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American General Financial Services, Inc. v. Stephen M. Mosbaugh

October 28, 2011

AMERICAN GENERAL FINANCIAL SERVICES, INC.
PLAINTIFF-APPELLEE
v.
STEPHEN M. MOSBAUGH, ET AL.
DEFENDANT-APPELLANT



(Civil Appeal from Common Pleas Court) Trial Court No. 2007 CV 10503

Cite as Am. Gen. Fin. Servs., Inc. v. Mosbaugh,

OPINION

WAITE, J. (Sitting by Assignment)

{¶1} This matter began as a foreclosure action in 2007. Pro se Appellant Stephen M. Mosbaugh now appeals the judgment of the Montgomery County Court of Common Pleas adopting a magistrate's decision in favor of Appellee American General Financial Services, Inc. ("Amer. Gen."). Appellant had filed a series of documents attempting to block a sheriff's sale of his home. The trial court determined that Amer. Gen. properly fulfilled its obligations under a prior agreed final judgment and decree of foreclosure filed in 2009. The parties had resolved all disputes in this foreclosure action in that 2009 agreed judgment entry, but in Appellant's subsequent efforts to stop the sheriff's sale he also tried to relitigate almost all previously contested matters. The magistrate attempted to make some sense of Appellant's very confused filings and properly determined that the only issue that might prevent the sheriff's sale from going forward was whether Amer. Gen. fulfilled a covenant in the agreed foreclosure judgment entry that required it to consider Appellant for any government loan programs that became available. The magistrate ruled that Amer. Gen. had fulfilled its obligations under the agreed entry and that all other matters had been previously resolved. Appellant failed to object to the magistrate's decision. The trial court adopted the magistrate's decision and findings, leading to this appeal.

{¶2} Appellant did not file objections to the magistrate's decision that was the basis of the judgment entry being appealed, and has therefore waived any error on appeal except for plain error. There is no plain error in this case. Appellant agreed to the terms of the foreclosure. Amer. Gen. fulfilled its obligations under the agreement and is entitled to proceed with the sheriff's sale. The judgment of the trial court is affirmed.

Background

{¶3} Amer. Gen. filed a foreclosure action against Appellant on December 17, 2007. Appellant had defaulted on the terms of a promissory note and mortgage on his home located at 395 East Franklin Street, Centerville, Ohio. Appellant filed counterclaims alleging deceptive business practices, excessive fees, and predatory lending. Trial was postponed in order for the parties to negotiate a settlement to all claims.

{¶4} On June 19, 2009, the parties entered into an agreed judgment and decree in foreclosure that included further agreed-to terms by the parties. The trial court granted judgment of $108,795.96 to Amer. Gen., on the defaulted promissory note. The parties agreed that the house would be prepared for sheriff's sale on September 1, 2009; Appellant would pay taxes and maintain insurance on the property; Amer. Gen. would not seek eviction prior to November 1, 2009; if someone other than Appellant was the successful bidder at the sheriff's sale, then Appellant would still be permitted to live in the home until November 1, 2009; Appellant would release Amer. Gen. from all claims and counterclaims arising out of the loan and mortgage; and that Amer. Gen. would consider Appellant for government loan programs, such as "Making Home Affordable" loans. Appellant was represented by counsel at the time, and his counsel signed the agreement on his behalf. (6/19/09 J.E.) No objections were filed and the trial judge signed and filed the judgment and decree in foreclosure. No appeal was taken of the judgment.

{¶5} An order for sheriff's sale was issued on July 15, 2009. The sale was subsequently set for January 15, 2010. Appellant filed for bankruptcy protection on December 31, 2009. The order for sale was cancelled. Appellant's bankruptcy petition was terminated on March 24, 2010, and a new sheriff's sale was ordered. This second order of sale was cancelled due to Appellant's filing of a second bankruptcy petition on May 13, 2010. Amer. Gen. obtained in rem relief from the bankruptcy stay, and a third order of sale was filed, setting the sheriff's sale for November 3, 2010.

{¶6} Appellant, acting pro se even though he was still represented by counsel, filed a series of very large packets of documents with the trial court, starting on November 16, 2010, in an attempt to delay the sheriff's sale. The initial document was simply titled as "Adversary," and contained 67 pages of miscellaneous documents. Another packet, titled "Amended Adversary," was filed on December 2, 2010, containing 94 pages. Appellant then filed a 58-page document on January 24, 2011, titled "Motion for Breach of Contract." Appellant raised many of the same claims that had been previously raised as counterclaims in this matter and had been previously adjudicated.

{¶7} In response to these pro se filings, Appellant's counsel withdrew from the case. Counsel's motion to withdraw was granted on January 26, 2011.

{¶8} On January 27, 2011, the magistrate issued a decision overruling and dismissing all of Appellant's claims except for a single issue: whether Amer. Gen. fulfilled the paragraph of the agreed foreclosure judgment in which Amer. Gen. was to consider Appellant for any government loan programs. No objections were filed and the trial court adopted the magistrate's decision on February 17, 2011.

{¶9} A hearing was held on February 16, 2011, to deal with the single issue regarding Amer. Gen.'s consideration of Appellant for government loan programs. The magistrate issued its decision on February 18, 2011. The magistrate concluded that Appellant had failed to prove that Amer. Gen. violated the terms of the agreed foreclosure decree. Again, no objections were filed and the trial court adopted the magistrate's decision and issued its own judgment entry on March 15, 2011. This appeal followed on April 11, 2011. Appellant is now acting pro se.

{ΒΆ10} On June 2, 2011, Appellant filed a large number of documents that we must assume is his substitute for filing an actual brief on appeal. It contains no recognizable assignments of error, no caselaw, no citations to the record, and no ascertainable arguments. Amer. Gen. filed a responsive brief, attempting to extrapolate any possible cogent arguments arising from Appellant's filing. Since there are ...


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