Balimunkwe v. Bank of America, N.A. et al

Filing 135

ORDER that plaintiff's 102 MOTION for leave to file a memorandum in opposition to defendant RCS's motion for summary judgment is Denied as moot; Plaintiff's 123 & 125 MOTION for review of the summary of events and MOTION for a he aring on his request for review are Denied; Plaintiff's 121 Request for leave of court to take another look at the signatures and plaintiff's 122 Motion for another look at the signatures for the pursuit of truth and justice are Denied; Plaintiff's 86 Motion for an extension of time to file two supplemental affidavits in support of his claims and plaintiff's 110 Motion for leave to file the two supplemental affidavits with any references to Curtis Baggett ommitted are Denied; Defendant BOA's 96 Motion to strike the second supplemental affidavit is Denied as moot; Plaintiff's 132 Request for leave of court to allow the court to see the truth is Denied. REPORT AND RECOMMENDATION that plaintiff's 109 MOTION for leave to obtain another handwriting expert be Denied; Plaintiff's 112 MOTION to designate Wendy Carlson as his handwriting expert be Denied; Plaintiff's 128 MOTION to amend his previous request to designate a new han dwriting expert and plaintiff's 129 amended request be Denied; Plaintiff's 82 MOTION for Summary Judgment be Denied; Defendant BOA's 83 MOTION for Summary Judgment be Granted; and Defendant RCS's 85 MOTION for Summary Judgment be Granted. ( Objections to R&R due by 1/25/2016). Signed by Magistrate Judge Karen L. Litkovitz on 1/6/2016. (art)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KALEMBA BALIMUNKWE,
Plaintiff,

Civil Action No. 1: 14-cv-327
Black, J.
Litkovitz, M.J.

vs.

BANK OF AMERICA, N.A.,
AS SUCCESSOR TO FIRST FRANKLIN
FINANCIAL CORP., et al.,
Defendants.

ORDER AND REPORT AND
RECOMMENDATION

I. Introduction
Plaintiff Kalemba Balimunkwe brings this pro se action against defendants Bank of
America, N.A., as successor to First Franklin Financial Corporation (BOA), and Residential
Credit Solutions, Inc. (RCS). The action was originally filed in the Hamilton County, Ohio
Court of Common Pleas but was removed to the district court by defendant BOA on the basis of
the Court's diversity jurisdiction. (Doc. I). This matter is before the Court on the following
motions: (I) plaintiffs motion for leave to obtain a new handwriting expert (Doc. I 09) and
plaintiffs motion to designate Wendy Carlson as his handwriting expert (Doc. 112), defendants'
memorandum in opposition (Doc. 116), and plaintiffs reply memorandum (Doc. 120); (2)
plaintiffs motion to amend his previous request to designate a new handwriting expert (Doc.
128) and plaintiffs amended request (Doc. 129), defendants' memorandum in opposition (Doc.
130), and plaintiffs reply in support ofhis motions (Doc. 131); (3) plaintiffs motion for review
ofthe summary of events confirming the need for another handwriting expert (Doc. 123) and
plaintiffs motion for a hearing on his request for review (Doc. 125), defendants' memorandum
in opposition (Doc. 126), and plaintiffs reply in support of the motions (Doc. 127); (4)
plaintiffs "Request for Leave of Court to Take Another Look at the [Mortgage] Signatures"

(Doc. 121) and plaintiffs "Motion for Another Look at the Signatures for Pursuit of Truth and
Justice" (Doc. 122) and defendants' opposing memorandum (Doc. 124); (5) plaintiffs "Request
for Leave of Court to Allow the Court to See This Truth" (Doc. 132), defendants' opposing
memorandum (Doc. 133), and plaintiffs reply memorandum (Doc. 134); (6) plaintiffs motion
for summary judgment (Doc. 82), defendants' memoranda in opposition to the motion (Docs. 92,
98), and plaintiff's motion for leave to file reply in support of the motion and plaintiffs reply
memorandum (Docs. 102, 102-1); (7) defendant RCS 's motion for summary judgment (Doc. 85),
plaintiffs memorandum in opposition to RCS's motion (Doc. 11I), and RCS's reply
memorandum in support of the motion (Doc. 115); (8) defendant BOA's motion for summary
judgment (Doc. 83), plaintiffs memorandum in opposition to the motion (Doc. 108), and
defendant BOA's reply memorandum (Doc. 118); and (9) plaintiffs motion for an extension of
time to file two supplemental affidavits in support of his claims (Doc. 86), defendant BOA's
motion to strike the second supplemental affidavit (Doc. 96), plaintiffs motion for leave to file
the two supplemental affidavits with any references to Curtis Baggett omitted (Doc. II 0), and
defendants ' memorandum in opposition to plaintiffs motion to file the supplemental affidavits
with references to Curtis Baggett excluded. (Doc. 1I7).
II. Facts

The facts set forth below are undisputed except where noted. 1
Plaintiff and his former wife Betty Balimunkwe obtained a mortgage loan in the amount
of $4 7,000.00 on April 2, 1999 (original loan) for the purchase of a home at 931 Chateau Avenue

1

In setting forth his version of the facts, plaintiff relies in part on an affidavit dated July 6, 2012, which he purports
to be of record before the Court. Plaintiff does not indicate when the affidavit was filed with the Court or where in
the record the affidavit is located. The Court has not been able to locate the affidavit in the record and therefore
cannot accept as accurate or true plaintiffs representations as to statements made in the affidavit. There is an
affidavit dated March 19, 2014, attached to the complaint, which the Court has considered in ascertaining the
undisputed facts. (Doc. 4 at 19-22).
2

in Cincinnati, Ohio (Property). (Doc. 10, Exh. A). The mortgage agreement was signed by
plaintiff and Betty Balimunkwe. (Jd.). First Franklin Financial Corporation (First Franklin) was
the lender. (!d.). The original loan was an open ended mortgage with a variable interest rate.
(Pltf. Aff., Doc. 4 at 19). The monthly mortgage payments varied between $640.00 and $680.00.

(!d.).
In September 2003, plaintiff and Betty Balimunkwe were granted a divorce in the
Hamilton County Court of Common Pleas. (Doc. 75, Exh. 2). An Agreed Entry was filed
pursuant to which plaintiff was awarded the Property. (!d.). The Agreed Entry states in part:
2. Husband shall be solely responsible for the mortgage on 931 Chateau held by
Nationscredit, and all other debt associated with said real estate, and shall hold
Wife harmless thereon. Husband shall use his best efforts to refinance this
mortgage in order to remove Wife's name. Until such time, Husband shall pay
the mortgage and real estate taxes in a timely fashion and take no action to injure
Wife's credit with respect to the m01tgage and property taxes.

(!d.).
There is documentation in the record showing that plaintiff subsequently completed a
Uniform Residential Loan Application in February 2004 to refinance the original loan. (Doc. 762, Exh. 21 at 17-23). First Franklin was the lender for the loan, which closed on February I 0,
2004 (2004 loan). (Doc. 75, Exh. 13). According to Randall Craycraft, who was managing
member of Members Title Agency (Members Title), Members Title was the Settlement Agent
for the 2004 loan on behalf of the lender. (Randall Craycraft Depo., Doc. 76-1 at 4-5). The loan
was secured by a mortgage signed solely by plaintiff and notarized by Michelle Schmidt, Notary
Public, State of Ohio. (Doc. 75, Exh. 13). Members Title sent a payment to Fairbanks Capital in
the amount of$52 ,130.34 to pay offthe original loan. (Doc. 76-1 , Craycraft Depo. at 9, 13).
The mortgage was recorded in the Hamilton County, Ohio Recorder's Office in February 2004.
(Doc. 79, Exh. 3). The 2004 loan file includes several documents bearing plaintiff's signature.
3

(Doc. 76-2, Exh. 21 ). The 2004 loan file also includes copies of personal financial and
other
records of plaintiff, includin g his divorce decree (!d. at 83-84), driver's license (!d. at 86-87)
and
the declarations page of his homeowners policy for the period February 5, 2004 to Februar
y 5,
2005 (!d. at 85). (See also Doc. 76-1, Craycraft Depo. at 27-29).
On October 26, 2004, plaintiff executed a mortgage in the amount of $28,000 with The
Home Ownership Center of Greater Cincinnati, Inc. (Home Owners hip loan). (Doc. 75,
Exh. 20
at 18). The parties to the mortgage entered into a " Modification Agreem ent" on Decemb
er 7,
2004, pursuant to which the loan amount was increased to $38,000 (2004 balloon mortgag
e).

(!d. at 19). The 2004 balloon mortgage was a deferred mortgage with a 0% interest rate
per
annum payable at the rate of$10.0 0 per month beginning March 1, 2005, until Februar
y 1, 2025.

(!d.). Both the Home Owners hip loan and the 2004 balloon mortgage were recorded in
the
Hamilton County Recorde r' s Office. (!d. at 18-19). According to plaintiff, full disclosu
res were
not made to him in connect ion with the 2004 balloon mortgage and he erroneo usly thought
the
original mortgage and the 2004 balloon mortgage had been combined. (Pltf. Aff., Doc.
4 at 19).
Plaintiff alleges he made monthly payments for eight years under the mistake n belief that
he was
paying on both the original loan and the 2004 balloon mortgage with one check. (!d. at
20).
On August 2, 2010, servicing of the 2004 loan transferred from BOA to RCS. (Doc. 75,
Exh. 20 at 33). RCS purchased the mortgage from First Franklin effective that same date.
(!d. at
33-34). The assignm ent of the mortgage from First Franklin to RCS was recorded in the
Hamilton County Recorde r' s Office on Decemb er 7, 2010. (!d. at 33). Around that same
time,
plaintiff began sending his mortgage payments to RCS at the direction of First Franklin
. (Pltf.
Aff. , Doc. 4 at 19). In late 2011 and early 2012, plaintiff asked RCS to send him docume
ntation
related to the mortgage it was servicing and a copy of the note. (Doc. 10 at 35). In response
,

4

RCS sent plaintiff documents dated February 10, 2004, bearing plaintiffs signature and
consisting of an application for a loan to refinance for the purpose of "Cash-Out/Debt
consolidation," a 30-year adjustable rate note issued by First Franklin in the amount of $63,750
that amortized in 2034, and the original Settlement Statement for the 2004 loan. (Doc. 10 at 2025, 27-3 2). Plaintiff alleges he had neither agreed to nor signed the 2004 mortgage and he had
never applied to any company for debt consolidation; instead, the signatures on the documents
were forged. (Pltf. Aff., Doc. 4 at 19).
Plaintiff informed RCS repeatedly beginning in late 2011 that the 2004 loan was
fraudulent. (Doc. 10-1 at 35-3 7,39, 41). RCS requested additional information from plaintiffto
investigate his claim offraud. (Doc. 10-1 at 38). RCS informed plaintiff in July 2013 that it had
completed its investigation and had found insufficient proof of identification theft or fraud.
(Doc. 10-1 at 42). RCS also sent plaintiff a notice of default and intent to accelerate informing
plaintiff that the total he must pay to cure the default was $9,260.85, which included total
monthly payments of$8,579.70 for the period May 2012 to July 2013. (!d. at 43). Plaintiff
alleges that he never refinanced the 1999 loan and did not apply for or take out a new loan on
February 10, 2004.

II. Plaintiff's motions related to his request to obtain a handwriting expert (Docs. 109, 112,
123,125,128,129,132)
a. Procedural background
Plaintiff identified Curtis Baggett as his handwriting expert and produced Mr. Baggett' s
expert report on September 10, 20 14, and a supplemental report on March 16,2015. (Docs. 38,
65). Defendants thereafter moved to exclude Mr. Baggett's testimony from future motions,
hearings and trial. (Doc. 71 ). After the matter was fully briefed, a hearing on the motion was
held on June 25,2015. (Doc. 99). The undersigned issued a Report and Recommendation on
5

September 3, 2015, recommending that defendants' motion to exclude Mr. Baggett' s testimony
be granted. (Doc. I 07). The District Judge adopted the Report and Recommendation by Order
dated October 2, 2015. (Doc. 119).
Prior to issuance of the Order, on September 14, 2015, plaintiff filed a motion for leave to
obtain a new handwriting expert. (Doc. I 09). On September 17, 2015, plaintiff filed a "Notice"
seeking leave of Court to designate Wendy Carlson as his handwriting expert. (Doc. 112).
Plaintiff submitted a copy of Ms. Carlson' s curriculum vitae and a list of cases in which she has
been qualified as an expert, appointed by the court, and/or testified during the period from 2008
to 2015. (!d.).
Defendants BOA and RCS oppose plaintiffs motion for leave of Court to obtain a new
handwriting expert and move to strike plaintiffs "Notice" seeking to designate Wendy Carlson
as his handwriting expert. (Doc. 116). Defendants allege that plaintiff s request should be
denied because plaintiff offers no authority in support of the request. Defendants also contend
that they will be prejudiced if plaintiff is permitted to obtain an expert at this late stage ofthe
litigation. Defendants further allege that the Notice should be stricken as untimely because the
deadline for submission of expert reports expired more than one year ago and plaintiff has not
obtained leave of Court to designate another expert. Finally, defendants allege that the Notice is
improper because no expert report is attached.
In reply, plaintiff alleges that as a pro se litigant he is not required to provide authority in
support of his request to designate Ms. Carlson as a handwriting expert. (Doc. 120). Plaintiff
further alleges that he could not have disclosed Ms. Carlson as an expert at an earlier date in light
of the Court proceedings related to his previously designated expert. Plaintiff alleges that
defendants will not be prejudiced by the delay in designating Ms. Carlson as his expert because

6

the Court can provide defendants with an opportunity to depose her before ruling on the pending
motions for summary judgment. Finally, plaintiff acknowledges that his Notice identifying
Wendy Carlson as an expert includes only basic information , but he states he will provide an
expert report if leave to designate her as an expert is granted.
Plaintiffha s filed additional motions related to his request to name a new expert witness,
including a motion for leave to amend his previous request to designate a new handwriting
expert (Doc. 128) and an amended request (Doc. 129). Defendants BOA and RCS oppose
plaintiffs motion for leave to amend his request to designate a new handwriting expert and
amended request for leave to designate a handwriting expert. (Doc. 130). Defendants allege that
plaintiff has not set forth any basis for the relief he requests as required under Fed. R. Civ. P. 7;
plaintiff should not be permitted to re-open discovery given that the parties' summary judgment
motions have been fully briefed; and plaintiffs request is actually an improper attempt to
supplement arguments made in the parties' summary judgment motions. In reply, plaintiff
contends that the filing of his motion to name a new handwriting expert has been necessitated by
the Court' s exclusion of Curtis Baggett as an expert witness. (Doc. 131 ). He states that he
proposes to substitute Ms. Carlson for Mr. Baggett as an expert witness to support his claims.
Plaintiff reiterates that defendants would not be prejudiced by the substitution because the Court
can grant them an opportunity to depose Ms. Carlson and delay ruling on the pending summary
judgment motions. Plaintiff also filed a "Request for Leave of Court to Allow the Court to See
This Truth" on December 21, 2015. (Doc. 132). The request consists simply of a retyped or cut
and pasted email that proposed expert witness Wendy Carlson purportedly sent to plaintiff
regarding signatures he had asked her to examine in which she offers to prepare a report detailing

7

dissimilarities in those signatures. (!d.). Defendants oppose the request because it does not state
the grounds for the relief requested as required under Fed. R. Civ. P. 7. (Doc. 133).

b. Plaintiff's request to designate a new handwriting expert should be denied (Docs.
109, 112, 128, 129) and his miscellaneous request for relief (Doc. 132) is denied.
In the Report and Recommendation and Order granting defendants' motion to exclude
Mr. Baggett's testimony, the Court undertook an extensive analysis of the qualifications and
methodology of plaintiff's designated expert in accordance with Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Fed. R. Evid. 702. (Docs. 117, 119). The Court
determined that Mr. Baggett was not qualified to give an opinion regarding whether plaintiff's
signature on the 2004 loan documents was forged. Plaintiff should not be permitted to designate
a second handwriting expert as a substitute for Mr. Baggett following the exclusion of his
testimony by the Court for the reasons explained below.
Several courts have addressed the propriety of allowing a party to supplement expert
testimony or add an expert in a case where the party' s expert has been disqualified following a

Daubert hearing. In Nisus Corp. v. Perma-Chink Sys. , Inc. , 327 F. Supp.2d 844 (E.D. Tenn.
2003), aff'd, 128 F. App'x 156 (Fed. Cir. 2005), the district judge overruled the plaintiff's
objections to the magistrate judge's order disallowing a supplemental expert report. The district
judge agreed with the magistrate judge that a party whose expert has been disqualified under

Daubert is not entitled to " perform new and different tests with new and different experts and to
start expert disclosure, discovery, and depositions anew." !d. at 853 (quoting Lora! Fairchild

Corp. v. Victor Co., 911 F. Supp. 76 (E.D.N.Y. 1996)). The district judge found that the
plaintiff's request to have new experts conduct testing not previously performed and repeat
previous testing as verification was an "unabashed attempt to remedy the deficiencies" in the

8

original expert' s opinions and testimony, which was unacceptable at the summa
ry judgme nt
stage of the litigation. !d. at 853-54.
In rendering the decision to deny plaintif f's request to file a supplemental expert
report in
Nisus Corp. , the magistrate judge relied on three cases which the district judge
identified as
"seminal cases." !d. at 854. The first case is Weisgram v. Marley Co., 528 U.
S. 440 (2000) . In
Weisgram, the Supreme Court addressed the following issue: whether an appella
te court must
remand for a new trial when it holds on appeal that expert testimony admitted
at trial is
inadmissible and excludes that testimony from consideration when ruling on
whether to grant
judgme nt as a matter oflaw. !d. at 447, 457. The Supreme Court held that an
appellate court is
permitted to direct the entry of judgment as a matter of law based on the remain
ing properly
admitted evidence. Jd. at 447. The Court reasoned:
Since Daubert . .. parties relying on expert evidence have had notice of the
exacting standards of reliabil ity such evidence must meet. . . . It is implausible
to
suggest, post-Daubert, that parties will initially present less than their best expert
evidence in the expectation of a second chance should their first try fail. We
therefore find unconvincing [the plaintiff's] fears that allowing courts of appeals
to direct the entry of judgme nt for defendants will punish plaintiffs who could
have shored up their cases by other means had they known their expert testimo
ny
would be found inadmissible.

!d. at 455-56 (citations omitted).
The second case is Pride v. BIC Corp. , 218 F.3d 566 (6th Cir. 2000), in which
the district
judge ruled on several motions submitted after the magistrate judge had issued
a report and
recommendation to exclude the plaintiff's expert witness testimony under Dauber
t and the
Federal Rules of Evidence. The district court denied several motions on the ground
they were "a
transparent attempt to reopen the Daubert hearing now that the weaknesses in
[the plaintiff's]
expert testimony have been pointed out." !d. at 579. The district court found
that the plaintiff
had "ample opportunity to locate experts for this case, and her experts had ample
opportunity to
9

develop their theories on how the accident occurred , to explain their underlying methodo
logy,
and test their theories prior to the Daubert hearing." !d. The Court of Appeals affirmed
the
district court's denial of the plaintiff's motions to reopen the Daubert inquiry as there was
no
evidence that the district court abused its discretion in holding that reopening the proceed
ings
would be "contrary to all rules of fairness and proper procedure." Id. (citing In re TMI Litigatio
n
Cases Consolidated II, 922 F. Supp. 997, 1005 (M.D. Pa. 1996) (" excluding the plaintiff
's
untimely filings on the basis that admitting them would allow the plaintiff 's experts to become
' moving targets' whose opinions were constantly changing and being supplemented in order
to
overcome proper pretrial procedures"), reversed in part on other gds., In re TMI Litig., 193
F.3d
613,729 (3d Cir. 1999), amended, 199 F.3d 158 (3d Cir. 2000)).
The third seminal case is Nelson v. Tenness ee Gas Pipeline, 243 F.3d 244 (6th Cir. 2001),
where the Court denied the plaintiffs' request to obtain new expert testimony after an adverse
Daubert ruling. The Court rejected the plaintiffs' assertion that the magistrate judge abused
his
discretion and violated considerations of equity and fair play by not giving the plaintiffs
" an
opportunity to obtain expert testimony to remedy deficiencies in the proffered testimony
before
granting summary judgment." /d. at 249. The Court reasoned that plaintiffs "had adequat
e
opportunity to develop their expert testimony, test their theories , and respond to defenda
nts '
specific challenges to the testimony. " !d. The Court found that "fairness does not require
that a
plaintiff, whose expert witness testimony has been found inadmissible under Daubert, be
afforded a second chance to marshal other expert opinions and shore up his case before the
court
may consider a defendant' s motion for summary judgment." /d. at 250.
Consistent with the reasoning of these prior decisions, the Court finds that plaintiff's
motion to designate Wendy Carlson as a new expert witness in this matter should be denied.

10

Plaintiff's complaint was filed in this Court more than 18 months ago in April20 14. (Docs.
I,
4). A deadline of September 26, 2014, was established for the parties to identify and produce
primary expert reports. (Doc. 25). Between the time plaintiff identified Curtis Baggett as
his
handwriting expert and produced Mr. Baggett 's expert report (Docs. 38, 65) and the date
the
Court granted defendants' motion to exclude Mr. Baggett as an expert on October 2, 2015
(Doc.
119), the discovery and dispositive motion deadlines expired (Docs. 55, 68) and each of
the
parties filed summary judgme nt motions . (Docs. 82, 83, 85). The motions have been fully
briefed and are ripe for resolution. To allow plaintiff to designate a new expert witness at
this
point would frustrate the procedures designed to insure expeditious resolution of litigation
before
the Court and unfairly prejudice defendants. If plaintiff were permitted to designate Ms.
Carlson
as a handwriting expert at this juncture, defendants would be required to conduct discover
y
related to plaintiff's newly designated expert; raise yet another Daubert challenge in the
likely
event they are not willing to accept Ms. Carlson 's expertise and methodology in this matter;
and
face an inordinate delay in resolution of the pending motions for summary judgme nt, which
are
fully briefed.
Plaintif f has not presented a valid reason for reopening the deadline for designating
expert witnesses, submitting expert reports, and further delaying these proceedings. Plaintiff
simply seeks to correct deficiencies in Mr. Baggett ' s report by substituting a new handwri
ting
expert for Mr. Baggett (see Doc. 129 at 3), whose testimony was excluded by the Court based
on
its determination that his qualifications and proposed expert opinion did not satisfy Daubert
and
the Federal Rules of Evidence. Although plaintiff has not proffered a new expert report,
plaintiff
provides no indication that the opinion Ms. Carlson proposes to offer differs in any material
respect from the opinion offered by Mr. Baggett. Plaintif f should not be permitted to begin
anew

11

the process of designating an expert to offer the same opinion offered by Mr. Baggett in
an
attempt to remedy the deficiencies in Mr. Baggett ' s qualifications and methodology previou
sly
found by the Court. This is particularly true given that there is no indication Ms. Carlson
's
qualifications and methodologies are superior to those of Mr. Baggett such that she would
be an
acceptable substitute for him. Plaintif f had ample opportunity to develop his expert testimon
y
and respond to defendants ' challenges to the testimony after filing the expert report on
September I 0, 2014 (Doc. 38) and a supplement to the report on March 16, 2015 (Doc. 65).
Plaintif f should not be granted yet another opportunity to designate an expert. To do so
at this
late date would unfairly prejudice defendants by further delaying the proceedings, which
are at
the summary judgme nt stage.
For these reasons, plaintif fs motions to designate a new expert (Doc. 109), to designate
Wendy Carlson as his handwriting expert (Doc. 112), and to amend his previous request
to
designate a new handwriting expert (Doc. 128), as well as the amended request (Doc. 129),
should be denied. Plaintif fs "Request for Leave of Court to Allow the Court to See This
Truth"
(Doc. 132) is denied for failure to comply with Fed. R. Civ. P. 7(b)(l)( B), which provides
that a
motion must "state with particularity the grounds for seeking the order."
c. Plaintiff's motion for review of the summary of events and motion for a hearing
on his request for review (Docs. 123, 125)
Plaintif f filed a "Reques t for Leave of Court to Look at the Summary of Events
Confirming the Need for Another Handwriting Expert" on October 19, 2015 (Doc. 123)
and a
motion for a hearing on his request for the Court to review the summary of events (Doc.
125).
Defendants BOA and RCS oppose plaintif fs motion for a hearing on his request to review
the
summar y of events. (Doc. 126). Defendants allege that the motion should be denied pursuan
t to
the Federal Rules because plaintif f has provided no legal basis for his request. (ld.). In
reply,
12

plaintiff indicates that he is seeking a hearing in order to develop the facts underlying his
allegations of forgery. (Doc. 127).
Fed. R. Civ. P. 7(b)(l)(B ) provides that a motion must "state with particularity the
grounds for seeking the order." Further, S.D. Ohio Civ. R. 7.l(b)(2) provides that a party may
apply to the Court for oral argument where it is " deemed to be essential to the fair resolution of
the case because of its public importance or the complexity of the factual or legal issues
presented .... " Neither rule is satisfied here. Plaintiff has not explained why he is entitled to an
oral hearing in connection with the summary of facts he has asked the Court to review. Plaintiff
has not submitted the summary in connection with a specific motion and has not requested any
independent relief in connection with the summary of events itself. Insofar as plaintiff has
submitted the summary of events and request for a hearing in support of his motion to designate
a new expert witness, plaintiff has not shown good cause for filing additional memoranda in
support ofhis motion. See S.D. Ohio Civ. R. 7.2(a)(2) (only a memorandum in opposition and
reply memorandum are permitted in connection with a motion and no additional memoranda are
permitted except upon leave of court for good cause shown). Accordingly, plaintiff's motion for
a review of the summary of events (Doc. 123) and a hearing on the motion for review of
summary of events (Doc. 125) are denied.

III. Plaintifr s miscellaneous motions (Docs. 121, 122)
Plaintiffh as filed two miscellaneous motions in which he asks the Court to examine the
signatures on the 2004 loan documents: "Request for Leave of Court to Take Another Look at
the Signatures" (Doc. 121) and "Motion for Another Look at the Signatures and for Pursuit of
Truth and Justice" (Doc. 122). In his request for the Court to review signatures filed on October
8, 2015, plaintiff asks the Court to examine documents bearing his "true signature" and the 2004

13

loan documents which bear his allegedly forged signatures, both notarized and not notarized.
(Doc. I21). In his motion for identical relief filed that same date, plaintiffha s submitted what
appear to be cut and pasted or retyped email communica tions that plaintiff allegedly exchanged
with notary Michelle McLaughli n. (Doc. I22-I at 2). In the email exchange, Ms. McLaughli n
purportedly informed plaintiff that she notarized a loan document dated February 10,2004,
which bears plaintiffs signature and which consists of a "signature page" and a "Notary page."

(!d.). The email references two pages numbered "A I" and "A2" which are attached to the
emails. (!d. at 3-4). Ms. McLaughli n allegedly wrote that she notarized page A I and that the
notary stamp is on page A2, but that both pages are part of the same mortgage document. (!d. at
2). Plaintiff alleges that the notary's statements present an "unbelieva ble explanation " as to why
there is no notary stamp on the signature page itself. (Doc. I22 at I). Plaintiffha s also
submitted what he purports to be samples ofhis true signature and copies of mortgage
documents that purportedly bear his forged signature, both notarized and not notarized. (!d. at I2; Doc. 122-1).
Defendants oppose plaintiffs requests for the Court to examine the signatures. (Doc.
124). They allege that plaintiffs filings are impermissi ble attempts to supplemen t his arguments
related to the parties' summary judgment motions in violation of S.D. Ohio Civ. R. 7.2(a)(2).
Defendants further allege that plaintiff has neither identified the grounds upon which his motions
are based nor provided any supporting authority for his motions as required under Fed. R. Civ. P.
7(b)(1 )(B).
Plaintiffs motions are not well-taken. Plaintiff has not submitted any authority in
support of his request that the Court undertake a review ofthe signatures. See Fed. R. Civ. P.
7(b)(l)(B); S.D. Ohio Civ. R. 7.2(a)(l). Further, insofar as plaintiff seeks to submit the

14

additional documentation to support or oppose the pending summary judgmen t motions, addition
of the documents to the record would serve no purpose. There is nothing in the purported email
communications between plaintiff and notary Michelle McLaughlin that supports plaintiffs
claim that the mortgage documents were forged. 2 Further, although plaintiff alleges that he has
attached documents with his true and his forged signatures to the motion, he has not submitted an
affidavit or declaration attesting to the veracity of his representations concerning the signatures
on these documents. Nor has plaintiff submitted any other evidence in conjunction with his
motions to support his allegation that his signature was forged on documents he has attached to
the motions.
For these reasons, plaintiffs motions for the Court to review signatures that he represents
to be either authentic or forged (Docs. 121 , 122) are denied.
IV. Plaintiff's motion for summary judgmen t (Doc. 82)
a. The parties' positions
Plaintiff filed a motion for summary judgmen t on May 29,2015. (Doc. 82). The motion
is a cursory two-page summary of the basis for plaintiffs lawsuit. Plaintiff alleges that nonparty First Franklin made a loan to him on February 10, 2004, which was publicly recorded; the
loan paid off an existing loan dating back to 1999 (the original loan); and plaintiff did not
execute the loan but instead it was fraudulently executed by unknown individuals. Plaintiff
alleges that as a result of the fraud, he made payments for eight years on a loan he did not
execute and he has paid more money than he would have been required to pay under the original
loan. Plaintiff further alleges that RCS, the current owner of the 2004 loan, has no authority to
enforce the loan because it is fraudulent. Plaintiff seeks to void the loan, obtain a release of the
2

Because the content of the alleged email communications does not support plaintiffs forgery claim, the
Court need
not address the admissibility of these email communications.

15

lien, and recover damages. Plaintiff alleges that defendants have not produced any evidence in
discovery or by deposition testimony that refutes the facts he alleges or that shows there is a
disputed issue of material fact. Plaintiff cites no authority in support of the motion and has not
attached any supporting affidavits or documentation.
Defendants BOA and RCS oppose plaintiffs motion for summary judgment. (Docs. 92,
98). Defendant BOA alleges that plaintiffs motion for summary judgment consists of nothing
more than a summary of allegations in his complaint with no supporting documentation or legal
authority. (Doc. 92). Defendant BOA further alleges that plaintiff has not produced evidence to
substantiate his fraud claim as is his burden under Ohio law. Defendant RCS alleges that
plaintiffs motion is not supported by any admissible evidence. 3 (Doc. 98). Defendant RCS
further alleges that it has produced documentation that establishes a genuine issue of material
fact on plaintiffs claims against it. RCS alleges it has produced evidence and documentation
that shows First Franklin could not have created a false loan with plaintiffs forged signatures.
(Doc. 98, citing Doc. 79, Exhibits). RCS further alleges that plaintiff has not stated a claim
against it for rescission, quiet title or damages under Ohio law.
In reply, plaintiff alleges that defendants have not presented allegations with supporting

evidence that calls into dispute the sworn factual allegations and evidence he has presented. 4
(Doc. 102-1 at 20). Plaintiff alleges that his signature on the 2004 loan documents is forged and
defendants have not introduced any testimony or evidence that refutes his affidavits establishing
that he had no part in the execution or creation of the 2004 loan. Plaintiff alleges that defendant
3

Defendant RCS also addresses arguments plaintiff presented in an amended motion for summary j udgment filed on
June 4, 2015. (Doc. 89). The Court struck the amended motion for summary j udgment from the record by Order
dated September 3, 20 15. (Doc. I 07). The Court therefore will not address arguments related to the amended
motion.
4

Plaintiff filed a motion for leave to file the reply (Doc. I 02), which the Court denies as moot.

16

RCS "came into ownership of this[] loan long after [2004] and could have no first hand
knowledge" about execution of the loan. (Doc. 102-1 at 20, 22). Plaintiff alleges he is not suing
to rescind the loan or to quiet title but instead is seeking to be released from a fraudulent
contract. (!d. at 31 ). Plaintiff purports to rely on the affidavit he states he executed on July 6,
2012, which he alleges is unrebutted. 5 (!d. at 2). Plaintiff also relies on loan documentation that
he alleges raises questions about the validity of the loan, such as the relationship between certain
entities involved in the loan transaction, the identities of the parties who were actually involved
in the transaction, the chronology of certain steps of the transaction, and alleged discrepancies in
the amounts set forth in the Settlement Statement.

b. Summary judgment standard
A motion for summary judgmen t should be granted if the evidence submitted to the court
demonstrates that there is no genuine issue as to any material fact and that the movant is entitled
to summary judgmen t as a matter oflaw. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "[A] party
seeking summary judgmen t ... bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323.
See also Guarino v. Broolifiel d Township Trustees, 980 F.2d 399, 405 (6th Cir. 1982). The
movant bears the burden of demonstrating that no material facts are in dispute. See Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant may carry
its burden of showing the absence of a genuine issue of material fact as to an essential element of
the non-movant 's case by " pointing out to the court" that the non-mov ing party lacks evidence to

5

As the Court noted earlier, this affidavit does not appear to be part of the record.

17

support an essential element of its case. See Barnhart v. Pickrel, Shaeffer & Ebeling Co. L.P.A.,
12 F.3d 1382, 1389 (6th Cir. 1993).
The party opposing a properly supported motion for summary judgment "may not rest
upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing
that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (quoting First Nat' I Bank of
Arizona v. Cities Serv. Co., 391 U.S. 253 (1968)). In response to a properly supported summary
judgment motion, the non-moving party ·'is required to present some significant probative
evidence which makes it necessary to resolve the parties' differing versions of the dispute at
trial. " Sixty Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987) (quoting First
Nat' I Bank, 391 U.S. at 288-89).
Because plaintiff is proceeding pro se, his filings are liberally construed. Spotts v. United
States, 429 F.3d 248, 250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (the
Court holds pleadings of pro se litigants to less stringent standards than formal pleadings drafted
by lawyers); Boswell v. Mayer, 169 F.3d 384,387 (6th Cir. 1999) (prose plaintiffs enjoy the
benefit of a liberal construction of their pleadings and filings).
c. Fraud under Ohio law
Plaintiff has alleged subsequent to filing the complaint that he is not claiming that either
defendant committed fraud. (Doc. 108 at 23 ). Plaintiff alleges that he instead claims that
defendants willfully and wrongfully continued to "enforce a loan created by forgery" without
conducting an investigation to determine who had forged the loan documents. (!d. at 23-24).
The Court has previously determined that plaintiff's claim against BOA is properly characterized

18

as a claim for fraud. 6 Plaintiff s complaint filed in April 2014 alleges that the 2004 Joan was
fraudulent and he requests the following relief: "[l)n the case of [BOA) as successor to First
Franklin Financial Corporation, to pay the amounts he wrongfully was deceived into paying First
Franklin Financial Corporation during the time they were holders of this Joan from its origination
Feb. 10, 2004 to the time of its assignment to [RCS] August I, 2010." (Doc. 4 at 17). Plaintiff s
complaint against RCS similarly alleges fraud by this defendant. Plaintiff alleges that RCS has
willfully and wrongfully enforced a "fraudulent contract" against him. (/d. at 11). Plaintiff
seeks an injunction against RCS enjoining it from foreclosing on the Property and damages to
compensate plaintiff for the payments he has made to RCS toward the allegedly fraudulent loan.
(/d. at 16-17). In light of plaintiffs allegations and the nature of his claims, plaintiff cannot re-

characterize his claims as based on a theory of recovery other than fraud. Thus, the question
before the Court on plaintiffs motion for summary judgmen t against both BOA and RCS is
whether plaintiff has carried his burden to show there is no genuine issue of material fact on his
fraud claims against these defendants.
The elements of a fraud claim under Ohio law are: (1) a misrepresentation of a material
fact; (2) made with knowledge of its falsity, or with such utter disregard as to its truth that
knowledge may be inferred; (3) with the intent to induce another's reliance on it; (4) justifiable
reliance upon the representation or concealment; and (5) a resulting injury proximately caused by
the reliance. Burr v. Bd. o.fCnty. Comm 'rs, 491 N.E.2d 1101, 1105 (Ohio 1986).

6

In the Report and Recommendation on BOA's motion for judgment on the pleadings, the undersigne
d construed
plaintiff' s claim against BOA as a claim that " plaintiff was induced by First Franklin' s misrepresenta
tions to make
payments on a Joan that was fraudulentl y orig inated by First Franklin; plaintiff suffered damages as
a result of his
justifiable reliance on First Franklin 's fraudulent misrepresentations; and Bank of America is liable
as First
Franklin ' s successor for First Franklin ' s fraudule nt misreprese ntations and plaintiff' s resulting injury."
(Doc. 40 at
10).

19

Under Ohio law, " a facially valid mortgage bears a strong presumption of validity." In re
Zaptocky, 250 F.3d I 020, 1024 (6th Cir. 2001 ). Even a mortgage that is defectively executed is
valid as between the parties to the mortgage , in the absence of fraud. Lasalle Bank N. A. v.
Zapata, 921 N.E.2d 1072, 1075 (Ohio App. 6th Dist. 2009) (citing Citizens Nat/. Bank in
Zanesville v. Denison, 133 N.E.2d 329 (Ohio 1956), superseded by statute as stated in In re
Nowak, 820 N.E.2d 335 (Ohio 2004)). See also In re Seymour, 442 B.R. 652, 658 (Bankr. S.D.
Ohio 201 0). "(W]here a mortgagor can show that the mortgage is a forgery, or was executed as a
result of fraud, the mortgage is ineffective and does not convey an interest in the property. " In re
Shanker, 247 B.R. 115, 2006 WL 1520082, at *6 (B.A.P. June 5, 2006). One who challenges a
facially valid mortgage must "prove the instrument is defective by clear and convincing
evidence. " In re Zaptocky, 250 F.3d at 1024-25 (citing Coshocton Nat 'I Bank v. Hagans, 178
N.E. 330 (Ohio App. 5th Dist. 1931) "(a facially valid mortgage ' carries with it a presumption of
validity, and, in order to destroy its effect as a mortgage it must be shown to be defective by the
contesters. "'); Helbling v. Williams (In re Williams) , 240 B.R. 884, 888-89 (Bankr. N.D. Ohio
1999)).
Ohio law provides that "[i]n the absence of clear and convincing proof of fraud or
forgery, the certificate of a notary stating that the mortgage release was freely signed and
acknowledged by the mortgagee is conclusive evidence of the facts stated in the notary's
certification." Huntington Nat 'I Bank v. Hoff No. 20 10-CA-31 , 2011 WL 192725, at *2 (Ohio
er,
App. 2nd Dist. Jan. 21, 2011) (citing Waddell v. Frasure, No. 05CA3040, 2006 WL 3350645
(Ohio App. 4th Dist. Nov. 8, 2006)); see also JP Morgan Chase Bank, N.A . v. Parker, No . 2014CA-17, 2014 WL 7463142 (Ohio App. 2d Dist. Dec. 31, 2014) (same). There is no "per se rule"
in Ohio that " the mortgagor's testimony alone is never sufficient to overcome the presumption of

20

validity of the notary's certificate of acknowledgment." In re Bowling, 314 B.R. 127, 135
(Bankr. S.D. Ohio 2004) (citing in re Zaptocky, 250 F.3d 1020; In re Collins, 292 B.R. 842
(Bankr. S.D. Ohio 2003) ("on motion for summary judgment, the court considered whether
debtor's testimony alone was sufficient to determine that the mortgage was invalid when neither
witnesses nor notary were present at the time the mortgage was signed")). See also Bank ofNew

York Mellon v. Villalba, No. 26709, 2014 WL 4824805, at *6 (Ohio App. 9th Dist. Sept. 30,
2014) ("[A] debtor' s allegation that he never signed a mortgage and that the certificate of
acknowledgement is fraudulent is a sufficient defense to an action to enforce the mortgage." )

(quotingZa pata, 921 N.E.2d 1072).
d. Plaintiff's motion for summary judgment should be denied.
Plaintiff is not entitled to summary judgment on his claims against RCS and BOA. Read
together, plaintiffs motion for summary judgment and reply memorandum do not demonstrate
the absence of a genuine issue of material fact on plaintiffs claims entitling him to relief.
Plaintiff has not produced evidence or directed the Court to specific facts in the record that
demonstrate there is no genuine issue for trial. Plaintiff's motion for summary judgment is a
barebones summary of the allegations of his complaint. (Doc. 82). Plaintiffha s expounded on
his allegations in his reply memorandum and has cited portions of the deposition testimony and
attached documentation to support his claim that the 2004 loan was fraudulently executed. (Doc.
I 02-1 ). However, defendants have produced evidence that refutes plaintiffs allegations and his
claims of fraud. (Docs. 92, 98).
Defendant BOA has incorporated its motion for summary judgment into its response
memorandum to show that plaintiff cannot produce evidence to establish his fraud claim against
BOA. (Doc. 83). BOA alleges that plaintiff has produced no evidence to show that BOA made

21

a material misrepresentation, with knowledge of its falsity, and with intent to mislead plaintiff in
connection with the 2004 loan. (Doc. 92 at 2-3). Defendant BOA's position is well-taken.
There is no evidence that BOA knew or had reason to know at any time that the 2004
loan documents were not valid. Plaintiff testified at his deposition that he thinks BOA should
have known that the 2004 loan documents contained his forged signature based on alleged
discrepancies between the signatures on those documents and his signatures on checks he
submitted to BOA for mortgage payments beginning in 2010. (Doc. 75 -1 at 114-15). Plaintiff s
allegation is based on nothing more than speculation. His allegation presumes that the 2004 loan
documents were forged, which is not an established fact. Assuming, arguendo , that plaintiffs
signature was forged on the 2004 loan documents, plaintiffh as not introduced any evidence that
shows or permits an inference that BOA actually knew or had reason to know of the forgery at
any time. Plaintiff testified at his deposition only that he "think[s] " BOA "should have known"
prior to 2012 when he challenged the mortgage that the signatures on the loan documents were
not his by comparing those signatures to his signatures on the payment checks he wrote. (!d. at
114-15). This vague and conclusory testimony is insufficient to establish actual knowledge of
the forgery on the part of BOA. Further, plaintiff s personal belief that BOA should have known
the documents were forged is insufficient to support a finding that BOA should have been aware
of the purported forgery. Plaintiff has not produced evidence to show that the signatures he
seeks to compare are distinguishable in any way that would be apparent to an objective observer
such that BOA should have been alerted to the possibility of forgery and fraud. Absent
competent evidence that BOA knew or had reason to know that the 2004 loan documents were
forged, plaintiff cannot show that BOA acted with an intent to mislead plaintiff by continuing to
collect payments on a mortgage it knew to be fraudulent. Plaintiff s speculative testimony that

22

BOA should have realized his signature on notarized and other mortgage documents was forged
is insufficient to prove that BOA made a misrepresentation of a material fact to plaintiff in
connection with the 2004 Joan, with knowledge of its falsity or with such utter disregard as to its
truth that knowledge may be inferred, and with the intent to induce plaintiffs reliance on the
misrepresentation.
Insofar as plaintiff seeks to premise liability against BOA as successor to First Franklin,
plaintiff has not produced evidence to show that BOA can be held liable for the alleged
fraudulent acts of First Franklin. Plaintiff alleges that in February 2012, he called the First
Franklin customer service number and was told that BOA "took over" First Franklin's
operations. (Doc. 102-I at 5). Plaintiff has not introduced any evidence to demonstrate the
nature of the relationship between First Franklin and BOA and to show that BOA can be held
legally liable for acts of First Franklin based on the parties' relationship. Moreover, plaintiffh as
not submitted any evidence to show that BOA had any knowledge of or involvement in any
alleged fraud committed by First Franklin in connection with the 2004 loan. 7 Absent such
evidence, there is no genuine issue as to whether BOA can be held liable for any fraudulent acts
of First Franklin. For these reasons, plaintiff is not entitled to summary judgmen t on his fraud
claim against BOA under either a direct theory of liability or a successor theory of liability.
Nor is plaintiff entitled to summary judgmen t on his fraud claim against RCS. RCS has
submitted evidence that refutes plaintiffs allegation that his signature on the 2004loan
documents was forged and supports a finding that plaintiff executed the 2004 loan. (Doc. 98).
Specifically, RCS has produced several documents from the 2004 loan file that bear plaintiff s
notarized signature. These include an "Occupancy Declaration," a "Warranty and Compliance
7

First FrankJin filed an answer admitting that it was acquired by BOA in 2008 as a wholly-owned subsidiary.
(Doc.

7).

23

Agreement," and a "Correction Agreement, Limited Power of Attorney. " (Doc. 79, Exh. 9).
Plaintiff testified at his deposition that his signature was forged on these documents despite the
fact that the signatures are notarized. (Doc. 75-1 at 38, 42-45). However, for the reasons
discussed below in connection with RCS's motion for summary judgmen t, plaintiffs testimony,
standing alone, is "insufficient in law to overcome the certificate of acknowledgement by the
notary" together with the other documentary evidence of record. In re Zaptocky , 250 F.3d at
I 025 (quoting Paramount Fin. Co. v. Berk, 179 N .E.2d 788, 788 (Ohio App. 8th Dist. 1962)
("[s]ince the evidence relating to acknowledgement is confined to the testimony of the
mortgagors in this case, it is not sufficient to support a finding contrary to the certificate of
acknowledgement and the affirmative testimony of the notary himself." )
In addition to the above notarized documents, RCS has produced personal documentation
that is part of the 2004 loan file and which postdates the 1999 loan to refute plaintiff' s fraud
claim. The documentation consists of copies of plaintiff s driver's license issued on February 3,
2003, which served as Identification Validation Acknowledgement for the loan transaction (Doc.
79, Exh. 11 ); a paystub from his employer for the period September 16 to 30, 2003 (/d., Exh.
12); plaintiff s 2003 W -2 statement (/d. , Exh 13 ); his 2002 state and federal tax returns (/d., Exh.
14); plaintiffs 2003-2004 Payment History Report prepared by the Hamilton County Child
Support Enforcement Agency (/d. , Exh. 15); an insurance billing statement addressed to plaintiff
at his home address for the policy period February 5, 2004 to February 5, 2005 and a
declarations page (/d. , Exh. 16); and a payoff quote for the original loan provided by Fairbanks
Capital Corp. (/d. , Exh. 17). As discussed more fully in connection with defendants' motions
for summary judgmen t, the presence of plaintiff's personal documentation in the 2004 loan file

24

refutes plaintiff' s claim that he had no involvement in the creation and execution of the 2004
loan.
Finally, RCS contends plaintiff is not entitled to summary judgmen t on his claims against
it because the remedies he seeks to recover in this action are not available to him. (Doc. 98 at 68). RCS alleges that although plaintiff styles his claim as "Willful, Wrongful, Mistaken and
Erroneous Enforcement of Fraudulent Contract" (Doc. 4 at I 0), plaintiff actually seeks to rescind
the contract, quiet title, and recover damages. RCS contends that plaintiff cannot establish
liability based on any of these theories. In response, plaintiff alleges that he does not seek to
rescind the contract or to quiet title but instead he seeks to be released from a forged and
fraudulent contract. (Doc. I 02-1 at 31-32). Plaintiff takes the position that no mortgage contract
was ever formed in this case with respect to the 2004 loan because he did not sign the loan
documents. (!d. at 31). Instead, he alleges the contract was procured by fraud. (!d.).
As discussed earlier, plaintiffs claims against RCS challenging the validity of the 2004
loan and mortgage contract sound in fraud. It is well-settled under Ohio law that a contract
procured by fraud is voidable at the election of the defrauded party. Prudential Ins. Co. ofAm. v.
Carr, 199 N.E.2d 412, 414 (Ohio Com. Pl. 1964). Fraud will preclude the enforcement of a
mortgage against the mortgagor. Zapata, 921 N .E.2d at I 075-76. However, for the reasons
explained above and further discussed in connection with RCS 's motion for summary judgment
(Doc. 85), plaintiff has failed to introduce evidence that permits a reasonable inference that the
2004 loan was procured by fraud. Accordingly, plaintiff is not entitled to summary judgment on
his claims against defendant RCS.
For these reasons, plaintiffs motion for summary judgmen t against defendants BOA and
RCS (Doc. 82) should be denied.

25

V. Defendant RCS's motion for summary judgment (Doc. 85)
a. The parties' positions
Defendant RCS moves for summary judgment on plaintiffs claims against it. (Doc. 85).
Defendant RCS alleges that plaintiff cannot produce any evidence on summary judgment to
show that First Franklin concocted a scheme to refinance his existing mortgage loan without his
consent by forging his signature on numerous documents. Defendant RCS has submitted an
affidavit and supporting documentation in support of its motion. (Doc. 79). Defendant RCS
alleges that evidence showing that several of plaintiffs personal documents were submitted in
connection with the 2004 loan application and that several of the documents were notarized
permits only one conclusion: no reasonable jury could find in favor of plaintiff on his fraud claim
against RCS.
In response, plaintiff relies on allegations he states he made in his affidavit dated July 6,
2012. 8 (Doc. 111 at 4). Plaintiff alleges he began sending his checks to RCS in July 2010. (!d.
at 5). Plaintiff denies that he applied for the 2004 loan and alleges that his signature on the loan
documents is forged. Plaintiff also alleges there are unexplained and suspicious discrepancies
and contradictions in the loan documents and surrounding circumstances which demonstrate that
the 2004 loan is not valid. Plaintiff admits he could not provide an explanation " under oath" at
his deposition as to how his private documents were obtained and became part of the 2004 loan
file; however, he alleges there is a "plausible explanation," which he has set forth in his response
to the summary judgment motion. (!d. at 23-24). Plaintiff also posits an explanation for how his
forged signature could have been notarized. (Jd. at 26-27). Plaintiffhas attached documentation
to his response in support of his theories. (Doc. 111-1 ).
8

As noted previously, there is no indication that plaintiff actually filed this affidavit with the Court. However, his
allegations appear to restate those made in the March 19, 2014 affidavit attached to his complaint. (Doc. 4 at 1922).

26

b. Motions related to plaintifrs supplemental affidavits (Docs. 86, 96, 110)
On June 2, 2015, plaintiff filed a motion seeking an extension of time to file two
supplemental affidavits in support of his claims. (Doc. 86). Plaintiff filed the supplemental
affidavits that same date. (Doc. 87). On September 14, 2015, plaintiff filed a motion for leave to
file the two supplemental affidavits with the omission of any references to Curtis Baggett, his
handwriting expert whose testimony has been excluded by the Court. (Doc. 11 0).
Defendant BOA moves to strike the second supplemental affidavit on the ground it
includes statements by plaintiff that directly contradict his deposition testimony. (Doc. 96).
Defendant BOA contends that while plaintiff testified at his deposition that he did not know how
either Members Title or BOA had come to possess a copy of his driver's license which is part of
the 2004 loan file, he posits a theory in his supplemental affidavit as to how Members Title may
have obtained his driver's license in an attempt to create an issue of fact. Defendant BOA argues
this is a violation of the Federal Rules. (!d. at 2, citing Reid v. Sears, Roebuck & Co., 790 F.2d
453 (6th Cir. 1986) ("A party may not create a factual issue by filing an affidavit, after a motion
for summary judgment has been made, which contradicts [his] earlier deposition testimony.")

(citingBiechele v. Cedar Point, Inc., 747 F.2d 209,215 (6th Cir. 1984)). "The rule set forth in
Reid is grounded on the sound proposition that a party should not be able to create a disputed
issue of material fact where earlier testimony on that issue by the same party indicates that no
such dispute exists. Reid and its progeny have thus barred the nonmoving party from avoiding
summary judgment by simply filing an affidavit that directly contradicts that party's previous
testimony." Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 907 (6th Cir. 2006) (citing, e.g.,

Peck v. Bridgeport Machines, Inc. , 237 F.3d 614, 619 (6th Cir. 2001) ("a post-deposition
affidavit submitted by the plaintiff's expert was 'not cognizable for purposes of the summary

27

judgment decision' because it was ' plainly contradictory' to the expert's previous deposition
testimony" )).
Defendants BOA and RCS oppose plaintiffs motion to file supplemental affidavits with
references to Curtis Baggett excluded. (Doc. 117). They allege plaintiff has cited no authority
for filing the affidavits. They further allege that the affidavits are not made on personal
knowledge and do not set out facts that would be admissible in evidence. (!d. at 2-3, citing Fed.
R. Civ. P. 56(c)(4)). Defendants further allege that the affidavits do not comply with federal

affidavit requirements because although notarized, there is no indication that they were sworn or
given under oath or penalty of perjury. 9 (!d. at 3-4, citing 28 U.S.C. § 1746(2); Fraker v.
Marysville Exempted Village Sch., 696 F. Supp.2d 887, 894 (S.D. Ohio 2010)).
The Court will deny plaintiffs motion seeking an extension oftime to file the
supplemental affidavits (Doc. 86) and plaintiffs motion to file supplemental affidavits with
references to Curtis Baggett excluded (Doc. 110). Plaintiffs affidavits (Docs. 87, 110-1) are
replete with inadmissible legal arguments, hearsay, speculation, and statements that are not
within plaintiffs personal knowledge. See Fed. R. Civ. P. 56(c)(4).
Further, plaintiffs second supplemental affidavit directly contradicts plaintiffs previous
deposition testimony. Plaintiff testified at his deposition that although First Franklin had a copy
of his driver's license issued in 2003 in its file, he did not know how or why the title agency
possessed a copy of the license. (Doc. 75-1 at 56-58). In his supplemental affidavits, plaintiff
has posited a theory as to how his driver's license was obtained and used to generate the 2004

9

Defendants also contend that the affidavits do not compl y with the requirements of Ohio law. However, Ohio
procedural law does not govern in this diversity action. Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th
Cir. 2009) (under the Erie doctrine, federal courts sitting in diversity apply the substantive Jaw of the forum state
and federal procedural law) (citing Erie R. Co. v. Tompf..ins, 304 U.S. 64 {1938); Gasperini v. Ctl·.for Humanities,
Inc., 5 18 U.S. 415, 427 (1996)).

28

loan. (Docs. 87, I 10-I ). Plaintiff asserted that he gave his driver's license to Home Ownership
in 2004, prior to origination of the 2004 loan, in connection with the balloon mortgage. (Doc. 87
at 9, Doc. II 0-I at 9). Plaintiff alleges that Home Ownership employed many different
companies to work on his house in 2004, and during "this year" a photo of his driver's license
made its way into the files of Members Title. (!d.). Plaintiff further alleges that Members Title
worked with Darin Monhollen, an employee of Gateway Mortgage (Gateway), as the originator
or broker for the disputed 2004 loan. (!d.). Plaintiff alleges that Gateway was also either the
originator or the broker of the original I999 mortgage. (!d.). Plaintiff alleges it is his belief that
there was an opportunity for a Gateway employee to get possession of his driver's license, which
he had given to Home Ownership in connection with the balloon mortgage, and pass it along
with other documents which were used to create the 2004 loan. (Doc. 87 at 10; Doc. II 0-I at
I 0). Plaintiff s allegations positing an explanation for how First Franklin obtained a copy of his
driver's license in connection with the 2004 loan directly contradict his deposition testimony that
he had no knowledge as to how this occurred. Plaintiff s allegations set forth in his supplemental
affidavits are not admissible into evidence for this reason. Aerel, S.R.L., 448 F.3d at 907.
Plaintiff s allegations are also inadmissible because his theory as to how his driver's license
became part of the 2004 loan file is based on inadmissible speculation rather than facts of which
plaintiff has first-hand knowledge. See Fed. R. Civ. P. 56(c)(4).
Accordingly, plaintiffs motions for an extension of time to file the supplemental
affidavits and motion to file the supplemental affidavits with references to Curtis Baggett deleted
(Docs. 86, II 0) are denied. 10 Defendant BOA's motion to strike the supplemental affidavit
(Doc. 96) is denied as moot.

10

Because plaintifr s affidavits are invalid for the reasons stated above, the Court need not address whether
the
affidavits comply with 28 U.S.C. § 1746.

29

c. Defendant RCS's motion for summary judgment should be granted.
Defendant RCS has produced evidence that demonstrates there is no genuine issue of
material fact on plaintiff s claims against it and that it is entitled to summary judgmen t as a
matter oflaw. RCS has produced the affidavit of its authorized representative, Christy Metcalfe ,
who states as follows: RCS began servicing plaintiff s mortgage loan in August 2010. (Doc. 79,
~

4). As of May 20, 2015, the date of the affidavit, p1aintiffhad not made any monthly payments

on the loan since April 2012.

(!d.,~

4). At the time RCS began servicing the loan, the prior

servicer, defendant BOA, transferred business records relating to plaintiffs loan to RCS,
including records related to the origination and closing of the 2004 loan. (!d. , ~ 5). These
records include the following documents:
1. Plaintiff s Adjustable Rate Note (Note) executed on February 10, 2004, which bears
plaintiffs signature (Exh. 2)
2. The mortgage executed on February 10, 2004 (Mortgage) which was recorded with the
Hamilton County, Ohio Recorder 's Office and which bears plaintiffs notarized signature
(Exh. 3)
3. An amendment to the Mortgage (Amendment) executed on February 20, 2004, ten days
after the Note and Mortgage were executed , which includes a legal description of the
property the Mortgage encumbers and a 1-4 Family Rider for the Mortgage. The
Amendment bears plaintiffs notarized signature (Exh. 4)
4. The HUD-1 Settlement Statement for the closing ofthe 2004loan executed on February
10, 2004, which bears plaintiffs signature (Exh. 5)
5. The Uniform Residential Loan Application executed on February 10, 2004, which
includes information related to plaintiff s employment, income, expenses, assets and
liabilities and which bears plaintiffs signature (Exh. 6)
6. The appraisal report for an appraisal performed in January 2004 of the Property
encumbered by the Mortgage (Exh. 7)
7. Records showing plaintiffs monthly payment amount and including an escrow analysis
relating to withholdings for plaintiffs property taxes and hazard insurance payments
executed on February 10, 2004, which bear plaintiffs signature (Exh. 8)
8. Records dated February 10, 2004, which include an Occupancy Declaration, Warranty
and Compliance Agreement, and Limited Power of Attorney, each of which bears
plaintiffs notarized signature (Exh. 9)
9. A document executed February 4, 2004, by the original lender, First Franklin, verifying
plaintiffs identity as required under the Federal Patriot Act (Exh. 10)
10. An Identifica tion Validation Acknowledgement executed by the closing agent, Michelle
Schmidt, on February 10, 2004, acknowledging that she had reviewed plaintiffs state
30

issued driver's license and had verified his identity, and copies of the front and back of
plaintiffs driver' s license (Exh. 11)
11. Plaintiffs pay statements from September 2003 (Exh. 12)
12. Plaintiffs 2003 W-2 statement (Exh. 13)
13. Plaintiffs 2002 federal and state tax returns (Ex h. 14)
14. Plaintiffs child support payment history report dated February 3, 2004 (Exh. 15)
15. Plaintiffs homeowner's insurance declarations page for the period February 5, 2004 to
February 5, 2005 (Exh. 16)
16. The payoff statement for plaintiffs 1999 mortgage loan issued by Fairbanks Capital
(Exh. 17)
(!d.,~~

7-22).
Plaintiff does not challenge the authenticity of many of these documents. Moreover, at

his deposition plaintiff authenticated the copies of his 2002 tax returns (Doc. 75-1 at 26-27), his
driver's license issued on February 3, 2003 (! d. at 27), his child support payment history report
(!d. at 28-29), and his 2003 W-2 statements. (!d. at 34). Plaintifftestifed, however, that his

signature is forged on the documents and that his personal documents were obtained in
connection with the 2004 loan without his consent. (!d. at 56-58). Plaintiff has not produced
competent evidence to support his allegations and create a genuine issue of material fact on his
claims against RCS for the reasons discussed below.
Several of the documents RCS has produced from the 2004 loan file bear plaintiffs
notarized signature. (Doc. 79, Exh. 9). These include the "Occupancy Declaration," "Warranty
and Compliance Agreement ," and "Correction Agreement, Limited Power of Attorney." (!d.).
Plaintiff testified at his deposition that he did not sign any ofthe 2004loan documents and that
the signatures on the documents are not his. (Doc. 75-1 at 32, 38, 42-46). However, for the
reasons discussed in connection with plaintiffs motion for summary judgment, plaintiffs
deposition testimony, standing alone, is "insufficient in law to overcome the certificate of
acknowledgement by the notary" and the additional documentary evidence of record. In re
Zaptocky, 250 F.3d at 1025 (quoting Paramount Fin. Co. , 179 N.E.2d at 788) ("[s]ince the
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evidence relating to acknowledgement is confined to the testimony of the mortgagors in this
case, it is not sufficient to support a finding contrary to the certificate of acknowledgement and
the affirmative testimony of the notary himself.") The affidavit ofRCS representative Metcalfe,
the 2004 loan documentation RCS has produced, and plaintiffs deposition testimony show there
is no dispute that a number of plaintiffs personal financial and other records were included in
the 2004 loan file that RCS received when servicing of the 2004 loan was transferred from BOA
to RCS. Absent any competent evidence to suggest that First Franklin obtained these documents
without plaintiffs consent as part of a scheme to generate a fraudulent loan, the only reasonable
inference to be drawn from this undisputed evidence is that plaintiff provided this documentation
in connection with the 2004loan application and execution of the loan. Plaintiffhas not offered
any competent evidence to rebut the inference that he provided a number of his personal
documents for purposes of generating the 2004 loan. Although plaintiff testified at his
deposition that these documents were obtained without his consent, he also repeatedly
emphasized that he did not know how First Franklin had obtained the documents. (Doc. 75-1 at
56-58). Only after his deposition had been taken and in response to RCS 's motion for summary
judgment did plaintiff offer an explanation as to how these documents possibly could have made
their way into the 2004loan file. (Doc. 111 at 23-24; Docs. 87, 110-1). However, plaintiffs
affidavit testimony on this issue is not competent evidence for the reasons explained above and
has been excluded from the evidence.
Further, plaintiffs allegations made in opposition to RCS 's motion for summary
judgment clearly demonstrate that plaintiffs theory as to how his personal documents became
part of the 2004 loan file is nothing more than unsupported speculation. As best the Court is able
to discern, plaintifftheorizes that contractors who worked on his home during 2004, who were

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apparently paid with proceeds from the home improvement loan from Home Ownership that was
originated in October 2004, somehow obtained his personal papers and transferred them to
Gateway Mortgage to create the fraudulent loan that was executed six months earlier on
February 10, 2014. Plaintiff posits the following theory:

As the [deposition] transcript will show Plaintiff had no explanation he could
give under oath as proper testimony of fact as to how this happened.
However there is plausible explanation for this. As now testified in
Supplemental Affidavit No. 2 [], in 2004, prior to the [2004 loan] , Plaintiff gave
his License to Home Ownership for the deferred loan [balloon mortgage]. To the
first hand observation ofthe Plaintiff Home Ownership employed many different
contractors to work on my house. It is during this year that a photo of my License
got in the files of Members Title Agency. I gave my driver's license to Home
Loan Ownership who gave me the deferred loan. Gateway Mortgage based in
Cincinnati was either the originator or the broker of my 1999 mortgage. Darrin
Monhollen was with Gateway mortgage. I did not talk to Gateway Mortgage
about any kind of refinancing. Plaintiffhas affirmed The documents Members
Title produced at deposition show that Members Title worked with Darrin
Monhollen as the originator or broker for this false loan. Upon examination of
the same, Darrin Monhollen is identified as the interviewer on the illegible
Uniform Residential Loan Application on which someone forged my signature.
As self evident observable fact my signature on the driver's license does not
resemble any of my supposed signatures on those loan documents. In the
documents produced by Members Title, there is a document in these papers where
a forged application is present to get my tax information from the IRS.
Defendants produced in discovery the 1999 mortgage copy and include a copy the
Divorce decree and the Drivers' License issued 3/ 19/2003 expires 3/ 19/2007 and
the other documents Defendant claims is proof Plaintiff participated in this
spurious loan. Nobody ever interviewed me for this loan but someone forged an
application form on which they forged my signature and the signatures on all the
loan documents were not executed by me as testified in affidavit of record before
the court, There were many different companies working with Home Ownership
doing work on the house in 2004. Upon best belief and knowledge the
opportunity was present for a Gate Way worker to gain a copy of my [driver' s
license] used in the making of the Gate Way loan and the other personal
documents that made their way into the files of the spurious loan to be used in the
spurious loan later that year.
(Doc. 111 at 23-24) (emphasis in original). Plaintiffs speculative allegations are insufficient to
carry his burden on summary judgment to show there is a genuine issue of material fact. See
Bryant v. Bigelow, 311 F. Supp.2d 666, 669 (S.D. Ohio 2004) (if the moving party carries its
33

initial burden of showing the absence of a genuine issue of material fact as to an essential
element of the non-movant's case, then the non-moving party must set forth specific facts
showing there is a genuine issue for trial). There is no competent evidence to support plaintiff's
allegations. Ms. Metcalfe stated in her affidavit that plaintiff's personal documents were
included in the records that BOA transferred to RCS when BOA transferred servicing of the
2004 loan to RCS. (Doc. 79, ~ 5). The dates ofthe documents and their inclusion in the 2004
loan file, coupled with the lack of evidence to support a finding that anyone other than plaintiff
obtained and provided his personal financial and other records to First Franklin, allow only one
reasonable inference to be drawn from the undisputed evidence: plaintiff provided this
documentation in connection with the 2004 loan application and execution of the loan.
For these reasons, there is no genuine issue of material fact as to whether plaintiff applied
for the 2004 loan and executed the 2004 loan documents. Plaintiff has not produced competent
evidence that First Franklin engaged in a scheme to generate a fraudulent loan pursuant to which
plaintiff's signature was forged on multiple documents; the closing agent falsely notarized
multiple documents bearing plaintiff's signature and fraudulently verified plaintiff's identity; and
First Franklin obtained a myriad of plaintiff's personal financial and other records used to
generate the loan without his consent. Plaintiff's "version of events is blatantly contradicted by
the record, so that no reasonable jury could believe it." Scott v. Harris, 550 U.S. 372, 380 (2007)
("When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment."). Absent competent evidence
that the 2004 loan was fraudulently executed, plaintiff cannot prevail on a fraud claim against
RCS . Nor can plaintiff pursue a claim against RCS for vitiation of an allegedly fraudulent

34

mortgage contract. Accordingly, defendant RCS 's motion for summary judgment (Doc. 85)
should be granted.

VI. Defendant BOA's motion for summary judgment (Doc. 83)
Defendant BOA moves for summary judgment on plaintiff's fraud claim against it on the
ground there is no evidence to substantiate plaintiff's claim. (Doc. 83). Defendant BOA alleges
there is no admissible evidence to show that the 2004 loan was forged or was executed without
plaintiff's consent. To the contrary, BOA argues that the only admissible evidence of record
strongly suggests that plaintiff obtained the 2004 loan to comply with the tenns of his divorce
decree entered in September 2003, which is part of the 2004loan file. (Jd. at 6). BOA further
notes that the mortgage challenged by plaintiff is notarized, and there is a presumption under
Ohio law that the notary acted lawfully in notarizing plaintiff's signature. (Id.). In addition,
BOA alleges there is no evidence that it made any misrepresentations or acted with an intent to
deceive plaintiff in connection with the 2004 loan, but in fact plaintiff admits both that he does
not know who committed the alleged fraud and that BOA had no knowledge of the alleged
forgery. (!d. at 6-7, citing Doc. 75-1 at 67, 115).
In response, plaintiff alleges that the loan documents defendants have produced to
demonstrate the validity of the loan are not sufficient to overcome his sworn testimony that he
did not execute the 2004 loan. (Doc. 108). Plaintiff alleges that the following evidence, together
with his testimony that he did not execute the 2004 loan and had no knowledge of it, establishes
the existence of material factual disputes as to the validity of the 2004 loan: the deposition
testimony of Randall Craycraft, managing member of Members Title; the deposition testimony
of Darren Rudolph, an employee of Landsel Title Agency; and contradictions in and between the
Settlement Statement for the 2004 loan and Members Title' s disbursement history, which the

35

witnesses purportedly could not explain in their deposition testimony. Plaintiff states that he
does not allege that BOA committed fraud. (Doc. 108 at 23). Instead, plaintiff alleges that he is
accusing BOA of " willfully and egregiously continuing to enforce a loan created by forgery long
after they had [] received it [] or investigating to find out who did it." (!d. at 23-24). Plaintiff
alleges that it is his burden to establish the loan was "spurious" and is no longer enforceable
against him, and to prove the damages he has suffered in the form of excess payments on the
2004 loan. (Jd. at 24).
The Court has determined that plaintiffs claim against BOA sounds in fraud. (See§
IV(c), supra). To succeed on his fraud claim against BOA, plaintiff must demonstrate there is a
genuine issue of material fact as to whether BOA can be held liable for fraud in connection with
the 2004 loan, either in its capacity as successor to First Franklin or as the servicer of the loan.
For the reasons explained in connection with plaintiffs motion for summary judgment,
plaintiff cannot prevail on his fraud claim against BOA. Plaintiff has not produced evidence that
creates a genuine issue of material fact as to whether BOA knew or had reason to know at any
time that the 2004 loan documents were not valid. The evidence plaintiff relies on to call into
question the validity of the 2004loan is not material to his claim against BOA. Plaintiffhas not
shown that alleged discrepancies in the witnesses' deposition testimony and in certain totals
reflected in the 2004 loan documents, even if accepted as true, have any bearing on whether
BOA knew or should have known that plaintiff did not consent to or sign the 2004 loan
documents. Absent evidence that BOA knew or had reason to know that the 2004 loan
documents were forged or otherwise executed without plaintiffs consent, plaintiff cannot show
that BOA acted with an intent to mislead plaintiff into relying on the forgery by continuing to
collect payments on a mortgage it knew to be fraudulent. Nor has plaintiff produced evidence to

36

show that BOA can be held liable for the alleged fraudulent acts of First Franklin. There is no
evidence regarding BOA' s potential liability for acts ofFirst Franklin in BOA' s capacity as
"successor"; no evidence that First Franklin committed any fraud in connection with the 2004
loan; and assuming, arguendo, that First Franklin did commit fraud , no evidence to show that
BOA had any knowledge of or involvement in any fraud committed by First Franklin in
connection with the 2004 loan. Accordingly, defendant BOA' s claim for summary judgment
against plaintiff (Doc. 83) should be granted.

VII. Conclusion
Plaintiff has been given ample opportunity to obtain expert testimony, conduct discovery,
and present affidavits and other evidence to support his claim that the 2004 loan was fraudulently
generated and that defendants BOA and RCS can be held liable for the fraud. Plaintiff
nonetheless has failed to produce sufficient evidence to raise a genuine issue of material fact on
his claims against defendants BOA and RCS. Further delay of the proceedings to allow plaintiff
additional time to attempt to marshal evidence in support of his claims is not warranted.

IT IS THEREFORE ORDERED THAT:
(I) Plaintiffs motion for leave to file a memorandum in opposition to defendant RCS's motion

for summary judgment (Doc. 102) is DENIED as moot.
(2) Plaintiffs motion for review of the summary of events and motion for a hearing on his
request for review (Docs. 123, 125) are DENIED.
(3) Plaintiffs "Request for Leave of Court to Take Another Look at the Signatures" (Doc. 121)
and plaintiffs "Motion for Another Look at the Signatures for the Pursuit of Truth and Justice"
(Doc. 122) are DENIED.

37

(4) Plainti ffs motion for an extension of time to file two supplemental affidav
its in support of
his claims (Doc. 86) and plainti ffs motion for leave to file the two supplemental
affidavits with
any references to Curtis Baggett omitted (Doc. 11 0) are DENIED.
(5) Defendant BOA' s motion to strike the second supplemental affidavit (Doc.
96) is DENIED
as moot.
(6) Plainti ffs "Request for Leave of Court to Allow the Court to See This Truth"
(Doc. 132) is

DENIED.
IT IS THEREFORE RECO MMEN DED THAT:
(1) Plainti ffs motion for leave to obtain another handwriting expert (Doc. 109)
be DENIED.
(2) Plainti ffs motion to designate Wendy Carlson as his handwriting expert
(Doc. 112) be

DENIED.
(3) Plainti ffs motion to amend his previous request to designate a new handwr
iting expert (Doc.
128) and plainti ffs amended request (Doc. 129) be DENIED.
(4) Plainti ffs motion for summa ry judgme nt (Doc. 82) be DENIED.
(5) Defendant BOA' s motion for summary judgme nt (Doc. 83) be GRANTED.
(6) Defendant RCS ' s motion for summary judgme nt (Doc. 85) be GRANTED.

Date: I

~;<~~--A-/

(u /; (,

Karen L. Litkovitz'
~~
United States Magistrate Judge

38

UNITED STATES DISTRICT COURT
SOUTHE RN DISTRICT OF OHIO
WESTERN DIVISION
KALEMBA BALIMUNKWE,
Plaintiff,

Civil Action No. 1: 14-cv-327
Black, J.
Litkovitz, M.J.

vs.

BANK OF AMERICA, N.A.,
AS SUCCESSOR TO FIRST FRANKLIN
FINANCIAL CORP., et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party' s objection s
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters , 638 F.2d 947 (6th Cir. 1981).

39