Opinion
C.A. No. 28647
06-29-2018
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE FOR AMERICAN HOME MORTGAGE INVESTMENT TRUST 2005-1 Appellee v. ZEKI OMAR, et al. Appellant
APPEARANCES: RANDALL D. WEISSFELD, Attorney at Law, for Appellant. KIMBERLY Y. SMITH RIVERA, Attorney at Law, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO
CASE No. CV-2015-05-2868
DECISION AND JOURNAL ENTRY
CARR, Judge.
{¶1} Defendant-Appellant Zeki Omar appeals from the judgment of the Summit County Court of Common Pleas. This Court reverses and remands this matter for proceedings consistent with this opinion.
I.
{¶2} In 2005, Mr. Omar executed an adjustable rate note in the amount of $356,250.00 in favor of American Home Mortgage Acceptance, Inc. for property located on Barnsleigh Drive in Akron. The note was endorsed in blank. The note was secured by a mortgage signed by Mr. Omar and his then wife. The mortgage designated the lender as American Home Mortgage Acceptance, Inc. and Mortgage Electronic Registration Systems, Inc. ("MERS") as the nominee for American Home Mortgage Acceptance, Inc. In August 2012, MERS, as nominee for American Home Mortgage Acceptance, Inc. assigned the mortgage to Plaintiff-Appellee Deutsche Bank National Trust Company, as indenture trustee for American Home Mortgage Investment Trust 2005-1 ("Deutsche Bank").
{¶3} In 2015, Deutsche Bank filed a complaint in foreclosure alleging that it possessed the note and was the holder of the mortgage mentioned above. It further alleged that there had been a default in payments and sought judgment against Mr. Omar in the amount of $357,488.77 plus interest and an order of foreclosure. Mr. Omar answered the complaint. During the summary judgment motion practice, Mr. Omar sought leave to amend his answer to add the affirmative defense of full payment. The trial court subsequently granted his motion. The matter proceeded to a bench trial before a magistrate, following which, the parties filed post-trial briefs. During the trial, Mr. Omar challenged the admission of testimony concerning several documents offered by Deutsche Bank, as well as the admission of the documents themselves. Many of Mr. Omar's objections related to the fact that Deutsche Bank could not produce the first three years of the payment history of the loan. The magistrate issued a decision finding in favor of Deutsche Bank. Mr. Omar filed an "appeal" of the magistrate's decision, which was construed as objections to the magistrate's decision. Therein, Mr. Omar raised several issues, including an argument that one of the letters admitted into evidence was inadmissible pursuant to Evid.R. 408 (relating to evidence of compromise and offers to compromise). The trial court issued a judgment entry acknowledging the filing of objections, adopting the magistrate's decision, and entering judgment in favor of Deutsche Bank.
{¶4} Mr. Omar appealed that entry but this Court dismissed the attempted appeal because the entry failed to determine the priority of a particular lien and the amount due to that party. See Deutsche Bank Natl. Trust Co. v. Omar, 9th Dist. Summit No. 28517 (February 22, 2017). Upon remand, the trial court issued a decree of foreclosure that remedied the issue. Mr. Omar has again appealed, raising eleven assignments of error for our review, which will be addressed out of sequence to facilitate our analysis.
II.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED BY FAILING TO RULE ON THE DEFENDANT'S OBJECTION TO THE USE OF A LETTER REQUESTING A COMPROMISE SENT BY THE ATTORNEY FOR THE DEFENDANT TO THE BANK.
{¶5} Mr. Omar argues in his fourth assignment of error that the trial court erred in failing to rule on one of his objections. We agree.
{¶6} Mr. Omar filed several objections to the magistrate's decision, including one that alleged that "the magistrate erred by allowing the admission of a letter from Omar to the bank seeking to settle the differences with the bank." The trial court in its entry addressing the objections never specifically ruled on the objections, but did acknowledge that objections were timely filed, adopted the magistrate's decision, and entered judgment in favor of Deutsche Bank. The trial court, in the section labeled "Conclusions of Law," discussed several issues that were raised in Mr. Omar's objections. However, the trial court did not address Mr. Omar's objection related to the letter and his concern that it detailed settlement negotiations. See Evid.R. 408.
{¶7} Civ.R. 53(D)(4)(d) provides in pertinent part that, "[i]f one or more objections to a magistrate's decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law." (Emphasis added.) "Whenever objections are filed, therefore, a trial court must consider whether the magistrate properly determined the factual issues and whether the magistrate appropriately applied the law." Tillman v. Hyde Park Condominium #3 Owners Assn., 9th Dist. Summit No. 26455, 2013-Ohio-2432, ¶ 6, citing Civ.R. 53(D)(4)(d).
{¶8} Here, we cannot say affirmatively that the trial court considered this objection as the decision does not expressly rule on any of the objections and does not mention the issue raised by Mr. Omar. Accordingly, we conclude it is appropriate to remand this matter to the trial court to consider and rule on this objection. See PNC Bank v. Myers, 9th Dist. Medina No. 17CA0022-M, 2018-Ohio-1881, ¶ 10-11. In addition, we note that the trial court's decision fails to address other objections, the subjects of which are raised in the current appeal. For example, Mr. Omar argues in his sixth assignment of error that the trial court erred by finding that his divorce decree was an admission as to the correct amount owed. However, the trial court did not address Mr. Omar's argument concerning his divorce decree in the entry or evidence that the trial court considered it. Therefore, upon remand, the trial court should ensure that all of Mr. Omar's objections have been considered and ruled upon. This Court takes no position on the merits of Mr. Omar's objections at this time.
{¶9} Mr. Omar's fourth assignment of error is sustained.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF PLAINTIFF'S RECORDS AND TESTIMONY BASED UPON IT[.]
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY ADMITTING PAYMENT RECORDS OFFERED BY THE BANK ON THE DEFENDANT['S] NOTE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT'S DECISION GRANTING A FORECLOSURE AND A JUDGMENT IN THE AMOUNT OF $357,48.77 IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]
ASSIGNMENT OF ERROR V
THE COURT ERRED BY ADMITTING AND CONSIDERING THE INCOME TAX TRANSCRIPTS OF THE DEFENDANT[.]
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED BY FINDING THAT THE DEFENDANT'S DIVORCE DECREE IS AN ADMISSION AS TO THE CORRECT AMOUNT OWED.
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED BY FINDING THAT THE DEFENDANT PROVIDED NO PROOF OF PAYMENTS AT TRIAL.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT ERRED BY CONCLUDING THAT THE DEFENDANT'S BURDEN FOR THE AFFIRMATIVE DEFENSE OF PAYMENT WAS NOT MET.
ASSIGNMENT OF ERROR IX
THE TRIAL COURT ERRED BY RULING THE ADMISSION OF A LEDGER FOR A MORTGAGE IS PROPER [] IF IT STARTS WITH A ZERO BALANCE[.]
ASSIGNMENT OF ERROR X
THE TRIAL COURT ERRED BY GIVING WEIGHT TO A DEBT VALIDATION LETTER FROM THE PLAINTIFF TO THE DEFENDANT.
ASSIGNMENT OF ERROR XI
THE TRIAL COURT ERRED BY FINDING THAT EQUITY SUPPORTS A FORECLOSURE IN THIS CASE[.]
{¶10} In light of this Court's resolution of Mr. Omar's fourth assignment of error, we conclude that the remaining assignments of error have been rendered moot and we decline to address them. See App.R. 12(A)(1)(c); see also Myers at ¶ 13.
III.
{¶11} Mr. Omar's fourth assignment of error is sustained. The remaining assignments of error have been rendered moot. The judgment of the Summit County Court of Common Pleas is reversed, and this matter is remanded for proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
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 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 Appellee.
/s/_________
DONNA J. CARR
FOR THE COURT SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
RANDALL D. WEISSFELD, Attorney at Law, for Appellant. KIMBERLY Y. SMITH RIVERA, Attorney at Law, for Appellee.