[Cite as Capital One Bank USA, N.A. v. DeRisse, 2016-Ohio-648.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
CAPITAL ONE BANK USA, N.A. ) CASE NO. 14 MA 75
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ATIMOHA M. DeRISSE )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the County Court
No. 2 of Mahoning County, Ohio
Case No. 13 CVF 299
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Matthew G. Burg
Weltman, Weinberg & Reis Co. L.P.A.
323 West Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
For Defendant-Appellant: Atimoha M. DeRisse, Pro se
5021 Aravesta Ave, #04
Boardman, Ohio 44512
JUDGES:
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: February 18, 2016
[Cite as Capital One Bank USA, N.A. v. DeRisse, 2016-Ohio-648.]
WAITE, J.
{¶1} This is a pro se appeal by Appellant Atimoha M. DeRisse from an entry
of the Mahoning County Court No. 2 granting summary judgment in favor of Appellee,
Capital One Bank USA, N.A. (“Capital One”), in Capital One’s action seeking
recovery for alleged non-payment due on a credit card account.
{¶2} On April 15, 2013, Capital One filed a complaint against Appellant
listing his name has “Atimoha M. DeRiss”, alleging default on a credit card account.
Attached to the complaint was a copy of a credit card billing statement, listing the
account member as Atimoha M. DeRisse for an account ending in 7591, and showing
a balance due of $1,352.60.
{¶3} Appellant acted pro se throughout the proceedings. On April 30, 2013,
Appellant filed an answer. Capital One filed a motion for default judgment. The trial
court granted the motion for default judgment but subsequently vacated judgment,
finding that Appellant’s response letter served as an answer. A series of pro se
motions were filed by Appellant including a motion to dismiss. Capital One filed a
motion for summary judgment on January 31, 2014. The trial court overruled the
motion to dismiss and granted Capital One’s motion for summary judgment. The
record reflects that Appellant entered into a credit card agreement with Capital One.
The record also reveals that Appellant acknowledged both the debt and the default
on that debt. The trial court was correct in dismissing Appellant’s motion and
granting summary judgment in favor of Capital One, and the judgment is affirmed.
History of the Case
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{¶4} On April 15, 2013, Capital One filed a complaint against Appellant,
alleging default on a credit card account. Attached to the complaint was a copy of a
credit card agreement and a billing statement listing the account holder as Atimoha
M. DeRisse for an account ending in 7591. The filings showed a balance due of
$1,352.60. The complaint was sent via certified US mail to “Atimoha M. DeRiss” at
the address listed on the credit card billing statement on April 24, 2013. Said certified
mail service was returned on April 30, 2013, indicating a failure of service and
stamped “refused”.
{¶5} It should be noted that Appellant proceeded pro se throughout the
entire action. On April 30, 2013, Appellant filed a letter inquiring about whether there
was a summons to appear.
{¶6} Capital One filed a motion for regular mail service on May 17, 2013, still
listing the defendant as “Atimoha M. DeRiss.” On June 5, 2013, Appellant filed a
response letter wherein he stated, “I cannot deny the validity of this debt amounted to
$1352.60,” and that “I failed to pay.” Capital One filed an amended complaint on
June 14, 2013, changing the name of the defendant from “Atimoha M. DeRiss” to
“Atimoha M. DeRisse AKA Atimoha M. DeRiss.”
{¶7} On August 12, 2013, Capital One filed a motion for default judgment
which was granted by the trial court in a judgment entry dated August 15, 2013. In
response, Appellant filed a letter on August 14, 2013, contesting the default judgment
and stating, “I did not have my day in court yet.” On August 27, 2013, the trial court
vacated the default judgment, finding:
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DEFENDANT’S LETTER OF 8/14/13 TREATED AS AN ANSWER TO
PLAINTIFF’S AMENDED COMPLAINT OF 6/14/13 THOUGH NO
LEAVE WAS REQUESTED OR GRANTED TO FILE SUCH ANSWER.
* * * THE MAGISTRATE NOTES THAT THE DOCKET REFLECTS A
PRIOR ANSWER BEING FILED BY THE DEFENDANT ON 6/5/13.
SUCH “ANSWERS” ARGUABLY PRECLUDE DEFAULT JUDGMENT.
(8/27/13 J.E.)
{¶8} On October 7, 2013, Appellant filed a motion to dismiss. The record
reflects that the motion was never served on Capital One. The matter was set for
trial. On January 31, 2014, Capital One filed a motion for summary judgment.
Attached to the motion were copies of monthly account statements, as well as the
credit card agreement. On February 3, 2014, Appellant again filed a letter to the
court asking whether the trial court was the right venue for a “commercial matter.”
On February 28, 2014, Capital One filed a brief in support of the motion for summary
judgment, a motion to strike as well as a brief in opposition to Appellant’s ex parte
communication with the trial court regarding both Appellant’s October 7th motion to
dismiss and February 3rd letter to the court.
{¶9} A non-oral hearing was held on March 17, 2014. A magistrate’s
decision was issued on March 24, 2014, in which Appellant’s motion to dismiss was
overruled; Capital One’s summary judgment motion was granted; and judgment was
granted in favor of Capital One against Appellant in the amount of $1,352.60 plus
interest from the date of judgment plus costs. No objections to the magistrate’s
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decision were filed. On March 31, 2014, Appellant filed a motion to vacate judgment
with the trial court which was not signed. On April 10, 2014, Capital One filed a brief
in opposition to the motion to vacate. Finally, on May 27, 2014, the trial court filed a
judgment entry denying Appellant’s motion to vacate the judgment; overruling
Appellant’s motion to dismiss and granting Capital One’s motion for summary
judgment. Appellant subsequently filed another motion to dismiss without prejudice
on June 17, 2014, but timely appeals from the trial court’s May 27, 2014 final
judgment. He raises two assignments of error for our review:
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY DENYING DEFENDANT’S MOTION
TO DISMISS THE CASE FOR LACKING LEGAL STANDING AND
SUBJECT MATTER JURISDICTION.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY DENYING DEFENDANT’S MOTION
TO VACATE A VOID JUDGMENT BASED ON A MERE RECITAL OF
PLAINTIFFS ARGUMENTS.
{¶10} At the outset, we note that no brief has been filed by Appellee Capital
One in this appeal. Moreover, we note that Appellant continues to act pro se
throughout not only the trial court proceedings but also on appeal. His brief does not
comply with the Ohio Rules of Appellate Procedure. He does not cite any Ohio law
and instead references a wide range of caselaw from multiple state and federal
jurisdictions, little of which has any relevance in this appeal. This alone would be
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grounds for us to disregard his assigned errors. App.R. 12 (A)(2) and 16(A)(7); see
also Carpino v. Wheeling Volkswagen-Subaru, 7th Dist. No. 00 JE 45, 2001-Ohio-
3357. A party proceeding pro se is held to the same standard as litigants who have
retained legal counsel. State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-
Ohio-6448, 800 N.E.2d 25, ¶10. Courts may grant pro se litigants reasonable latitude
but cannot disregard the Rules of Civil Procedure to accommodate a litigant who fails
to obtain legal counsel. Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863,
846 N.E.2d 878, ¶5.
{¶11} More significantly, however, the record reveals that Appellant did not
file objections to the magistrate’s decision under Civ.R. 53. Because of this reason,
we are barred from addressing his assigned errors.
{¶12} Civ.R. 53(D)(3)(b)(iv) states:
Except for a claim of plain error, a party shall not assign as error on
appeal the court’s adoption of any factual finding or legal conclusion,
whether or not specifically designated as a finding of fact or conclusion
of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that
finding or conclusion as required by Civ.R. 53(D)(3)(b).
{¶13} The magistrate’s decision in this case also notified the parties,
“[p]ursuant to Rule 53 of the Ohio Rules of Civil Procedure the parties have fourteen
(14) days within which to file objections to the Decision of Magistrate.” (3/24/14 Mag.
Dec., p. 3.)
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{¶14} The Supreme Court of Ohio has held that a party’s failure to object to a
magistrate’s decision precludes that party from appealing the decision. State ex rel.
Findlay Industries v. Indus. Comm., 121 Ohio St.3d 517, 2009-Ohio-1674, 905
N.E.2d 1202, at ¶3. Moreover, we have held that a failure to file objections to a
magistrate’s decision pursuant to Civ.R. 53 prohibits further inquiry into the merits of
the substantive arguments by this Court. Sadlowski v. Boardman Local Schools, 7th
Dist. No. 12 MA 132, 2013-Ohio-2870.
{¶15} Because Appellant did not object to the magistrate’s decision pursuant
to Civ.R. 53, we are barred from addressing his assignments of error, as they all
directly relate to the findings and conclusions set forth by the magistrate.
{¶16} Regardless, a review of the trial court record, including all exhibits
submitted by the parties, does not reveal that plain error occurred on the part of the
trial court in adopting the magistrate’s decision. In Goldfuss v. Davidson, 79 Ohio
St.3d 116, 121, 679 N.E.2d 1099 (1997), the Supreme Court of Ohio, in addressing
plain error in the civil case context, held:
In applying the doctrine of plain error in a civil case, reviewing courts
must proceed with the utmost caution, limiting the doctrine strictly to
those extremely rare cases where exceptional circumstances require its
application to prevent a manifest miscarriage of justice, and where the
error complained of, if left uncorrected, would have a material adverse
effect on the character of, and public confidence in, judicial
proceedings.
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{¶17} The instant matter is not an “extremely rare” case necessitating this
Court to apply plain error. There is no evidence from the record that a manifest
miscarriage of justice occurred, nor do we find that the judgment “would have a
material adverse effect on the character of, and public confidence in, judicial
proceedings,” if it were to stand. Id.
Conclusion
{¶18} In summary, we hold that Appellant’s failure to object to the
magistrate’s decision prohibits further inquiry into the merits of the substantive
arguments asserted by Appellant. A review of the record reflects that no plain error
occurred on the part of the trial court in its adoption of the magistrate’s decision. We
hereby overrule Appellant’s assignments of error, and we affirm the judgment of the
trial court in full.
DeGenaro, J., concurs.
Robb, J., concurs.