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Deutsche Bank National Trust Co. v. Omkar

Court of Appeals of Ohio, Ninth District, Summit

December 18, 2019

DEUTSCHE BANK NATIONAL TRUST COMPANY Appellee
v.
ZEKI OMAR, et al.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2015-05-2868

          RANDALL D. WEISSFELD, Attorney at Law, for Appellant.

          BROOKE TURNER BAUTISTA, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO, JUDGE.

         {¶1} Zeki Omar appeals the judgment of the Summit County Court of Common Pleas overruling his objections, adopting the magistrate's decision, and entering judgment against Mr. Omar. We affirm.

         I.

         {¶2} In May 2015, Deutsche Bank National Trust Company, as Indenture Trustee for American Home Mortgage Investment Trust 2005-1 ("Deutsche Bank"), filed its complaint in foreclosure against Mr. Omar. A bench trial was held before the magistrate in August 2016. After a magistrate's decision was issued, Mr. Omar filed his objections, and the trial court entered judgment on January 9, 2017. An attempted appeal to this Court followed, which we dismissed because the trial court had failed to resolve all remaining issues involved in the foreclosure.

         {¶3} The trial court again entered judgment on April 26, 2017, from which Mr. Omar appealed to this Court. We reversed and remanded so that the trial court could expressly consider and rule upon all of Mr. Omar's objections to the magistrate's decision. The trial court entered judgment for the third time on December 26, 2018, finding Mr. Omar's objections to be without merit, and entering judgment in foreclosure against Mr. Omar.

         {¶4} Mr. Omar now appeals, raising eleven assignments of error.

         II.

         {¶5} "Generally, the decision to adopt, reject, or modify a magistrate's decision lies within the discretion of the trial court and should not be reversed on appeal absent an abuse of discretion." Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, (1983). When applying this standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd, 66 Ohio St.3d 619, 621 (1993). However, "[i]n so doing, we consider the trial court's action with reference to the nature of the underlying matter." Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009- Ohio-3139, ¶ 18.

         ASSIGNMENT OF ERROR ONE

         THE TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF PLAINTIFF'S RECORDS AND TESTIMONY BASED UPON IT[]

         {¶6} In his first assignment of error, Mr. Omar argues the trial court erred in admitting Deutsche Bank's business records into evidence. We disagree.

         {¶7} "The admission or exclusion of relevant evidence rests within the sound discretion of the trial court." State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. A trial court is afforded broad discretion in admitting evidence and we will not reject an exercise of this discretion unless it has clearly been abused and the appealing party has thereby suffered material prejudice. Packard v. Packard, 9th Dist. Summit No. 19870, 2000 WL 1729459, *2 (Nov. 22, 2000); accord State v. Long, 53 Ohio St.2d 91, 98 (1978).

         {¶8} Evid.R. 803(6) provides that records of regularly conducted business activity are an admissible form of hearsay, stating:

A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

         {¶9} "To qualify for admission under Evid.R. 803(6), a business record must manifest four essential elements: (i) the record must be one regularly recorded in a regularly conducted activity; (ii) it must have been entered by a person with knowledge of the act, event or condition; (iii) it must have been recorded at or near the time of the transaction; and (iv) a foundation must be laid by the custodian of the record or by some other qualified witness." PNC Bank, Natl. Assn. v. West, 9th Dist. Wayne No. 12CA0061, 2014-Ohio-161, ¶ 12. The theory supporting the business records exception is that such records are accurate and trustworthy because they are "made in the regular course of business by those who have a competent knowledge of the facts recorded and a self-interest to be served through the accuracy of the entries made and kept with knowledge that they will be relied upon in a systematic conduct of such business[.]" Weis v. Weis, 147 Ohio St. 416, 425-426 (1947).

         {¶10} Proper authentication of a business record under Evid.R. 901(A) requires that a proponent of a document produce evidence sufficient to support a finding that the matter in question is what the proponent claims it to be, and to accomplish this, a witness must testify as to the regularity and reliability of the business activity involved in the creation of the record. State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 24. A witness authenticating a business record must be "'familiar with the operation of the business and with the circumstances of the preparation, maintenance, and retrieval of the record in order to reasonably testify on the basis of this knowledge that the record is what it purports to be, and was made in the ordinary course of business.'" State v. Baker, 9th Dist. Summit No. 21414, 2003-Ohio-4637, ¶ 11, quoting Keeva J. Kekst Architects, Inc. v. George, 8th Dist. Cuyahoga No. 70835, 1997 WL 253171, *5 (May 15, 1997). Evid.R. 803(6) does not require personal knowledge of the exact circumstances of the preparation and production of the document or of the transaction giving rise to the record. Bank of America, N.A. v. Jackson, 12th Dist. Warren No. CA2014-01-018, 2014-Ohio-2480, ¶ 12.

         {¶11} Mr. Omar contends that the entire business record was unreliable because payment records are missing for the first three and one-half years of the loan and mortgage statements were not provided for the years between 2005 and 2010, and that as a result, "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." See Evid.R. 803(6). This argument does not implicate the four elements required for admission of a business record under Evid.R. 803(6), and Mr. Omar provides us with no authority to support the notion that an incomplete record would render the entire record inadmissible. The trial court found that the admitted records were properly identified and authenticated. We cannot conclude the trial court abused its discretion on this basis.

         {¶12} Mr. Omar next argues that the Internal Revenue Service Form 1098 for the years 2005, 2006, and 2007 were not provided to him by Deutsche Bank until 2011, and therefore "it is possible that the [forms] were created to satisf[y] a customer's request for these documents made in 2011 and were fabricated to avoid revealing errors by the bank." Mr. Omar provided testimony that he believed the forms were inaccurate, and points to the fact that the forms were not provided in Deutsche Bank's initial response to discovery, but rather, were provided in a supplemental response. Mr. Omar's testimony is unsupported by additional evidence, and his speculation that the forms could have been fabricated is likewise unsupported. We cannot conclude the trial court abused its discretion in admitting these documents.

         {¶13} Mr. Omar further argues that the bank statements contained in the record should not have been admitted into evidence because there were no statements from the time the loan was issued in 2005 to 2010. He contends that as a result, the record fails to meet the requirement under Evid.R. 803(6) that it "must be one regularly recorded in a regularly conducted activity." Once again, Mr. Omar fails to provide any authority that would support the theory that an incomplete record renders the remaining record inadmissible. He has likewise failed to show that the absence of a particular record or records was evidence that the remaining record was not "regularly recorded in a regularly conducted activity." See Evid.R. 803(6). Again, we cannot conclude the trial court abused its discretion in admitting these documents.

         {¶14} Mr. Omar's first assignment of error is overruled.

         ASSIGNMENT OF ERROR TWO

         THE TRIAL COURT ERRED BY ADMITTING PAYMENT RECORDS OFFERED BY THE BANK ON THE DEFENDANTS NOTE.

         {¶15} In his second assignment of error, Mr. Omar argues the trial court erred by admitting the payment records ...


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