Deutsche Bank Natl. Trust Co. v. Sopp

[Cite as Deutsche Bank Natl. Trust Co. v. Sopp, 2016-Ohio-1402.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Deutsche Bank National Trust Company, :
as Trustee for J.P. Morgan Mortgage
Acquisition Trust 2007-CH3, Asset :
Backed Pass-Through Certificates, Series
2007-CH3, : No. 14AP-343
(C.P.C. No. 12CV-5411)
Plaintiff-Appellee, :
(REGULAR CALENDAR)
v. :
Michael Sopp, :
Defendant-Appellant, :
Jane Doe, name unknown spouse of :
Michael Sopp et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on March 31, 2016
On brief: The Law Offices of John D. Clunk, Co., L.P.A.,
Laura C. Infante, and Jason A. Whitacre, for appellee.
Argued: Laura C. Infante.
On brief: Michael Sopp, pro se. Argued: Michael Sopp.
APPEAL from the Franklin County Court of Common Pleas
PER CURIAM.
{¶ 1} Michael Sopp, defendant-appellant, appeals the judgment of the Franklin
County Court of Common Pleas in which the court granted a judgment in foreclosure
against appellant to Deutsche Bank National Trust Company, as Trustee for J.P. Morgan
No. 14AP-343 2
Mortgage Acquisition Trust 2007-CH3, Asset Backed Pass-Through Certificates, Series
2007-CH3 ("Deutsche"), plaintiff-appellee.
{¶ 2} On September 8, 2006, appellant signed a mortgage and note in favor of
ChaseBank, USA, N.A. ("Chase") in the principal amount of $85,000. The note was
transferred via an allonge from Chase to Chase Home Finance, LLC ("Chase Home") in
February 2007. The note contained another February 2007 allonge with an endorsement
in blank from Chase Home. Appellant stopped paying on the loan in March 2011. On
March 8, 2012, Chase assigned the mortgage to Deutsche.
{¶ 3} On April 27, 2012, Deutsche filed a complaint in foreclosure. Appellant
responded by filing an avalanche of pleadings that were largely confusing and legally
irrelevant.
{¶ 4} On March 17, 2014, the trial court heard the matter. On March 25, 2014, the
trial court issued a judgment in which it found in favor of Deutsche and ordered appellant
to pay the sums due within three days of the date of entry or the property would be
foreclosed. Appellant, pro se, appeals the judgment of the trial court, asserting the
following assignments of error:
[I.] Absolute Defense i, "Tendered Payment" of the
"Promissory Note" "in Full."
[II.] Affirmative Defense Breach of Contract by Other Party.
[III.] Affirmative Defense Illegality of Mortgage Contract.
[IV.] Absolute Defense Plaintiff is a Third Party Debt Collector
and are Excluded by Law from Foreclosing.
[V.] Absolute Defense Plaintiff Failed to File a Lis Pendens
before commencing the Foreclosure action.
[VI.] Absolute Defense The Note is a Security Not a
Promissory Note so Plaintiff is Excluded by Law from
Foreclosing.
[VII.] Affirmative Defense Plaintiff did not File a Preliminary
Change in Title and Ownership And the Transferee Buyer Did
not Pay the Capital Transfer Tax.
No. 14AP-343 3
[VIII.] Absolute Defense Plaintiff has Committed Fraud by
Loaning Credit so Plaintiff is Excluded by Law from
Foreclosing.
[IX.] Absolute Defense Plaintiff is Not a Bank.
[X.] The Lead Counsel did not give a notice of Appearance
with the proper Certificate of service as is required under Rule
19.
[XI.] An "authorized" "representative" of plaintiff "received"
"Tender of Payment" and "refused" it. The "Debt" is now
"Discharged" under UCC § 3-603. TENDER OF PAYMENT.
[XII.] Plaintiff is in Direct Violation of Federal Law 15 USC §
1692g(b), and State Law § 1319.12(G)[.]
[XIII.] Plaintiff's Exhibit A Adjustable Rate Note[.]
[XIV.] Chase Bank USA N.A. Deposited and Cashed the
Promissory Note.
[XV.] Plaintiff[']s Exhibit B.
[XVI.] The Statute of Frauds[.]
[XVII.] Plaintiff[']s Exhibit C.
[XVIII.] Plaintiff[']s Exhibit D.
[XIX.] Plaintiff[']s Exhibit E.
[XX.] Defendant[']s "Claim in Recoupment" was "dismissed"
and not allowed the "opportunity to amend" before being
"dismissed" by Daniel Hogan.
[XXI.] Plaintiff does not have a "Vested Claim[.]"
{¶ 5} In his first assignment of error, appellant argues that the terms of the note
were met with full accord and satisfaction when he paid off the note to Chase Home on
March 14, 2012. Although appellant does not explain his argument any further or make
any citations to the trial transcript in his appellate brief, apparently he is referring to a
series of documents he submitted as exhibits at trial. The alleged tender of payment is
comprised of two customer receipts for United States Postal Service international postal
No. 14AP-343 4
money orders for $270,959.13; a Uniform Commercial Code Financing Statement and
Addendum with JP Morgan Chase Bank NA as debtor, The Michael David Sopp Estate as
the secured party, and Humanitarian World Legacy Trust, as an additional secured party;
and a general warranty deed with appellant as grantor and Humanitarian World Legacy
Trust as grantee. Much of appellant's testimony and evidence at trial related to this
alleged tender of payment. He explained the tender at trial, as such:
So I issued a negotiable instrument to Chase Home Finance,
LLC on March 14, 2012. And I issued same instrument to the
Treasury Department and they are both payable to the United
States without recourse. This is a negotiable instrument under
both UCC and Ohio Revised Code.
***
So essentially what we have here is a lawful instrument that
was tendered to Chase Home Finance, LLC, and they
dishonored it, and I show that here under the Ohio Revised
Code. And I would like this case dismissed with prejudice, I
guess.
{¶ 6} However, we find appellant failed to demonstrate at trial or before this court
that the "negotiable instrument" or "international postal money order" of March 14, 2012
constituted payment in full of the outstanding balances due on the note under the terms
of the note. Appellant's arguments before the trial court at the hearing were rambling and
convoluted, and appellant has failed to further enlighten this court as to why his alleged
tender of payment constituted an actual payment of money. Appellant has presented no
argument under his first assignment of error. The burden of affirmatively demonstrating
error on appeal rests with the party asserting error. App.R. 9 and 16(A)(7). "It is the duty
of the appellant, not the appellate court, to construct the legal arguments necessary to
support the appellant's assignments of error." Bond v. Village of Canal Winchester, 10th
Dist. No. 07AP-556, 2008-Ohio-945, ¶ 16, citing Whitehall v. Ruckman, 10th Dist. No.
07AP-445, 2007-Ohio-6780, ¶ 20. " 'It is not the duty of [an appellate] court to search the
record for evidence to support an appellant's argument as to alleged error.' " Ruckman at
¶ 20, quoting State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 94 (10th
Dist.). " ' "If an argument exists that can support [an] assignment of error, it is not [an
appellate] court's duty to root it out." ' " Id., quoting Petro at ¶ 94, quoting Cardone v.
No. 14AP-343 5
Cardone, 9th Dist. No. 18349 (May 6, 1998). Therefore, we overrule appellant's first
assignment of error.
{¶ 7} We address appellant's second, third, fourth, fifth, seventh, eighth, and
ninth assignments of error together, as they are all disposed of based on the same ground.
Appellant argues in his second assignment of error that the terms of the mortgage were
breached by Deutsche because it did not comply with the notice requirements of the
mortgage contract when Chase assigned Deutsche the mortgage in 2012. Appellant raised
this same issue in his January 24, 2014 motion to dismiss. Appellant argues in his third
assignment of error that Section 20 of the mortgage contract is in clear violation of the
Truth in Lending Act, Section 404, which concerns the notification of sale or transfer of
mortgage loans. Appellant raised this same issue in his January 24, 2014 motion to
dismiss. Appellant argues in his fourth assignment of error that Deutsche is considered a
third-party debt collector under R.C. 1319.12 and 15 U.S.C. 1692(a), Fair Debt Collection
Practices Act ("FDCPA"), and is excluded by law from foreclosing. Appellant raised this
same issue in his February 10, 2014 motion to dismiss. Appellant argues in his fifth
assignment of error that Deutsche failed to file a "lis pendens" and is excluded by law
from foreclosing. Appellant raised this same issue in his February 10, 2014 motion to
dismiss. Appellant argues in his seventh assignment of error that the note was
unenforceable because a capital transfer tax was not paid. Appellant raised this same
issue in his February 11, 2014 motion to dismiss. Appellant argues in his eighth
assignment of error that Deutsche committed fraud by loaning credit to appellant.
Appellant raised this same issue in his February 11, 2014 motion to dismiss. Appellant
argues in his ninth assignment of error that Deutsche is a trust and not a bank, yet it used
the word "bank" in its name. Appellant raised this same issue in his February 11, 2014
motion to dismiss.
{¶ 8} In a February 12, 2014 decision and entry, the trial court denied all of the
above motions to dismiss, finding that they were filed after the dispositive motions
deadline without obtaining leave from the court. The trial court noted that a review of the
motions showed that they would have probably been denied anyway, and to the extent
that they were based on evidence outside of the complaint, they could not have been
granted even if they were timely filed. Appellant followed up the trial court's denial of
No. 14AP-343 6
these motions with a flurry of motions for judicial notice, reasserting each of the grounds
raised in the aforementioned motions to dismiss. The trial court denied these "motions"
in a March 12, 2014 entry finding that they were actually seeking dismissal of the action
and, thus, were also filed after the dispositive motions deadline. Appellant fails to contest
the trial court's bases for denying his motions, and appellant failed to raise these issues at
trial. The failure to raise an issue at trial acts as a waiver of the issue on appeal except for
plain error. Cleveland v. Ellsworth, 8th Dist. No. 83040, 2004-Ohio-4092. Appellant fails
to argue or demonstrate any plain error, and we find no plain error here. Therefore, we
overrule appellant's second, third, fourth, fifth, seventh, eighth, and ninth assignments of
error.
{¶ 9} Appellant argues in his sixth assignment of error that the note was a
security and not a promissory note, so Deutsche was excluded by law from foreclosing.
Appellant did make a brief statement at trial that resembled this assertion; however,
appellant failed to elicit any testimony or present any evidence to support his contention.
Although appellant does submit an elaborately weaved argument of federal codes,
regulations, and acts in his appellate brief to support his view, he failed to present any of
this evidence or argument at trial. Given his failure to properly support this argument
with evidence at trial, we cannot find the trial court erred. We also note that appellant
raised this same issue in a February 12, 2012 motion to dismiss. Although we cannot
locate an entry from the trial court specifically disposing of appellant's motion, the trial
court had already denied his numerous other motions to dismiss that he filed around the
same time for having been filed after the deadline for filing dispositive motions, so his
February 12, 2014 motion would have been denied on the same grounds. Furthermore,
appellant raised this same argument in a February 24, 2014 "motion" for judicial notice,
which the trial court denied in a March 12, 2014 entry, finding that the motion was
actually seeking dismissal of the action and, thus, was also filed after the dispositive
motions deadline. Thus, we overrule appellant's sixth assignment of error.
{¶ 10} Appellant argues in his tenth assignment of error that Deutsche's counsel at
trial, Jason Whitacre, filed a notice of appearance on February 6, 2014, but did not
properly serve appellant pursuant to a Civ.R. 19 certificate of service; thus, anything
Whitacre said at trial should be stricken. Appellant failed to raise this issue at trial.
No. 14AP-343 7
Notwithstanding, the trial court already addressed this issue in its May 29, 2014 entry
denying appellant's April 8, 2014 motion to strike on the same grounds as argued here.
The trial court explained that appellant's motion was based on appellant's
misunderstanding of the docket, and, although the docket indicates an appearance was
filed on February 6, 2014, these appearances were by way of motions filed on those dates
and both included certificates of service. Appellant has not explained how the trial court's
explanation is erroneous; therefore, we overrule appellant's tenth assignment of error.
{¶ 11} Appellant argues in his eleventh assignment of error that he tendered
payment to Deutsche at the March 17, 2014 status conference but it refused payment. The
record does not disclose the method or manner by which appellant allegedly attempted to
tender; thus, we have no basis on which to sustain appellant's assignment of error. Also,
we have already addressed and rejected appellant's argument regarding an attempted
payment under his first assignment of error, and we reiterate that finding, insofar as
appellant's March 17, 2014 tender was similar to his March 14, 2012 tender. Accordingly,
we must overrule appellant's eleventh assignment of error.
{¶ 12} Appellant argues in his twelfth assignment of error that he sent Chase a
qualified written request to validate the alleged debt pursuant to FDCPA, but Chase did
not respond, so Chase was required to cease collecting the debt in question. Appellant
points out that he sent a similar request to Deutsche after the loan servicer changed, and
Deutsche did respond but did not validate the debt. Deutsche filed an October 25, 2013
motion to strike appellant's earlier notice filing related to FDCPA, arguing that appellant's
filing of the notice with the court is not the proper manner in which to dispute a debt
under FDCPA, appellant's letter was two years past the time permitted for disputing a
debt under FDCPA, and, regardless, Deutsche responded to the letter. The trial court
denied Deutsche's motion to strike on November 26, 2013 finding that, because appellant
never filed a legally proper motion that requested the court to take some action based on
appellant's filing of the request, the court did not need to determine the effect or validity
of the notice. Appellant appears to have attempted to file such a motion by filing a
December 17, 2013 motion for judicial notice. The trial court denied that motion on
January 1, 2014, finding that none of the issues appellant raised in his motion for judicial
notice are proper objects of judicial notice, and asking a court to take judicial notice is not
No. 14AP-343 8
the proper method for asking the court to render judgment. Appellant does not contest
the trial court's grounds for denying his motion, and we find no error. Therefore, we
overrule appellant's twelfth assignment of error.
{¶ 13} Appellant argues in his thirteenth assignment of error that the trial court
erred when it admitted appellee's exhibit A, a copy of the original promissory note, at trial.
Appellant claims that it was not his signature on the note. At trial, while appellant was
conducting cross-examination of appellee's witness, the trial court asked appellant if he
denied that the signatures on the note and mortgage were his and he stated that he did
not believe they were his signatures. Appellant also contends in his assignment of error
that the trial court should not have admitted the note without any proof of the signature
of the subscribing witness.
{¶ 14} Even assuming, arguendo, that appellant's mention of the signature issue
during a discussion with the trial court on an objection by opposing counsel in the midst
of appellant's cross-examination of a witness preserves an issue for purposes of appeal,
appellant failed to put forth any further argument or evidence during the course of the
trial to dispute his signature. R.C. 1303.36 governs "proof of signatures and status as
holder in due course," and provides as follows:
(A) Unless specifically denied in the pleadings, in an action
with respect to an instrument, the authenticity of, and
authority to make, each signature on an instrument is
admitted. If the validity of a signature is denied in the
pleadings, the burden of establishing validity is on the party
claiming validity but the signature is presumed to be
authentic and authorized * * *.
{¶ 15} In Bates & Springer, Inc. v. Stallworth, 56 Ohio App.2d 223 (8th
Dist.1978), paragraph five of the syllabus, the court held:
R.C. 1303.36(A) provides that when the effectiveness of a
signature to an instrument becomes an issue in a case the
burden of establishing it is on the party claiming under the
signature. The signature is presumed genuine and authorized,
but this presumption is rebuttable and may be overcome by
evidence to the contrary. If the party denying the signature
introduces sufficient evidence to overcome the rebuttable
presumption, then the case is decided upon all of the evidence
introduced at trial with the party claiming under the signature
having the burden of establishing the effectiveness of the
No. 14AP-343 9
signature by a preponderance of the evidence as in other civil
cases. R.C. 1303.36(A) requires that in order to rebut the
presumption of the authenticity of a signature on an
instrument the party denying the signature must introduce
evidence to support his denial which if believed would be
sufficient to permit, yet not require, the trier of fact to make a
finding in his favor.
{¶ 16} In his answer to the complaint and counterclaim, appellant admits several
times having placed his signature on the note, stating, for example, "Defendant has
established that this Note was created on Defendant[']s credit, and signature," and
"Defendant Issued Credit to Chase Home Finance, LLC in the amount of $85,000.00 on
September 8, 2006 as evidence[d] by his signature on said Note." Nowhere in the
complaint or counterclaim does appellant claim the signatures were not his own.
Appellant's failure to specifically deny placing his signature on the note creates a
rebuttable presumption that the signatures on the note are genuine and authorized.
Appellant did not present any evidence at trial to rebut this presumption. We also note
that appellant admitted throughout his pleadings in the trial court that he entered into the
loan. Therefore, we overrule appellant's thirteenth assignment of error.
{¶ 17} In his fourteenth assignment of error, appellant raises other issues related
to appellee's exhibit A. Appellant contends that Deutsche was not a holder in due course
because Chase turned the note into cash pursuant to 12 U.S.C. 1813(L)(1), Uniform
Commercial Code, Section 3-306, and R.C. 1303.36. Appellant further contends that
exhibit A was not the same document recorded with the Franklin County Recorder's
Office or the same document attached to appellee's complaint. However, appellant did not
raise these issues at trial and presented no evidence at trial to support his assertions.
Furthermore, Deutsche presented testimony from David Recksiek, an employee for Select
Portfolio Servicing ("Select"), the current loan servicer, who authenticated a copy of the
original promissory note. For these reasons, we overrule appellant's fourteenth
assignment of error.
{¶ 18} Appellant argues in his fifteenth assignment of error that the copies of the
original mortgage documents submitted as exhibit B at trial were not the same as the
alleged copies of the original mortgage documents attached to appellee's complaint.
Appellant failed to raise this issue at trial or present any evidence to suggest
No. 14AP-343 10
inauthenticity. Recksiek authenticated the copy of the original mortgage admitted as
exhibit B, and appellant did not object to its admittance. Therefore, appellant's fifteenth
assignment of error is overruled.
{¶ 19} We will address appellant's sixteenth and seventeenth assignments of error
together, as they are related. Appellant argues in his sixteenth assignment of error that
Deutsche committed fraud in the pooling and servicing agreement that transferred the
mortgage to Deutsche, and argues in his seventeenth assignment of error that the transfer
of the mortgage was executed in violation of the pooling and servicing agreement.
Appellant attempted to raise compliance with the pooling and servicing agreement at
trial, but the trial court refused to allow appellant to present any argument related to the
issue, finding that because appellant was not a party to the pooling and servicing
agreement, he had no standing to contest that contract. In Logansport Sav. Bank, FSB v.
Shope, 10th Dist. No. 15AP-148, 2016-Ohio-278, ¶ 17-18, this court found that " 'any
violation of the pooling and services agreement is irrelevant in light of [mortgagee's]
standing based on its possession of the promissory note.' " Id. at ¶ 17, quoting Bank of
New York Mellon v. Antes, 11th Dist. No. 2014-T-0028, 2014-Ohio-5474, ¶ 40. Thus,
"[w]hether * * * the parties to the [pooling and servicing agreement] failed to comply with
the terms of [that agreement] is irrelevant to [the bank's] standing as the holder of the
note. By virtue of its possession of the note endorsed in blank, [the bank] was the holder
of the note and entitled to enforce the note under Ohio law." Id., quoting Deutsche Bank
Natl. Trust Co. v. Najar, 8th Dist. No. 98502, 2013-Ohio-1657, ¶ 62, citing R.C.
1301.01(T)(1) and 1303.31(A)(1). Here, " 'because the note was endorsed in blank, the note
was a bearer instrument payable to anyone holding it.' " Shope at ¶ 18, quoting Antes at
¶ 42, citing Bank of New York Mellon v. Froimson, 8th Dist. No. 99443, 2013-Ohio-5574,
¶ 23. Thus, in the present case, insofar as appellant is contending that Deutsche was not a
valid holder of the note based on any non-compliance with or violation of a pooling and
servicing agreement, we agree with the trial court that such argument is without merit.
Appellant's sixteenth and seventeenth assignments of error are overruled.
{¶ 20} Appellant argues in his eighteenth assignment of error that the trial court
erred when it admitted exhibit D, which was the May 16, 2011 notice of default Chase sent
appellant. Appellant claims that exhibit D was not a notice of default. Appellant contends
No. 14AP-343 11
that exhibit D does demonstrate that Deutsche breached section 22 of the mortgage
contract, and Deutsche did not give proper Housing and Urban Development counseling
notifications. However, although appellant did state during his cross-examination of
Deutsche's witness, Recksiek, that he did not believe exhibit D was a notice of default,
appellant did not present any testimony or evidence at trial to support such a contention.
Appellant also did not object to the court's admittance of exhibit D. Furthermore,
Recksiek authenticated the document, after testifying that Select obtained the prior loan
servicing records from Chase and incorporated those records into its own records. For
these reasons, we overrule appellant's eighteenth assignment of error.
{¶ 21} In his nineteenth assignment of error, appellant raises arguments relating
to the matters contained within exhibit E, which is a payment history report detailing his
payment on the loan, his subsequent default, and the amount due and owing on the loan.
Appellant raises several issues with regard to this exhibit; however, he raised none of
these arguments at trial. Again, Recksiek authenticated the exhibit at trial, and the trial
court admitted exhibit E without objection. Appellant did not cross-examine Recksiek on
the contents of exhibit E. Therefore, we find appellant has waived these arguments for
purposes of appeal, and the trial court properly admitted exhibit E. Appellant's nineteenth
assignment of error is overruled.
{¶ 22} Appellant argues in his twentieth assignment of error that the trial court
erred when it dismissed his claim in recoupment without giving him an opportunity to
amend. Appellant's argument under this assignment of error is brief but confusing. We
are not able to decipher his precise argument, and appellant fails to cite the part of the
record that demonstrates the alleged error. We will not search the record looking for
evidence to support appellant's argument. See Ruckman at ¶ 20. Furthermore, appellant
did not raise this issue at trial and, thus, waived it for purposes of appeal. For theses
reasons, we overrule appellant's twentieth assignment of error.
{¶ 23} Although appellant listed a twenty-first assignment of error under his
statement of assignments of error, he did not separately argue that assignment of error in
his brief. App.R. 16(A)(7) requires an appellant to separately argue each assignment of
error. Furthermore, App.R. 12(A)(2) authorizes us to disregard any assignment of error
No. 14AP-343 12
that an appellant fails to separately argue. Therefore, we overrule appellant's twenty-first
assignment of error.
{¶ 24} Accordingly, appellant's twenty-one assignments of error are overruled, and
the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
TYACK, BROWN and KLATT, JJ., concur.
_____________________