[Cite as Deutsche Bank Natl. Trust Co. v. Green, 2015-Ohio-3319.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


DEUTSCHE BANK NATIONAL TRUST                              JUDGES:
COMPANY, AS TRUSTEE FOR THE                               Hon. William B. Hoffman, P. J.
CERTIFICATEHOLDERS OF THE                                 Hon. Sheila G. Farmer, J.
FIRST FRANKLIN MORTGAGE LOAN                              Hon. John W. Wise, J.
TRUST 2005-FFH3, ASSET-BACKED
CERTIFICATES, SERIES 2005-FFH3

        Plaintiff-Appellee

-vs-                                                      Case No. 14 CA 00033

PAMELA GREEN, et al.

        Defendants-Appellants                             OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 1400170


JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               August 17, 2015



APPEARANCES:

For Plaintiff-Appellee                                For Defendants-Appellants

JASON A. WHITACRE                                     BRUCE BROYLES
LAURA C. INFANTE                                      5815 Market Street
4500 Courthouse Blvd., Suite 400                      Suite 2
Stow, Ohio 44224                                      Boardman, Ohio 44512
Perry County, Case No. 14 CA 00033                                                       2

Wise, J.

      {¶1}   Appellants James and Pamela Green appeal the June 27, 2014, decision

of the Licking County Court of Common Pleas denying their Motion to Intervene and

Motion to Vacate Judgment Entry and Decree of Foreclosure.

      {¶2}   Appellee is Deutsche Bank National Trust Company.

                         STATEMENT OF THE FACTS AND CASE

      {¶3}    This case began with a foreclosure action. Ronald W. Hill (“Hill”) entered

into a promissory note secured with a mortgage upon his real property commonly

known as 304 Moss Street, New Straitsville, Ohio 43766 (“Real Estate”).

      {¶4}   Appellants James and Pamela Green maintain that on July 26, 2010, they

entered into a land installment contract with Hill for the purchase of the subject real

estate.

      {¶5}   On January 12, 2012, Appellee Deutsche Bank National Trust Company,

as Trustee for the Certficateholders of the First Franklin Mortgage Loan Trust 2005-

FFH3 Asset-Backed Certificates, Series 2005-FFH3, (“Deutsche Bank”) filed a

Complaint in Foreclosure seeking judgment on the Note and foreclosure of the

Mortgage. The Greens were not named as parties to the Foreclosure complaint.

      {¶6}   In its Complaint, Appellee Deutsche Bank pled that it was due upon a

certain promissory note, that the loan account of Hill had fallen into, and remained in,

default, and that he had failed to cure that default, resulting in acceleration of the note

and mortgage. Hill failed to respond to the Complaint or otherwise appear. On March

15, 2012, Deutsche Bank filed its Motion for Default Judgment.
Perry County, Case No. 14 CA 00033                                                     3


        {¶7}   On May 4, 2012, Default Judgment was granted. A sale date was

scheduled for November 16, 2012.

        {¶8}   On October 23, 2012, Appellants filed a Motion to Stay the Sheriff's sale,

claiming an interest through an unrecorded land contract with the borrower. The Motion

was briefed and denied.

        {¶9}   On November 16, 2012, Appellee Deutsche Bank caused the property

subject to the foreclosure to be sold. The sale was judicially confirmed on June 24,

2013.

        {¶10} Appellant then moved to intervene in this matter and vacate the judgment

entry and decree of foreclosure of May 4, 2012

        {¶11} After the Sheriff’s sale was conducted and the property sold to Deutsche

Bank, the trial court issued an Order Staying the Confirmation of the Sale and

requested Deutsche Bank provide a brief to the court as to why Appellants were not

necessary parties to the foreclosure action based on a recently recorded land contract.

        {¶12} On February 12, 2013, Appellee Deutsche Bank provided a brief in

opposition to Appellants’ Motion to Stay the Sheriff’s Sale.

        {¶13} On June 24, 2013, the trial court vacated its entry which had previously

stayed the proceedings and confirmed the Sheriffs sale.

        {¶14} On September 10, 2013, Appellants filed a Motion to Vacate the Decree of

Foreclosure, Motion to Intervene, Motion to Stay Execution and an Affidavit of counsel.

        {¶15} On June 27, 2014, after briefing of the Motions, the Court issued a denial

of the Motions.
Perry County, Case No. 14 CA 00033                                                     4


       {¶16} Appellants appealed the trial court’s refusal to allow them to intervene in

the foreclosure action and denying their motion to vacate. By Opinion and Judgment

Entry filed April 23, 2015, this Court affirmed the decisions of the trial court. See

Deutsche Bank Natl. Trust Co. v. Hill, No. 14 CA 00021, 2015-Ohio-1575.

       {¶17} On May 7, 2014, Deutsche Bank filed a Complaint for Forcible Entry and

Detainer in the Perry County Common Pleas Court seeking an order of restitution of the

premises.

       {¶18} On June 30, 2014, a hearing on the forcible entry and detainer was held

before a visiting Judge. At the hearing, the parties agreed to submit the following

stipulations to the relevant facts rather than argue those on the record:

              That the present Forcible Entry and Detainer action relates to real

       property commonly known as 304 Moss Street, New Straitsville, Ohio

       43766 (the "Property");

              That the Property was foreclosed upon and, in execution thereof,

       Plaintiff purchased the property at Sheriff’s Sale;

              That, prior to the filing of the foreclosure complaint, the Defendants

       began occupying the property, and they executed a document with the

       prior property owner that they consider to be a land contract;

              That, the document referenced hereto was not recorded with the

       Perry County Recorder's Office prior to the filing of the foreclosure action;

              That, consistent with the Protecting Tenants at Foreclosure Act

       ("PTFA"), Plaintiff caused to be served upon Defendants at the Property a

       90 day notice to leave the premises;
Perry County, Case No. 14 CA 00033                                                     5


             That, consistent with Ohio law, subsequent to the expiration of the

      aforementioned 90 day notice, Plaintiff caused to be served a notice to

      vacate the Property;

             That Defendants received both the 90 day and 3 day notices, and

      that there is no objection to the form and service of those notices and

      have paid no rent to Plaintiff, or to any other party for an extended period

      of time; and,

             That Plaintiff does not intend to occupy the Property as its primary

      residence.

      {¶19} On July 1, 2014, the trial court issued an Entry ordering the parties to file

post-hearing briefs by July 15, 2014.

      {¶20} On November 14, 2014, after the parties filed post-hearing briefs, the trial

court issued judgment in favor of Deutsche Bank.

      {¶21} Appellants now appeal, assigning the following of error for review:

                              ASSIGNMENT OF ERROR

      {¶22} "I. THE TRIAL COURT ERRED IN FINDING THAT PAMELA AND JAMES

GREEN WERE IN DEFAULT AND GRANTING JUDGMENT IN FAVOR OF APPELLEE

DEUTSCHE BANK NATIONAL TRUST COMPANY.”

                                           I.

      {¶23} In their sole Assignment of Error, Appellants claim the trial court erred in

granting default judgment in this matter. We disagree.

      {¶24} In the case sub judice, the trial court granted default judgment against

Pamela and James Green. The November 17, 2014, judgment entry finds:
Perry County, Case No. 14 CA 00033                                                         6


       {¶25} "This was scheduled for Court on Monday, June 30th, 2014. The Court

hereby finds that the defendants were served with their summons. The Court further

finds that the defendant's were in default; that the averments of plaintiff’s petition are

true and that the plaintiff recovers from defendants on the action set forth in plaintiffs

petition."

       {¶26} Upon review of the record we find that Appellants have failed to file a

transcript of the June 30, 3014, hearing. An appellant is required to provide a transcript

for appellate review. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199,

400 N.E.2d 384. Such is necessary because an appellant shoulders the burden of

demonstrating error by reference to matters within the record. See, State v. Skaggs

(1978), 53 Ohio St.2d 162, 163, 372 N.E.2d 1355. This principle is embodied in App.R.

9(B), which states in relevant part:

       {¶27} "At the time of filing the notice of appeal the appellant, in writing, shall

order from the reporter a complete transcript or a transcript of the parts of the

proceedings not already on file as the appellant considers necessary for inclusion in the

record and file a copy of the order with the clerk. * * * If the appellant intends to urge on

appeal that a finding or conclusion is unsupported by the evidence or is contrary to the

weight of the evidence, the appellant shall include in the record a transcript of all

evidence relevant to the findings or conclusion." App.R. 9(B); see, also, Streetsboro v.

Hughes (July 31, 1987), 11th Dist. No. 1741, 1987 Ohio App. LEXIS 8109, at 2.

       {¶28} Where portions of the transcript necessary for the resolution of assigned

errors are omitted from the record, an appellate court has nothing to pass upon. As

appellant cannot demonstrate those errors, the court has no choice but to presume the
Perry County, Case No. 14 CA 00033                                                     7

validity of the lower court's proceedings. State v. Ridgway (Feb. 1, 1999), 5th Dist. No.

1998CA00147, 1999 Ohio App. LEXIS 766, at 3, citing Knapp, supra. Under the

circumstances, a transcript of the proceedings is necessary for a complete review of the

error assigned in Appellants’ brief.

       {¶29} As Appellants have failed to provide this Court with a transcript, we must

presume regularity of the proceedings below and affirm.

       {¶30} Appellants’ sole Assignment of Error is denied.

       {¶31} For the foregoing reasons, the judgment of the Court of Common Pleas of

Perry County, Ohio is hereby affirmed.


By: Wise, J.

Farmer, J., concurs.

Hoffman, P. J., concurs separately.




JWW/d 0803
Perry County, Case No. 14 CA 00033                                                       8

Hoffman, P.J., concurring

       {¶32} I concur in the majority's disposition of Appellants' sole assignment of

error, but do so for a different reason.

       {¶33} I do not find the argument Appellants present to this Court requires

production of the transcript; therefore, I would not rely on Knapp as the basis for

affirming the trial court's decision.

       {¶34} Appellants' argument is premised upon their assumption the trial court

found them "in default of answer" (see page 2 of Appellants' brief). Appellants maintain

no formal written answer was required under R.C. 1923.051(B).             If true, I find a

transcript would be unnecessary to determine the appeal as the claimed error would be

demonstrated in the record.

       {¶35} However, I find Appellants misinterpret the trial court's ruling. While the

trial court found Appellants were "in default", the trial court did not find they were "in

default of answer". When read in conjunction with the parties' stipulation Appellants

paid no rent to Appellee, or to any other party for an extended period of time, I conclude

the trial court's use of the term "in default" meant default of payment, not default of

answer.

       {¶36} As such, I concur in the decision to affirm the trial court's judgment.
