Glazer v. Chase Home Fin., L.L.C. , 2013 Ohio 5589 ( 2013 )

[Cite as Glazer v. Chase Home Fin., L.L.C., 2013-Ohio-5589.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 99875 and 99736
LAWRENCE R. GLAZER, INDIVIDUALLY, ETC.
PLAINTIFF-APPELLANT
vs.
CHASE HOME FINANCE L.L.C., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-725557
BEFORE: Jones, J., Boyle, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 19, 2013
ATTORNEYS FOR APPELLANT
Lawrence R. Glazer
Nicolette Glazer
Law Office of Larry R. Glazer
1875 Century Park East, #700
Century City, CA 90067
ATTORNEYS FOR APPELLEES
For Chase Home Finance L.L.C.
Nelson M. Reid
Anne Marie Sferra
Bricker & Eckler L.L.P.
100 South Third Street
Columbus, Ohio 43215
Bryan Kostura
Bricker & Eckler L.L.P.
1001 Lakeside Avenue, Suite 1350
Cleveland, Ohio 44114
Danielle J. Szukala
Burke, Warren, Mackay & Serritella
330 North Wabash Avenue, 22nd Floor
Chicago, Il 60611
For First American Default Information Services
Matthew C. Corcoran
Matthew A. Kairis
Jones Day
325 John H. McConnell Blvd.
Suite 600
Columbus, Ohio 43215
Robert P. Ducatman
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
For Reimer, Arnovitz, Chernek, Jeffrey, et al.
Timothy T. Brick
Lori E. Brown
Holly Olarczuk-Smith
Gallagher Sharp
Sixth Floor, Bulkley Bldg.
1501 Euclid Avenue
Cleveland, Ohio 44115
LARRY A. JONES, SR., J.:
{¶1} This case involves allegations premised on multiple defendants’ debt
collection activities related to the filing of a foreclosure lawsuit and allegations that the
defendants submitted fraudulent documents in connection with the lawsuit. The trial
court granted each defendant’s motion to dismiss and the plaintiff-appellant Lawrence
Glazer appeals. We affirm.
I. Procedural History
{¶2} In April 2010, Lawrence Glazer, a California resident and attorney, filed a
putative class action complaint against the following parties: Chase Home Finance, L.L.C.
(“Chase”); law firm Reimer, Arnovitz, Chernek & Jeffrey, Co. and attorneys Ronald
Chernek and Darryl Gormley (collectively “the Reimer Firm”); Safeguard Properties, Inc.
(“Safeguard Properties”); First American Default Outsourcing, L.L.C.; Cindy Smith; and
John Does 1-4.
{¶3} Glazer’s individual complaint revolved around a piece of real property located
at 2498 Bristol Road in Upper Arlington, Ohio. In his complaint, Glazer alleged the
following causes of action: (1) violations of the Ohio Consumer Sales Practices Act
(“OCSPA”), against all defendants; (2) violations of R.C. 1319.12, against Chase; (3)
conspiracy, against all defendants; (4) intentional misrepresentation of material facts,
against all defendants; (5) negligent misrepresentation of material facts, against all
defendants; (6) concealment of material facts, against all defendants; and (7) trespass,
against Safeguard Properties. The complaint further listed “Class Action Allegations,”
proposing two different classes: a “Corporate Advances Class” and a “Breaking and
Entering Class.”
{¶4} On August 30, 2010, Glazer filed his first amended complaint. The only
change was in one party name: First American Default Information Services, L.L.C.
(“First American”) was substituted for First American Default Outsourcing, L.L.C.
{¶5} In October 2010, the defendants filed individual motions to dismiss. In First
American’s motion to dismiss, it argued that Glazer did not have standing to bring a
lawsuit against the company, any claims against it were barred by privilege, and Glazer
was not a “consumer,” nor was First American a “supplier” under the OCSPA.
{¶6} The Reimer Firm argued in its motion to dismiss that (1) Glazer could not
establish he was entitled to protection under the OCSPA; (2) the Reimer Firm was immune
from liability on the misrepresentation and concealment claims, and (3) Glazer failed to set
forth sufficient facts to support his claims. The Reimer Firm attached various exhibits to
its motion, and Glazer responded by filing a motion to strike the exhibits or alternatively
for time to conduct additional discovery. The trial court denied Glazer’s motion.
{¶7} Chase filed a motion to dismiss or alternatively for a more definite statement,
arguing that (1) Glazer was not a “consumer” under the OCSPA; (2) Glazer could not
bring a class action under the OCSPA; (3) R.C. 1319.12 does not create a private cause of
action; and (4) there was no further evidence to support his other claims against Chase.
{¶8} On October 29, 2010, Glazer filed a notice of voluntary dismissal of all claims
against Safeguard Properties.
{¶9} Glazer responded to the defendants’ motions to dismiss with an omnibus
memorandum in opposition, arguing that he had pleaded sufficient facts to withstand the
motions to dismiss. On the last page of his brief in opposition, Glazer motioned for leave
to amend his complaint a second time. This motion was not filed under separate cover
nor did Glazer attach a proposed second amended complaint to his motion.
{¶10} The defendants individually filed reply briefs to support their motions to
dismiss. In an order dated January 12, 2011, the trial court granted each defendant’s
motion to dismiss. In its order, the trial court agreed with the defendants that (1) Glazer
was not a “consumer,” nor were the defendants “suppliers” under the OCSPA; (2) R.C.
1319.12 did not create a private cause of action; (3) Glazer could not show “the requisite
justifiable reliance” on the alleged misrepresentation or concealment by the defendants;
and (4) Glazer had not alleged facts that supported his claim that the defendants were
involved in a conspiracy. In a separate order dated the same day, the trial court denied
Glazer’s request to amend his complaint a second time.
{¶11} Glazer filed a timely notice of appeal, but this court sua sponte dismissed the
appeal for lack of a final appealable order. Glazer v. Chase Home Finance, 8th Dist.
Cuyahoga No. 96353, Motion No. 447166. This court found that claims were still
pending against Cindy Smith and the four John Doe defendants, and the trial court had not
entered a Civ.R. 54(B) order certifying that there was no just reason for delay. Id. This
court further stated: “Parties may move to reinstate this appeal within thirty days if the trial
court issues a final order.” Id. Glazer did not file a motion with the trial court
requesting a final order.
{¶12} Nothing occurred in the case until February 19, 2013, when Chase’s
successor by merger, J.P. Morgan Chase Bank (“J.P. Morgan Chase”) filed a motion for
certification under Civ.R. 54(B) in the trial court.
{¶13} In response, the trial court issued an order dated March 6, 2013, which
stated: “Plaintiff is ordered to file a notice of intent to proceed with this matter by
3/20/13. Failure to do so will result in a dismissal of all remaining claims for failure to
prosecute.” The trial court issued a second order, granting J.P. Morgan Chase’s motion,
and certified that “there is no just cause for delay,” as to its previous order granting
Chase’s motion to dismiss.
{¶14} The next day, on March 7, Glazer filed a response to J.P. Morgan Chase’s
motion. On March 19, 2013, Glazer filed a motion titled “Plaintiff’s Response to Court
Order Issued on 6 March 2013,” in which he asked the trial court (1) to determine whether
it had continuing jurisdiction due to the parties’ litigation in federal court, (2) to reconsider
its January 12, 2011 decision granting defendants’ motions to dismiss, and (3) renewing
his motion for leave to file a second amended complaint.
{¶15} On March 28, 2013, Glazer filed a motion titled “Plaintiff’s Civ.R. 60(B)(4)
motion for relief from judgment entered for Chase Home Finance L.L.C.”
{¶16} On April 4, 2013, Glazer filed his notice of appeal with this court in regard to
the trial court’s Civ.R. 54(B) certification of a final order as to defendant J.P. Morgan
Chase.
{¶17} On April 4 and April 8, 2013, First American and the Reimer Firm
respectively filed motions for Civ.R. 54(B) certification, which the trial court granted,
entering final orders on May 8, 2013. The trial court further denied Glazer’s Civ.R.
60(B) motion as to Chase and dismissed the claims against Cindy Smith and John Does
1-4 for failure to prosecute.
{¶18} Glazer filed another notice of appeal and we have consolidated the two
appeals for review and decision. Glazer is appealing as an individual and does not raise
any issues with regard to the putative class; therefore, we only consider those issues that
deal with Glazer’s individual claims.
II. Facts
{¶19} In 2003, Charles Klie purchased residential property located at 2498 Bristol
Road in Upper Arlington, Ohio. Coldwell Banker Mortgage Corporation was the
mortgagor. Coldwell sold the promissory note and assigned the mortgage to the Federal
National Mortgage Corporation (“Fannie Mae”) in September 2003, but remained the
servicer of the mortgage until October 2007, when it assigned its servicing rights to JP
Morgan Chase. In November 2007, Chase began servicing the mortgage pursuant to an
agreement with JP Morgan Chase. Thus, as of November 2007, Chase was the mortgage
servicer.
{¶20} Charles Klie died in January 2008. In his will, Klie devised the Bristol
Road property to Susan Maney O’Leary, but she disclaimed the devise in May 2008. The
disclaimer caused the property to become part of Charles Klie’s residuary estate, the
beneficiaries of which were Glazer and Susan Klie. Susan Klie and Glazer entered into
an agreement, whereby Susan gave up her interest in the Bristol Road property in
exchange for other assets of the estate. The probate court approved the transfer of the
Bristol Road property to Glazer on July 25, 2008. Thus, Glazer became the owner of the
Bristol Road property on or about July 25, 2008.
{¶21} The note on the property had already fallen into default at the time Glazer
became the owner. Chase hired the Reimer Firm to foreclose on the Bristol Road
property. On June 2, 2008, the Reimer Firm prepared an assignment of the note and
mortgage on behalf of JP Morgan Chase that purported to “sell, convey and transfer all
rights and interests in the Klie promissory note and the mortgage * * * to Chase” in order
to establish Chase’s right to foreclose. According to Glazer, the assignment transferred
absolutely no rights because Fannie Mae still owned the note and mortgage by virtue of
Coldwell Banker’s assignment shortly after origination. Chase referred the matter to its
third-party contractor, First American, to assist in foreclosing on the property.
{¶22} The same month, the Reimer Firm filed a foreclosure action against Charles
Klie in the Franklin County Court of Common Pleas alleging that Chase held and owned
the Klie promissory note and that the original note had been lost or destroyed. In support
of that allegation, Cindy Smith, who worked for First American, signed a “lost note
affidavit”; the affidavit was filed in the foreclosure action. But according to Glazer,
Chase and the Reimer Firm fraudulently concealed the fact that Fannie Mae owned the
loan, and the original note was not lost or destroyed and was being held by a custodian for
Fannie Mae’s benefit.
{¶23} The foreclosure complaint named Glazer as someone possibly having an
interest in the property, and the Reimer Firm served Glazer with process. Glazer
answered and asserted defenses. He also notified the Reimer Firm that he disputed the
debt and requested verification.
{¶24} Therefore, at the time Glazer became the owner of the property in July 2008,
the foreclosure proceedings were already pending in court. The parties dispute whether
there was ever a monetary judgment personally sought against Glazer.
{¶25} The Reimer firm eventually moved for summary judgment, representing once
again that Chase owned the Klie note. The court granted the motion and entered a decree
of foreclosure, but later vacated that ruling and demanded that the Reimer firm produce
the original note for inspection. Despite the vacatur of the foreclosure decree, the Reimer
Firm scheduled a sheriff’s sale. The Reimer Firm later cancelled the sheriff’s sale. In
November 2009, Chase dismissed the foreclosure proceedings without prejudice.
{¶26} In the complaint filed in this case, Glazer alleged it was actions that occurred
between May 2008 (before he owned the property) and November 2009 that formed the
basis of his lawsuit. Specifically, Glazer alleged that Chase did not own the note and
did not lose the note. He alleged that Fannie Mae was the true owner and holder of the
note and the defendants intentionally concealed material facts in an effort to obtain a quick
decree of foreclosure, cloud title through bogus recordations, and reap financial benefits
by charging him unauthorized fees.
III. Federal Litigation
{¶27} In 2009, during the foreclosure proceedings, Glazer filed suit in federal court
against Chase, the Reimer Firm, and Safeguard Properties, alleging violations of the Fair
Debt Collection Practices Act (“FDCPA”) and Ohio law. See Glazer v. Chase Home Fin.
L.L.C., N.D.Ohio No. 1:09-CV-01262, 2009 U.S. Dist. LEXIS 126369 (Jan. 21, 2009).
Specifically, Glazer alleged:
(1) harassment or abuse in violation of the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692d, against all Defendants; (2) false or
misleading misrepresentations in violation of the FDCPA, 15 U.S.C. §
1692e, by Defendants; (3) unfair practices in violation of the FDCPA, 15
U.S.C. § 1692f, against all Defendants; (4) failure to validate the alleged
debts owed in violation of the FDCPA, 15 U.S.C. § 1692g, against all
Defendants; (5) a violation of the Ohio Fair Debt Collection Practices Act
against Defendant Chase; (6) conspiracy against all Defendants; (7)
intentional misrepresentation of material facts against all Defendants; (8)
negligent misrepresentation of material facts against all Defendants; (9)
concealment of material facts against all Defendants; and (10) trespassing
against Defendant Safeguard Properties, Inc. * * * .
Id. at *3. The defendants moved to dismiss. The magistrate judge recommended
dismissing all federal claims and declining discretionary jurisdiction over the state law
claims. Glazer filed objections and sought leave to amend the complaint to add new
allegations. The district judge adopted the magistrate judge’s recommendation, denied
leave to amend, and granted the motions to dismiss. Glazer v. Chase Home Fin. L.L.C.,
N.D.Ohio No. 1:09-CV-01262, 2010 U.S. Dist. LEXIS 31457 (Mar. 31, 2010) (“Glazer
I”).
{¶28} Glazer appealed, and the Sixth Circuit Court of Appeals reversed in part,
finding that mortgage foreclosure is debt collection under the FDCPA. Glazer v. Chase
Home Fin. L.L.C., 704 F.3d 453, 464 (6th Cir.2013) (“Glazer II”). As it pertains to this
case, the Glazer II court held that a lawyer meets the general definition of a “debt
collector” if his or her principal business purpose is mortgage foreclosure or if he or she
“regularly performs this function.” Id. As such, “[l]awyers who meet the general
definition of a ‘debt collector’ must comply with the FDCPA when engaged in mortgage
foreclosure.” Id. Therefore, the Glazer II court held that the district court erred in
finding that the Reimer Firm was not engaged in debt collection and could not be found
liable under the FDCPA. Id. at 465.
{¶29} But the Glazer II court affirmed the district court’s decision to dismiss
Glazer’s FDCPA claims against Chase, finding that Chase was not a “debt collector”
because it had started servicing the Klie mortgage before it was in default. Id. at 458.
The court further held that the district court did not abuse its discretion when it denied
Glazer leave to amend his complaint because he had waited too long to seek leave to
amend. Id. at 459. Finally, the federal appellate court reinstated Glazer’s state law
claims, including those against Chase, finding that it was appropriate to do so because
some of the federal claims had been revived. Id.
{¶30} The district court subsequently ordered the parties to submit briefs on
whether it had subject matter jurisdiction over the state law claims. Upon review, the
court found that it did have jurisdiction over the state law claims but that since the claims
had been litigated in state court, had gone to final judgment, and had been appealed (the
instant appeal), the court would not hear state law claims that had been or could have been
litigated in the state court proceedings.1
IV. Glazer’s Assignments of Error
{¶31} In the instant appeal, Glazer raises the following nine assignments of error
for our review:
[I.] The trial court erred by considering matters outside of the complaint and
converting defendants’ motion to dismiss under Civ.R. 12(B)(6) into a
motion for summary judgment.
[II.] The trial court erred in dismissing appellant’s OCSPA claims on res
judicata grounds.
[III.] The trial court erred in finding that appellant has no standing to assert a
cause of action under the OCSPA.
[IV.] The trial court erred in finding that appellant has no standing to assert a
Section 1319.12 cause of action.
[V.] The trial court erred in finding that appellant has not shown justifiable
reliance in support of his fraud claims.
[VI.] The trial court erred in finding that appellant failed to plead sufficient
facts in support of his claim for civil conspiracy.
[VII.] The trial court erred in denying appellant’s motions for leave to
amend and cure any perceived pleading deficiencies.
[VIII.] The trial court erred in granting appellees’ Rule 54(B) motions.
[IX.] The trial court erred in denying appellant’s Rule 60(B)(4) motion.
V. Motion to Dismiss — Standard of Review
{¶32} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which
A stipulated dismissal was entered into dismissing, with prejudice, all federal court claims
1
against Safeguard Properties in February 2013.
relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378(1992). “[W]hen a party files a motion to dismiss for failure to state a claim, all the
factual allegations of the complaint must be taken as true and all reasonable inferences
must be drawn in favor of the nonmoving party.” Byrd v. Faber, 57 Ohio St.3d 56, 60,
565 N.E.2d 584 (1991), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532
N.E.2d 753 (1988). However, while the factual allegations of the complaint must be taken
as true, “[u]nsupported conclusions of a complaint are not considered admitted * * * and
are not sufficient to withstand a motion to dismiss.” State ex rel. Hickman v. Capots, 45
Ohio St.3d 324, 544 N.E.2d 639 (1989). In order for a trial court to dismiss a complaint
under Civ.R. 12(B)(6), it must appear beyond doubt that the plaintiff can prove no set of
facts in support of his or her claim that would entitle the plaintiff to relief. Doe v.
Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11,
citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d
753 (1975).
{¶33} The claims set forth in the complaint must be plausible, rather than just
conceivable. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007), paragraph two of the syllabus. While a complaint attacked by a Civ.R.
12(B)(6) motion to dismiss does not need to allege detailed factual allegations, a plaintiff’s
obligation to provide the grounds for entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action is insufficient.
Id. at paragraph 1(b) of the syllabus.
{¶34} We apply a de novo standard of review to the trial court’s decision on a
motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim upon which relief may
be granted. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814
N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416,
2002-Ohio-2480, 768 N.E.2d 1136. Under this standard of review, we must
independently review the record and afford no deference to the trial court’s decision.
Herakovic v. Catholic Diocese of Cleveland, 8th Dist. Cuyahoga No. 85467,
2005-Ohio-5985, ¶ 13.
A. Motion to Dismiss
{¶35} In the first and second assignments of error, Glazer challenges the trial
court’s method of arriving at its decision. In his first assigned error, Glazer argues that the
court either improperly converted the defendants’ motions to dismiss into motions for
summary judgment, specifically the Reimer Firm’s motion, and then did not allow him
time to respond or inappropriately considered matters outside the complaint in granting the
motions to dismiss.
{¶36} The Reimer Firm contends that the trial court may consider outside material
that is pertinent to the jurisdictional issue without converting the motion into one for
summary judgment and that the documents attached to its motions were incorporated into
the complaint by appellant and as a result, are not “outside the pleadings.”
{¶37} The Reimer Firm attached the following exhibits to its motion to dismiss: (1)
docket printouts from related state and federal litigation, (2) the magistrate’s report and
recommendation and court’s opinion and order with regard to litigation between the
parties in federal court, and (3) documents pertaining to the foreclosure litigation,
including the assignment of mortgage, the certificate of transfer, and the foreclosure
complaint.
{¶38} Civ.R. 12(B)(6) provides that if the motion to dismiss presents matters
outside the pleadings and such matters are not excluded by the court, the court must treat
the motion as a motion for summary judgment as provided in Rule 56 but “[d]ocuments
attached to or incorporated into the complaint may be considered on a motion to dismiss
pursuant to Civ.R. 12(B)(6).” NCS Healthcare, Inc. v. Candlewood Partners, L.L.C., 160
Ohio App.3d 421, 427, 2005-Ohio-1669, 827 N.E.2d 797 (8th Dist.), citing State ex rel.
Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281 (1997).
The trial court may review documents that were incorporated into the complaint, even if
not attached to the complaint. Irvin v. Am. Gen. Fin., Inc., 5th Dist. Muskingum No.
CT2004-0046, 2005-Ohio-3523, fn. 6, citing Fillmore v. Brush Wellman, Inc., 6th Dist.
Ottawa No. OT-03-029, 2004-Ohio-3448. The court may also consider material pertinent
to jurisdictional issues without converting the motion into one for summary judgment.
Shockey v. Fouty, 106 Ohio App.3d 420, 423, 666 N.E.2d 304 (4th Dist.1995).
{¶39} In the case at bar, we see no evidence that the trial court converted the
defendants’ motions to dismiss into motions for summary judgment; in fact, in its order
granting the motions, the trial court expressly stated it was granting each defendant’s
motion to dismiss. Therefore, we will consider whether the trial court inappropriately
considered documents outside the complaint in rendering its decision and, if so, if such
error was harmless given our de novo review of the case.
{¶40} First, Glazer expressly asked, in his complaint, for the trial court to “take
judicial notice of the court docket and pleadings” in the Franklin County foreclosure
action, and incorporated into his complaint the assignment, the servicing rights transfer
document, the foreclosure complaint, and numerous other documents. Thus, he cannot
now complain of that which he himself requested the court to take notice of and
incorporated into his complaint. Moreover, there is no evidence that the trial court
considered the materials from the underlying foreclosure action in rendering its decision.
{¶41} In so far as the federal litigation is concerned, the trial court certainly could
consider concurrent litigation that may have an effect on its ability to determine Glazer’s
claims. See State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12, 15-16, 661 N.E.2d 170(1996), citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991) (finding that
courts may “take judicial notice of appropriate matters in considering a motion to dismiss
for failure to state a claim under the similarly worded Fed.R.Civ.P. 12(b)(6) without
having to convert it to a motion for summary judgment”) and First Michigan Bank & Trust
Co. v. P. & S. Bldg., 4th Dist. Meigs No. 413, 1989 Ohio App. LEXIS 527, *6 (Feb. 16,
1989) (“Conceivably a court may take judicial notice of adjudicative facts under Evid.R.
201 in determining a Civ.R. 12[B][6] motion * * * .”).
{¶42} We further note that the trial court’s initial decision granting the motions to
dismiss happened prior to the federal appellate court decision in Glazer II.
Notwithstanding that fact, Glazer urged the trial court, and now urges this court, to
consider Glazer II, although he argues that any consideration of Glazer I by the trial court
was in error. Nevertheless, even if the trial court erred in considering Glazer I, we find
any error to be harmless based on our de novo review as will be discussed below.
{¶43} In the second assignment of error, Glazer contends that the trial court
erroneously found that res judicata barred his claims. According to Glazer, the trial court
dismissed his OCSPA claims based on res judicata grounds, i.e., the federal district court
ruling dismissing his federal FDCPA claims in Glazer I. But there is no evidence that the
trial court granted the motions to dismiss based on res judicata. And even if the court did
so, we find any error harmless based on our de novo review of its decision.
{¶44} Accordingly, the first and second assignments of error are overruled.
VI. OCSPA Cause of Action
{¶45} In the third assignment of error, Glazer argues that the trial court erred in
finding that he had no standing to bring his OCSPA claim.
{¶46} R.C. 1345.02(A) prohibits unfair or deceptive consumer sales practices and
provides that “[n]o supplier shall commit an unfair or deceptive act or practice in
connection with a consumer transaction. Such an unfair or deceptive act or practice by a
supplier violates this section whether it occurs before, during, or after the transaction.”
{¶47} According to Glazer, the defendants violated the OCSPA by providing him
with false and misleading representations in regard to the “character, amount, legal status,
and ownership of the debt” and used unfair or deceptive practices to collect or attempt to
collect a debt that was not owed to them. First Amended Complaint, ¶ 109, 118.
Specifically, Glazer alleged that the defendants violated R.C. 1345.02(B)(1), (9), and (10).
These subsections state that the following act or practice of a supplier in representing any
of the following is deceptive:
(1) That subject of a consumer transaction has sponsorship, approval,
performance characteristics, accessories, uses, or benefits that it does not
have;
***
(9) That the supplier has a sponsorship, approval, or affiliation that the
supplier does not have;
(10) That a consumer transaction involves or does not involve a warranty, a
disclaimer of warranties or other rights, remedies, or obligations if the
representation is false.
Id. Glazer further alleged that the defendants violated R.C. 1345.02(F)(2), which
prohibits material misrepresentations by a “supplier” in a residential mortgage consumer
transaction.
{¶48} In their individual motions to dismiss, the defendants argued that Glazer
cannot bring a cause of action under the OCSPA because he is not a “consumer,” the
Bristol Road mortgage was not a “consumer transaction,” and the defendants were not
“suppliers” under the law.
{¶49} The trial court agreed with the appellees’ argument, holding the following:
The plaintiff did not obtain a loan or sign a mortgage relating to the subject
property through a probate court transfer and did not enter into any contract
with any lender. The foreclosure action upon which plaintiff’s claims are
alleged to have occurred do not constitute a consumer transaction under the
OCSPA. Furthermore, the defendants in this action are not suppliers as
they do not meet the definition * * *. The court concludes that the plaintiff
lacks standing to pursue his OCSPA claim as he has not met the
requirements of the statute and the claim is dismissed.
{¶50} Thus, in order to decide whether defendants-appellees’ alleged actions fall
under the OCSPA, we must determine the following: (1) Was Glazer involved in a
“consumer transaction?”; (2) Were the appellees “suppliers?”; (3) Was Glazer a
“consumer?” If the answer to any of these is no, Glazer’s claim fails.
A. The FDCPA and the OCSPA
{¶51} Glazer urges this court to find that defendants-appellees violated the OCSPA
because the Glazer II court found that the Reimer Firm and Chase, if it serviced the loan
only after default, qualify as debt collectors subject to the FDCPA.
{¶52} The FDCPA prohibits abusive, false, and misleading debt collection practices
by debt collectors. 15 U.S.C. §§ 1692d, 1692e. The OCSPA prohibits a supplier from
committing “an unfair or deceptive act or practice in connection with a consumer
transaction.” R.C. 1345.02(A).
{¶53} While the OCSPA’s definition of “supplier” is “substantially broader” than
the FDCPA’s definition of “debt collector,” “the requirements of the statutes are similar in
that to prove that an attorney was ‘engaged in the business of effecting or soliciting
consumer transactions’ under the OCSPA, a plaintiff must show ‘more than one isolated
occurrence, especially when the occurrence is not within the usual course of business.”’
Schroyer v. Frankel, 197 F.3d 1170, 1177 (6th Cir.1999), citing Renner v. Derin
Acquisition Corp., 111 Ohio App.3d 326, 676 N.E.2d 151 (8th Dist.1996).
{¶54} While the statutes bear some similarities, a violation of the FDCPA does not
automatically mean a violation of the OCSPA. In this case, as is shown below, even if
the Reimer Firm is liable in federal court under the FDCPA, it is not liable in state court
under the OCSPA because it was not involved in a consumer transaction with Glazer.
B. Consumer Transaction
{¶55} R.C. 1345.01(A) defines a “consumer transaction” as follows:
“Consumer transaction” means a sale, lease, assignment, award by chance,
or other transfer of an item of goods, a service, a franchise, or an intangible,
to an individual for purposes that are primarily personal, family, or
household, or solicitation to supply any of these things. “Consumer
transaction” does not include transactions between persons, defined in
sections 4905.03 and 5725.01 of the Revised Code, and their customers,
except for transactions involving a loan made pursuant to sections 1321.35
to 1321.48 of the Revised Code and transactions in connection with
residential mortgages between loan officers, mortgage brokers, or nonbank
mortgage lenders and their customers; * * *.
{¶56} In his first amended complaint, Glazer alleged that defendants-appellees
misrepresented the ownership of the note and mortgage and the amount due, that the note
had been lost, that Chase had the right to collect on the note and enforce a lien;
defendants-appellees demanded money that was not due, not permitted by law or contract,
or on expenses not actually incurred; took unlawful possession of the property; wrongfully
posted notices on the Bristol property; and/or took other illegal actions in order to attempt
to collect on a debt.
{¶57} Defendants-appellees argue that the Klie mortgage and the subsequent
foreclosure on that mortgage do not qualify as consumer transactions because: (1) the
OCSPA has no application in a pure real estate transaction; (2) prior to 2007 the Act did
not cover residential mortgages and the mortgage in this case was from 2003; (3) and the
Ohio Supreme Court held in Anderson v. Barclay’s Capital Real Estate, Inc., 136 Ohio
St.3d 31, 2013-Ohio-1933, 989 N.E.2d 997, that servicers of residential mortgage loans
are not covered by the OCSPA.
{¶58} We agree with defendants-appellees in part. In Anderson, the Ohio
Supreme Court noted that the OCSPA has no application in a “pure” real estate transaction
and real estate transactions are expressly excluded from the statute’s definition of
“consumer transaction.” (Citations omitted.) Anderson at ¶ 10. And the court held
that mortgage servicers are not liable under the OCSPA for actions while servicing
residential mortgage loans because they do not qualify as “suppliers.” Id. at paragraph
two of the syllabus.
{¶59} Defendants-appellees are also correct that the OCSPA was amended in 2007
so that “consumer transactions” include “transactions in connection with residential
mortgages between loan officers, mortgage brokers, or nonbank mortgage lenders and
their customers.” R.C. 1345.01(A). But, Glazer is not alleging that violations of the
OCSPA occurred when Klie purchased the property in 2003 or occurred solely with the
filing of the foreclosure. His allegations also concern actions taken after the foreclosure
case was filed.
{¶60} In Anderson, the plaintiff argued that mortgage servicing is a “consumer
transaction” because a mortgage servicer provides a number of services to borrowers,
including accepting payments and working with borrowers to obtain loan modifications.
The Ohio Supreme Court disagreed, finding that “mortgage servicing * * * is a ‘collateral
service’ associated with a pure real estate transaction. Except for the transactions
specified in the statute, the OCSPA does not apply to “collateral services that are solely
associated with the sale of real estate and are necessary to effectuate a ‘pure’ real estate
transaction.” Id. at ¶ 14, citing U.S. Bank v. Amir, 8th Dist. Cuyahoga No. 97438,
2012-Ohio-2772, ¶ 42-43.
{¶61} Glazer attempts to distinguish Anderson by arguing that the court only
focused on primary mortgages, not on mortgages that had gone into default or foreclosure.
But the Anderson court expressly held that the OCSPA does not cover transactions that
“include the acceptance and application of mortgage payments and management of loans
in default.” (Emphasis added.) Id. at ¶ 18. As the court noted, “[t]hose transactions
do not cease to be part of the land transaction simply because an entity that did not
originate the loan and mortgage executes them.” Id.
{¶62} Therefore, Chase as the mortgage servicer was not involved in a consumer
transaction with Glazer and his OCSPA cause of action fails as to Chase.
{¶63} The Reimer firm contends that because it served solely as Chase’s agent,
Glazer’s OCSPA claim against it must fail as well. We agree. See Clark v. Lender
Processing Servs., N.D. Ohio No. 1:12-CV-2187, 2013 U.S. Dist. LEXIS 80442, *30-*32
(June 6, 2013) (“[N]othing about the definition of ‘supplier’ under the OCSPA supports
the conclusion that those who provide services to financial institutions in connection with
foreclosure of delinquent mortgages are ‘suppliers’ for purposes of the statute.”)
{¶64} Finally, as to First American, Glazer alleges that the company caused Cindy
Smith to produce a fraudulent “lost note” affidavit. But the affidavit was not a service
provided for Glazer. The lost note affidavit was a service provided for Chase in the
foreclosure lawsuit and, therefore, cannot fall under the definition of a “consumer
transaction.” Moreover, the affidavit was filed on June 11, 2008, more than a month
before the property transferred to Glazer on July 25.
{¶65} In light of the above, Glazer was not involved in a consumer transaction with
Chase, the Reimer Firm, or First American.
C. Supplier
{¶66} R.C. 1345.01(C) defines a “supplier” as a:
seller, lessor, assignor, franchisor, or other person engaged in the business of
effecting or soliciting consumer transactions, whether or not the person deals
directly with the consumer. If the consumer transaction is in connection
with a residential mortgage, “supplier” does not include an assignee or
purchaser of the loan for value, except as otherwise provided in section
1345.091 of the Revised Code. For purposes of this division, in a
consumer transaction in connection with a residential mortgage, “seller”
means a loan officer, mortgage broker, or nonbank mortgage lender.
{¶67} In its order granting the motions to dismiss, the trial court noted that the
federal district court specifically found that the Reimer Firm was not engaged in debt
collection. In this appeal, Glazer argues that because the federal appellate court reversed
the district court’s holding in that regard and found that the Reimer Firm was engaged in
debt collection under the FDCPA, the firm also qualifies as a supplier under the OCSPA.
Glazer further argues that Chase qualifies as a debt collector and thus a supplier because it
regularly collected, or attempted to collect, debts owed or due another. Finally, Glazer
claims that First American is a debt collector and thus a supplier because the company’s
principal business purpose was to enforce security interests in real property or facilitate
enforcement of security interests through judicial foreclosures on behalf of lenders and
servicers.
{¶68} The parties again look to Anderson, 136 Ohio St.3d 31, 2013-Ohio-1933, 989
N.E.2d 997, to support their respective positions. The plaintiff in Anderson proposed that
because mortgage servicers engage in certain transactions with borrowers, they essentially
function as collection agencies, and are therefore “suppliers” under the OCSPA.
Defendant Barclay’s argued that mortgage servicers perform services for financial
institutions, not for borrowers, thus, the transactions are commercial in nature and are not
covered by the OCSPA.
{¶69} The court agreed with Barclay’s, holding that entities that service residential
mortgage loans are not “suppliers * * * engaged in the business of effecting or soliciting
consumer transactions” within the meaning of the OCSPA. Id. at paragraph one of the
syllabus. The court reasoned that mortgage servicers
do not engage in the business of effecting or soliciting consumer
transactions. The residential mortgage transaction is a transaction that
occurs between the financial institution and the borrower. Mortgage
servicers are not part of this transaction. And simply servicing the
mortgage is not causing a consumer transaction to happen. Similarly,
mortgage servicers do not seek to enter into consumer transactions with
borrowers.
Id. at ¶ 31. Thus, “the term ‘supplier’ under the OCSPA does not include a mortgage
servicer.” Id. at ¶ 28.
{¶70} Glazer argues that Anderson is distinguishable because the controversy in
Anderson arose from conduct solely related to mortgage servicing vis-a-vis a mortgage
loan. Glazer distinguishes servicing a primary mortgage loan to “default servicing” and
argues that Anderson does not address the question of whether foreclosure law firms
(Reimer), default servicers (Chase), and default outsourcers (First American) are
“suppliers” under the OCSPA.
{¶71} Glazer argues that because First American, the Reimer Firm, and Chase are
all either debt collectors or agents thereof, they fall under the purview of the OCSPA.
But because we found that Glazer was not involved in a consumer transaction with any of
the defendants-appellees, we need not further determine whether defendants-appellees
were suppliers, or whether Glazer was a consumer; Glazer’s OCSPA cause of action fails
because he was not involved in a consumer transaction under the statute.
{¶72} Therefore, the trial court did not err when it granted the motion to dismiss
Glazer’s OCSPA claim against Chase, the Reimer Firm, and First American.
{¶73} The third assignment of error is overruled.
VII. R.C. 1319.12 Cause of Action
{¶74} In the fourth assignment of error, Glazer claims that the trial court erred in
finding that he could not bring a cause of action against Chase pursuant to R.C. 1319.12.
Glazer contends that the statute allows for a private cause of action because there is
nothing in Ohio law prohibiting it.
{¶75} R.C. 1319.12 authorizes the assignment of certain creditor claims to
collection agencies and sets forth requirements for those collection agencies to commence
litigation for the collection of such claims. Barcosh, Ltd. v. Dumas, 6th Dist. Lucas
No. L-10-1001, 2010-Ohio-3066, ¶ 12. The statute regulates the actions of collection
agencies only, id., and defines a collection agency as “any person who, for compensation,
contingent or otherwise, or for other valuable consideration, offers services to collect an
alleged debt asserted to be owed to another.” R.C. 1319.12(A)(1).
{¶76} Glazer has not alleged that he qualifies as a collection agency; he argues that
since Chase is a collection agency, he should be able to sue Chase under this statute. But
contrary to his claim, a private right of action is not presumed where no remedy is
provided for in the statute; “in order for a statute to offer a private right of relief, the
statute must say so.” Collins v. Natl. City Bank, 2d Dist. Montgomery No. 19884,
2003-Ohio-6893, ¶ 44. R.C. 1319.12 does not so provide.
{¶77} Accordingly, the trial court was correct in dismissing this claim against
Chase for failure to state a claim for which relief could be granted.
{¶78} The fourth assignment of error is overruled.
VIII. Intentional/Negligent Misrepresentation and Concealment of
Material Facts
{¶79} In the fifth assignment of error, Glazer contends that the trial court erred in
dismissing his misrepresentation and concealment of material facts causes of action.
Glazer argues that he pleaded sufficient facts to put the defendants on notice of his claims
and the court erred in dismissing his claims based on a pleading deficiency.
{¶80} In Ohio, “[o]ne who fraudulently makes a representation of * * * intention *
* * for the purpose of inducing another to act or to refrain from action in reliance upon it,
is subject to liability to the other in deceit for pecuniary loss caused to him by his
justifiable reliance upon the misrepresentation.” EverStaff, L.L.C. v. Sansai
Environmental Technologies, L.L.C., 8th Dist. Cuyahoga No. 96108, 2011-Ohio-4824, ¶
27, citing Applegate v. N.W. Title Co., 10th Dist. Franklin No. 03AP-855,
2004-Ohio-1465, ¶ 22. “To establish a right to relief for a claim of fraudulent
representation or concealment, a plaintiff must establish the following elements:
(a) a representation or, where there is a duty to disclose, concealment of a
fact, (b) which is material to the transaction at hand, (c) made falsely, with
knowledge of its falsity, or with such utter disregard and recklessness as to
whether it is true or false that knowledge may be inferred, (d) with the intent
of misleading another into relying upon it, (e) justifiable reliance upon the
representation or concealment, and (f) a resulting injury proximately caused
by the reliance.
Northpoint Properties v. Charter One Bank, 8th Dist. Cuyahoga No. 94020,
2011-Ohio-2512, ¶ 60, citing Groob v. Key Bank, 108 Ohio St.3d 348, 357,
2006-Ohio-1189, 843 N.E.2d 1170.
{¶81} In his fourth, fifth, and sixth causes of action, Glazer alleged intentional
misrepresentation, negligent misrepresentation, and concealment of material facts, citing a
conspiracy by defendants to defraud him by representing that Chase was the owner and
holder of the promissory note on the Bristol Road property when, in reality, Fannie Mae
owned and held the note. Glazer further alleged that he justifiably relied on the
defendants’ misrepresentations “in dealing with the alleged lien on the property, the
administration of the will of Mr. Klie, and the management and maintenance of the
distributed probate assets.” First Amended Complaint ¶ 153, 168. Had he known the
“true facts,” Glazer alleged, “he would not have taken such actions.” The defendants’
wrongful acts caused him “to suffer monetary damages, loss of business opportunity, loss
of reputation, anguish, and emotional distress.” Id. at ¶ 153, 154, 162, 169.
{¶82} In its order granting the motions to dismiss, the trial court stated that “these
claims * * * fail as the plaintiff has not shown the requisite justifiable reliance on the
alleged misrepresentation or concealment.”
{¶83} A cause of action for fraud will only lie when the complainant actually relied
upon the representation, to his or her detriment, and the claimed injury must flow from the
complainant’s reliance on the alleged misrepresentation. Morgan Stanley Credit Corp. v.
Fillinger, 8th Dist. Cuyahoga No. 98197, 2012-Ohio-4295, ¶ 25, appeal not allowed, 134
Ohio St.3d 1487, 2013-Ohio-902, 984 N.E.2d 30. Failure to plead the elements of fraud
with particularity results in a defective claim that cannot withstand a Civ.R. 12(B)(6)
motion to dismiss. Morrow v. Reminger & Reminger Co. L.P.A., 183 Ohio App.3d 40,
2009-Ohio-2665, 915 N.E.2d 696, ¶ 21 (10th Dist.), citing Civ.R. 9(B).
{¶84} In his first amended complaint, Glazer alleged he justifiably relied on
defendants-appellees’ assertions that Chase was the owner of the note, but a careful review
of the complaint shows he did not support his conclusions with any facts nor did he
identify any act he took in reliance on those representations. And although he sought
damages, he did not allege how it was he incurred any of those damages by justifiably
relying on their alleged misrepresentations.
{¶85} On appeal, Glazer argues that he based his dealing with the Klie estate, such
as entering into a contract for distribution, and his actions regarding the Bristol Road
property, such as mold remediation and renovation, by relying on Chase being the true
mortgagee. But Glazer does not allege how these dealings related to the identity of the
mortgagee, what he would have done differently if he had known the true owner’s identity,
or how he relied on the alleged falsehood in conducting himself on matters relating to the
property. Moreover, Glazer alleged in the foreclosure action that he contested Chase’s
legal standing and the validity of the debt. First Amended Complaint, ¶ 81, 82, 86.
Thus, we fail to see how he justifiably relied on alleged misrepresentations when he
vigorously contested those representations in the foreclosure case. See Morrow at ¶ 22
(appellants cannot prove any set of facts to establish that they relied on appellees’ alleged
misrepresentations regarding whether business operated under a fictitious name because
appellants vigorously contested that issue in prior litigation. Thus, plaintiff cannot show
any injury proximately caused by reliance on defendants’ alleged misrepresentation).
{¶86} Based on these facts, the trial court did not err in dismissing Glazer’s
misrepresentation and concealment claims.
{¶87} The fifth assignment of error is overruled.
IX. Conspiracy
{¶88} In the sixth assignment of error, Glazer claims that the trial court erred in
dismissing his conspiracy claim. The trial court found that Glazer had not alleged facts
that supported his conclusion that the defendants engaged in any agreement or scheme to
engage in a wrongful act or commit fraud.
{¶89} A civil conspiracy requires: (1) a malicious combination, (2) involving two
or more persons, (3) causing injury to person or property, and (4) the existence of an
unlawful act independent from the conspiracy itself. Urbanek v. All State Home Mtge.,
178 Ohio App.3d 493, 500, 2008-Ohio-4871, 898 N.E.2d 1015, ¶ 19 (8th Dist.), citing
Universal Coach, Inc. v. New York City Transit Auth. Inc., 90 Ohio App.3d 284, 292, 629
N.E.2d 28 (8th Dist.1993); see also Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475,
700 N.E.2d 859 (1998). Bare allegations of conspiracy are not sufficient. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556-557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
{¶90} In this cause of action, Glazer alleged the defendants filed a foreclosure
complaint seeking to collect on a debt without disclosing that Fannie Mae was the actual
creditor and owner of the promissory note and “sought to circumvent the probate court
jurisdiction and side-step the requirement for asserting a creditor claim against the estate
of the deceased in an attempt to induce and/or coerce Plaintiff to pay off a debt not owed”
and pay for other unauthorized expenses. First Amended Complaint, ¶ 138, 139.
{¶91} Glazer further alleged that the defendants wrongfully took possession of the
Bristol Road property, Chase deliberately and fraudulently claimed the right to enter and
possess the property, and as a proximate result of the conspiracy, he suffered monetary
damages, loss of business opportunity, loss of reputation, loss of enjoyment of property
rights, anguish, and emotional distress. First Amended Complaint, ¶ 140, 142, 143.
Thus, Glazer premised his conspiracy claim on the defendants’ “conspiracy to defraud.”
First Amended Complaint ¶ 136.
{¶92} “An action for civil conspiracy cannot be maintained unless an underlying
unlawful act is committed.” Williams v. United States Bank Shaker Square, 8th Dist.
Cuyahoga No. 89760, 2008-Ohio-1414, ¶ 16, citing Gosden v. Louis, 116 Ohio App.3d
195, 219, 687 N.E.2d 481 (9th Dist.1996). As such, Glazer must show an underlying
unlawful act to support his conspiracy claim. But we have already found held that Glazer
failed to state a claim of misrepresentation, concealment, or a statutory violation against
defendants-appellees. Therefore, Glazer also cannot state a claim for conspiracy to
defraud against defendants-appellees. Gator Dev. Corp. v. VHH, Ltd., 1st Dist. Hamilton
No. C-080193, 2009-Ohio-1802, ¶ 32-33.
{¶93} As to any other unlawful act that defendants-appellees allegedly conspired to
do, Glazer has given no more than vague or conclusory allegations unsupported by
material facts. See Williams at ¶ 17.
{¶94} Therefore, the trial court correctly granted the defendants-appellees’ motions
to dismiss Glazer’s conspiracy claim.
{¶95} The sixth assignment of error is overruled.
X. Second Amended Complaint
{¶96} In the seventh assignment of error, Glazer argues that the trial court erred in
denying his motion for leave to amend his complaint a second time.
{¶97} The decision whether to allow a party leave to amend a complaint lies
exclusively within the discretion of the trial court and the ruling will not be disturbed on
appeal absent an abuse of discretion. Richard v. WJW TV-8, 8th Dist. Cuyahoga No.
84541, 2005-Ohio-1170, ¶ 21, citing Natl. Bank of Fulton Cty. v. Haupricht Bros., 55 Ohio
App.3d 249, 251, 564 N.E.2d 101 (6th Dist.1988). An abuse of discretion connotes that
the court’s attitude is arbitrary, unreasonable, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶98} A party seeking leave to amend a pleading is required to do so in good faith,
therefore “there must be at least a prima facie showing that the movant can marshal
support for the new matters sought to be pleaded, and that the amendment is not simply a
delaying tactic or one which would cause prejudice to the defendant.” Richard at ¶ 23,
citing Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 573
N.E.2d 622 (1991).
“Where the movant fails to present operative facts in support of the new allegations, a
court does not abuse its discretion in denying a motion to amend.” Id. citing id.{¶99} In Richard, the appellant filed a brief in opposition to the appellees’ motion
to dismiss alternatively seeking leave to amend his complaint. But this court found that
he gave no grounds for why leave should be granted, failed to explain what new matters he
wished to include in an amended pleading, and did not explain how an amendment would
cure the deficiencies in his initial complaint. This court concluded that the appellant
failed to make a prima facie showing that he could marshal support for new matters he
intended to plead and, therefore, the trial court did not abuse its discretion in denying the
appellant leave to amend his complaint. Id. at ¶ 24.
{¶100} This case is analogous to the situation in Richard. Here, Glazer filed his
brief in opposition to the appellees’ motion to dismiss on November 2, 2010. On the last
page of his motion, he filed a one paragraph “Motion for Leave to Amend” stating:
Should this Court find that Plaintiff’s complaint is not legally sufficient
under Civ. Rule 8(a) & 12(b)(6)[,] Plaintiff respectfully requests leave to
amend the complaint and allege additional facts in support of his claims.
Further, Plaintiff respectfully request[s] leave to amend and to add a party
Defendant. Plaintiff believes that during the relative time period stated
Beth Cottrell was an employee of [First American] and an officer of [Chase]
and is one of the co-conspirators sued as John Does 1-4.
{¶101} Glazer renewed his request in March 2013, over two years after the motions
to dismiss had been granted. Glazer gave no grounds for why leave should be granted,
other than if the trial court found the complaint to be legally insufficient, the court should
grant him leave to amend his complaint. He entirely failed to explain what new matters
he would include in an amended pleading, and he failed to explain how an amended
complaint would cure any deficiencies. Instead, he improperly put the onus on the trial
court to determine whether his complaint was legally sufficient and then allow him to cure
any deficiencies. Glazer also did not attach a proposed second amended complaint to his
motion. Simply put, it is not the trial court’s job to figure what a complaint’s deficiencies
are and then inform the plaintiff where his causes of action are lacking so he can have
“another bite at the apple.”
{¶102} The trial court did not abuse its discretion in denying him leave to amend
his complaint a second time.
{¶103} The seventh assignment of error is overruled.
XI. Federal Jurisdiction
{¶104} In the eighth assignment of error, Glazer argues that the trial court erred in
issuing its Civ.R. 54 certification because the federal court should have jurisdiction over
his state claims. But, as noted above, the federal court expressly declined to exercise
jurisdiction over Glazer’s state claims.
{¶105} We find no error in the court’s decision to issue a final order. Glazer had
once appealed the court’s decision to grant the defendants’ motions to dismiss that was
dismissed by this court because there was no final, appealable order. The court’s Civ.R.
54 certification made it so Glazer could file the instant appeal. Without the certification,
Glazer would not be able to pursue review of the trial court’s decision to grant the motions
to dismiss.
{¶106} The eighth assignment of error is overruled.
XII. Motion for Reconsideration
{¶107} In the ninth assignment of error, Glazer argues that the trial court erred in
denying his Civ.R. 60(B)(4) motion for reconsideration against Chase.
{¶108} An appellate court reviews the denial of a motion for relief from judgment
for an abuse of discretion. Marquee Capital v. Adiyan, 8th Dist. Cuyahoga No. 97630,
2012-Ohio-3154, ¶ 7, citing Shuford v. Owens, 10th Dist. Franklin No. 07AP-1068,
2008-Ohio-6220, ¶ 15. To prevail on a motion for relief from judgment pursuant to
Civ.R. 60(B), the movant must demonstrate (1) a meritorious claim or defense, (2)
entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and
(3) timeliness of the motion. GTE Automatic Elec. Inc. v. ARC Industries, Inc., 47 Ohio
St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.
{¶109} Glazer claims that the trial court should have granted his motion pursuant to
Civ.R. 60(B)(4), which provides that “the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have prospective
application.” Glazer argues that the trial court dismissed the OCSPA claims against
Chase by relying on Glazer I, but since the Sixth Circuit reversed the district court in
Glazer II, he should be afforded relief. We disagree.
{¶110} In order to prevail on a Civ.R. 60(B) motion, Glazer must still show a
meritorious claim, but he is unable to do so. The Sixth Circuit’s determination in Glazer
II that mortgage foreclosure is debt collection under the FDCPA does not establish a
claim pursuant to the OCSPA against any of the defendants-appellees. Glazer II did not
address whether Glazer properly alleged an OCSPA claim against Chase; in fact, the
Glazer II court found that the claims against Chase could not go forward because Chase
was servicing the mortgage before it fell into default. For reasons discussed previously,
the OCSPA claims against Chase, as well Glazer’s other claims against the company, fail.
{¶111} Therefore, the trial court did not err when it denied Glazer’s motion for
relief from judgment.
{¶112} The ninth assignment of error is overruled.
{¶113} Judgment affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR