressed appellant's claim that the instant complaint on
the note and mortgage was filed outside the statute of limitations period under R.C.
1303.16(A). In addressing this issue, the trial court initially considered evidence as to
whether appellee properly accelerated the loan in 2009 when it mailed its first notice of
default to a post office box address. The trial court noted there was "no doubt" appellee
"attempted to accelerate the loan in 2009" when it mailed its first notice. (July 10, 2017
Decision & Entry at 11.) The court found, however, "by sending the notice to a post office
box rather than to Mr. Berman's Property address," appellee's first attempted notice "was
not sent in accordance with the terms of the Note and the Mortgage," and therefore the
balance of the note "could not have become immediately due and payable in 2009."
(July 10, 2017 Decision & Entry at 11.) The trial court noted that appellant, in fact, asserted
such a defense in the first lawsuit and succeeded on appeal in arguing there remained an
No. 17AP-563 8
issue of fact regarding whether appellee had provided him proper notice of default and
intent to accelerate. Upon consideration of the testimony and evidence, the trial court
concluded, "as a matter of fact and law," the note "was not accelerated in 2009." (July 10,
2017 Decision & Entry at 11.)
{¶ 27} The trial court next addressed whether appellee accelerated the loan in 2013.
Specifically, the court addressed appellee's contention it properly accelerated the note in
2013 by sending its second notice of default to the property address, and that the statute of
limitations period began to run 30 days after notice of default was mailed on April 8, 2013.
Based on the evidence presented, the trial court found appellee "properly accelerated the
loan in 2013" when the second notice of default, mailed on April 8, 2013, was sent to
appellant at the property address, and that appellant "failed to cure the default within thirty
(30) days as required by the notice." (July 10, 2017 Decision & Entry at 11.) The court
therefore determined that the instant lawsuit filed in 2016, was "well within the applicable
limitations period." (July 10, 2017 Decision & Entry at 11.)
{¶ 28} On appeal, the parties do not dispute the applicable statute of limitations in
this case is the six-year statute of limitations period set forth under R.C. 1303.16.
Specifically, R.C. 1303.16(A) states in part: "[A]n action to enforce the obligation of a party
to pay a note payable at a definite time shall be brought within six years after the due date
or dates stated in the note or, if a due date is accelerated, within six years after the
accelerated due date."
{¶ 29} Appellant's contention the trial court erred in finding appellee's action timely
under the statute of limitations is premised on his argument that the limitations period
began running in 2009, at the time appellee purported to send its first notice of default.
Specifically, appellant argues in his pro se brief that "the date to start the applicable statute
of limitations would be 30 days after the date of this notice, which would have been
August 30, 2009." (Appellant's Brief at 34.)
{¶ 30} Section 6(C) of the note pertains to notice of default, and states in part as
follows: "If I am in default, the Note Holder may send me a written notice telling me that
if I do not pay the overdue amount by a certain date, the Note Holder may require me to
pay immediately the full amount of Principal which has not been paid * * *. That date must
No. 17AP-563 9
be at least 30 days after the date on which the notice is mailed to me or delivered by other
means."
{¶ 31} Section 7 of the note provides for the manner of giving notices under the
contract, and states as follows:
* * * Unless applicable law requires a different method, any
notice that must be given to me under this Note will be given
by delivering it or by mailing it by first class mail to me at the
Property Address above or at a different address if I give the
Note Holder a notice of my different address. Any notice that
must be given to the Note Holder under this Note will be given
by delivering it or by mailing it by first class mail to the Note
Holder at the address stated in Section 3(A) above or at a
different address if I am given a notice of that different address.
{¶ 32} Section 15 of the mortgage contains a similar notice provision, and states in
part:
All notices given by Borrower or Lender in connection with this
Security Instrument must be in writing. Any notice to Borrower
in connection with this Security Instrument shall be deemed to
have been given to Borrower when mailed by first class mail or
when actually delivered to Borrower's notice address if sent by
other means. * * * The notice address shall be the Property
Address unless Borrower has designated a substitute notice
address by notice to Lender. Borrower shall promptly notify
Lender of Borrower's change of address. If Lender specifies a
procedure for reporting Borrower's change of address, then
Borrower shall only report a change of address through that
specified procedure. There may be only one designated notice
address under this Security Instrument at any one time.
{¶ 33} Section 22 of the mortgage addresses acceleration, and states in part as
follows:
Acceleration; Remedies. Lender shall give notice to Borrower
prior to acceleration following Borrower's breach of any
covenant or agreement in this Security Instrument * * *. The
notice shall specify: (a) the default; (b) the action required to
cure the default; (c) a date, not less than 30 days from the date
the notice is given to Borrower, by which the default must be
cured; and (d) that failure to cure the default on or before the
date specified in the notice may result in acceleration of the
sums secured by this Security Instrument, foreclosure by
judicial proceeding and sale of the Property. * * * If the default
is not cured on or before the date specified in the notice, Lender
No. 17AP-563 10
at its option may require immediate payment in full of all sums
secured by this Security Instrument without further demand
and may foreclose this Security Instrument by judicial
proceeding.
{¶ 34} To the extent appellant challenges the trial court's determination that the
note was not accelerated in 2009, we again observe he has not provided this court with a
complete transcript of the bench trial proceedings. As indicated above, the trial court
found, based on the evidence presented at trial, the 2009 notice of default was not valid as
appellee mailed the notice to a post office box rather than to the property address as
required under the agreement. In support of that determination, the trial court cited
testimony by appellant that he "never reported a change of address" to appellee prior to the
first notice. (July 10, 2017 Decision & Entry at 7.) The trial court also noted appellee
"conceded at trial that [appellant] did not report a change of address from the Property
address to the post office box listed on the First Notice." (July 10, 2017 Decision & Entry at
7.)
{¶ 35} In light of the record on appeal, we accept the findings of the trial court that
appellee's attempt to accelerate the debt in 2009 was ineffective for failure to satisfy a
condition precedent, i.e., failure to provide proper notice under the agreement requiring
the lender to send notice to the property address. See, e.g., Natl. City Mtge. Co. v. Richards,
182 Ohio App. 3d 534, 2009-Ohio-2556, ¶ 21 (10th Dist.), quoting First Fin. Bank v.
Doellman, 12th Dist. No. CA2006-02-029, 2007-Ohio-222, ¶ 20 (" 'Where prior notice of
default and/or acceleration is required by a provision in a note or mortgage instrument, the
provision of notice is a condition precedent.' "); United States Bank Natl. Assn. v. Weber,
10th Dist. No. 12AP-107, 2012-Ohio-6024, ¶ 12 (holding "proper notice of default is a
condition precedent to the lender's right to accelerate and foreclose").
{¶ 36} We also accept the trial court's findings that the second notice of default,
mailed by appellee on April 8, 2013, was properly sent to appellant at his address, and
appellant failed to cure the default within 30 days as required by the notice. Thus, the
record supports a determination appellee complied with conditions precedent to
acceleration of the loan and foreclosure following the second notice of default. As noted
above, having found appellee properly accelerated the loan in 2013 when the second notice
of default was sent to the property address, and appellant failed to cure the default, the trial
No. 17AP-563 11
court concluded appellee's 2016 foreclosure action was filed "well within" the applicable
six-year statute of limitations under R.C. 1303.16(A). (July 10, 2017 Decision & Entry at
11.) Based on the limited record before this court on appeal, and accepting the factual
findings of the trial court, we find no error with the trial court's interpretation of the
relevant provisions of the note and mortgage, as well as its determination that the present
action was timely filed within the applicable statute of limitations period.
{¶ 37} Appellant also contends the trial court erred in its interpretation of Ohio's
savings statute, R.C. 2305.19.2 More specifically, appellant maintains the court erred in
failing to apply the savings statute as a bar to appellee's action, asserting that the savings
statute "does not necessarily hinge on the expiration of the applicable statute of
limitations." (Appellant's Brief at 16.) According to appellant, after appellee's first
complaint for judgment on the note and mortgage was voluntarily dismissed, appellee
invoked its "one and only opportunity" to refile when it filed its second complaint, and
therefore any further refiling was barred by the savings statute. (Appellant's Brief at 19.)
{¶ 38} We disagree, and find unpersuasive appellant's interpretation as to the
applicability of the savings statute to the facts herein. Appellant's argument appears to be
premised on the existence of a valid cause of action for judgment on the note and mortgage
at the time of the initial lawsuit (i.e., a cause of action arising out of the first notice of default
mailed by appellee to a post office box address in 2009). However, based on the findings
of the trial court addressed above, the note was not accelerated in 2009 because proper
notice of default and acceleration, a condition precedent to foreclosure, did not occur at
that time. Rather, the earliest date a cause of action for foreclosure based on acceleration
of the loan could have occurred was 30 days after the second notice of default was sent on
April 8, 2013. See Natl. City Bank v. Abdalla, 131 Ohio App. 3d 204, 211 (7th Dist.1999)
("Where the mortgage requires a specified period of time to elapse before instituting an
action for foreclosure, no right of action would accrue until expiration of the stipulated
time."). As also determined by the trial court, the statute of limitations did not begin to run
2 R.C. 2305.19(A) states in part: "In any action that is commenced or attempted to be commenced, if in due
time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff
* * * may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's
failure otherwise than upon the merits or within the period of the original applicable statute of limitations,
whichever occurs later."
No. 17AP-563 12
prior to that accelerated due date. Thus, because no cause of action accrued, nor did the
statute of limitations begin to run, until proper notice of default and acceleration of the note
(and, under the facts of this case, appellee filed and dismissed the first complaint before a
cause of action existed), the savings statute had no application at the time appellee filed its
second complaint seeking judgment on the note and mortgage, i.e., there was nothing to
save at that time. Accordingly, the trial court did not err in failing to apply the savings
statute as a bar to the instant action.3
{¶ 39} Appellant further argues the trial court changed its position as to appellee's
judicial estoppel and collateral estoppel arguments. Specifically, appellant argues the trial
court, in its decision and entry of January 19, 2017 (denying the parties' cross-motions for
summary judgment), rejected appellee's argument that the doctrines of judicial estoppel
and collateral estoppel were applicable to appellant's claim that acceleration of the note
occurred in 2009. According to appellant, the trial court changed its position during the
June 2017 trial, allowing appellee to argue that collateral estoppel and/or judicial estoppel
applied.
{¶ 40} Appellant's argument that the trial court reversed its position is not
supported by the record or the trial court's decision and entry of July 10, 2017. With respect
to the bench trial proceedings, appellant has provided a portion of the transcript in which
he argued, during closing argument, that the trial court "had previously ruled, I believe,
that * * * their claim of collateral estoppel was not applicable." (June 26, 2017 Tr. at 30.)
In response, the trial court stated in part: "[I]f that's the case, * * * obviously I'm not going
to reverse myself. I don't intend to." (June 26, 2017 Tr. at 31.) Apart from that exchange,
appellant has not provided this court with any portion of the trial transcript indicating
appellee raised the issue of estoppel during the bench trial.
{¶ 41} More significantly, the trial court's decision and entry finding in favor of
appellee does not reference the doctrines of collateral estoppel and/or judicial estoppel. As
discussed above, the trial court, upon consideration of the evidence presented during the
bench trial, determined as a matter of law that the note was not accelerated until 2013.
Thus, the record fails to support any contention the trial court somehow reversed its
3In light of our disposition of appellant's argument as to the applicability of the savings statute, we also find
no merit to appellant's contention that the trial court erred in refusing to allow him to "fully present" his
argument regarding the savings statue during the bench trial. (Appellant's Brief at 11.)
No. 17AP-563 13
position as to the effect of collateral estoppel or judicial estoppel in deciding the merits of
the case.
{¶ 42} Appellant also argues the trial court erred by demonstrating "judicial bias" in
favor of appellee. (Appellant's Brief at 52.) More specifically, appellant argues that bias
was demonstrated based on (1) the trial court's failure to properly analyze the savings
statute, (2) the court's contradictory rulings with respect to collateral and/or judicial
estoppel, and (3) the court's ruling as to the issue of when acceleration occurred. Appellant
also cites a comment by the trial court during appellant's closing argument, in which the
court stated: "[M]y concern is that you're * * * trying to get a house for free. And you don't
get a house for free." (June 26, 2017 Tr. at 25-26.)
{¶ 43} In general, under Ohio law, "an appellate court lacks jurisdiction to disqualify
a judge * * * or to vacate a judgment on the basis of judicial bias." Baker v. Progressive
Ins., 6th Dist. No. L-15-1094, 2016-Ohio-1110, ¶ 15, citing Beer v. Griffith, 54 Ohio St. 2d
440, 441-42 (1978). Ohio courts have recognized (primarily in the context of criminal
proceedings) that a reviewing court does "have jurisdiction to review a claim of judicial bias
that is alleged to result in a violation of a defendant's due process rights." State v.
Loudermilk, 1st Dist. No. C-160487, 2017-Ohio-7378, ¶ 20. It has been noted that
"[j]udicial bias is demonstrated by 'a hostile feeling or spirit of ill will or undue friendship
or favoritism toward one of the litigants or his attorney, with the formation of a fixed
anticipatory judgment on the part of the judge, as contradistinguished from an open state
of mind which will be governed by the law and the facts.' " Id. at ¶ 21, quoting State ex rel.
Pratt v. Weygandt, 164 Ohio St. 463, 469 (1956).
{¶ 44} As indicated, appellant points to several determinations by the trial court as
evidence of bias. To the extent appellant disagrees with the trial court's rulings as to the
merits of the case, including the court's findings as to the issues of acceleration of the note
and applicability of the savings statute, such disagreement does not demonstrate judicial
bias. Cooke v. United Dairy Farmers, Inc., 10th Dist. No. 05AP-1307, 2006-Ohio-4365,
¶ 46 ("A judge's rulings of law are legal issues, subject to appeal, and are not by themselves
evidence of bias or prejudice."). As to the trial court's comment during appellant's closing
argument, the record indicates the court's reference to a "free" house was made in response
to arguments by appellant regarding chain of custody of the note. Viewed in context, we do
No. 17AP-563 14
not construe the trial court's isolated statement as evidence of judicial bias, nor do any other
portions of the limited record on appeal demonstrate bias.
{¶ 45} Based on the foregoing, we find the trial court did not err in granting
judgment in favor of appellee on the note and mortgage nor in granting appellee a decree
in foreclosure on the subject property. Accordingly, appellant's two assignments of error
are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
Judgment affirmed.
SADLER and BRUNNER, JJ., concur.
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