Am. Gen. Fin. Servs., Inc. v. Mosbaugh , 2011 Ohio 5557 ( 2011 )

[Cite as Am. Gen. Fin. Servs., Inc. v. Mosbaugh, 2011-Ohio-5557.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
AMERICAN GENERAL FINANCIAL :
SERVICES, INC. : Appellate Case No. 24575
:
Plaintiff-Appellee : Trial Court No. 2007 CV 10503
:
v. :
: (Civil Appeal from
STEPHEN M. MOSBAUGH, et al. : (Common Pleas Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of October, 2011.
...........
JOSEPH W. BORCHELT, Atty. Reg. #0075387, Reminger Co., L.P.A., 525 Vine Street,
Suite 1700, Cincinnati, Ohio 45202
Attorney for Plaintiff-Appellee
STEPHEN M. MOSBAUGH. 359 East Franklin Street, Centerville, Ohio 45459
Pro se Defendant-Appellant
.............
WAITE, J. (Sitting by Assignment)
{¶ 1} This matter began as a foreclosure action in 2007. Pro se Appellant Stephen
M. Mosbaugh now appeals the judgment of the Montgomery County Court of Common
Pleas adopting a magistrate’s decision in favor of Appellee American General Financial
Services, Inc. (“Amer. Gen.”). Appellant had filed a series of documents attempting to
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block a sheriff’s sale of his home. The trial court determined that Amer. Gen. properly
fulfilled its obligations under a prior agreed final judgment and decree of foreclosure filed in
2009. The parties had resolved all disputes in this foreclosure action in that 2009 agreed
judgment entry, but in Appellant’s subsequent efforts to stop the sheriff’s sale he also tried
to relitigate almost all previously contested matters. The magistrate attempted to make
some sense of Appellant’s very confused filings and properly determined that the only issue
that might prevent the sheriff’s sale from going forward was whether Amer. Gen. fulfilled a
covenant in the agreed foreclosure judgment entry that required it to consider Appellant for
any government loan programs that became available. The magistrate ruled that Amer.
Gen. had fulfilled its obligations under the agreed entry and that all other matters had been
previously resolved. Appellant failed to object to the magistrate’s decision. The trial court
adopted the magistrate’s decision and findings, leading to this appeal.
{¶ 2} Appellant did not file objections to the magistrate’s decision that was the
basis of the judgment entry being appealed, and has therefore waived any error on appeal
except for plain error. There is no plain error in this case. Appellant agreed to the terms of
the foreclosure. Amer. Gen. fulfilled its obligations under the agreement and is entitled to
proceed with the sheriff’s sale. The judgment of the trial court is affirmed.
Background
{¶ 3} Amer. Gen. filed a foreclosure action against Appellant on December 17,
2007. Appellant had defaulted on the terms of a promissory note and mortgage on his home
located at 395 East Franklin Street, Centerville, Ohio. Appellant filed counterclaims
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alleging deceptive business practices, excessive fees, and predatory lending. Trial was
postponed in order for the parties to negotiate a settlement to all claims.
{¶ 4} On June 19, 2009, the parties entered into an agreed judgment and decree in
foreclosure that included further agreed-to terms by the parties. The trial court granted
judgment of $108,795.96 to Amer. Gen., on the defaulted promissory note. The parties
agreed that the house would be prepared for sheriff’s sale on September 1, 2009; Appellant
would pay taxes and maintain insurance on the property; Amer. Gen. would not seek
eviction prior to November 1, 2009; if someone other than Appellant was the successful
bidder at the sheriff’s sale, then Appellant would still be permitted to live in the home until
November 1, 2009; Appellant would release Amer. Gen. from all claims and counterclaims
arising out of the loan and mortgage; and that Amer. Gen. would consider Appellant for
government loan programs, such as “Making Home Affordable” loans. Appellant was
represented by counsel at the time, and his counsel signed the agreement on his behalf.
(6/19/09 J.E.) No objections were filed and the trial judge signed and filed the judgment
and decree in foreclosure. No appeal was taken of the judgment.
{¶ 5} An order for sheriff’s sale was issued on July 15, 2009. The sale was
subsequently set for January 15, 2010. Appellant filed for bankruptcy protection on
December 31, 2009. The order for sale was cancelled. Appellant’s bankruptcy petition
was terminated on March 24, 2010, and a new sheriff’s sale was ordered. This second order
of sale was cancelled due to Appellant’s filing of a second bankruptcy petition on May 13,
2010. Amer. Gen. obtained in rem relief from the bankruptcy stay, and a third order of sale
was filed, setting the sheriff’s sale for November 3, 2010.
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{¶ 6} Appellant, acting pro se even though he was still represented by counsel, filed
a series of very large packets of documents with the trial court, starting on November 16,
2010, in an attempt to delay the sheriff’s sale. The initial document was simply titled as
“Adversary,” and contained 67 pages of miscellaneous documents. Another packet, titled
“Amended Adversary,” was filed on December 2, 2010, containing 94 pages. Appellant
then filed a 58-page document on January 24, 2011, titled “Motion for Breach of Contract.”
Appellant raised many of the same claims that had been previously raised as counterclaims
in this matter and had been previously adjudicated.
{¶ 7} In response to these pro se filings, Appellant’s counsel withdrew from the
case. Counsel’s motion to withdraw was granted on January 26, 2011.
{¶ 8} On January 27, 2011, the magistrate issued a decision overruling and
dismissing all of Appellant’s claims except for a single issue: whether Amer. Gen. fulfilled
the paragraph of the agreed foreclosure judgment in which Amer. Gen. was to consider
Appellant for any government loan programs. No objections were filed and the trial court
adopted the magistrate’s decision on February 17, 2011.
{¶ 9} A hearing was held on February 16, 2011, to deal with the single issue
regarding Amer. Gen.’s consideration of Appellant for government loan programs. The
magistrate issued its decision on February 18, 2011. The magistrate concluded that
Appellant had failed to prove that Amer. Gen. violated the terms of the agreed foreclosure
decree. Again, no objections were filed and the trial court adopted the magistrate’s decision
and issued its own judgment entry on March 15, 2011. This appeal followed on April 11,
2011. Appellant is now acting pro se.
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{¶ 10} On June 2, 2011, Appellant filed a large number of documents that we must
assume is his substitute for filing an actual brief on appeal. It contains no recognizable
assignments of error, no caselaw, no citations to the record, and no ascertainable arguments.
Amer. Gen. filed a responsive brief, attempting to extrapolate any possible cogent arguments
arising from Appellant’s filing. Since there are no assignments of error on appeal, the
following analysis is simply an evaluation of Appellant’s filing.
ARGUMENT ON APPEAL
{¶ 11} There are no assignments of error presented to us in this appeal. App.R.
16(A)(3) requires an appellant’s brief to contain a “statement of the assignments of error
presented for review, with reference to the place in the record where each error is reflected.”
A court of appeals may disregard any assignments of error not separately argued, or any
arguments not supported by references to the record. App.R. 12(A)(2); Countrywide
Homes, Inc. v. Swayne, Greene App. No. 2009 CA 65, 2010-Ohio-3903, ¶58. App.R.
16(A)(1) requires a table of contents with page references. Appellant’s table of contents
does not contain page references and does not relate to the documents on file that
purportedly substitute for the brief on appeal. App.R. 16(A)(2) requires a table of cases to
be provided. App.R. 16(A)(7) requires an actual argument to be made with reference to the
cases and authority previously cited. App.R. 16(A)(5) and (6) require a statement of the
case and a statement of the facts relevant to the assignment of errors. Appellant’s filing
satisfies absolutely none of these requirements. Furthermore, App.R. 9 defines the
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composition of the record on appeal, and Appellant has attached numerous documents to his
filing that are beyond the scope of our review.
{¶ 12} While Appellant is proceeding pro se, we note that “[l]itigants who choose to
proceed pro se are presumed to know the law and correct procedure, and are held to the same
standard as other litigants. A litigant proceeding pro se ‘cannot expect or demand special
treatment from the judge, who is to sit as an impartial arbiter.’ ” (Citation omitted.)
Dunina v. Stemple, Miami App. No. 2007 CA 9, 2007-Ohio-4719, ¶3. We cannot give
Appellant special treatment in this appeal and craft arguments and assignments of error that
he has failed to create himself. Nevertheless, it is apparent from the record that only one
issue could have been presented in this appeal. Therefore, we will briefly address whether
any error is indicated in the judgment entry before us on appeal.
{¶ 13} Amer. Gen. is correct that the only judgment entry under review is the final
judgment issued on March 15, 2011, adopting the magistrate’s decision of February 18,
2011. The Ohio Rules of Civil Procedure require a party to file written objections to a
magistrate's decision. Civ.R. 53(D)(3)(b); Gaevedon v. Gaevedon, 167 Ohio App.3d 450,
2006-Ohio-3195, ¶20-21. When a party fails to file objections, the party may not assign as
error on appeal the court's adoption of the magistrate's decision. Civ.R. 53(D)(3)(b)(iv).
Appellant failed to object to the magistrate's decision finding no breach of the terms of the
agreed foreclosure decree. Consequently, he has waived all but plain error in the trial
court's judgment. After a thorough review of the record, there is no indication of plain error
in this case.
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{¶ 14} Amer. Gen. filed a foreclosure action, and the parties negotiated a settlement
that was incorporated into an agreed foreclosure judgment entry and decree. In that
judgment, Appellant released Amer. Gen. from all claims arising from the mortgage, loan,
and foreclosure action. This judgment was not appealed. Although Appellant agreed to a
date for the sheriff’s sale, he delayed the sale numerous times through bankruptcy filings and
through a series of filings with the trial court demanding that the sale not go forward. The
magistrate reviewed these filings and determined that the only issue that might delay the
sheriff’s sale was whether Amer. Gen. had fulfilled one of the terms of the agreed
foreclosure decree as to Appellant’s eligibility for government loans. After a hearing, the
magistrate found that Appellant had not made any loan payments since 2007. Appellant
testified at the hearing that he thought he qualified for a government loan based on
something he read on a computer. A branch manager from Amer. Gen. who was familiar
with Appellant’s loan history testified that she tried to assist Appellant in getting a loan
modification to qualify for the federal “Making Homes Affordable” program, but that
Appellant’s income was insufficient. (2/18/11 Magistrate’s Decision, p. 4.) She also
testified that neither the “Making Homes Affordable,” nor any other government program,
was compulsory for Amer. Gen. to follow and that Amer. Gen. assisted Appellant in
attempting to modify his loan on a voluntary basis. The magistrate held that the agreed
foreclosure judgment entry only committed Amer. Gen. to consider Appellant for
government loan programs that became “applicable and compulsory.” The magistrate
found that there were no government loan programs “applicable and compulsory” to Amer.
Gen., thus, it had not breached the agreed foreclosure entry. The magistrate and the trial
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court correctly interpreted the terms of the agreed foreclosure judgment entry, and there is no
error of law or any other type of error apparent in these proceedings.
{¶ 15} Because Appellant failed to file any objections to the February 18, 2011,
magistrate’s decision, and we find no plain error in the record, the arguments on appeal are
overruled and the judgment of the trial court is affirmed.
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GRADY, P.J., and DONOVAN, J., concur.
(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
Joseph W. Borchelt
Stephen M. Mosbaugh
Robert Whitehouse
George Patricoff
Hon. Gregory F. Singer