[Cite as Deutsche Bank Natl. Trust Co. v. Taylor, 2013-Ohio-4278.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

DEUTSCHE BANK NATIONAL TRUST                               C.A. No.   26626
COMPANY

        Appellee
                                                           APPEAL FROM JUDGMENT
        v.                                                 ENTERED IN THE
                                                           COURT OF COMMON PLEAS
KENNETH S. TAYLOR, et al.                                  COUNTY OF SUMMIT, OHIO
                                                           CASE No.   CV 2007 11 8364
        Appellants

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2013



        HENSAL, Judge.

        {¶1}    Kenneth Taylor appeals a judgment of the Summit County common pleas court

that granted summary judgment on his counterclaims to Deutsche Bank National Trust

Company, as Trustee for Certificateholders of Soundview Home Loan Trust 2006-OPT2, Asset-

Backed Certificates, Series 2006-OPT2. For the following reasons, this Court affirms in part and

reverses in part.

                                                      I.

        {¶2}    In 2006, Kenneth and Alicia Taylor bought a home in Twinsburg, Ohio. To

finance the deal, they signed a promissory note with Option One Mortgage Corp. and secured the

note with a mortgage on the property. In May 2007, Option One sent the Taylors a notice of

default because they had stopped making payments on the note. In June 2007, Option One

assigned its interest in the note and mortgage to Deutsche Bank.
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       {¶3}    In November 2007, Deutsche Bank filed a foreclosure action against the Taylors.

Mr. Taylor counterclaimed, alleging that Deutsche Bank had violated the Federal Fair Debt

Collection Practices Act and Revised Code Section 2921.03. Following discovery, Deutsche

Bank moved for summary judgment. The trial court granted its motion, and entered judgment

for Deutsche Bank on its claims and Mr. Taylor’s counterclaims. On appeal, this Court affirmed

the award of summary judgment as to the foreclosure action, but reversed as to the

counterclaims because Deutsche Bank had not moved for summary judgment on those claims.

Deutsche Bank Natl. Trust Co. v. Taylor, 9th Dist. Summit No. 25281, 2011-Ohio-435, ¶ 34. On

remand, Deutsche Bank moved for summary judgment on the counterclaims, and the trial court

granted its motion. Mr. Taylor has appealed, assigning eight errors. For ease of discussion, we

have rearranged some of them to facilitate our review.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY FAILURE TO FOLLOW C.A. “SPECIAL
       MANDATE” ORDERED INTO EXECUTION (IN THE COURT OF APPEALS
       NINTH JUDICIAL DISTRICT C.A.NO-25281).

       {¶4}    Mr. Taylor argues that the trial court failed to follow this Court’s mandate.

Although his appellate brief is not clear, his argument appears to be that the trial court

improperly delayed ruling on his motions, improperly delayed issuing a scheduling order, and

improperly failed to set a date for trial.   See Sherlock v. Myers, 9th Dist. Summit No. 22071,

2004-Ohio-5178, ¶ 3 (“[P]ro se litigants should be granted reasonable leeway such that their

motions and pleadings should be liberally construed so as to decide the issues on the merits, as

opposed to technicalities.”).
                                                 3


        {¶5}    In our previous decision in this case, we reversed the trial court’s entry of

summary judgment for Deutsche Bank on Mr. Taylor’s counterclaims and “remand[ed] Taylor’s

counterclaims to the trial court for further proceedings consistent with this opinion.” Taylor at ¶

34. On remand, the trial court directed the parties to submit briefs regarding the status of the

case and then established a case management schedule. It considered and ruled on the Taylors’

numerous discovery motions and his motions for relief from judgment. After Deutsche Bank

moved for summary judgment, it gave the Taylors time to respond to the motion then ruled on it.

In light of the court’s disposition of the motion for summary judgment, it was not necessary for

the court to set a trial date.

        {¶6}    Upon review of the record, we conclude that the trial court correctly applied our

mandate on remand. After the trial court received this Court’s decision, the case proceeded on

the counterclaims in accordance with the rules of civil procedure the same as it would in any

other case. Mr. Taylor’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED BY IN (SIC) ACCEPTING THE CONTENTS OF
        CERTAIN RECORDED DOCUMENTS AS TRUE AND RELYING UPON
        THAT INFORMATION IN DETERMINING THE SUMMARY JUDGMENT
        MOTION.

        {¶7}    In his second assignment of error, Mr. Taylor argues that the trial court

improperly considered several documents that Deutsche Bank submitted with its motion for

summary judgment. He argues that some of the documents were not incorporated into an

affidavit. He also argues that the affidavit of Cindi Ellis did not have any attachments.

        {¶8}    Under Rule 56(C), “[s]ummary judgment shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no
                                                   4


genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Under Rule 56(E), “[s]upporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the matters stated in the affidavit.”

        {¶9}    The documents that Deutsche Bank attached to its motion for summary judgment

included a brief that it had previously filed in the case regarding Mr. Taylor’s counterclaims, a

copy of the note, Ms. Ellis’s affidavit, a copy of the truth-in-lending disclosure statement that

was given to the Taylors at the time of the sale, a copy of the notice of right to cancel the Taylors

received, a copy of the mortgage, a copy of the assignment of the note and mortgage, a copy of

the notice of default that Option One sent to the Taylors, and a copy of this Court’s previous

decision in this case. Each of the documents was either already in the record or was properly

incorporated into Ms. Ellis’s affidavit. Regarding the affidavit, we note that, contrary to Mr.

Taylor’s allegation, it avers that it was made on personal knowledge and contains the multiple

attachments to which it refers. We conclude that it complied with Rule 56(E).

        {¶10} Upon review of the record, Mr. Taylor has failed to establish that the trial court

considered any improper evidence under Civil Rule 56(C). His second assignment of error is

overruled.

                                   ASSIGNMENT OF ERROR III

        LACK OF DUE PROCESS. THE TRIAL COURT ERRED BY NOT HOLDING
        ANY HEARINGS.

        {¶11} In his third assignment of error, Mr. Taylor argues that the trial court should have

held a hearing before ruling on Deutsche Bank’s motion for summary judgment. He argues that

the court denied him due process by depriving him of his property without holding a hearing.
                                                  5


       {¶12} This Court has held that “[a] trial court is not required to hold an oral hearing on a

motion for summary judgment and may instead consider the memoranda and evidentiary

materials submitted by the parties.” Bank of New York v. Brunson, 9th Dist. Summit No. 25118,

2010-Ohio-3978, ¶ 9. As the Ohio Supreme Court has explained, “[t]he ‘hearing’ contemplated

by Civ.R. 56(C) may be either a formal, oral hearing (in which the trial court entertains oral

arguments from counsel on a scheduled date preceded by the parties’ filings of memoranda and

Civ.R. 56 evidentiary materials) or a ‘nonoral,’ informal one.” Hooten v. Safe Auto Ins. Co., 100

Ohio St.3d 8, 2003-Ohio-4829, ¶ 14. The only due process requirement under Civil Rule 56 is

“that the nonmoving party receive notice of the deadline date for the opposing party’s response

to the summary judgment motion or of the date on which the motion is deemed submitted for

decision.” Id. at ¶ 17.

       {¶13} Mr. Taylor received notice of Deutsche Bank’s motion for summary judgment

and filed a timely response, which the trial court considered in rendering its decision. We,

therefore, conclude that the court did not violate Mr. Taylor’s due process rights when it awarded

summary judgment to Deutsche Bank without holding an oral hearing. Mr. Taylor’s third

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR IV

       PLAINTIFF(S) LACK STANDING. THE TRIAL COURT ERRED BY
       ALLOWING PLAINTIFFS TO USE DEFECTIVE ASSIGNMENT.

       {¶14} Mr. Taylor next argues that this Court should reconsider its prior decision in this

case in light of the Ohio Supreme Court’s decision in Federal Home Loan Mortgage. Corp. v.

Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. In Schwartzwald, the Supreme Court held

that a plaintiff must have “an interest in the note or mortgage at the time it filed suit” in order to

have “standing to invoke the jurisdiction of the common pleas court.” Id. at ¶ 28. As we noted
                                                6


in our prior decision, however, Option One assigned its interest in the note and mortgage to

Deutsche Bank several months before Deutsche Bank filed its foreclosure action. We also

specifically rejected Mr. Taylor’s argument that the assignment was defective. See Taylor, 2011-

Ohio-435 at ¶ 26.        Accordingly, even if the Supreme Court’s decision in Schwartzwald

permitted us to reconsider our previous decision, it would not change the outcome. See Nolan v.

Nolan, 11 Ohio St.3d 1 (1984), syllabus (“Absent extraordinary circumstances, such as an

intervening decision by the Supreme Court, an inferior court has no discretion to disregard the

mandate of a superior court in a prior appeal in the same case.”). Mr. Taylor’s fourth assignment

of error is overruled.

                                 ASSIGNMENT OF ERROR V

       TRIAL COURT LACKED JURISDICTION. THE TRIAL COURT ERRED BY
       ALLOWING PLAINTIFF’S ATTORNEY TO DRAFT FALSE AND
       MISLEADING REVISED FINAL DECREE INTO TRIAL COURT RECORDS.

       {¶15} Mr. Taylor argues that it was impossible for him to get a fair decision from the

trial court because the judge and plaintiff’s attorney acted in concert against him. He argues that

the trial judge was biased and improperly denied his motions for recusal. He also asserts that the

judge’s misconduct deprived him of his right to due process.

       {¶16} If a party believes that a common-pleas-court judge is prejudiced or has exhibited

bias, he may file an affidavit of disqualification under Section 2701.03 of the Ohio Revised

Code. Shih v. Byron, 9th Dist. Summit No. 25319, 2011-Ohio-2766, ¶ 24; R.C. 2701.03(A). An

Ohio district court of appeals “has no authority to render a decision with regard to

disqualification, or to void a trial court’s judgment on the basis of personal bias or prejudice on

the part of a trial judge.” (Citation omitted.) State v. Hunter, 151 Ohio App.3d 276, 2002-Ohio-

7326, ¶ 18 (9th Dist.) citing Beer v. Griffith, 54 Ohio St.2d 440, 441-442 (1978). We, therefore,
                                                  7


conclude that we do not have authority to address Mr. Taylor’s bias arguments or to overturn the

court’s judgment on that basis. Shih at ¶ 24 (“It is not the role of this Court to make a

determination as to whether the trial court exhibited a bias against a party.”). We also note that

Mr. Taylor filed an affidavit for disqualification with the Ohio Supreme Court regarding the trial

judge, but the Chief Justice determined that his allegations were without merit. Mr. Taylor’s

fifth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR VII

       COUNTERCLAIMS CLAIMS NOT HEARD AGAINST PLAINTIFF MANLEY
       DEAS KOCHALOSKI LLC. LOCATED IN COLUMBUS, OHIO P.O BOX
       165028 43216-502 WHO IS NAMED IN CAPTION OF DEFENDANT’S
       COUNTERCLAIM AS WELL AS IN BODY OF COUNTERCLAIM.

       {¶17} Mr. Taylor next argues that the trial court failed to dispose of the counterclaims

he filed against Deutsche Bank’s former counsel. Deutsche Bank argues that the trial court did

not err because its former counsel is not a party to the case. We disagree. In the caption of its

Counterclaim, Mr. Taylor named Deutsche Bank’s former counsel as a party. See Civ.R. 13(H)

(providing that “[p]ersons other than those made parties to the original action may be made

parties to a counterclaim * * *.”). It also made specific allegations against Deutsche Bank’s

former counsel in the body of its counterclaim.

       {¶18} In its motion for summary judgment, Deutsche Bank requested summary

judgment on all of Mr. Taylor’s claims, which the trial court granted. Under Civil Rule 56(B),

“[a] party against whom a * * * counterclaim * * * is asserted * * * may, at any time, move * * *

for a summary judgment in the party’s favor * * *.” (Emphasis added). The rule does not allow

a party to move for summary judgment on behalf of another party. As we noted in our previous

decision in this case, “Civ.R. 56(C) does not authorize courts to enter summary judgment in

favor of a non-moving party.” Taylor, 2011-Ohio-435 at ¶ 15, quoting Marshall v. Aaron, 15
                                                 8


Ohio St.3d 48 (1984), syllabus. We, therefore, conclude that the trial court incorrectly granted

summary judgment to Deutsche Bank on Mr. Taylor’s counterclaims against Deutsche Bank’s

former counsel. Mr. Taylor’s seventh assignment of error is sustained.

                                 ASSIGNMENT OF ERROR VI

       THE TRIAL COURT ERRED ON AUGUST 17, 2012 BY FINDING IN FAVOR
       OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS
       PLEADED BY DEFENDANTS. THE COURT HAS NOT PROPERLY
       ADDRESSED SOME CORE PRINCIPAL GENUINE ISSUES OF MATERIAL
       FACTS IN DISPUTE PLEADED IN DEFENDANT’S COUNTERCLAIM.

       {¶19} Mr. Taylor also argues that the trial court incorrectly determined that there were

no genuine issues of material fact and that Deutsche Bank is entitled to judgment as a matter of

law. Pursuant to Civil Rule 56(C), summary judgment is appropriate if:

       (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for

summary judgment, the movant bears the initial burden of demonstrating that there are no

genuine issues of material fact concerning an essential element of the opponent’s case. Dresher

v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party

“must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293, quoting

Civ.R. 56(E).

       {¶20} For the most part, Mr. Taylor’s arguments in support of his sixth assignment of

error are the same arguments he made with respect to his other assignments of error. According

to Mr. Taylor, there is an inconsistency between the parties listed in the counterclaim and the

ones listed in Ms. Ellis’s affidavit because the affidavit fails to indicate that Deutsche Bank’s
                                                 9


former counsel is a party to the counterclaim. He also asserts that there is no evidence that

Deutsche Bank possessed the note before it filed its foreclosure action, that Option One’s alleged

assignment to Deutsche Bank was fraudulent, and that Deutsche Bank’s motion for summary

judgment ignored the claims he and his wife filed against its former counsel.

       {¶21} In this Court’s prior decision, we determined that Option One validly assigned the

note and mortgage to Deutsche Bank before Deutsche Bank filed its complaint in this case.

Taylor, 2011-Ohio-435, ¶ 26.        We cannot reconsider that issue.        Regarding the alleged

inconsistency in the affidavit, we conclude that that issue is moot in light of our resolution of Mr.

Taylor’s seventh assignment of error. Mr. Taylor’s sixth assignment of error is overruled.

                                ASSIGNMENT OF ERROR VIII

       TRIAL COURT ERRED, COURT HAS CONCEALED RECORDS BY HIDING
       17 DENIED MOTIONS.

       {¶22} Mr. Taylor’s final argument is that the trial court “has concealed records by

hiding 17 denied motions.”       He contends that, by hiding the motions, the trial court has

prevented them from being reviewed by a superior tribunal.

       {¶23} Mr. Taylor has not provided this Court with any detail about the motions that he

alleges the trial court improperly excluded from the record. Without any suggestion in the record

or Mr. Taylor’s brief regarding the nature and content of the allegedly concealed motions, this

Court is unable to review the propriety of the trial court’s actions.          Mr. Taylor’s eighth

assignment of error is overruled.

                                                III.

       {¶24} The trial court correctly granted summary judgment to Deutsche Bank on Mr.

Taylor’s counterclaims against Deutsche Bank, but incorrectly granted it summary judgment on

Mr. Taylor’s counterclaims against its former counsel. The judgment of the Summit County
                                                10


common pleas court is affirmed in part and reversed in part, and this matter is remanded for

further proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                  reversed in part
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



MOORE, P. J.
CARR, J.
CONCUR.
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APPEARANCES:

KENNETH S. TAYLOR, pro se, Appellant.

THOMAS L. FEHER and ROBIN M. WILSON, Attorneys at Law, for Appellee.
