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Keybank National Association v. Sarameh

Court of Appeals of Ohio, Second District

June 21, 2013

KEYBANK NATIONAL ASSOCIATION Plaintiff-Appellee
v.
EID Y. SARAMEH Defendant-Appellant

(Civil appeal from Common Pleas Court) T.C. NO. 12CV2923

THOMAS J. KELLEY, and STEVEN B. WINTERS, Attorneys for Plaintiff-Appellee

GEORGE A. KATCHMER, Attorneys for Defendant-Appellant

DOUGLAS TROUT, Attorney for Defendant-Appellee

OPINION

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Eid Y. Sarameh, filed October 11, 2012. Sarameh appeals from the trial court's September 15, 2012 "Order for Judgment and Foreclosure and Order of Sale" in favor of KeyBank National Association ("KeyBank"). We hereby affirm the judgment of the trial court.

{¶ 2} KeyBank filed its complaint in foreclosure on April 23, 2012, against Sarameh; Noah Gula; Jane Doe, unknown spouse of Noah Gula; and Carolyn Rice, Treasurer, alleging that Sarameh executed and delivered to KeyBank a Key Options Agreement in the amount of $50, 000.00, and that Sarameh is in default thereon, such that $31, 197.49 is due and owing, plus interest, late charges and advances from October 13, 2011. KeyBank asserted that the agreement is secured by a mortgage on real property located at 27 Potomac Street, and that KeyBank is entitled to have the mortgage foreclosed. Attached to the complaint is the Key Equity Options Agreement, signed by Sarameh on April 6, 2004; the mortgage for the Potomac Street property, also executed on April 6, 2004 by Sarameh and recorded on April 19, 2004; and a preliminary judicial report.

{¶ 3} After numerous attempts at service of process upon Sarameh, Gula, and Jane Doe, KeyBank filed an "Affidavit for Service by Publication" on May 31, 2012, and the court granted the motion on June 10, 2012. On June 15, 2012, an "Answer and Request for Mediation" was filed, in which Sarameh's name is hand-printed in a blank space, and which provides in part as follows: "Now come(s) the Defendant(s), Eid Y. Sarameh, pro se, and in response to Answer to the Complaint filed by Plaintiff * * * ." In the signature block on both the Answer and the certificate of service appears the hand-printed name of Eid Y. Sarameh, along with the hand-printed name and signature of Ismail Gula, beside which is the designation "P.o.A."

{¶ 4} On June 15, 2012, KeyBank filed a "Motion to Strike Answer and Request for Mediation, " in which it asserted that "Ismail Gula filed said pleading purportedly as power of attorney for [Sarameh]. Ismail Gula is not a licensed attorney and the appearance and filing of the pleading constitutes the unauthorized practice of law. Ismail Gula has no authority to file a pleading in this court."

{¶ 5} On August 9, 2012, the trial court sustained KeyBank's motion to strike, concluding that Sarameh's answer "was filed on behalf of [Sarameh] by Ismail Gula, who is not a licensed attorney and, therefore, unauthorized to file[] pleadings on behalf of [Sarameh]."

{¶ 6} On August 13, 2012, KeyBank filed a Motion for Default Judgment, as well as a final judicial report. On August 28, 2012, the trial court issued a "File Notice of Returned Mail, " which provides that the court's entry sustaining KeyBank's motion to strike, which was mailed to Sarameh, was returned to the court "Not Deliverable as Addressed" on August 23, 2012.

{¶ 7} In granting default judgment in favor of KeyBank, the trial court noted that Defendants "have been duly served with a copy of Plaintiff s Complaint and Summons according to law, * * * and that said Defendants have not answered Plaintiffs Complaint within twenty-eight (28) days after having been served with a copy of the Complaint and Summons." The court found that Sarameh executed and delivered to KeyBank a KeyBank Equity Options Agreement in the amount of $50, 000.00, that Sarameh is in default, with $31, 197.49 due plus interest and costs, that the agreement is secured by the mortgage filed for record on April 19, 2004, and that KeyBank is entitled to have the mortgage foreclosed and the property sold.

{¶ 8} Sarameh asserts one assignment of error herein as follows:

"A DEFAULT JUDGMENT CAN ONLY BE ENTERED UNDER CIV.R. 55 WHEN A DEFENDANT FAILS TO ANSWER OR ...

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