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Union Savings Bank v. Washington

Court of Appeals of Ohio, Second District, Montgomery

August 9, 2019

UNION SAVINGS BANK Plaintiff-Appellee
v.
JAMES E. WASHINGTON Defendant-Appellant

          (Civil Appeal from Common Pleas Court) Trial Court Case No. 2018-CV-1821

          ANDREW J. FERGUSON, and KYLE D. MURRAY, Attorneys for Plaintiff-Appellee.

          JAMES E. WASHINGTON, Defendant-Appellant, Pro Se.

          OPINION

          DONOVAN, J.

         {¶ 1} James Washington appeals pro se from the trial court's January 24, 2019 final judgment entry in favor of Union Savings Bank ("USB"), which was issued after the court granted partial summary judgment in favor of USB on Washington's counterclaim and after USB dismissed its remaining claims against Washington. We hereby affirm the judgment of the trial court.

         {¶ 2} On April 25, 2018, USB filed a complaint in foreclosure against Louis Marzetta, Washington, and the Montgomery County Treasurer. The complaint provided that USB was the holder of "a fixed rate Balloon Note" in the original principal amount of $89, 000 ("note"), a balloon loan modification ("modification") and a mortgage ("mortgage"), copies of which were attached to the complaint. The note reflects that property at issue is on Garber Road. According to Count One of the complaint, Marzetta was in default under the terms of the note, modification and mortgage and $72, 010.36 was due, plus interest.

         {¶ 3} In Count Two, USB alleged that the "Conditions of defeasance contained in the Mortgage * * * ha[d] been broken" and USB was "entitled to have its Mortgage foreclosed and all liens and other interests marshaled." The complaint stated that Washington "may claim an interest or right in the subject real property by virtue of being the current titleholder, which interest he should set forth or be forever barred from asserting."

         {¶ 4} On May 24, 2018, Washington filed a pro se answer and a counterclaim[1] against USB. Washington asserted that the delinquent balance due and owed as of March 31, 2018 was only $353.76. In his counterclaim, he asserted that he incurred expenses processing advertising brochures for Jim Wendel, Vice President of USB, and he requested that the court "allow reasonable overhead and profit." Washington also filed a "Demand for Impartial Judge from Northern County" and requested a jury trial.

         {¶ 5} On May 30, 2018, the court found that Marzetta was "in default for answer or appearance." On June 4, 2018, Washington filed interrogatories, a request for admissions, and a request for the production of documents from USB. On June 5, 2018, USB objected to Washington's demand for an impartial judge from a northern county.

         {¶ 6} On June 14, 2018, Washington filed additional interrogatories, requests for admissions, and requests for the production of documents. Washington attached to this document a "motion contra" USB's objections to his motion for an impartial judge and other attachments.

         {¶ 7} USB filed an answer to Washington's counterclaim on June 21, 2018.

         {¶ 8} On July 24, 2018, the trial court overruled Washington's request for an impartial judge from a northern county. On July 26, 2018, the court referred the matter to a magistrate.

         {¶ 9} On July 27, 2018, USB filed a motion for leave to file an amended complaint. The motion stated that "the underlying mortgage foreclosure ha[d] been satisfied," but USB sought to assert causes of action against Washington which arose "under the same facts and circumstances" as Washington's counterclaim. The motion stated that the mortgage loan had been paid in full as a result of the sale of the property by Washington to a third-party purchaser. As a result, USB sought to withdraw its claim for foreclosure and to assert that Washington's actions resulted in a breach of contract, unjust enrichment, and defamation "when Washington altered USB's advertising materials without authority to do so and distributed these advertisements without authority to do so." The motion further provided that USB sought to add a claim against Washington for tortious interference with a contract, because Washington purchased the property from Marzetta for less than fair market value, agreed to assume the loan payments to USB (without USB's knowledge or assent), and "subsequently cause[d] the default payments on the Marzetta Loan, requiring USB to proceed with this foreclosure action."

         {¶ 10} The amended complaint was attached to the motion for leave. It stated that, in the spring of 2017, a representative of USB and Washington had entered into an agreement whereby Washington would distribute advertising material on behalf of USB by mail. The amended complaint asserted that Washington "requested only reimbursement for the costs of mailing." Washington "then fraudulently altered a door knocker advertisement belonging to [USB]" by adding his own contact information and other statements to the door knocker. A copy of the altered door knocker was attached as Exhibit A, and a copy of the original door knocker was attached as Exhibit B. USB alleged that the alterations made by Washington also "concealed required disclosures" that USB was required to make on any of its advertising materials. USB alleged that it did not authorize Washington to make any alterations to its advertising materials, nor did it authorize him to distribute the door knockers on its behalf.

         {¶ 11} Further, the amended complaint alleged that Washington entered into a sales contract to purchase the Garber Road property for $3, 500, "far less than the fair market value of the property," with knowledge that Marzetta had entered into the promissory note and mortgage with USB. USB did not consent to this transfer of ownership in the property. According to USB, on December 15, 2016, Marzetta "issued a Quit-Claim deed in favor of Washington, which was recorded April 18, 2017. USB alleged that Washington represented to the Montgomery County Auditor that the purchase price for the transfer was $111, 590, and that after the property was transferred, "the payments to [USB] went into default."

         {¶ 12} The magistrate granted leave for USB to file the amended complaint.

         {¶ 13} On August 13, 2018, Washington filed a motion for summary judgment, claiming that USB had not filed an answer to his counterclaim. Washington requested a judgment against USB "in an Amount not less tha[n] $12, 500.00 plus overhead and costs or not less than $15, 000.00." The same day, Washington filed an answer to USB's amended complaint and a counterclaim. In his counterclaim, Washington sought $12, 500, plus "Cost and Overhead" from USB for production and delivery of mailings, plus $17, 000 for unjust enrichment "for excessive payoff of property." On August 27, 2018, USB filed a motion in opposition to Washington's motion for summary judgment. USB asserted that Washington's motion for summary judgment provided no evidentiary or legal basis for the court to conclude that there were no genuine issues of material fact to be litigated; instead, it merely alleged that USB was "in default of answer despite the fact that the pleadings in this action show otherwise." USB argued that Washington's motion must be denied.

         {¶ 14} On August 29, 2018, Washington filed a third set of interrogatories, requests for admissions, and requests for production of documents. On September 6, 2018, he filed an affidavit in which he stated that he had "reviewed his files on several occasions lately" and found no evidence that USB had filed an answer to his June 4, 2018 counterclaim.

         {¶ 15} On September 20, 2018, the magistrate overruled Washington's motion for summary judgment, which is described as "actually a Motion for Default Judgment" governed by Civ.R. 55. The magistrate noted that Washington's motion for summary judgment was "devoid of any law or authority," that his "sole fact" was that USB has failed to answer his counterclaim, and that the court's docket "firmly and without question" established that USB had timely filed an answer on June 21, 2018. On October 10, 2018, the trial court adopted the magistrate's decision.

         {¶ 16} On November 2, 2018, USB filed a motion that its requests for admissions be deemed admitted, because Washington had failed to respond. Attached to the motion was an affidavit of Andrew J. Ferguson, an attorney for USB. The affidavit asserted that Washington was served by email with the requests for admissions on September 14, 2018, his responses were due on or before October 12, 2018, and none had been received. The requests for admissions were also attached. The same day, USB also filed a motion for partial summary judgment, asserting that Washington had produced "no evidence [that] he entered into an agreement with USB which provide[d] for the compensation he [was] seeking." An affidavit of Jim Wendel, Vice President of USB, was attached to the motion for summary judgment. The motion stated:

USB admits that [it] entered into an agreement with Washington whereby he agreed to distribute flyers through USPS deliver[y] to residents in Montgomery County. As averred to by Jim Wendel, Vice President of USB, Washington did not request, nor did USB agree to pay, any compensation to Washington for his efforts. USB had printed and delivered to Washington the flyers that he was to distribute, and Washington was reimbursed for postage and delivery costs in the amount of $300.00 on March 21, 2017. By failing to respond to USB's requests for admissions, Washington has admitted that he is not entitled to any compensation for his time and that no written agreement with USB exists.
In reviewing the records of this case, Jim Wendel discovered that an additional $258.60 is owed to Washington for additional postage and delivery costs due to a clerical error in which the payment was not processed. USB is prepared to deposit this amount into escrow with the Court or to send the funds directly to Washington. This was the extent of the agreement between USB and Washington. By preparing flyers and reimbursing the postage costs to Washington, USB will have fully performed under the agreement once the additional $258.60 is sent and is not in breach. Washington is not entitled to any further payment from USB.
In addition, Washington unlawfully, and without the knowledge or consent of USB, altered a doorknocker advertisement belonging to USB, had the doorknocker advertisement reproduced, and distributed these door knockers throughout the community. Washington's alterations of the doorknocker caused the Equal Housing Lender and FDIC logos to be removed from the advertisement, and were otherwise false and misleading in that Washington included the language, "Jim Washington, Realtors is giving back to the Trotwood Community with the Assistance of Union Savings." This statement was false and misleading because USB has no relationship with Jim Washington, aside from his agreement to mail advertisements created by USB. Washington also added his contact information to the doorknocker.

         {¶ 17} Wendel's affidavit stated that, in early 2017, he visited Washington's office "to prospect relationships with realtors in the Greater Dayton Area" to help generate new loan accounts for USB and to advertise USB's Community Outreach program. Wendel averred that he explained to Washington that USB was looking for local professionals to help it advertise this program. According to Wendel's affidavit, Washington stated that he was knowledgeable about the USPS Every Door Direct Mail program and that it would be a "good method for USB to utilize to advertise the Outreach program." According to Wendel, Washington stated that he would be "happy" to assist USB in mailing the advertisement regarding the Outreach program on behalf of USB because "the Dayton market was underserved." Wendel delivered 2, 500 self-mailer flyers to Washington for him to distribute through the USPS Every Door Direct Mail program at the end of March 2017, and Washington agreed to do so. Although Wendel "provided Washington with a copy of a door hanger that USB had created," and he and Washington talked about Washington's willingness to distribute these door hangers to Dayton neighborhoods, they did not enter into an agreement for Washington to do so. Wendel averred that Washington altered the door hangers as set forth above, reproduced them, and distributed them to various Dayton communities.

         {¶ 18} On November 21, 2018, the trial court granted USB's motion that its requests for admissions be deemed admitted. The requests for admissions, which were attached to the court's entry as Exhibit A, were as follows:

1. Admit that you stated to a representative of [USB] that you would assist in the distribution of advertising materials.
2. Admit that you did not request [USB] to compensate you for your time in distributing the ...

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