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.
TURNER BAUTISTA, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO, JUDGE.
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.
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.
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.
Mr. Omar now appeals, raising eleven assignments of error.
"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.
OF ERROR ONE
TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF
PLAINTIFF'S RECORDS AND TESTIMONY BASED UPON IT
In his first assignment of error, Mr. Omar argues the trial
court erred in admitting Deutsche Bank's business records
into evidence. We disagree.
"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).
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
"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).
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, ¶
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.
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
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.
Mr. Omar's first assignment of error is overruled.
OF ERROR TWO
TRIAL COURT ERRED BY ADMITTING PAYMENT RECORDS OFFERED BY THE
BANK ON THE DEFENDANTS NOTE.
In his second assignment of error, Mr. Omar argues the trial
court erred by admitting the payment records ...