[Cite as Wells Fargo Bank, N.A. v. Bielec, 2014-Ohio-1805.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Wells Fargo Bank, N.A., : 

 Plaintiff-Appellee, : 

v. : No. 13AP-330 

 (C.P.C. No. 11CV-0639) 

Kathryn A. Bielec aka Kathy Bielec et al., : 

 (REGULAR CALENDAR) 

 Defendants-Appellants. : 

 

 

D E C I S I O N 

Rendered on April 29, 2014 

 

Thompson Hine, L.L.P., Scott A. King and Terry W. Posey, for 

appellee. 

Paul Wallace, for appellants. 

 

APPEAL from the Franklin County Court of Common Pleas 

CONNOR, J. 

{¶ 1} Defendants-appellants, Kathryn A. Beilec and Robert J. Beilec 

("appellants"), appeal from a judgment of the Franklin County Court of Common Pleas 

granting the motion for summary judgment filed by plaintiff-appellee, Wells Fargo Bank, 

N.A. ("Wells Fargo"). For the reasons that follow, we affirm the judgment of the trial 

court.

A. Facts and Procedural History 

{¶ 2} In October 2004, appellants' executed a promissory note ("Note") in the 

sum of $161,000 in favor of Wells Fargo, and a first mortgage on real property located at 

487 Thedri Avenue, Gahanna, Ohio, as security for the borrowed sum ("Mortgage"). 

When appellants defaulted on payment, Wells Fargo commenced a foreclosure action in 

the Franklin County Court of Common Pleas on January 14, 2011. In Count I of the 
No. 13AP-330 2 

complaint, Wells Fargo sought judgment on the note in the amount of $148, 980. 93, plus 

interest at 6 percent per annum from March 1, 2010, court costs, advances, and other 

allowable charges. In Count II, Wells Fargo sought a judgment of foreclosure and an order 

of sale. 

{¶ 3} On July 9, 2012, the trial court denied the parties cross-motions for 

summary judgment. A court magistrate subsequently tried the case on November 7, 2012. 

On December 5, 2012, the magistrate recommended judgment in favor of Wells Fargo as 

to both counts of the complaint. On December 19, 2012, appellants' filed objections to the 

magistrate’s decision and a motion to supplement their objections with a copy of the 

transcript of proceedings. Appellants' subsequently filed a motion for extension of time to 

secure the transcript. On January 9, 2013, the trial court granted appellants leave until 

January 31, 2013, to supplement their previously filed objections and to file the transcript 

of proceedings. On February 1, 2013, appellants' filed their supplemental objections but 

did not file the transcript.

{¶ 4} On February 7, 2013, Wells Fargo filed their memorandum in opposition to 

appellants' original objections. Appellants' subsequently filed the trial transcript on 

February 12, 2013, but without the exhibits. The next day, appellants' filed their reply. 

Wells Fargo filed its response to appellants' supplemental objections on February 18, 

2013. 

{¶ 5} On March 25, 2013, the trial court issued a decision overruling appellants' 

objections and adopting the magistrate's decision as its own. The trial court subsequently 

issued its judgment entry and decree in foreclosure on March 28, 2013. On that same 

date, appellants' filed a copy of the trial transcript, complete with the exhibits. 

{¶ 6} Appellants' filed a timely notice of appeal to this court on April 19, 2013. 

B. Assignments of Error 

{¶ 7} Appellants' assign the following as error on appeal: 

I. THE TRIAL COURT ERRED IN FINDING THAT 

PLAINTIFF HAD NOT MODIFIED ITS PROMISSORY NOTE 

AND MORTGAGE. 

II. THE TRIAL COURT ERRED IN FINDING THAT 

PLAINTIFF WAS NOT BARRED FROM ENFRCING (sic) ITS 
No. 13AP-330 3 

NOTE AND MORTGAGE UNDER THE DOCTRINE OF 

PROMISSORY ESTOPPEL. 

C. Standard of Review 

{¶ 8} When reviewing a trial court's adoption of a magistrate's decision, we 

generally apply an abuse of discretion standard. Wells Fargo Bank, N.A. v. Rahman, 10th 

Dist. No. 13AP-376, 2013-Ohio-5037, citing Mayle v. Ohio Dept. of Rehab. & Corr., 10th 

Dist. No. 09AP-541, 2010-Ohio-2774, ¶ 15. With respect to the trial court's adoption of a 

magistrate's factual findings, Civ.R. 53(D)(3)(b), provides in relevant part: 

(iii) Objection to magistrate's factual finding; transcript or 

affidavit. An objection to a factual finding, whether or not 

specifically designated as a finding of fact under Civ.R. 

53(D)(3)(a)(ii), shall be supported by a transcript of all the 

evidence submitted to the magistrate relevant to that finding. 

(iv) Waiver of right to assign adoption by court as error on 

appeal. 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). 

{¶ 9} The trial court's March 25, 2013 decision contains the following discussion: 

The Court agrees with Plaintiff that, at least as of the time of 

filing their Supplemental Objections on February 1, 2013, the 

transcript of the proceedings had not yet been filed by 

Defendants and that technically, Defendants thus are 

precluded from asserting their objections to any factual 

findings of the Magistrate or any claim that the trial court 

erred in adopting the factual findings. Colo. v. Ledesma, 3rd 

Dist. No. 13-017-02, 2007-Ohio-3975, ¶¶11-13 (2007 Ohio 

App. LEXIS 3594) (citations omitted.) Nonetheless, the Court 

also finds that Plaintiff has not been prejudiced by the 

belated filing of the transcript and accordingly the Court has 

considered it, along with the exhibits that are part of the 

record as of the date of this entry. 

(Emphasis added.) 
No. 13AP-330 4 

{¶ 10} Based upon the foregoing, it is clear that the trial court sua sponte granted 

appellants leave to file the transcript. It is also clear that the trial court considered the 

transcript in reviewing the magistrate's findings of fact. Additionally, the record contains 

a "Notice of Filing of Loan Modification Agreement" that was filed by Wells Fargo on 

January 9, 2012. Attached thereto as exhibit "A" is what Wells Fargo represents as a 

"Loan Modification Agreement." 

{¶ 11} Inasmuch as the trial court considered the transcript in adopting the 

magistrate's decision, we will consult the transcript in our review of the trial court's 

decision. Similarly, given the fact that Wells Fargo filed a written loan modification 

agreement on January 9, 2012, and given the fact that the trial court expressly considered 

"all exhibits that are part of the records as of the date of this entry," we shall consider the 

document in reviewing the trial court's adoption of the magistrate's decision. However, to 

the extent that appellants now challenge the trial court's adoption of any factual finding 

that was based solely upon the exhibits admitted at the bench trial, but not otherwise 

appearing in the record, we shall consider such a finding as unchallenged. See Civ.R. 

53(D)(3)(b)(iv).1

D. Legal Analysis 

 1. Loan Modification 

{¶ 12} In appellants' first assignment of error, appellants argue that the trial court 

abused its discretion when it adopted the magistrate's conclusions of law. More 

particularly, appellants contend that evidence shows that the parties modified the terms 

of the Note and Mortgage. We disagree. 

{¶ 13} Appellants' first claim of error is the trial court's alleged failure to consider 

the written loan modification agreement signed by appellants and admitted into evidence 

as exhibit No. 4. As noted, appellants' did not timely file the exhibits and they were not 

before the trial court when it considered appellants' objections. The trial court stated, 

however, that it considered any exhibits that were part of the record at the time it ruled on 

the objections, which included the Loan Modification Agreement that Wells Fargo filed on 

 

1 Although appellants admit no fault regarding the absence of the exhibits, the burden is upon the party 

objecting to a magistrate's factual finding to support its objection with "all the evidence submitted to the 

magistrate relevant to that finding." Civ.R. 53(D)(3)(b)(iii). 
No. 13AP-330 5 

January 9, 2012. The testimony establishes that exhibit No. 4, is a copy of the very "Loan 

Modification Agreement" Wells Fargo filed with the court on January 9, 2012. (Tr. 21, 44-

45.) Accordingly, the record reveals that the trial court did consider the written loan 

modification signed by appellants in ruling on the appellants' objections even though the 

trial court's decision does not expressly mention it. 

{¶ 14} Appellants also rely on the testimony of appellant, Kathy Beilec, in support 

of each of their defenses to the foreclosure action, including loan modification. Beilec 

testified that she contacted Wells Fargo by telephone in August of 2009, in order to make 

two mortgage payments totaling $2,600. Appellants were three or four months behind in 

their payments at that time, but Wells Fargo had not yet sent appellants a notice of 

default. According to Beilec, the Wells Fargo representative informed her that appellants 

might be eligible for a loan modification under the Home Affordable Modification 

Program ("HAMP"), subject to verification of the financial information Bielec had 

provided to the representative. The representative reportedly told Bielec to withhold 

further mortgage payments until October 1, 2009, at which time appellants were to begin 

making reduced payments of $1,007 per month. Bielec did not make the payment she 

planned to make. 

{¶ 15} Bielec stated that, thereafter, appellants received a document from Wells 

Fargo entitled "Home Affordable Modification Program, Trial Loan Period." According to 

Beilec, the document provided that appellants were to commence making reduced 

monthly payments of $1,007 until February 2010; that they were to cooperate with Wells 

Fargo in providing the information necessary to complete the loan modification process; 

and that time was of the essence. Based upon her conversations with Wells Fargo 

representatives, Beilec believed that by providing the required documents to Wells Fargo 

and making the payments as scheduled, Wells Fargo would approve the loan modification 

and execute a loan modification agreement. Appellants signed the document and 

returned it to Wells Fargo. Wells Fargo informed Beilec that it was not their policy to 

return a signed copy to the mortgagor. We note that exhibit No. 4 bears the signatures of 

appellants but not of Wells Fargo. 

{¶ 16} Beilec testified that over the course of the next several months, Wells Fargo 

requested hundreds of documents from appellants and that she complied with each 
No. 13AP-330 6 

request, even though many were redundant. In June, 2010, Wells Fargo sent appellants 

written notice that the HAMP loan had not been approved. Although Beilec admitted that 

appellants received the notice, Beilec continued to make the reduced monthly payments 

through September 2010, when Wells Fargo notified her, over the telephone, that it would 

not accept the lower payments. Thereafter, appellants made monthly payments of $1,370 

through December 2010, when Wells Fargo demanded that appellants pay all past due 

sums, including late payment fees and interest. Appellants disputed the amount 

demanded by Wells Fargo and made no further payments. Wells Fargo commenced the 

foreclosure action in January 2011. 

{¶ 17} The statute of frauds, as codified in R.C. 1335.05, states that no action shall 

be brought upon a contract or sale of lands, tenements, or hereditaments, or interest in or 

concerning them "unless the agreement upon which such action is brought, or some 

memorandum or note thereof, is in writing and signed by the party to be charged 

therewith or some other person thereunto by him or her lawfully authorized." Similarly, 

R.C. 1335.02 states that "no party to a loan agreement may bring an action on a loan 

agreement unless the agreement is in writing and signed by the party against whom the 

action is brought." 

{¶ 18} There is no dispute that any agreement modifying the terms of the Note and 

Mortgage in this case is legally enforceable only if the parties memorialize such an 

agreement in writing. Contrary to appellants' assertion, exhibit No. 4 is not such an 

agreement. Indeed, the title of the document strongly supports Wells Fargo's contention 

that exhibit No. 4 memorializes only a temporary deviation from the payment terms of the 

Note and Mortgage pending approval of a permanent modification of the Note and 

Mortgage. Moreover, immediately beneath the title of the document is the parenthetical: 

"(Step One of Two-Step Documentation Process)." The document also contains the 

following recital: "I understand that after I sign and return two copies of this Plan to the 

Lender, the Lender will send me a signed copy of this Plan if I qualify for the Offer or will 

send me written notice that I do not qualify for the Offer. This Plan will not take effect 

unless and until both I and the Lender sign it and the Lender provides me with a copy of 

this Plan with the Lender’s signature." As noted above, exhibit No. 4 does not bear the 

signature of Wells Fargo. 
No. 13AP-330 7 

{¶ 19} Similarly, the document clearly informs appellants that the trial period is 

not a final and enforceable "Modification Agreement," and that upon approval by Wells 

Fargo, the parties were to execute a "Modification Agreement."2 Bielec's testimony does 

not alter the fact that exhibit No. 4 memorializes a temporary alteration of the monthly 

payment pending final approval of a HAMP loan modification; nor does Bielec's 

testimony necessarily conflict with that of Wells Fargo's Vice President of Loan 

Documentation, Sarah Thayer, who testified that an actual modification of the Note and 

Mortgage was not to occur until the second step in the loan modification process had been 

completed. There is no question that the parties did not subsequently execute a written 

HAMP Modification Agreement. In short, there is no merit in appellants' claims that the 

original Note and Mortgage are now unenforceable due to the execution of a subsequent 

written agreement. 

{¶ 20} We also find no merit in appellants' contention that Wells Fargo admitted 

that the parties modified the Note and Mortgage by its responses to appellants' request for 

admissions. Given the evidence as set forth above, it is clear that Wells Fargo admitted 

only that it agreed to a temporary modification of appellants' monthly payments during 

the HAMP trial period. Contrary to appellants' assertion, Wells Fargo's admissions were 

not dispositive of the ultimate issue in this case. 

{¶ 21} For the foregoing reasons, appellants' first assignment of error is overruled. 

2. Promissory Estoppel 

{¶ 22} Appellants argue, in their second assignment of error, that even if the 

parties did not execute a written loan modification agreement, Wells Fargo should be 

estopped from enforcing the original Note and Mortgage given the compelling evidence 

that appellants relied to their detriment on the promise of a modification. Again, we 

disagree. 

{¶ 23} As a general rule, promissory estoppel arises where there is: (1) a clear and 

unambiguous promise; (2) reliance upon the promise by the person to whom the promise 

is made; (3) reliance is reasonable and foreseeable; and (4) the party seeking to enforce 

 

2 Exhibit No. 4 states in relevant part: "I understand that the Plan is not a modification of the Loan 

Documents"; and "If I comply with the requirements * * * the Lender will send me a Modification 

Agreement." 
No. 13AP-330 8 

the agreement is injured as a result of its reliance. Garb-Ko, Inc. v. Benderson, 10th Dist. 

No. 12AP-430, 2013-Ohio-1249. The promissory estoppel exception to the statute of 

frauds, however, is permitted only where the promisor has either misrepresented that the 

statute of fraud's requirements have been met or promised to make a memorandum of the 

agreement. Huntington Natl. Bank v. Antrobius, 11th Dist. No. 2012-P-0036, 2012-Ohio5936, ¶ 33, citing Beaverpark Assoc. v. Larry Stein Realty Co., 2nd Dist. No. 14950, (Aug. 

30, 1995); McCarthy, Lebit, Crystal & Haiman Co., L.P.A. v. First Union Mgt., Inc., 87 

Ohio App.3d 613 (8th Dist.1993). 

{¶ 24} Appellants have not alleged that Wells Fargo misrepresented the writing 

requirements applicable to the proposed loan modification agreement. Furthermore, to 

the extent that appellants claim that Wells Fargo promised to execute a written HAMP 

loan modification agreement at the end of the trial period, the evidence does not support 

appellants' claim. In fact, the evidence shows: that the parties agreed to a temporary 

modification of the monthly mortgage payments pending approval of a permanent 

modification of the Note and Mortgage; that the temporary trial period expired by its own 

terms; and that Wells Fargo never approved a permanent loan modification. Indeed, the 

very exhibit upon which appellants rely, serves to defeat their contention that Wells Fargo 

promised to execute a legally enforceable agreement that would permanently alter the 

terms of the Note and Mortgage. 

{¶ 25} While we agree that the evidence supports appellants' contention that Wells 

Fargo may have provided them with conflicting or misleading information about the 

status of their HAMP loan, there is no dispute that, in June 2010, Wells Fargo sent 

appellants written notice that the proposed loan modification was disapproved. 

Nevertheless, appellants continued to make monthly payments at the lower rate for 

several more months. Appellants also admit that, as the HAMP process unfolded, they 

continued to receive correspondence from Wells Fargo evidencing a large and growing 

overdue balance. Appellants further acknowledge that they were three or four months 

behind in their mortgage payments at the time the HAMP loan was first discussed. 

{¶ 26} In short, the evidence does not support appellants' assertion that Wells 

Fargo promised to execute an enforceable loan modification agreement, nor does it justify 

 
No. 13AP-330 9 

a finding that Wells Fargo should be estopped from pursuing this instant foreclosure 

action under the original Note and Mortgage. Accordingly, the trial court did not abuse its 

discretion in adopting the magistrate's decision. Appellants' second assignment of error is 

overruled. 

E. Conclusion 

{¶ 27} In the final analysis, we find that appellants failed to produce sufficient 

evidence in support of any of their defenses to the foreclosure action. Accordingly, we 

hold that the trial court did not abuse its discretion when it adopted the magistrate's 

findings of fact and conclusions of law as its own, and entered judgment in favor of Wells 

Fargo. 

{¶ 28} Having overruled each of appellants' assignments of error, we hereby affirm 

the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

KLATT and T. BRYANT, JJ., concur. 

T. BRYANT, J., retired, of the Third Appellate District, 

assigned to active duty under authority of Ohio Constitution, 

Article IV, Section 6(C). 

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