[Cite as DLJ Mtge. Capital, Inc. v. Rosario, 2014-Ohio-1835.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100233 

DLJ MORTGAGE CAPITAL, INC.

PLAINTIFF-APPELLEE 

vs. 

JUAN ROSARIO, ET AL.

DEFENDANTS-APPELLANTS 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Berea Municipal Court 

Case No. 13-CVG-01075 

BEFORE: Rocco, J., Jones, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: May 1, 2014 
ATTORNEY FOR APPELLANTS

Sam A. Zingale 

700 Rockefeller Building 

614 West Superior Avenue 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

Jason A. Whitacre 

Ashley E. Mueller 

The Law Offices of John D. Clunk, Co., L.P.A. 

4500 Courthouse Boulevard 

Suite 400 

Stow, OH 44224 
KENNETH A. ROCCO, J.: 

{¶1} This is an action brought by plaintiff-appellee DLJ Mortgage Capital, Inc. 

(“DLJ”) in the Berea Municipal Court against defendants-appellants Suad Abuebied and 

Rashid H. Mohammed for forcible entry and detainer with respect to a residential 

premises located at 21920 Country Way in Strongsville, Ohio. 

{¶2} Appellants appeal from the municipal court’s decision to award judgment to 

appellee on its complaint and to order appellants to vacate the property. Appellants 

present a single assignment of error. They assert that the municipal court’s decision was 

improper because the record demonstrates that appellee failed to comply with the 90-day 

notice requirement set forth in the Protecting Tenants at Foreclosure Act (“PTFA”).1

{¶3} Upon a review of the record, this court finds that appellants’ assertion lacks 

merit. Consequently, the municipal court’s order is affirmed. 

{¶4} DLJ filed this action on May 14, 2013. In its complaint, DLJ stated in 

pertinent part that: (1) it had “completed a foreclosure action against the owners of the 

property”; (2) it became the owner of the property by sheriff’s sale on January 7, 2013; 

(3) appellants were occupying the premises without either a lease or “color of title”; (4) 

 1This act, found formerly at 12 U.S.C. 5220, et seq., was originally set to 

expire on December 31, 2012, but was extended until December 31, 2014. 
DLJ had served appellants with a 3-day “Notice to Leave” the premises on May 8, 2013;2

(5) DLJ had served appellants with a 90- day notice to vacate on January 31, 2013; but, 

(6) appellants “forcibly detained” and still occupied the premises. DLJ attached copies 

of the relevant documents to its complaint as exhibits. 

{¶5} Appellants filed their notice of appearance in the case on May 24, 2013. The 

case proceeded to a hearing before a magistrate on June 19, 2013. That same day, the 

magistrate issued his decision. The magistrate decided that appellants were “holdover 

tenants” of the previous owner of the premises and that judgment should be entered on 

the complaint in DLJ’s favor for “nonpayment.” 

{¶6} On June 26, 2013, appellants filed a motion for an “emergency stay” of the 

magistrate’s decision, and filed their objections the following day. Appellants claimed 

that they were “bona fide tenants” that were entitled to the 90-day notice provision of the 

PTFA, and that DLJ’s 90-day notice was insufficient to comply. Appellants attached a 

copy of the transcript of the June 19, 2013 hearing. 

{¶7} On July 5, 2013, based upon appellants’ objections, the municipal court 

issued an order that “rejected” the magistrate’s decision. The court set the matter for a 

new hearing before a different magistrate “ASAP.” 

{¶8} The hearing took place on July 7, 2013. That same day, the magistrate 

issued his decision in DLJ’s favor, finding that “the 90 day notice and 3 day notice were 

properly prepared and served” on appellants. 

 2The notice contained a typographical error that indicated the year as “2012.” 
{¶9} On July 22, 2013, appellants once again filed objections, asserting that the 

magistrate’s decision “violate[d] Defendants [sic] federally-protected rights under the 

Protecting Tenants at Foreclosure Act of 2009.” Appellants attached as exhibits to their 

objections only a partial transcript of the July 7, 2013 hearing and a copy of an email. 

Neither of these attachments was either verified or authenticated. However, the email 

referenced a case filed by DLJ in the Cuyahoga County Court of Common Pleas against 

the same defendants, viz., CV-07-643833. 

{¶10} On July 24, 2013, the municipal court overruled appellants’ objections and 

adopted the magistrate’s decision. The court entered judgment in DLJ’s favor on its 

complaint, ordering that appellants vacate the premises by August 12, 2013, but stayed 

the judgment pending the outcome of this appeal. 

{¶11} Appellants present the following assignment of error. 

I. The trial court erred in granting appellee’s request for eviction 

because appellee never provided appellants with the proper 90 day notice to 

vacate to which they were entitled pursuant to the Protection [sic] of 

Tenants in [sic] Foreclosure Act (“PTFA”). 

{¶12} Appellants argue that the municipal court’s order should be reversed 

because their status as “bona fide tenants” under the PTFA had been established in 

CV-07-643833, the case that DLJ instituted in the Cuyahoga County Court of Common 

Pleas. They argue that such a status required more specificity than what the 90-day 

notice to vacate that DLJ served upon them contained. Their arguments lack merit. 

{¶13} According to the record, although DLJ filed case number CV-07-643833 in 

the common pleas court seeking a writ of possession with respect to the premises, DLJ 
later dismissed the action. A plaintiff’s voluntary dismissal of a claim pursuant to Civ.R. 

41(A)(1) renders the court’s previous rulings a nullity. Bradley v. Dollar Gen., 5th Dist. 

Fairfield No. 11-CA-45, 2012-Ohio-3700, ¶ 36. Thus, whatever the common pleas court 

placed in a journal entry in that case neither affected this case nor had authority over the 

municipal court. 

{¶14} The evidence in the record demonstrates that the provisions of the PTFA 

had no application in this case. In pertinent part, the PTFA states: 

SEC. 702. EFFECT OF FORECLOSURE ON PREEXISTING 

TENANCY.

(a) IN GENERAL. 

In the case of any foreclosure on a federally related mortgage loan or 

on any dwelling or residential real property after the date of enactment of 

this title, any immediate successor in interest in such property pursuant to 

the foreclosure shall assume such interest subject to - 

(1) the provision, by such successor in interest of a notice to vacate to any bona 

fide tenant at least 90 days before the effective date of such notice; * * * . 

* * * 

(b) BONA FIDE LEASE OR TENANCY. 

For purposes of this section, a lease or tenancy shall be considered bona fide only 

if - 

* * * 

(3) the lease or tenancy requires the receipt of rent that is not substantially less 

than fair market rent for the property or the unit’s rent is reduced or subsidized due to a 

Federal, State, or local subsidy. 

(Emphasis added.) 
{¶15} Appellant Mohammed admitted that the oral lease with the previous owner had expired. 

Appellants did not dispute that they were living on the premises and that they paid no rent. 

Machshonba v. Cleveland Metro. Hous. Auth., 8th Dist. Cuyahoga No. 96811, 2011-Ohio-6760, ¶ 14; 

compare Victoria Mtg. Corp. v. Williams, 8th Dist. Cuyahoga No. 68012, 2006 Ohio App. LEXIS 1683 

(Apr. 25, 1993). Thus, appellants did not qualify as “bona fide tenants” under the PTFA and state law 

applied. Machshonba at ¶ 12; Ziegler v. Batdorff, 63 Ohio App.2d 76, 408 N.E.2d 1383 

(8thDist.1979). 

{¶16} At the first magistrate’s hearing, moreover, DLJ’s agent testified that he 

placed a 90-day notice on the front door of the residence on January 31, 2013. See Esho 

v. Shamoon, Inc., 6th Dist. Lucas No. L-06-1189, 2007-Ohio-1529, ¶ 12. R.C. 

5321.17(B) requires only a 30-day notice. The notice was directed to the former owner 

and/or his “Tenant.” Appellant Mohammed admitted that his wife found DLJ’s 90-day 

notice. As this court noted in K & D Mgmt. v. Masten, 8th Dist. Cuyahoga No. 98894, 

2013-Ohio-2905, ¶ 12-13: 

 The underlying action commenced as one to reclaim property where 

an owner terminates the leaseholder’s right to rent the property. The owner 

is provided a summary action under R.C. Chapter 1923, forcible entry and 

detainer, to quickly reclaim the property. R.C. 1923.02 specifically allows 

an owner to bring a forcible entry and detainer action against a tenant who 

holds over a term. * * * 

* * * Forcible entry and detainer is, therefore, designed to be a 

summary action allowing speedy relief. Any delay caused through added 

processes, including the assertion of defenses, is contrary to the speedy 

relief intended by R.C. Chapter 1923. 

 (Emphasis added.) 
{¶17} In this case, R.C. Chapter 1923 governed the form of the notice to vacate the 

premises. Nothing in R.C. 1923.04 required DLJ to state in the notices to vacate the 

premises with specificity either appellants’ names or “the move out date.” Additional 

requirements such as the ones asserted by appellants, especially in light of the lack of any 

written lease agreement between appellants and the former owner of the premises, would 

be against the statutory intent. See, e.g., Hil-Roc Condo. Unit Assoc. v. HWC Realty, 

Inc., 8th Dist. Cuyahoga No. 87344, 2006-Ohio-4770. 

{¶18} For the foregoing reasons, the municipal court committed no error. 

Appellants’ assignment of error, accordingly, is overruled. 

{¶19} The municipal court’s order is affirmed. 

It is ordered that appellee recovers from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

_____________________________________ 

KENNETH A. ROCCO, JUDGE 

LARRY A. JONES, SR., P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR