Bayview Loan Serv., L.L.C. v. Likely , 97 N.E.3d 1025 ( 2017 )

[Cite as Bayview Loan Serv., L.L.C. v. Likely, 2017-Ohio-7693.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
BAYVIEW LOAN SERVICING, L.L.C. C.A. No. 28466
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EARL LIKELY, JR., et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellants CASE No. CV-2014-05-2247
DECISION AND JOURNAL ENTRY
Dated: September 20, 2017
CALLAHAN, Judge.
{¶1} Appellants, Earl and Valerie Likely (“the Likelys”), appeal the judgment of the
Summit County Court of Common Pleas in favor of Appellee, Bayview Loan Servicing, L.L.C.
(“the Bank”). For the reasons set forth below, this Court affirms.
I.
{¶2} In February 2005, the Likelys executed a promissory note that was secured by a
mortgage on the real property located at 452 North Arlington Street, in Akron, Ohio. In less
than a year, the Likelys defaulted on the promissory note. In January 2006, the Bank filed a
complaint against the Likelys for breach of promissory note, foreclosure, and reformation of the
mortgage deed. A final decree of foreclosure was granted on January 11, 2007. Between 2007
and 2014, the real property was scheduled for sheriff’s sale nine times. Each of those sales was
withdrawn due to either bankruptcy filings by the Likelys or negotiations between the Bank and
the Likelys. On March 12, 2014, the Likelys filed a motion to vacate the decree of foreclosure
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arguing it was defective based upon Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio
St.3d 13, 2012-Ohio-5017. The trial court granted the Likelys’ motion to vacate and dismissed
the case on March 27, 2014.
{¶3} On May 1, 2014, the Bank re-filed its complaint against the Likelys for breach of
promissory note, foreclosure, and reformation of the mortgage deed. After an unsuccessful
foreclosure mediation, the Likelys moved to dismiss the complaint alleging the Bank did not
have standing and the complaint was barred by res judicata and the statute of limitations. The
trial court denied the motion to dismiss.
{¶4} On February 4, 2016, a bench trial was held before the magistrate, who
subsequently issued a decision in favor of the Bank on all three claims. The Likelys timely filed
objections to the magistrate’s decision, which the Bank opposed. The Likelys filed the trial
transcript beyond the time provided by Civ.R. 53 and without leave of court. Without
consideration of the untimely filed trial transcript, the trial court denied the Likelys’ objections
and adopted the magistrate’s decision.
{¶5} The Likelys appealed the denial of their objections. That appeal was dismissed for
lack of a final, appealable order due to the lack of a final decree of foreclosure. Bayview Loan
Servicing, L.L.C. v. Likely, 9th Dist. Summit No. 28362 (Sept. 23, 2016).
{¶6} Following the dismissal of the first appeal, the trial court entered a final decree of
foreclosure. Upon the Likelys’ motion, the trial court stayed the sheriff’s sale pending the
current appeal.
{¶7} The Likelys have timely appealed, raising three assignments of error for this
Court’s review. To facilitate the analysis, this Court will address the assignments of error out of
order.
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II.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
CONSIDER THE TRIAL TRANSCRIPT.
{¶8} The Likelys argue that the trial court abused its discretion when it denied their
motion for extension of time to file the trial transcript and motion for leave to supplement the
objections with the trial transcript. Additionally, the Likelys assert the trial court abused its
discretion by not considering the trial transcript when ruling on their objections. This Court
disagrees with these assertions.
{¶9} “[A] motion requir[ing] leave of the trial court” and a motion requesting an
extension of time are reviewed for an abuse of discretion. See Matter of Estate of Holbrook, 5th
Dist. Tuscarawas No. 2016 AP 10 0051, 2017-Ohio-4429, ¶ 32; Cunnane-Gygli v. MacDougal,
11th Dist. Geauga No. 2004-G-2597, 2005-Ohio-3258, ¶ 20. Additionally, a trial court’s decision
regarding whether to consider untimely filed transcripts when ruling on objections to a
magistrate’s decision is reviewed for an abuse of discretion. See Ramsey v. Ramsey, 10th Dist.
Franklin No. 13AP-840, 2014-Ohio-1921, ¶ 23. An abuse of discretion connotes that the
“‘court’s attitude is unreasonable, arbitrary, or unconscionable.’” Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). When
applying the abuse of discretion standard, this Court may not simply substitute its own judgment
for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶10} Civ.R. 53(D)(3)(b)(iii) requires the party’s objections to a magistrate’s “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 [].” The objecting party has 30 days after filing objections within which to file the
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transcript. Id. However, the trial court may “extend[] the [30 days] in writing for preparation of
the transcript or other good cause.” Id. If the objections are filed prior to the transcript, the
objecting party may move the trial court for leave to supplement the objections. Id.{¶11} Summit County Local Rule 18.05 imposes similar rules regarding the filing of a
transcript to support objections to a magistrate’s decision and the time within which to file the
transcript. Additionally, Loc.R. 18.05 requires “[a] praecipe for transcript shall be served in
written form on the chief court reporter within (3) days after the filing of said objections[]. Said
praecipe shall be filed with the Clerk.”
{¶12} “The duty to provide a transcript or affidavit to the trial court rests with the person
objecting to the magistrate’s decision.” Swartz v. Swartz, 9th Dist. Medina No. 11CA0057-M,
2011-Ohio-6685, ¶ 8. “Without a transcript of the hearing, [a] trial court [is] required to accept
all of the magistrate’s findings of fact as true and only review the magistrate’s conclusions of law
based upon the accepted findings of fact.” City of Cuyahoga Falls v. Eslinger, 9th Dist. Summit
No. 21951, 2004-Ohio-4953, ¶ 6. “It follows that [the appellate court] must do the same.” Id.Without a transcript, an appellant cannot demonstrate error with respect to factual findings, and
thus, the appellate court must presume the regularity of the proceedings and that the facts were
correctly interpreted. See Vidalis v. Med. Mut. of Ohio, Inc., 9th Dist. Summit No. 23633, 2007-
Ohio-4656, ¶ 10; Akron v. Jackson, 9th Dist. Summit No. 27077, 2014-Ohio-2036, ¶ 11. Thus,
when a party objects but does not provide the trial court with the transcripts necessary to review
the objections, there are serious consequences for appellate review.
Motion for extension of time to file transcript
{¶13} The magistrate’s decision was issued on February 25, 2016. The Likelys timely
filed their objections on March 10, 2016, but did not file the trial transcript or the praecipe for the
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transcript. The Bank filed a brief in opposition to the objections. Pursuant to Civ.R.
53(D)(3)(b)(iii), the transcript was due on April 11, 2016. The Likelys, however, did not file the
transcript or a motion for extension of time by the 30-day deadline. Additionally, Loc.R. 18.05
required the praecipe to be filed by March 14, 2016. The Likelys did not comply with this
deadline. In fact, the record does not reflect a praecipe for the trial transcript ever having been
filed.
{¶14} Eighteen days after the deadline for filing the transcript had expired, the Bank
moved to strike the Likelys’ objections for failure to file the trial transcript within 30 days of the
objections. Twenty-eight days after the filing deadline for the transcript had expired and after the
Bank had moved to strike their objections, the Likelys moved for an extension of an unspecified
length of time to file the transcript. The Likelys asserted good cause existed for their motion for
extension of time to file the transcript “because this is [a] foreclosure case and the [Likelys] paid
for the transcript when they obtained the funds to do so. Since [the Likelys] timely filed
objections and made payment for the transcript there are grounds to extend the time to file the
transcript [].” The trial court denied both the Bank’s motion to strike the objections and the
Likelys’ motion for extension of time to file the transcript.
{¶15} While the Likelys’ motion put forth a general basis for the extension, it lacked
specific facts to establish that they had been diligently attempting to secure the transcript. The
motion did not provide any details as to when the Likelys paid for the transcript or the length of
the transcript to justify extra time for filing. Nor did the motion advise the trial court as to how
much additional time would be needed for the court reporter to produce the transcript. The
Likelys failed to provide the trial court with these types of pertinent facts which would have
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allowed it to make an informed decision as to whether they had shown good cause for an
extension. The burden was on the Likelys to do so.
{¶16} Further, while the Likelys asserted “this is [a] foreclosure case[,]” this Court is
unaware of any law that excepts foreclosure cases from the previously mentioned rules. Further,
the Likelys did not set forth any extenuating financial circumstances to explain why they were
unable to pay for the transcript. The Likelys are alleged to have defaulted on the note in 2006.
Since ten years had lapsed since the alleged default, an explanation of their current financial
situation would have been necessary to substantiate their claim that they needed time to obtain
the funds for the transcript. In light of these missing facts and the Likelys’ failure to comply with
Civ.R. 53(D)(3)(b)(iii) and Loc.R. 18.05, the trial court did not abuse its discretion in denying
the motion for extension of time to file the transcript.
{¶17} The Likelys also argue there was no requirement to file the motion prior to the
expiration of the 30-day period, as suggested by the trial court. While that may be true, the
timing of the filing of the Likelys’ motion—whether it was before or after the deadline—dictates
the requirements necessary to support their request and is pertinent to the trial court’s decision to
grant or deny the motion. See Civ.R. 6(B). Thus, the trial court did not abuse its discretion when
it considered the timing of the Likelys’ motion for extension of time to file the transcript.
{¶18} Further, while Civ.R. 6(B) governs motions for extension of time, including a
motion to extend the time to file a transcript, see Cunnane-Gygli, 2005-Ohio-3258, at ¶ 20, citing
Vance v. Rusu, 9th Dist. Summit No. 20442, 2001 WL 866277, *2 (Aug. 1, 2001), it permits a
court to enlarge an expired deadline upon receipt of a motion setting forth excusable neglect for
the failure to act. Civ.R. 6(B)(2); Scott v. McCluskey, 9th Dist. Summit No. 25838, 2012-Ohio-
2484, ¶ 7. The Likelys’ motion for extension, filed after the 30-day deadline, did not assert
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excusable neglect. Thus, the trial court did not abuse its discretion in denying the motion for
extension of time.
Motion for leave to file supplemental objections
{¶19} Despite the trial court’s denial of the motion for extension of time to file the
transcript, the Likelys filed a motion for leave to supplement the objections with the trial
transcript. This motion was filed 57 days after the deadline to file the transcript.
{¶20} The Likelys’ second motion was contrary to the purpose of Civ.R.
53(D)(3)(b)(iii), which permits a party to supplement their objections after the transcript is filed.
The Likelys were not seeking leave to supplement their original objections with additional
objections. Instead, they were only seeking leave to file the late transcript. See Cunnane-Gygli,
2005-Ohio-3258, at ¶ 18, 20. Nothing had changed between the first and second motions. The
Likelys again failed to provide the court with any pertinent facts from which it could determine
good cause and again did not assert excusable neglect. The trial court recognized the improper
application of this motion and found the second motion to “essentially ask[] for the same relief as
the prior motion.” The trial court treated this motion as another motion for extension of time and
denied it for the same reasons it denied the first motion. See id. at ¶ 20. In light of the trial court’s
reliance on Civ.R. 53(D)(3)(b)(iii) and Loc.R. 18.05, it did not abuse it discretion when denying
the Likelys’ second motion.
Failure to consider the untimely filed transcript
{¶21} Without waiting for the trial court’s ruling on their second motion, the Likelys
filed the untimely transcript on June 9, 2016, 59 days late. Five days later, the trial court denied
the Likelys’ second motion for leave to file the transcript. Not only was the transcript untimely,
it was also improperly filed without leave of court. Without consideration of the untimely and
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improperly filed trial transcript, the trial court denied the Likelys’ objections and adopted the
magistrate’s decision.
{¶22} “Ordinarily, a trial court must consider a submitted transcript before ruling on
objections to a magistrate’s decision.” Ramsey, 2014-Ohio-1921, at ¶ 23, citing Perry v. Joseph,
10th Dist. Franklin Nos. 07AP-359, 07AP-360, 07AP-361, 2008-Ohio-1107, ¶ 20. However,
Civ.R. 53 does not prohibit or require a trial court to consider untimely transcripts. Ramsey at ¶
23. Instead, “[t]he trial court has broad discretion in considering objections and transcripts filed
outside the time limits set forth in Civ.R. 53 [].” Id.{¶23} In light of the trial court’s two earlier rulings denying the Likelys an extension of
time to file the transcript and the supporting analysis above, this Court cannot say the trial court
abused its discretion when it declined to consider the untimely and improperly filed transcript
when ruling on the objections.
{¶24} The Likelys’ second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN FINDING THAT [THE BANK’S]
FORECLOSURE ACTION WAS NOT BARRED BY THE STATUTE OF
LIMITATIONS.
{¶25} In their first assignment of error, the Likelys argue the trial court misapplied the
savings statute and erred in finding that the foreclosure action was not barred by the statute of
limitations. This Court disagrees.
{¶26} Neither party has set forth the appropriate standard of appellate review in this
case. This Court generally reviews a trial court’s action with respect to a magistrate’s decision
for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-5232, ¶ 9.
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“In so doing, we consider the trial court’s action with reference to the nature of the underlying
matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 18.
{¶27} When the objecting party fails to file the transcript, the trial court must accept the
magistrate’s findings of fact and only review the magistrate’s conclusions of law based on the
accompanying findings of fact. Saipin v. Coy, 9th Dist. Summit No. 21800, 2004-Ohio-2670, ¶
9; Galewood v. Terry Lumber Supply Co., 9th Dist. Summit No. 20770, 2002 WL 347378, *1
(Mar. 6, 2002). This Court applies that same standard of review to the trial court’s decision.
Saipin at ¶ 9; Galewood at *1. The trial court’s legal conclusions are reviewed de novo. Saipin
at ¶ 9; Turner v. Turner, 9th Dist. Lorain No. 07CA009187, 2008-Ohio-2601, ¶ 22 (Dickinson,
J., concurring) (“[I]n reviewing a trial court’s determination of whether the magistrate
‘appropriately applied the law,’ this Court must apply the de novo standard of review.”).
{¶28} While the assignment of error challenges the statute of limitations of the
“foreclosure action,” the Likelys’ argument only addresses the statute of limitations for the
breach of the promissory note and not the other two causes of action. (All caps deleted.)
Accordingly, this Court will limit its review to the statute of limitations as it pertains to the
breach of the promissory note. R.C. 1303.16(A) sets forth the statute of limitations to enforce an
obligation to pay a note as follows:
an 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} R.C. 2305.19(A), the savings statute, provides a framework for re-filing an action.
It states:
[i]n 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 or, if the plaintiff dies and the cause of action survives, the
plaintiff's representative may commence a new action within one year after the
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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. This division applies to any claim asserted in any pleading
by a defendant.
(Emphasis added.) R.C. 2305.19(A). The savings statute applies when a party has commenced
the action and the action subsequently fails otherwise than upon the merits. Id. Commencement
of an action occurs by filing a complaint and obtaining service on the named defendant(s) within
one year of filing the complaint. R.C. 2305.17; Civ.R. 3(A); Richardson v. Piscazzi, 9th Dist.
Summit No. 19193, 1999 WL 247765, *3 (Apr. 28, 1999).
{¶30} The Likelys argue the dismissal of the 2006 case for lack of standing rendered the
trial court without subject-matter jurisdiction and thus the 2006 case was never commenced. The
Likelys then argue that because the case was not commenced in 2006, the Bank is precluded
from using the savings statute to re-file the complaint in 2014. Lastly, the Likelys argue that
without the application of the savings statute, the complaint, re-filed in 2014, is beyond the six-
year statute of limitations and time barred. Each of these arguments is without merit.
{¶31} The Ohio Supreme Court explained that “[t]he general term ‘jurisdiction’ can be
used to connote several distinct concepts, including jurisdiction over the subject-matter,
jurisdiction over the person, and jurisdiction over a particular case.” Bank of Am., N.A. v. Kuchta,
141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 18. “Subject-matter jurisdiction refers to the statutory or
constitutional authority to adjudicate a case[,]” whereas “[l]ack of standing, on the other hand,
challenges a party’s capacity to bring an action, not the subject-matter jurisdiction of the
tribunal.” Groveport Madison Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Rev., 137 Ohio
St.3d 266, 2013-Ohio-4627, ¶ 25, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶
11, and State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77 (1998).
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{¶32} While the common pleas courts have subject-matter jurisdiction to hear
foreclosure matters, Kuchta at ¶ 20, citing Robinson v. Williams, 62 Ohio St. 401, 408 (1900),
standing is the ability to invoke the court’s jurisdiction over the particular case. Kuchta at ¶ 22.
“Lack of standing is certainly a fundamental flaw that would require a court to dismiss the
action.” Id. at ¶ 23, citing Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, at ¶ 40. Such a
dismissal is without prejudice. Schwartzwald at ¶ 40. However, “a court of common pleas that
has subject-matter jurisdiction over an action does not lose that jurisdiction merely because a
party to the action lacks standing.” Kuchta at ¶ 17.
{¶33} The dismissal of a complaint for lack of standing at the commencement of a
foreclosure action is not an adjudication on the merits. Schwartzwald at ¶ 40; See Battaglia v.
City of Cleveland Heights, 8th Dist. Cuyahoga No. 42963, 1981 WL 4917, *8 (May 7, 1981) (a
dismissal for lack of standing means the claim has failed otherwise than on the merits). A
dismissal for lack of standing is without prejudice and thus “has no effect on the underlying
duties, rights, or obligations of the parties.” Schwartzwald at ¶ 40; See State ex rel. Coles v.
Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, ¶ 51 (dismissal based on lack of standing is not
a dismissal on the merits).
{¶34} To support their contention that the trial court did not have subject-matter
jurisdiction, the Likelys assert that “[the Bank’s] 2006 foreclosure complaint was vacated as void
ab initio because [the Bank] never had standing to invoke the subject-matter jurisdiction of the
court to begin with.” (Emphasis sic.) This statement is unsupported by the findings of fact. First,
the magistrate’s factual findings stated the complaint was dismissed, not vacated as void ab
initio. Second, the trial court’s findings of fact stated the dismissal was based on a lack of
standing, not a lack of subject-matter jurisdiction. This Court is limited to these findings of fact
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and the Likelys cannot challenge the findings of fact or assert a different version of the findings
of fact on appeal. See Vidalis, 2007-Ohio-4656, at ¶ 10.
{¶35} In an attempt to further support their position that the court did not have subject-
matter jurisdiction, the Likelys misconstrue Schwartzwald as stating “standing is required to
invoke the subject matter jurisdiction of the court.” (Emphasis added.) Schwartzwald, however,
made no such holding and instead held “standing is required to invoke the jurisdiction of the
common pleas court.” Schwartzwald at ¶ 3. The Ohio Supreme Court clarified in Kuchta that
the holding in Schwartzwald did not address subject-matter jurisdiction relative to a lack of
standing. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, at ¶ 21. Kuchta pointed out that because
standing only implicates the party’s ability to invoke the jurisdiction of the court, a lack of
standing does not impact the court’s subject-matter jurisdiction. Id. at ¶ 22.
{¶36} The Likelys continue to argue the application of subject-matter jurisdiction
through their reliance on Clingerman v. Mayfield, 11th Dist. Ashtabula No. 89-A-1477, 1990
WL 124645 (Aug. 24, 1990), by asserting that the “savings statute does not apply if the original
action was filed without jurisdiction.” However, the Likelys’ reliance on Clingerman is
misplaced. Clingerman involved a question of whether the savings statute applied in a worker’s
compensation appeal to a trial court when the appellant failed to perfect the administrative appeal
pursuant to the Workmen’s Compensation Act. Id. at *1-2. Clingerman focused on the
appellant’s failure to comply with the statutory requirements to perfect an administrative appeal
in order to establish subject-matter jurisdiction. Id. at *2; See also State ex rel. Jones, 84 Ohio
St.3d at 77, fn. 4 (“We have held standing to be jurisdictional only in limited cases involving
administrative appeals, where parties must meet strict standing requirements in order to satisfy
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the threshold requirement for the administrative tribunal to obtain jurisdiction.”). Clingerman has
no application to the instant case because this is not an administrative appeal.
{¶37} The Likelys’ argument that the Bank failed to commence the 2006 case focuses
solely on the Bank’s lack of standing in January 2006. While “‘standing is to be determined as of
the commencement of [the] suit[,]’” it is not an element for the commencement of a case.
Schwartzwald at ¶ 24, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 (1992), fn. 5;
see Civ.R. 3(A); R.C. 2305.17; Richardson, 1999 WL 247765, at *3. In light of the Likelys’
failure to dispute the filing and/or service of the 2006 complaint, the Bank is presumed to have
commenced the 2006 case.
{¶38} The 2006 complaint was dismissed for lack of standing, therefore the claims
failed otherwise than upon the merits. See Battaglia, 1981 WL 4917, at *8. The dismissal of a
complaint for lack of standing is without prejudice and not an adjudication on the merits.
Schwartzwald at ¶ 40. The Likelys concede “there was no determination on the merits in [the
Bank’s] 2006 foreclosure case,” thereby rendering it a dismissal otherwise than upon the merits.
Because the 2006 complaint was commenced and subsequently dismissed otherwise than upon
the merits, the 2006 complaint was subject to the re-filing provisions of the savings statute. See
R.C. 2305.19(A).
{¶39} The 2006 complaint was dismissed on March 27, 2014. Based on the eight-year
lapse between the filing of the complaint and the dismissal for lack of standing, the six-year
statute of limitations for the breach of promissory note claim had expired and the savings statue
was triggered. The complaint was re-filed on May 1, 2014, well within the one-year savings
statute timeframe. Accordingly, the 2014 foreclosure complaint was timely filed under the
savings statute.
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{¶40} In light of the foregoing, the trial court correctly applied the savings statute to the
foreclosure complaint. The Likelys’ first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN FINDING THAT [THE BANK] WAS
ENTITLED TO A FORECLOSURE JUDGMENT [] AND REFORMATION OF
THE MORTGAGE.
{¶41} In their third assignment of error, the Likelys argue that the trial court erred in
granting the foreclosure judgment because the Bank did not have standing to enforce the note.
This Court disagrees.
{¶42} Objections to the magistrate’s decision must “be specific and state with
particularity all grounds for objection.” (Emphasis added.) Civ.R. 53(D)(3)(b)(ii). Additionally,
Civ.R. 53 provides that, except for a claim of plain error, a party shall not assign error to a
factual finding or legal conclusion on appeal unless the party specifically objects to that finding
in accordance with the rule. Civ.R. 53(D)(3)(b)(iv). Failure to object to a magistrate’s finding of
fact or conclusion of law renders the argument forfeited on appeal. Coleman v. Coleman, 9th
Dist. Summit No. 27592, 2015-Ohio-2500, ¶ 9. The party is limited to a plain error argument on
appeal. Civ.R. 53(D)(3)(b)(iv). If the party fails to assert a plain error argument on appeal, then
this Court will not sua sponte engage in a plain error analysis. See Coleman at ¶ 9.
{¶43} The Likelys confined their objection to the magistrate’s conclusion that the Bank
had standing to enforce the note and mortgage. The Likelys’ objection further challenged the
magistrate’s factual findings regarding the evidence that supported the conclusion in favor of
standing arguing that: 1) there was no evidence that the Bank was formerly known as Interbay
Funding, L.L.C., and 2) the Bank’s witness did not have personal knowledge regarding whether
the allonge was affixed to the note and the Bank had possession of the note when the complaint
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was filed. On appeal, the Likelys challenge the trial court’s decision that the Bank had standing
to enforce the note because the allonge presented at trial belonged to a different note. This
argument was not presented in the Likelys’ objections challenging the Bank’s standing.
Accordingly, the Likelys have forfeited this argument. Further, the Likelys have not argued plain
error on appeal. Because the Likelys have forfeited their challenge to the factual findings and
conclusion at issue and have not argued plain error, this Court will not address this argument.
{¶44} Moreover, even if the Likelys had alleged plain error, this Court is precluded from
reviewing this challenge as to the factual findings because the Likelys failed to timely file the
transcript with the trial court. See Swartz, 2011-Ohio-6685, at ¶ 8.
{¶45} The Likelys’ third assignment of error is overruled.
III.
{¶46} The Likelys’ assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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
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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 Appellants.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
CONCURS.
CARR, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
MARC E. DANN and EMILY WHITE, Attorneys at Law, for Appellants.
JASON A. WHITACRE and LAURA C. INFANTE, Attorneys at Law, for Appellee.