 [Cite as Deutsche Bank Trust Co. v. Ziegler, 2014-Ohio-471.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 DEUTSCHE BANK TRUST CO. AMERICAS, fka BANKERS TRUST COMPANY AS
 TRUSTEE

         Plaintiff-Appellee

 v.

 TALBOT D. ZIEGLER, et al.

         Defendant-Appellant

 Appellate Case No.       25744

 Trial Court Case No. 2012-CV-5479


 (Civil Appeal from
 (Common Pleas Court)
                                                ...........

                                                OPINION

                               Rendered on the 7th day of February, 2014.

                                                ...........

CHARLES F. ALLBERY, III, Atty. Reg. No. 0006244, CANICE J. FOGARTY, Atty. Reg. No.
0010046, 137 North Main Street, Suite 500, Dayton, Ohio 45402
      Attorneys for Plaintiff-Appellee

TALBOT D. ZIEGLER, 850 Big Hill Road, Kettering, Ohio 45419
     Defendant-Appellant-Pro Se

DOUGLAS M. TROUT, Atty. Reg. No. 0072027, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Defendant-Appellee-Montgomery County Treasurer
                                                                                           2


                                          .............

WELBAUM, J.

        {¶ 1}     Defendant-Appellant, Talbot D. Ziegler, appeals from a summary judgment and

 decree of foreclosure rendered in favor of Plaintiff-Appellee, Deutsche Bank Trust Co. Americas

 fka Bankers Trust Co. as Trustee (“Deutsche Bank”). Ziegler contends that the trial court erred

 in granting summary judgment in favor of Deutsche Bank.

        {¶ 2}     We conclude that the trial court did not err in rendering summary judgment in

 favor of Deutsche Bank. Ziegler did not challenge the merits of the foreclosure action below,

 and failed to properly support his affirmative defenses with appropriate factual materials as

 required by Civ.R. 56. Accordingly, the judgment of the trial court will be affirmed.



                                I. Facts and Course of Proceedings

        {¶ 3}     On June 30, 2012, Deutsche Bank filed a complaint for foreclosure against

 Talbot Ziegler, Angela Ziegler, PNC Bank, and the Montgomery County Treasurer. Deutsche

 Bank alleged in the complaint that Talbot Ziegler had delivered a promissory note for $185,400,

 at an interest rate of 7.625% per annum, and that Deutsche Bank was the true holder of the note,

 as successor in interest to National City Mortgage. Deutsche Bank further alleged that the note

 had not been paid according to its terms, and that $183,976.93 was currently due and owing.

        {¶ 4}     The complaint also alleged that Angela and Talbot Ziegler had executed a

 mortgage conveying real estate located at 850 Big Hill Road, Dayton, Ohio, to secure payment of

 the note, and that the mortgage had also been assigned to Deutsche Bank. Deutsche Bank asked

 for judgment on the note, foreclosure on the premises, and marshaling of liens on the property.
                                                                                          3


       {¶ 5}     On August 23, 2012, Talbot Ziegler filed an answer, pro se, admitting that he

executed a mortgage for the property located at 850 Big Hill Road, and denying the remainder of

the allegations in the complaint. Ziegler also asserted 22 affirmative defenses and requested

court-ordered mediation. He did not file a counterclaim. Angela Ziegler did not file any

response to the complaint.

       {¶ 6}     The trial court held status conferences in September and November 2012, and in

January and February 2013. On January 30, 2013, Talbot Ziegler filed a motion, requesting 30

days leave to retain counsel in the event that the parties could not reach settlement on or before

the February 12, 2013 status conference. Ziegler also asked leave to file “counter complaints” in

tort and contract.   In the motion, Ziegler contended that Deutsche Bank had unreasonably

delayed the processing of loan modification requests.

       {¶ 7}     Subsequently, on March 4, 2013, Deutsche Bank filed a motion for summary

judgment, requesting that the court grant judgment on the amount owed on the note and order

foreclosure of the property as requested in the complaint. Angela Ziegler did not file a response

to the motion. Talbot Ziegler filed a memorandum opposing summary judgment, arguing the

affirmative defenses of promissory estoppel, unclean hands, and laches. In the memorandum,

Ziegler detailed various ways in which PNC Mortgage, the loan servicer for Deutsche Bank, had

allegedly misled him regarding loan modification, and had unreasonably delayed action on his

applications for loan modification between April 2012 and February 2013. Among other things,

Ziegler alleged that Deutsche Bank had continued to increase the amount of annual income

needed for modification, and that counsel for Deutsche Bank had failed to promptly tender

documentation to PNC Mortgage, which showed that the Zieglers’ income was sufficient to meet
                                                                                             4


the terms of the proposed modification. Ziegler did not, however, provide an affidavit or any

documents to support his allegations.

          {¶ 8}     On April 12, 2013, the trial court overruled Ziegler’s motion for leave to retain

counsel and to file a counterclaim. The court noted that Ziegler had sufficient time to retain

counsel, and that any extensions would serve to delay foreclosure and were unwarranted on the

record before the court. On the same day, the trial court rendered summary judgment in favor of

Deutsche Bank, and filed a judgment entry and decree of foreclosure.

          {¶ 9}     Talbot Ziegler appeals, pro se, from the judgment and decree of foreclosure.

Angela Ziegler has not appealed from the judgment.



                                     II. Did the Trial Court Err in

                           Granting Summary Judgment to Deutsche Bank?

          {¶ 10}    Talbot Ziegler’s sole assignment of error states that:

                   The Trial Court Erred in Granting Summary Judgment for the

          Plaintiff-Appellee, Deutsche Bank Trust Co. Americas fka Bankers Trust

          Company as Trustee.

          {¶ 11}    Under this assignment of error, Ziegler contends that the trial court erred in

rendering summary judgment in favor of Deutsche Bank. According to Ziegler, the trial court

should have considered his affirmative defenses of promissory estoppel, unclean hands, and

laches.

          {¶ 12}    “A trial court may grant a moving party summary judgment pursuant to Civ. R.

56 if there are no genuine issues of material fact remaining to be litigated, the moving party is
                                                                                             5


entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion,

and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence

construed most strongly in his favor.” (Citation omitted.) Smith v. Five Rivers MetroParks,

134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist.1999). “We review summary judgment

decisions de novo, which means that we apply the same standards as the trial court.” (Citations

omitted.) GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d

345, ¶ 16 (2d Dist.)

       {¶ 13}    “To properly support a motion for summary judgment in a foreclosure action, a

plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the

note and mortgage, or is a party entitled to enforce the instrument; (2) if the movant is not the

original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all

conditions precedent have been met; and (5) the amount of principal and interest due.”

Wright–Patt Credit Union, Inc. v. Byington, 6th Dist. Erie No. E-12-002, 2013-Ohio-3963, ¶ 10,

citing U.S. Bank, N.A. v. Coffey, 6th Dist. Erie No. E-11-026, 2012-Ohio-721, ¶ 26. (Other

citation omitted.)

       {¶ 14}    The affidavit submitted by Deutsche Bank complied with the above

requirements, and was sufficient to establish that Deutsche Bank was entitled to summary

judgment and a decree of foreclosure.

       {¶ 15}    In his appellate brief, Ziegler does not challenge the sufficiency of the

evidentiary materials that were submitted. Instead, he contests only the trial court’s failure to let

him proceed on the affirmative defenses that he pled.         However, Ziegler failed to present

evidence in the trial court in the form required by Civ.R. 56. In this regard, Civ.R. 56(C)
                                                                                               6


provides that:

                 Summary 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 genuine issue as to any material fact and that the moving

       party is entitled to judgment as a matter of law. No evidence or stipulation may

       be considered except as stated in this rule. (Emphasis added).

       {¶ 16}     Civ.R. 56(E) further states that:

       When a motion for summary judgment is made and supported as provided in this

       rule, an adverse party may not rest upon the mere allegations or denials of the

       party's pleadings, but the party's response, by affidavit or as otherwise provided

       in this rule, must set forth specific facts showing that there is a genuine issue for

       trial. If the party does not so respond, summary judgment, if appropriate, shall be

       entered against the party. (Emphasis added.)

       {¶ 17}     Ziegler’s memorandum in opposition to summary judgment contains allegations

only, and no sworn affidavit in support of the allegations. Because “an unsworn declaration is

not an affidavit, it cannot be considered as evidence under Civ.R. 56.” Pollock v. Brigano, 130

Ohio App.3d 505, 509, 720 N.E.2d 571 (12th Dist.1998). Accord Frees v. ITT Technical

School, 2d Dist. Montgomery No. 23777, 2010-Ohio-5281, ¶ 18, citing In re Disqualification of

Pokorny, 74 Ohio St.3d 1238, 657 N.E.2d 1345 (1992), and Pollock at 509.

       {¶ 18}     Although Ziegler was not represented by an attorney during the trial court

proceedings, he was still required to comply with the Ohio Rules of Civil Procedure. “Litigants
                                                                                              7


who choose to proceed pro se are presumed to know the law and correct procedure, and are held

to the same standards as other litigants.”         Yocum v. Means, 2d Dist. Darke No. 1576,

2002-Ohio-3803, ¶ 20, citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676

N.E.2d 171 (8th Dist.1996). Thus, “a pro se litigant ‘cannot expect or demand special treatment

from the judge, who is to sit as impartial arbiter.’ ” Id.

        {¶ 19}    Accordingly, the trial court did not err in failing to consider Ziegler’s

affirmative defenses.      Ziegler failed to properly support his contentions and to submit

documentation in compliance with Civ.R. 56.

        {¶ 20}     As an additional matter, we note that after the time had elapsed for filing briefs,

Ziegler filed a motion with our court, asking us to disqualify Deutsche Bank’s counsel. Ziegler

has also asked to cite additional authorities pursuant to App.R.21(I). In this regard, App.R. 21(I)

states that:

                 If counsel on oral argument intends to present authorities not cited in the

        brief, counsel shall, at least five days prior to oral argument, present in writing

        such authorities to the court and to opposing counsel, unless there is good cause

        for a later presentment.

        {¶ 21}     Although Ziegler’s motion was timely filed, the motion is without merit. After

reviewing the matter, we conclude that Ziegler is not actually seeking to submit additional

authorities to aid our decision on the assignment of error that has been raised; instead, he is

asking us to consider an additional argument that was never presented to the trial court and was

not assigned as an error in his appellate brief.

        {¶ 22}     Specifically, Ziegler is now claiming that Deutsche Bank is not the holder of the
                                                                                         8


note under Ohio law because, in order to be a holder, Deutsche Bank must possess the original

note, and the note must be payable to “bearer” or to “Deutsche Bank.” In this regard, Ziegler

contends that the note produced by Deutsche Bank is not the original document and contains no

signature, allonge, or blank endorsement that would qualify as a proper endorsement of the note

to Deutsche Bank.

       {¶ 23}    Based on these alleged facts, Ziegler accuses Deutsche Bank’s counsel of

having introduced misrepresentations of fact into evidence in the trial court, with knowledge of

the falsity of the facts or having been reckless in that regard. Ziegler, therefore, asks that

Deutsche Bank’s counsel, including its entire law firm, be disqualified as counsel for the bank.

According to Ziegler, the “severity     of the criminal fraud” upon the trial court “was not

knowable at least until the false Affidavit was entered into evidence on March 4, 2013 – eight

months after filing the foreclosure complaint.” Ziegler Motion to Disqualify Appellee’s Counsel

and Cite Additional Authorities Pursuant to Rule 21(I), p. 2.

       {¶ 24}    “Ordinarily, a court of appeals does not review an assignment of error not

properly raised in a brief. See App.R. 16(A). However, the court may, in the interest of justice,

consider errors that an appellant has failed to assign or to brief.” State v. Cooper, 1st Dist.

Hamilton No. C-030921, 2004-Ohio-6428, ¶ 7, citing App.R. 12(A)(2) and Hawley v. Ritley, 35

Ohio St.3d 157, 159, 519 N.E.2d 390 (1988).           In Cooper, the court of appeals recast a

“supplemental authority” request as an additional assignment of error. Id.

       {¶ 25}    We see no basis, under the applicable law, for allowing Ziegler’s additional

argument. As was noted, the summary judgment motion, with supporting materials, was filed

on March 4, 2013. The trial court ordered all responses to summary judgment to be filed by
                                                                                               9


March 26, 2013, and Ziegler’s response was, in fact, filed in the trial court on March 22, 2013.

Ziegler, therefore, had time to review the bank’s documents, and had the opportunity to raise

issues about the affidavit in the trial court. However, he failed to do so. When Ziegler’s

appellate brief was filed in our court on July 1, 2013, Ziegler had another opportunity to assert

arguments about the affidavit at that time. He, again, failed to raise the issue.

       {¶ 26}    If Ziegler believes that fraud has been committed, he can raise the matter in the

trial court pursuant to a Civ.R.60(B)(3) motion, which allows vacation of judgments based on

fraud or misconduct of an adverse party. The trial court is a more appropriate forum for this

matter, particularly since the issue has not been previously considered. In this regard, we note

that Ziegler has already filed a motion in the trial court seeking to vacate the summary judgment

decision. Although the trial court overruled the motion because of the pending appeal, the court

can consider the motion when this appeal concludes.

       {¶ 27}    Furthermore, the court of appeals is not the proper forum for asserting a

disqualification claim.    Ziegler suggests in the motion that the bank’s counsel should be

disqualified based on Prof.Cond.R. 3.7, which prohibits lawyers from acting as advocates where

they are likely to be necessary witnesses. This is an issue that would be handled in the trial

court, since that, rather than an appellate court, is the forum in which a lawyer would testify. In

Brown v. Spectrum Networks, Inc., 180 Ohio App.3d 99, 2008-Ohio-6687, 904 N.E.2d 576, ¶ 15

(1st Dist.), the court of appeals observed that:

                [T]he proper procedure for a trial court to follow in determining whether

       to disqualify an attorney who has been called to testify by the opposing party is for

       the court to (1) determine whether the attorney's testimony is admissible and (2)
                                                                                              10


       determine whether the attorney's testimony is necessary. Under the second part

       of this analysis, the court must decide whether the attorney's testimony is relevant

       and material to the issues being litigated and whether the testimony is

       unobtainable elsewhere. If the court determines that the lawyer's testimony is

       admissible and necessary, the court must then determine whether any of the

       exceptions set forth under Rule 3.7 apply. Id. at ¶ 15.

       {¶ 28}     No matter is pending in this court that would require testimony. Accordingly,

this is not the forum in which Ziegler’s request for disqualification should be considered.

       {¶ 29}     Based on the preceding discussion, Ziegler’s sole assignment of error is

overruled.   Ziegler’s motion for disqualification and to cite additional authorities is also

overruled.



                                         III. Conclusion

       {¶ 30}     Ziegler’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed. Ziegler’s motion for disqualification and to cite additional authorities is

also overruled.




                                         .............

FAIN and HALL, JJ., concur.
                          11




Copies mailed to:

Charles F. Allbery, III
Canice J. Fogarty
Talbot D. Ziegler
Douglas M. Trout
Hon. Michael Tucker
