[Cite as JPMorgan Chase Bank v. Liggins, 2016-Ohio-3528.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

JPMorgan Chase Bank, N.A., : 

 Plaintiff-Appellee, : 

 No. 15AP-242 

v. : (C.P.C. No. 13CV-12908)

Ella N. Liggins, et al., : (REGULAR CALENDAR) 

 Defendants-Appellants. : 

 

D E C I S I O N 

Rendered on June 21, 2016 

 

On brief: Bricker & Eckler, LLP, Anne Marie Sferra, and 

Justin W. Ristau, for appellee. Argued: Anne Marie Sferra. 

On brief: Ella N. Liggins, pro se. Argued: Ella N. Liggins. 

 

APPEAL from the Franklin County Court of Common Pleas 

BRUNNER, J. 

{¶ 1} Defendant-appellant, Ella N. Liggins, appeals a judgment entry and decree 

in foreclosure issued by the Franklin County Court of Common Pleas on March 10, 2015, 

based on a decision issued by a magistrate of that court following a bench trial. Because 

Liggins did not comply with Civ.R. 53, we are unable to rely on her affidavit or the 

transcript and are obliged by law to accept the factual findings of the trial court. Having 

accepted and being bound by the factual findings of the trial court, we are unable to 

sustain Liggins' assignments of error. We, therefore, overrule Liggins' seven assignments 

of error and affirm the judgment of the Franklin County Court of Common Pleas. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On November 26, 2013, JPMorgan Chase Bank, N.A., ("JPMorgan Chase") 

filed a complaint in foreclosure based on allegations that it was entitled to enforce a note 

signed by Liggins for which payment was secured by a mortgage on Liggins' home. After 
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No. 15AP-242 

disposing of a counterclaim asserted in Liggins' answer, on November 19, 2014, the trial 

court referred the matter to a magistrate for a bench trial. 

{¶ 3} The magistrate held a trial on December 17, 2014. The magistrate 

summarized the evidence presented at the trial and made factual findings as follows: 

The trial was held on December 17, 2014. Plaintiff presented 

testimony of Frank Dean. In her case, Ms. Liggins testified. 

The evidence was as follows. 

Mr. Dean testified that he is employed by Plaintiff as a Home 

Loan Research Officer and is familiar with Plaintiff's 

recordkeeping system and the records relating to this case. 

He testified that Plaintiff has access to the originals of the loan 

documents offered as exhibits. 

Mr. Dean identified as Exhibit A the Note dated April 30, 

2003 executed by Ms. Liggins. The original amount of the 

Note is $134,934.00, with fixed interest at the rate of 6.375%. 

The Note was endorsed by the original lender, Strategic 

Mortgage Company, to RBMG, Inc. (Ex. A, p. 2). The Note 

was then endorsed in blank by RBMG, Inc. (Id.). Mr. Dean 

testified that the Note is bearer paper, and Plaintiff is the 

holder of the original Note. 

Mr. Dean identified as Exhibit B the Mortgage securing the 

Note. The Mortgage is dated April 30, 2003 and executed by 

Ms. Liggins. (Ex. B, p. 6). The Mortgage encumbers real 

property at 683 S. Kellner Road, Columbus Ohio. Plaintiff is 

in possession of the original Mortgage. Mr. Dean identified 

the following assignments of the Mortgage, from the original 

lender, Strategic Mortgage Company, to RBMG, Inc. (Ex. C), 

from RBMG, Inc. to Mortgage Electronic Registration 

Systems, Inc. (Ex. D), and from Mortgage Electronic 

Registration Systems, Inc. to Plaintiff. (Ex. E). 

Mr. Dean identified as Exhibit F the notice of breach 

and acceleration letter sent to Ms. Liggins. The letter, dated 

April 28, 2010, notifies Ms. Liggins that she is in default 

because of failure to make monthly payments commencing 

with the payment due March 1, 2010. (Ex. F, p. 2). The letter 

states that if the default is not cured, the loan will be 

accelerated. (Id.). Mr. Dean testified that the default was not 

cured, and the loan was accelerated. 

Mr. Dean identified as Exhibit G a letter to Ms. Liggins dated 

October 22, 2013, notifying her that a representative from JM 

Adjustment Services would be visiting within 20 days for a 
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face-to-face meeting to discuss payment assistance options for 

the loan. Mr. Dean testified that, as reflected in Ex. G, p. 5-7, 

this letter was sent by certified mail. The tracking information 

indicates that the letter was unclaimed. (Id., p. 5). 

Mr. Dean identified as Exhibit H Plaintiff's system notes 

regarding this loan account. He testified that the notes reflect 

that on October 26 and October 30, 2013, Plaintiff's agent 

went to the property for a face-to-face meeting with 

Ms. Liggins; the notes reflect that on October 30, 2013, the 

agent made contact with Ms. Liggins and she declined to 

participate in the meeting. 

Mr. Dean identified as Exhibit I a letter to Ms. Liggins dated 

May 3, 2010 addressing her request for a loan modification 

and informing her that she did not qualify for a modification 

through the Making Home Affordable program or other 

programs. 

Mr. Dean identified as Exhibit J screen prints from Plaintiff's 

business records system confirming that the above letters 

were sent to Ms. Liggins. 

Mr. Dean identified as Exhibit K the payment history for the 

loan. The payment history shows that no payments have been 

made since February 1, 2010. The principal balance is 

$122,268.73, plus interest at 6.375%. The history also shows 

that advances were made to cover expenses such as taxes, 

insurance, and property preservation costs. 

During cross examination, Mr. Dean was asked about the fact 

that the date on the signature on the Mortgage is different 

from the date in the notary provision. (Ex. B, p. 5-6). 

In her case, Ms. Liggins testified that she received a letter 

regarding the loan dated November 7, 2013. (Ex. 1). She 

stated that she then sent a certified mail letter stating that she 

disputed the debt and requesting information. (Ex. 1a). 

Ms. Liggins testified that she requested a loan modification, 

completed the necessary documents, and sent them to 

Plaintiff. She stated that Plaintiff s representatives would not 

meet with her or provide answers to her questions. She stated 

that she could not get information regarding the payment 

amounts and dates. 

Ms. Liggins testified that when the person from JM 

Adjustment came to her property, she did not believe the 
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No. 15AP-242 

person represented Plaintiff because the person could not 

answer her questions. 

Ms. Liggins further testified that she did not sign the loan 

documents at closing. She stated that she did not receive the 

notice of breach and acceleration letter. 

(Jan. 30, 2015 Mag. Decision at 1-4.) Following this recitation, the magistrate concluded, 

"The Magistrate finds the testimony of Mr. Dean credible and finds that Mr. Dean had 

sufficient familiarity with the records of this loan to authenticate them as Plaintiff's 

business records." (Id. at 4.) 

{¶ 4} Based on this factual record, the magistrate decided against Liggins and 

concluded that, "the Mortgage is a valid lien on the real estate described therein," that 

JPMorgan Chase was entitled to a judgment against Liggins for "$122,268.73, plus 

interest at 6.375% from February 1, 2010, court costs, and advances," and that the 

mortgage should be foreclosed and the real property ordered sold to satisfy the judgment. 

(Id. at 6.) 

{¶ 5} On February 6, 2015, Liggins filed objections to the magistrate's decision 

and supplemented those objections on February 17, 2015 with her own affidavit and a 

United States Postal Service ("USPS") tracking report. On February 19, 2015, JPMorgan 

Chase responded in opposition to Liggins' objections. Liggins filed a motion for new trial 

on February 27, 2015 and again attached an affidavit as well as additional USPS 

documents. 

{¶ 6} On March 10, 2015, the trial court overruled Liggins' objections, denied her 

motion for new trial, and adopted the magistrate's decision as its own. Liggins, having 

failed to provide the trial court with a transcript of the December 17, 2014 trial, caused the 

court to be limited in considering her objections to the findings of fact reached by the 

magistrate. The trial court issued a judgment entry and decree in foreclosure the same 

day as it entered its decision into the record. 

{¶ 7} On April 2, 2015, Liggins timely filed a notice of appeal. Not until April 2, 

2015, did Liggins request a transcript and not until May 12, 2015, after the trial court 

entered judgment overruling her objections and after Liggins filed her notice of appeal, 

was a transcript of the December 17, 2014 trial filed with the trial court. 
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No. 15AP-242 

II. ASSIGNMENTS OF ERROR 

{¶ 8} Liggins asserts seven assignments of error: 

1. The court erred by adopting the Magistrate's January 30, 

2015 decision without considering an evidentiary hearing to 

determine the merits of defendant-appellants Civ. R. 53 

objections. The presiding judge had very little knowledge of 

this action because previous rulings in this action were 

adjudicated by visiting judges. 

2. The court erred when it failed to accept the affidavit the 

defendant-appellant provided the court in her Civ. R. 53 and 

59 motions. Thereby violating Liggins right to give evidence 

under the Civil Rights Act of 1866. 

3. The court erred by denying defendant-appellants Civ. R. 59 

motion for a new trial or to amend the Magistrate's January 

30, 2015 decision. 

4. The court erred when it did not accept the testimony, 

documents and affidavits of the defendant-appellant with 

equal weight as those presented by the plaintiff-appellee, 

which violated defendant-appellants right to a unbiased trial 

and Due Process under the Civil Rights Act of 1866 and the 

U.S. Constitution. 

5. The court erred in [failing] to conduct an independent 

review to determine whether the magistrate determined the 

factual issues and applied the appropriate law. 

6. The court erred in accepting documents from the plaintiffappellee that do not conform to ORC 5301: Acknowledgment 

of Deed, Mortgage, Land Contract, Lease or Memorandum of 

Trust, ORC 147: Notaries Public and Commissioners, ORC 44: 

Proof of Official Record, 46 CFR 67.237 – Requirements for 

assignments of mortgages, 24 CFR §201.50 Acceleration and 

Notification, and 24 CFR 203.502 – Responsibility for 

Servicing. 

7. The court erred by admitting inadmissible hearsay evidence 

which prejudiced Liggins Due Process rights under the 

Fourteenth Amendment of the United States Constitution and 

the Civil Rights Act of 1866, Section 2 of the 13th Amendment 

to the United States Constitution. 

For a cogent review of Liggins' assignments of error, we address them out of order. 
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No. 15AP-242 

III. DISCUSSION 

{¶ 9} Because it affects all of Liggins' assignments of error, we first address the 

extent of the record we are permitted to review on appeal. Ohio Rule of Civil Procedure 

53 establishes the procedure for providing the trial court (and thereby the appeals court) 

with the so-called tools it must have to fairly consider an objection to a magistrate's 

decision. 

(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 

or an affidavit of that evidence if a transcript is not available. * 

* * The objecting party shall file the transcript or affidavit with 

the court within thirty days after filing objections unless the 

court extends the time in writing for preparation of the 

transcript or other good cause. If a party files timely 

objections prior to the date on which a transcript is prepared, 

the party may seek leave of court to supplement the 

objections. 

(Emphasis deleted and added.) Civ.R. 53(D)(3)(b)(iii). 

{¶ 10} In this case, Liggins submitted an affidavit with her objections making a 

number of factual assertions, but she did not obtain a transcript to substantiate her 

objections. The record does not show that Liggins argued or asserted prior to the trial 

court's ruling on her objections that the transcript was "not available" as is required by 

Civ. R. 53(D)(3)(b)(iii) which would have permitted an affidavit to be used rather than a 

transcript to substantiate her objections. We have previously recognized that a transcript 

can properly be considered "not available" for Civ.R. 53 purposes where a litigant is 

indigent and consequently unable to obtain a transcript. Gill v. Grafton Corr. Inst., 10th 

Dist. No. 09AP-1019, 2010-Ohio-2977, ¶ 8-17. However, in a case where (as here) a 

litigant offered no explanation on the record for failing to obtain a transcript, we have 

stated that: 

[a] transcript is not unavailable merely because the original 

stenographic notes have not been transcribed or because a 

party elects not to order a transcript of the proceedings. 

Where a transcript can be produced, the transcript is available 

and must be provided to the trial court in support of 

objections to a magistrate's decision. 
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No. 15AP-242 

Gladden v. Grafton Corr. Inst., 10th Dist. No. 05AP-567, 2005-Ohio-6476, ¶ 7. Thus, 

Liggins' affidavit could not substantiate her objections as is required, and the trial court 

was not permitted by rule to have considered them. Nor can we. "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)." (Emphasis added.) Civ.R. 

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

{¶ 11} Liggins could have but did not seek an extension in which to obtain the 

transcript before filing her objections or to request a delay of the court's ruling until the 

transcript could be secured. If a litigant shows "good cause * * *, the court shall allow a 

reasonable extension of time for a party to file a motion to set aside a magistrate's order or 

file objections to a magistrate's decision." Civ.R. 53(D)(5); one such "good cause" is a 

delay in receiving a transcript. See Savioli v. Savioli, 99 Ohio App.3d 69, 71-72 (8th Dist. 

1994) (finding an abuse of discretion in denying an extension to file objections based on 

delay in receiving a transcript and remarking, "motions for extensions of time should be 

freely granted where the need for an extension is occasioned by the official court 

reporter's delay in preparing the transcript"). Despite the availability of this relief, Liggins 

chose to timely file objections in February 2015 without a transcript to support them. Not 

until April 2015, nearly two months after her objections were filed and almost one month 

after the trial court overruled Liggins' objections, did she seek to have a transcript 

prepared. Not until May 12, 2015, over a month after this appeal was filed, was the 

transcript filed with the trial court. 

{¶ 12} Civ.R. 53(D)(3)(b)(iv) obliges us to overrule assignments of error 

challenging a factual finding where the entirety of Civ.R. 53(D)(3)(b) has not been 

complied with, and this includes the filing of a transcript or the submission of an affidavit 

where a transcript is unavailable under circumstances prescribed by and pursuant to 

Civ.R. 53(D)(3)(b)(iii). 

{¶ 13} Even in the absence of this rule, common law precludes our consideration of 

the too-late-filed-transcript, because this evidence was not available to the trial court in 

reaching the decision appealed. In such contexts, we have explained: 
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No. 15AP-242 

Appellate review is limited to the record as it existed at the 

time the trial court rendered its judgment. Fifth Third Bank v. 

Financial S. Office Partners, Ltd., 2d Dist. No. 23762, 2010- 

Ohio-5638; Cunningham v. Cunningham, 5th Dist. No. 09-

CA-25, 2010-Ohio-1397, ¶ 65; Paasewe v. Wendy Thomas 5 

Ltd., 10th Dist. No. 09AP-510, 2009-Ohio-6852, ¶ 15. See also 

UAP-Columbus JV326132 v. Young, 10th Dist. No. 09AP-646, 

2010 Ohio 485, ¶ 32 ("Our review of summary judgment is 

limited solely to the evidence that was before the trial court at 

the time of its decision."). " 'A reviewing court cannot add 

matter to the record before it, which was not a part of the trial 

court's proceedings, and then decide the appeal on the basis of 

the new matter.' " Morgan v. Eads, 104 Ohio St.3d 142, 2004- 

Ohio-6110, ¶ 13, 818 N.E.2d 1157 (quoting State v. Ishmail

(1978), 54 Ohio St.2d 402, 377 N.E.2d 500, paragraph one of 

the syllabus). Likewise, "a reviewing court cannot consider 

evidence that a party added to the trial court record after that 

court's judgment, and then decide an appeal from the 

judgment based on the new evidence." Paasewe at ¶ 15. See 

also Wallace v. Mantych Metalworking, 189 Ohio App.3d 25, 

2010-Ohio-3765, ¶ 10-11, 937 N.E.2d 177 (refusing to consider 

a deposition filed with the trial court after the court rendered 

the judgment being appealed); Waterford Tower 

Condominium Assn. v. TransAmerica Real Estate Group, 

10th Dist. No. 05AP-593, 2006 Ohio 508, ¶ 13 (refusing to 

consider evidence adduced to support a motion for 

reconsideration when reviewing the underlying judgment). 

Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No. 11AP-64, 2011-Ohio-5616, ¶ 13. 

{¶ 14} Further, we have previously addressed essentially the exact circumstance 

presented here, where a transcript is not supplied to the trial court for the purpose of 

considering objections to a magistrate's factual findings, but is prepared and filed after the 

objections are overruled. In that case we explained: 

[A] transcript of the proceedings before the magistrate is part 

of the record on appeal; however, the transcript was not 

before the trial court when it adopted the magistrate's 

decision. "Appellate review is limited to the record as it 

existed at the time the trial court rendered its judgment." 

Franks v. Rankin, 10th Dist. No. 11AP-934, 2012-Ohio-1920, 

¶ 73, citing Wiltz * * *, ¶ 13; Wallace * * *, ¶ 10 * * *. " 'A 

reviewing court cannot add matter to the record before it, 

which was not a part of the trial court's proceedings, and then 

decide the appeal on the basis of the new matter.' " Id., 

quoting * * * Ishmail, * * * paragraph one of the syllabus. 

Therefore, we will not consider the transcript in ruling on 
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No. 15AP-242 

appellant's assignments of error. " ' "When portions of the 

transcript necessary for resolution of assigned errors are 

omitted from the record, the reviewing court has nothing to 

pass upon and thus, as to those assigned errors, the court has 

no choice but to presume the validity of the lower court's 

proceedings, and affirm." ' " Black v. Columbus Sports 

Network, LLC, 10th Dist. No. 13AP-1025, 2014-Ohio-3607, ¶ 

39, quoting Estate of Stepien v. Robinson, 11th Dist. No. 2013-

L-001, 2013-Ohio-4306, ¶ 29, quoting Knapp v. Edwards 

Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). 

Blevins v. Blevins, 10th Dist. No. 14AP-175, 2014-Ohio-3933, ¶ 14. We are therefore 

bound by the findings of fact of the magistrate that were adopted by the trial court and 

cannot consider either Liggins' affidavit or the transcript.1 Accordingly, we are permitted 

to examine only the legal conclusions drawn from such facts. 

A. Second, Fourth, and Fifth Assignments of Error–Factual Issues 

{¶ 15} With respect to the second, fourth, and fifth and assignments of error, 

Liggins argues the trial court should have independently de novo reviewed the 

magistrate's factual findings and credibility determinations. Because the trial court did 

not have the benefit of the transcript and because Liggins' affidavits were not properly 

submitted and could not be considered under Civ.R. 53, the trial court was not permitted 

to, nor can we, review the factual and credibility determinations of the magistrate. 

{¶ 16} Accordingly, Liggins' second, fourth, and fifth assignments of error are 

overruled. 

B. Seventh Assignment of Error–Evidentiary Rulings at Trial 

{¶ 17} In her seventh assignment of error, Liggins argues that the trial court 

should have rejected the magistrate's decision, because the magistrate improperly 

accepted and relied on hearsay documents and testimony. " 'Hearsay' is a statement, 

other than one made by the declarant while testifying at the trial or hearing, offered in 

 

1 "Absent an objecting party's compliance with Civ.R. 53(D)(3)(b)(iii), the trial court must accept the 

magistrate's factual findings and may only examine the legal conclusions drawn from those facts." Gill at 

¶ 13, citing Farmers Mkt. Drive-In Shopping Ctrs., Inc. v. Magana, 10th Dist. No. 06AP-532, 2007-Ohio2653, ¶ 27-28; Forth v. Gerth, 10th Dist. No. 05AP-576, 2005-Ohio-6619, ¶ 9; In re Estate of Haas, 10th 

Dist. No. 07AP-512, 2007-Ohio-7011, ¶ 23; Wade v. Wade, 113 Ohio App.3d 414, 418 (11th Dist.1996). The 

same is true of this court's review on appeal. Reitter Stucco, Inc. v. Ducharme, 10th Dist. No. 15AP-404, 

2015-Ohio-4193, ¶ 7, 13. 
10 

No. 15AP-242 

evidence to prove the truth of the matter asserted" and is generally a forbidden form of 

evidence. Evid.R. 801(C); Evid.R. 802. 

{¶ 18} We have predominantly reviewed hearsay decisions for abuse of discretion.

See, e.g., Pontius v. Riverside Radiology & Interventional Assocs., 10th Dist. No. 15AP906, 2016-Ohio-1515, ¶ 15; Thomas v. Columbia Sussex Corp., 10th Dist. No. 10AP-93, 

2011-Ohio-17, ¶ 17-18. A number of appellate districts, however, have taken the view that 

hearsay determinations involve questions of law, which are to be reviewed de novo. See, 

e.g., Neff Sand & Gravel, Inc. v. Great Lakes Crushing, Ltd., 11th Dist. No. 2012-L-145, 

2014-Ohio-2875, ¶ 23; State v. Bates, 6th Dist. No. WM-12-002, 2013-Ohio-1270, ¶ 41; 

State v. Lusher, 4th Dist. No. 11CA1, 2012-Ohio-5526, ¶ 49; Volpe v. Heather Knoll 

Retirement Village, 9th Dist. No. 26215, 2012-Ohio-5404, ¶ 13; State v. Lumbus, 8th Dist. 

No. 87767, 2007-Ohio-74, ¶ 22. Hearsay decisions often require implicit determinations 

about facts (such as preliminary determinations of who said what in what circumstances) 

with the result that questions about whether to admit hearsay often are hybrid questions 

of fact and law. As such, they are based upon the fact-judging abilities of the trial court 

and are reviewed for abuse of discretion. Pontius at ¶ 15; Thomas at ¶ 17-18. Yet there is 

also a law question element to such determinations, and we have frequently noted "that 

no court has the authority, within its discretion, to commit an error of law." State v. 

Akbari, 10th Dist. No. 13AP-319, 2013-Ohio-5709, ¶ 7, citing State v. Beechler, 2d Dist. 

No. 09-CA-54, 2010-Ohio-1900, ¶ 70. In Pontius, for example, the trial court's abject 

failure to analyze the applicable hearsay exception in deciding to exclude testimony, 

constituted an error of law and, thus, an abuse of discretion. Id. at ¶ 23-24. 

{¶ 19} In this case (because of Liggins' failure to comply with Civ.R. 53) both the 

trial and appellate courts must accept the facts as determined by the magistrate. Thus, 

the remaining questions here are whether those established facts show the testimony 

accepted to be hearsay and whether, if it is hearsay, it nonetheless falls within an 

exception to the hearsay prohibition. Therefore, at least in this case, the hearsay issues 

presented appear to be questions of law. 

{¶ 20} Though hearsay is generally prohibited, one of several exceptions to the 

hearsay prohibition is business records, specifically: 

Records of regularly conducted activity. A 

memorandum, report, record, or data compilation, in any 
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No. 15AP-242 

form, of acts, events, or conditions, made at or near the time 

by, or from information transmitted by, a person with 

knowledge, if kept in the course of a regularly conducted 

business activity, and if it was the regular practice of that 

business activity to make the memorandum, report, record, or 

data compilation, all as shown by the testimony of the 

custodian or other qualified witness or as provided by Rule 

901(B)(10), unless the source of information or the method or 

circumstances of preparation indicate lack of trustworthiness. 

The term "business" as used in this paragraph includes 

business, institution, association, profession, occupation, and 

calling of every kind, whether or not conducted for profit. 

(Emphasis sic.) Evid.R. 803(6); see also Evid.R. 803(7) (providing an exception for the 

absence of an entry in such records to prove the non-occurrence or nonexistence of a 

matter). 

{¶ 21} In this case the magistrate recounted that, "Mr. Dean testified that he is 

employed by Plaintiff as a Home Loan Research Officer and is familiar with Plaintiff's 

recordkeeping system and the records relating to this case. He testified that Plaintiff has 

access to the originals of the loan documents offered as exhibits." (Jan. 30, 2015 Mag. 

Decision at 1-2.) Then, "[t]he Magistrate [found] the testimony of Mr. Dean credible and 

[found] that Mr. Dean had sufficient familiarity with the records of this loan to 

authenticate them as Plaintiff's business records." (Id at 4.) 

{¶ 22} To the extent that de novo review of the legal determination here is possible, 

based on the somewhat sparse facts available on appeal, it seems that the magistrate 

found Dean's testimony to fall within a valid exception to the hearsay rule. Nonetheless, 

recognizing that the characterization of evidence may involve both discretionary and legal 

considerations, in order to consider this particular alleged error in a more than superficial 

way, we would have to discern the exact nature of the testimony offered, the documents 

presented, the objections raised, if any, and the rulings made during the trial. Since we 

cannot rely on either the transcript or Liggins' affidavit for that information, we are 

unable to fully assess the merits of this assignment of error and must presume the 

regularity of the trial court's proceedings. State ex rel. Cincinnati Enquirer v. Lyons, 140 

Ohio St.3d 7, 2014-Ohio-2354, ¶ 35 ("a trial court's proceedings are presumed regular 

unless the record demonstrates otherwise"). 

{¶ 23} Liggins' seventh assignment of error is overruled. 
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No. 15AP-242 

C. First Assignment of Error–Whether the Trial Court Erred in Failing to 

Hold a Hearing on Liggins' Objections to the Magistrate's Decision 

{¶ 24} Liggins argues that the trial court erred in failing to hold an evidentiary 

hearing on her objections to the magistrate's decision. Ohio Rule of Civil Procedure 

53(D)(4)(d) permits a hearing but no rule specifically requires a hearing. Argenziano v. 

Argenziano, 9th Dist. No. 10CA0116-M, 2012-Ohio-1447, ¶ 10 ("While Civ.R. 53(D)(4)(b) 

allows a trial court to take additional evidence or itself hear a matter previously referred to 

the magistrate, it does not mandate such hearings."). It is true that on rare occasions, 

some courts have found error in the refusal of an objecting party's explicit request for a 

hearing where material evidence to be presented in the hearing did not become available 

until after the trial before the magistrate. See, e.g., Morrison v. Morrison, 9th Dist. No. 

27150, 2014-Ohio-2254, ¶ 25-29. 

{¶ 25} However, this is not such a case. Liggins did not request a hearing on her 

objections or explain exactly what evidence she needed to present that had only become 

available after the trial before the magistrate. Although Liggins also filed a motion for a 

new trial alleging that new evidence had surfaced, her motion mostly discusses a 

document that was an exhibit in the trial before the magistrate. In addition, Civ.R. 59, 

prescribing procedures on a motion for new trial, does not require the trial court to hold a 

hearing. 

{¶ 26} Liggins' first assignment of error is overruled. 

D. Third Assignment of Error–Whether the Trial Court Erred in Failing to 

Grant Liggins a New Trial 

{¶ 27} Liggins sets forth the rule provisions regarding granting a new trial in her 

brief and notes that "[t]he court refused to consider any of these options." (Liggins Brief at 

25.) The brief does not explain why that refusal might be considered erroneous. 

Appellate Rule 16(A)(7) requires that the brief include argument and reasons therefor to 

explain an appellant's assignment of error. Liggins' brief does not do this, and we have no 

further basis on which to review her assignment of error. 

{¶ 28} Accordingly, Liggins' third assignment of error is overruled. 

E. Sixth Assignment of Error–Whether the Trial Court Erred in Enforcing 

the Note and Finding that the Mortgage was a Valid Lien 

{¶ 29} The mortgage in this case shows a signature, which purports to be Liggins' 

signature, along with a corresponding date of April 30, 2003. On the following page is a 
13 

No. 15AP-242 

notary stamp indicating that Liggins acknowledged having signed the document. 

However, the typewritten text of the document on the notary page indicates a date of 

April 25, 2003. 

{¶ 30} Liggins argues that she "did not execute or acknowledge the mortgage 

before the notary public on April 30, 2003, during the closing." (Liggins Brief at 29.) She 

also asserts that "[s]he did not execute or acknowledge the mortgage and note before a 

notary public on April 25, 2003." (Id. at 30.) Liggins does not claim that she did not sign 

the note or mortgage or that she never obtained loan proceeds in order to purchase the 

home. As the magistrate found, "[t]here is no evidence of fraud here; rather, there is 

simply an unexplained discrepancy in dates between the two signatures." (Jan. 30, 2015 

Mag. Decision at 5.) As discussed previously, because Liggins failed to comply with 

Civ.R. 53, neither the trial court nor we are able to review this factual conclusion on the 

evidence, since the evidence is more than the documents, themselves, but also the 

testimony at trial, which is not before us, absent a transcript. 

{¶ 31} In cases such as this where documents are facially defective but there has 

been no other determination of fraud at a hearing on the matter, the Supreme Court of 

Ohio has explained that the documents remain enforceable against the parties to the 

transaction. 

In this case, the grantors signed the document outside the 

presence of both the witnesses and did not appear before the 

notary public who certified the acknowledgment. The 

acknowledgment required by the statute is for the purpose of 

affording proof of the due execution of the deed by the 

grantor, sufficient to authorize the register of deeds to record 

it. It has been held that "a defectively executed conveyance of 

an interest in land is valid as between the parties thereto, in 

the absence of fraud. * * *" (Citations omitted.) Citizens Natl. 

Bank v. Denison (1956), 165 Ohio St. 89, 95,59 O.O. 96, 99, 

133 N.E. 2d 329, 332; Naso v. Daniels (1964), 8 Ohio App.2d 

42, 48, 37 O.O. 2d 48, 52, 220 N.E. 2d 829, 833. 

Basil v. Vincello, 50 Ohio St.3d 185, 188-89 (1990). 

{¶ 32} Our decision is based on the state of the record before us. This matter went 

to trial, resulting in factual findings by the trier of fact, the magistrate, pursuant to Civ.R. 

53. We and the trial court are bound by the procedures set forth in Civ.R. 53. In the 

absence of a record by which we can review Liggins' assignments of error, and in some 
14 

No. 15AP-242 

cases the absence of argument and reasons therefor, we cannot reach holdings consistent 

with her contentions. We are unable to review the factual findings of the magistrate 

because the record lacks the necessary tools to review his findings. That the mortgage was 

defectively notarized is not in and of itself evidence of fraud. Basil. In the absence of 

fraud the law is clear. The mortgage, though defectively executed, is valid when asserted 

against the grantor, Liggins. Citizens Natl. Bank v. Denison, 165 Ohio St. 89, (1956).

{¶ 33} Liggins' sixth assignment of error is overruled. 

IV. CONCLUSION 

{¶ 34} Because Liggins did not provide a transcript as is required by Civ.R. 53, we 

can neither rely on her affidavit nor a late-submitted transcript that was not considered by 

the trial court in reviewing its decision. Further, we do not find merit in any of Liggins 

purely legal arguments, being obliged to accept the findings of fact from the trial court in 

analyzing the application of her arguments to what the trial court found to have factually 

occurred. Thus, we overrule Liggins' seven assignments of error and affirm the judgment 

of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

BROWN and KLATT, JJ., concur.