[Cite as Bayview Loan Serv., L.L.C. v. Likely, 2017-Ohio-7693.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

BAYVIEW LOAN SERVICING, L.L.C. 

 Appellee 

 v. 

EARL LIKELY, JR., et al. 

 Appellants 

C.A. No. 28466 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV-2014-05-2247 

DECISION AND JOURNAL ENTRY 

Dated: September 20, 2017 

 

CALLAHAN, Judge. 

{¶1} Appellants, Earl and Valerie Likely (“the Likelys”), appeal the judgment of the 

Summit County Court of Common Pleas in favor of Appellee, Bayview Loan Servicing, L.L.C. 

(“the Bank”). For the reasons set forth below, this Court affirms. 

I.

{¶2} In February 2005, the Likelys executed a promissory note that was secured by a 

mortgage on the real property located at 452 North Arlington Street, in Akron, Ohio. In less 

than a year, the Likelys defaulted on the promissory note. In January 2006, the Bank filed a 

complaint against the Likelys for breach of promissory note, foreclosure, and reformation of the 

mortgage deed. A final decree of foreclosure was granted on January 11, 2007. Between 2007 

and 2014, the real property was scheduled for sheriff’s sale nine times. Each of those sales was 

withdrawn due to either bankruptcy filings by the Likelys or negotiations between the Bank and 

the Likelys. On March 12, 2014, the Likelys filed a motion to vacate the decree of foreclosure 
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arguing it was defective based upon Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio 

St.3d 13, 2012-Ohio-5017. The trial court granted the Likelys’ motion to vacate and dismissed 

the case on March 27, 2014. 

{¶3} On May 1, 2014, the Bank re-filed its complaint against the Likelys for breach of 

promissory note, foreclosure, and reformation of the mortgage deed. After an unsuccessful 

foreclosure mediation, the Likelys moved to dismiss the complaint alleging the Bank did not 

have standing and the complaint was barred by res judicata and the statute of limitations. The 

trial court denied the motion to dismiss. 

{¶4} On February 4, 2016, a bench trial was held before the magistrate, who 

subsequently issued a decision in favor of the Bank on all three claims. The Likelys timely filed 

objections to the magistrate’s decision, which the Bank opposed. The Likelys filed the trial 

transcript beyond the time provided by Civ.R. 53 and without leave of court. Without 

consideration of the untimely filed trial transcript, the trial court denied the Likelys’ objections 

and adopted the magistrate’s decision. 

{¶5} The Likelys appealed the denial of their objections. That appeal was dismissed for 

lack of a final, appealable order due to the lack of a final decree of foreclosure. Bayview Loan 

Servicing, L.L.C. v. Likely, 9th Dist. Summit No. 28362 (Sept. 23, 2016). 

{¶6} Following the dismissal of the first appeal, the trial court entered a final decree of 

foreclosure. Upon the Likelys’ motion, the trial court stayed the sheriff’s sale pending the 

current appeal. 

{¶7} The Likelys have timely appealed, raising three assignments of error for this 

Court’s review. To facilitate the analysis, this Court will address the assignments of error out of 

order. 
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II. 

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO 

CONSIDER THE TRIAL TRANSCRIPT. 

{¶8} The Likelys argue that the trial court abused its discretion when it denied their 

motion for extension of time to file the trial transcript and motion for leave to supplement the 

objections with the trial transcript. Additionally, the Likelys assert the trial court abused its 

discretion by not considering the trial transcript when ruling on their objections. This Court 

disagrees with these assertions. 

{¶9} “[A] motion requir[ing] leave of the trial court” and a motion requesting an 

extension of time are reviewed for an abuse of discretion. See Matter of Estate of Holbrook, 5th 

Dist. Tuscarawas No. 2016 AP 10 0051, 2017-Ohio-4429, ¶ 32; Cunnane-Gygli v. MacDougal, 

11th Dist. Geauga No. 2004-G-2597, 2005-Ohio-3258, ¶ 20. Additionally, a trial court’s decision 

regarding whether to consider untimely filed transcripts when ruling on objections to a 

magistrate’s decision is reviewed for an abuse of discretion. See Ramsey v. Ramsey, 10th Dist. 

Franklin No. 13AP-840, 2014-Ohio-1921, ¶ 23. An abuse of discretion connotes that the 

“‘court’s attitude is unreasonable, arbitrary, or unconscionable.’” Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). When 

applying the abuse of discretion standard, this Court may not simply substitute its own judgment 

for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). 

{¶10} Civ.R. 53(D)(3)(b)(iii) requires the party’s objections to a magistrate’s “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 [].” The objecting party has 30 days after filing objections within which to file the 
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transcript. Id. However, the trial court may “extend[] the [30 days] in writing for preparation of 

the transcript or other good cause.” Id. If the objections are filed prior to the transcript, the 

objecting party may move the trial court for leave to supplement the objections. Id.

{¶11} Summit County Local Rule 18.05 imposes similar rules regarding the filing of a 

transcript to support objections to a magistrate’s decision and the time within which to file the 

transcript. Additionally, Loc.R. 18.05 requires “[a] praecipe for transcript shall be served in 

written form on the chief court reporter within (3) days after the filing of said objections[]. Said 

praecipe shall be filed with the Clerk.” 

{¶12} “The duty to provide a transcript or affidavit to the trial court rests with the person 

objecting to the magistrate’s decision.” Swartz v. Swartz, 9th Dist. Medina No. 11CA0057-M, 

2011-Ohio-6685, ¶ 8. “Without a transcript of the hearing, [a] trial court [is] required to accept 

all of the magistrate’s findings of fact as true and only review the magistrate’s conclusions of law 

based upon the accepted findings of fact.” City of Cuyahoga Falls v. Eslinger, 9th Dist. Summit 

No. 21951, 2004-Ohio-4953, ¶ 6. “It follows that [the appellate court] must do the same.” Id.

Without a transcript, an appellant cannot demonstrate error with respect to factual findings, and 

thus, the appellate court must presume the regularity of the proceedings and that the facts were 

correctly interpreted. See Vidalis v. Med. Mut. of Ohio, Inc., 9th Dist. Summit No. 23633, 2007-

Ohio-4656, ¶ 10; Akron v. Jackson, 9th Dist. Summit No. 27077, 2014-Ohio-2036, ¶ 11. Thus, 

when a party objects but does not provide the trial court with the transcripts necessary to review 

the objections, there are serious consequences for appellate review. 

Motion for extension of time to file transcript 

{¶13} The magistrate’s decision was issued on February 25, 2016. The Likelys timely 

filed their objections on March 10, 2016, but did not file the trial transcript or the praecipe for the 
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transcript. The Bank filed a brief in opposition to the objections. Pursuant to Civ.R. 

53(D)(3)(b)(iii), the transcript was due on April 11, 2016. The Likelys, however, did not file the 

transcript or a motion for extension of time by the 30-day deadline. Additionally, Loc.R. 18.05 

required the praecipe to be filed by March 14, 2016. The Likelys did not comply with this 

deadline. In fact, the record does not reflect a praecipe for the trial transcript ever having been 

filed. 

{¶14} Eighteen days after the deadline for filing the transcript had expired, the Bank 

moved to strike the Likelys’ objections for failure to file the trial transcript within 30 days of the 

objections. Twenty-eight days after the filing deadline for the transcript had expired and after the 

Bank had moved to strike their objections, the Likelys moved for an extension of an unspecified 

length of time to file the transcript. The Likelys asserted good cause existed for their motion for 

extension of time to file the transcript “because this is [a] foreclosure case and the [Likelys] paid 

for the transcript when they obtained the funds to do so. Since [the Likelys] timely filed 

objections and made payment for the transcript there are grounds to extend the time to file the 

transcript [].” The trial court denied both the Bank’s motion to strike the objections and the 

Likelys’ motion for extension of time to file the transcript. 

{¶15} While the Likelys’ motion put forth a general basis for the extension, it lacked 

specific facts to establish that they had been diligently attempting to secure the transcript. The 

motion did not provide any details as to when the Likelys paid for the transcript or the length of 

the transcript to justify extra time for filing. Nor did the motion advise the trial court as to how 

much additional time would be needed for the court reporter to produce the transcript. The 

Likelys failed to provide the trial court with these types of pertinent facts which would have 
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allowed it to make an informed decision as to whether they had shown good cause for an 

extension. The burden was on the Likelys to do so. 

{¶16} Further, while the Likelys asserted “this is [a] foreclosure case[,]” this Court is 

unaware of any law that excepts foreclosure cases from the previously mentioned rules. Further, 

the Likelys did not set forth any extenuating financial circumstances to explain why they were 

unable to pay for the transcript. The Likelys are alleged to have defaulted on the note in 2006. 

Since ten years had lapsed since the alleged default, an explanation of their current financial 

situation would have been necessary to substantiate their claim that they needed time to obtain 

the funds for the transcript. In light of these missing facts and the Likelys’ failure to comply with 

Civ.R. 53(D)(3)(b)(iii) and Loc.R. 18.05, the trial court did not abuse its discretion in denying 

the motion for extension of time to file the transcript. 

{¶17} The Likelys also argue there was no requirement to file the motion prior to the 

expiration of the 30-day period, as suggested by the trial court. While that may be true, the 

timing of the filing of the Likelys’ motion—whether it was before or after the deadline—dictates 

the requirements necessary to support their request and is pertinent to the trial court’s decision to 

grant or deny the motion. See Civ.R. 6(B). Thus, the trial court did not abuse its discretion when 

it considered the timing of the Likelys’ motion for extension of time to file the transcript. 

{¶18} Further, while Civ.R. 6(B) governs motions for extension of time, including a 

motion to extend the time to file a transcript, see Cunnane-Gygli, 2005-Ohio-3258, at ¶ 20, citing 

Vance v. Rusu, 9th Dist. Summit No. 20442, 2001 WL 866277, *2 (Aug. 1, 2001), it permits a 

court to enlarge an expired deadline upon receipt of a motion setting forth excusable neglect for 

the failure to act. Civ.R. 6(B)(2); Scott v. McCluskey, 9th Dist. Summit No. 25838, 2012-Ohio2484, ¶ 7. The Likelys’ motion for extension, filed after the 30-day deadline, did not assert 
7 

 

excusable neglect. Thus, the trial court did not abuse its discretion in denying the motion for 

extension of time. 

Motion for leave to file supplemental objections 

{¶19} Despite the trial court’s denial of the motion for extension of time to file the 

transcript, the Likelys filed a motion for leave to supplement the objections with the trial 

transcript. This motion was filed 57 days after the deadline to file the transcript. 

{¶20} The Likelys’ second motion was contrary to the purpose of Civ.R. 

53(D)(3)(b)(iii), which permits a party to supplement their objections after the transcript is filed. 

The Likelys were not seeking leave to supplement their original objections with additional 

objections. Instead, they were only seeking leave to file the late transcript. See Cunnane-Gygli, 

2005-Ohio-3258, at ¶ 18, 20. Nothing had changed between the first and second motions. The 

Likelys again failed to provide the court with any pertinent facts from which it could determine 

good cause and again did not assert excusable neglect. The trial court recognized the improper 

application of this motion and found the second motion to “essentially ask[] for the same relief as 

the prior motion.” The trial court treated this motion as another motion for extension of time and 

denied it for the same reasons it denied the first motion. See id. at ¶ 20. In light of the trial court’s 

reliance on Civ.R. 53(D)(3)(b)(iii) and Loc.R. 18.05, it did not abuse it discretion when denying 

the Likelys’ second motion. 

Failure to consider the untimely filed transcript 

{¶21} Without waiting for the trial court’s ruling on their second motion, the Likelys 

filed the untimely transcript on June 9, 2016, 59 days late. Five days later, the trial court denied 

the Likelys’ second motion for leave to file the transcript. Not only was the transcript untimely, 

it was also improperly filed without leave of court. Without consideration of the untimely and 
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improperly filed trial transcript, the trial court denied the Likelys’ objections and adopted the 

magistrate’s decision. 

{¶22} “Ordinarily, a trial court must consider a submitted transcript before ruling on 

objections to a magistrate’s decision.” Ramsey, 2014-Ohio-1921, at ¶ 23, citing Perry v. Joseph, 

10th Dist. Franklin Nos. 07AP-359, 07AP-360, 07AP-361, 2008-Ohio-1107, ¶ 20. However, 

Civ.R. 53 does not prohibit or require a trial court to consider untimely transcripts. Ramsey at ¶ 

23. Instead, “[t]he trial court has broad discretion in considering objections and transcripts filed 

outside the time limits set forth in Civ.R. 53 [].” Id. 

{¶23} In light of the trial court’s two earlier rulings denying the Likelys an extension of 

time to file the transcript and the supporting analysis above, this Court cannot say the trial court 

abused its discretion when it declined to consider the untimely and improperly filed transcript 

when ruling on the objections. 

{¶24} The Likelys’ second assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED IN FINDING THAT [THE BANK’S] 

FORECLOSURE ACTION WAS NOT BARRED BY THE STATUTE OF 

LIMITATIONS. 

{¶25} In their first assignment of error, the Likelys argue the trial court misapplied the 

savings statute and erred in finding that the foreclosure action was not barred by the statute of 

limitations. This Court disagrees.

{¶26} Neither party has set forth the appropriate standard of appellate review in this 

case. This Court generally reviews a trial court’s action with respect to a magistrate’s decision 

for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-5232, ¶ 9. 
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“In so doing, we consider the trial court’s action with reference to the nature of the underlying 

matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 18. 

{¶27} When the objecting party fails to file the transcript, the trial court must accept the 

magistrate’s findings of fact and only review the magistrate’s conclusions of law based on the 

accompanying findings of fact. Saipin v. Coy, 9th Dist. Summit No. 21800, 2004-Ohio-2670, ¶ 

9; Galewood v. Terry Lumber Supply Co., 9th Dist. Summit No. 20770, 2002 WL 347378, *1 

(Mar. 6, 2002). This Court applies that same standard of review to the trial court’s decision. 

Saipin at ¶ 9; Galewood at *1. The trial court’s legal conclusions are reviewed de novo. Saipin

at ¶ 9; Turner v. Turner, 9th Dist. Lorain No. 07CA009187, 2008-Ohio-2601, ¶ 22 (Dickinson, 

J., concurring) (“[I]n reviewing a trial court’s determination of whether the magistrate 

‘appropriately applied the law,’ this Court must apply the de novo standard of review.”). 

{¶28} While the assignment of error challenges the statute of limitations of the 

“foreclosure action,” the Likelys’ argument only addresses the statute of limitations for the 

breach of the promissory note and not the other two causes of action. (All caps deleted.) 

Accordingly, this Court will limit its review to the statute of limitations as it pertains to the 

breach of the promissory note. R.C. 1303.16(A) sets forth the statute of limitations to enforce an 

obligation to pay a note as follows: 

an action to enforce the obligation of a party to pay a note payable at a definite 

time shall be brought within six years after the due date or dates stated in the note 

or, if a due date is accelerated, within six years after the accelerated due date. 

{¶29} R.C. 2305.19(A), the savings statute, provides a framework for re-filing an action. 

It states: 

[i]n any action that is commenced or attempted to be commenced, if in due time a 

judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon 

the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the 

plaintiff's representative may commence a new action within one year after the 
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date of the reversal of the judgment or the plaintiff's failure otherwise than upon 

the merits or within the period of the original applicable statute of limitations, 

whichever occurs later. This division applies to any claim asserted in any pleading 

by a defendant.

(Emphasis added.) R.C. 2305.19(A). The savings statute applies when a party has commenced 

the action and the action subsequently fails otherwise than upon the merits. Id. Commencement 

of an action occurs by filing a complaint and obtaining service on the named defendant(s) within 

one year of filing the complaint. R.C. 2305.17; Civ.R. 3(A); Richardson v. Piscazzi, 9th Dist. 

Summit No. 19193, 1999 WL 247765, *3 (Apr. 28, 1999). 

{¶30} The Likelys argue the dismissal of the 2006 case for lack of standing rendered the 

trial court without subject-matter jurisdiction and thus the 2006 case was never commenced. The 

Likelys then argue that because the case was not commenced in 2006, the Bank is precluded 

from using the savings statute to re-file the complaint in 2014. Lastly, the Likelys argue that 

without the application of the savings statute, the complaint, re-filed in 2014, is beyond the sixyear statute of limitations and time barred. Each of these arguments is without merit. 

{¶31} The Ohio Supreme Court explained that “[t]he general term ‘jurisdiction’ can be 

used to connote several distinct concepts, including jurisdiction over the subject-matter, 

jurisdiction over the person, and jurisdiction over a particular case.” Bank of Am., N.A. v. Kuchta, 

141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 18. “Subject-matter jurisdiction refers to the statutory or 

constitutional authority to adjudicate a case[,]” whereas “[l]ack of standing, on the other hand, 

challenges a party’s capacity to bring an action, not the subject-matter jurisdiction of the 

tribunal.” Groveport Madison Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Rev., 137 Ohio 

St.3d 266, 2013-Ohio-4627, ¶ 25, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 

11, and State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77 (1998). 
11 

 

{¶32} While the common pleas courts have subject-matter jurisdiction to hear 

foreclosure matters, Kuchta at ¶ 20, citing Robinson v. Williams, 62 Ohio St. 401, 408 (1900), 

standing is the ability to invoke the court’s jurisdiction over the particular case. Kuchta at ¶ 22. 

“Lack of standing is certainly a fundamental flaw that would require a court to dismiss the 

action.” Id. at ¶ 23, citing Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, at ¶ 40. Such a 

dismissal is without prejudice. Schwartzwald at ¶ 40. However, “a court of common pleas that 

has subject-matter jurisdiction over an action does not lose that jurisdiction merely because a 

party to the action lacks standing.” Kuchta at ¶ 17.

{¶33} The dismissal of a complaint for lack of standing at the commencement of a 

foreclosure action is not an adjudication on the merits. Schwartzwald at ¶ 40; See Battaglia v. 

City of Cleveland Heights, 8th Dist. Cuyahoga No. 42963, 1981 WL 4917, *8 (May 7, 1981) (a 

dismissal for lack of standing means the claim has failed otherwise than on the merits). A 

dismissal for lack of standing is without prejudice and thus “has no effect on the underlying 

duties, rights, or obligations of the parties.” Schwartzwald at ¶ 40; See State ex rel. Coles v. 

Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, ¶ 51 (dismissal based on lack of standing is not 

a dismissal on the merits). 

{¶34} To support their contention that the trial court did not have subject-matter 

jurisdiction, the Likelys assert that “[the Bank’s] 2006 foreclosure complaint was vacated as void 

ab initio because [the Bank] never had standing to invoke the subject-matter jurisdiction of the 

court to begin with.” (Emphasis sic.) This statement is unsupported by the findings of fact. First, 

the magistrate’s factual findings stated the complaint was dismissed, not vacated as void ab 

initio. Second, the trial court’s findings of fact stated the dismissal was based on a lack of 

standing, not a lack of subject-matter jurisdiction. This Court is limited to these findings of fact 
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and the Likelys cannot challenge the findings of fact or assert a different version of the findings 

of fact on appeal. See Vidalis, 2007-Ohio-4656, at ¶ 10.

{¶35} In an attempt to further support their position that the court did not have subjectmatter jurisdiction, the Likelys misconstrue Schwartzwald as stating “standing is required to 

invoke the subject matter jurisdiction of the court.” (Emphasis added.) Schwartzwald, however, 

made no such holding and instead held “standing is required to invoke the jurisdiction of the 

common pleas court.” Schwartzwald at ¶ 3. The Ohio Supreme Court clarified in Kuchta that 

the holding in Schwartzwald did not address subject-matter jurisdiction relative to a lack of 

standing. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, at ¶ 21. Kuchta pointed out that because 

standing only implicates the party’s ability to invoke the jurisdiction of the court, a lack of 

standing does not impact the court’s subject-matter jurisdiction. Id. at ¶ 22.

{¶36} The Likelys continue to argue the application of subject-matter jurisdiction 

through their reliance on Clingerman v. Mayfield, 11th Dist. Ashtabula No. 89-A-1477, 1990 

WL 124645 (Aug. 24, 1990), by asserting that the “savings statute does not apply if the original 

action was filed without jurisdiction.” However, the Likelys’ reliance on Clingerman is 

misplaced. Clingerman involved a question of whether the savings statute applied in a worker’s 

compensation appeal to a trial court when the appellant failed to perfect the administrative appeal 

pursuant to the Workmen’s Compensation Act. Id. at *1-2. Clingerman focused on the 

appellant’s failure to comply with the statutory requirements to perfect an administrative appeal 

in order to establish subject-matter jurisdiction. Id. at *2; See also State ex rel. Jones, 84 Ohio 

St.3d at 77, fn. 4 (“We have held standing to be jurisdictional only in limited cases involving 

administrative appeals, where parties must meet strict standing requirements in order to satisfy 
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the threshold requirement for the administrative tribunal to obtain jurisdiction.”). Clingerman has 

no application to the instant case because this is not an administrative appeal.

{¶37} The Likelys’ argument that the Bank failed to commence the 2006 case focuses 

solely on the Bank’s lack of standing in January 2006. While “‘standing is to be determined as of 

the commencement of [the] suit[,]’” it is not an element for the commencement of a case. 

Schwartzwald at ¶ 24, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 (1992), fn. 5; 

see Civ.R. 3(A); R.C. 2305.17; Richardson, 1999 WL 247765, at *3. In light of the Likelys’ 

failure to dispute the filing and/or service of the 2006 complaint, the Bank is presumed to have 

commenced the 2006 case.

{¶38} The 2006 complaint was dismissed for lack of standing, therefore the claims 

failed otherwise than upon the merits. See Battaglia, 1981 WL 4917, at *8. The dismissal of a 

complaint for lack of standing is without prejudice and not an adjudication on the merits. 

Schwartzwald at ¶ 40. The Likelys concede “there was no determination on the merits in [the 

Bank’s] 2006 foreclosure case,” thereby rendering it a dismissal otherwise than upon the merits. 

Because the 2006 complaint was commenced and subsequently dismissed otherwise than upon 

the merits, the 2006 complaint was subject to the re-filing provisions of the savings statute. See

R.C. 2305.19(A).

{¶39} The 2006 complaint was dismissed on March 27, 2014. Based on the eight-year 

lapse between the filing of the complaint and the dismissal for lack of standing, the six-year 

statute of limitations for the breach of promissory note claim had expired and the savings statue 

was triggered. The complaint was re-filed on May 1, 2014, well within the one-year savings 

statute timeframe. Accordingly, the 2014 foreclosure complaint was timely filed under the 

savings statute. 
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{¶40} In light of the foregoing, the trial court correctly applied the savings statute to the 

foreclosure complaint. The Likelys’ first assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN FINDING THAT [THE BANK] WAS 

ENTITLED TO A FORECLOSURE JUDGMENT [] AND REFORMATION OF 

THE MORTGAGE. 

{¶41} In their third assignment of error, the Likelys argue that the trial court erred in 

granting the foreclosure judgment because the Bank did not have standing to enforce the note. 

This Court disagrees. 

{¶42} Objections to the magistrate’s decision must “be specific and state with 

particularity all grounds for objection.” (Emphasis added.) Civ.R. 53(D)(3)(b)(ii). Additionally, 

Civ.R. 53 provides that, except for a claim of plain error, a party shall not assign error to a 

factual finding or legal conclusion on appeal unless the party specifically objects to that finding 

in accordance with the rule. Civ.R. 53(D)(3)(b)(iv). Failure to object to a magistrate’s finding of 

fact or conclusion of law renders the argument forfeited on appeal. Coleman v. Coleman, 9th 

Dist. Summit No. 27592, 2015-Ohio-2500, ¶ 9. The party is limited to a plain error argument on 

appeal. Civ.R. 53(D)(3)(b)(iv). If the party fails to assert a plain error argument on appeal, then 

this Court will not sua sponte engage in a plain error analysis. See Coleman at ¶ 9. 

{¶43} The Likelys confined their objection to the magistrate’s conclusion that the Bank 

had standing to enforce the note and mortgage. The Likelys’ objection further challenged the 

magistrate’s factual findings regarding the evidence that supported the conclusion in favor of 

standing arguing that: 1) there was no evidence that the Bank was formerly known as Interbay 

Funding, L.L.C., and 2) the Bank’s witness did not have personal knowledge regarding whether 

the allonge was affixed to the note and the Bank had possession of the note when the complaint 
15 

 

was filed. On appeal, the Likelys challenge the trial court’s decision that the Bank had standing 

to enforce the note because the allonge presented at trial belonged to a different note. This 

argument was not presented in the Likelys’ objections challenging the Bank’s standing. 

Accordingly, the Likelys have forfeited this argument. Further, the Likelys have not argued plain 

error on appeal. Because the Likelys have forfeited their challenge to the factual findings and 

conclusion at issue and have not argued plain error, this Court will not address this argument. 

{¶44} Moreover, even if the Likelys had alleged plain error, this Court is precluded from 

reviewing this challenge as to the factual findings because the Likelys failed to timely file the 

transcript with the trial court. See Swartz, 2011-Ohio-6685, at ¶ 8. 

{¶45} The Likelys’ third assignment of error is overruled. 

III. 

{¶46} The Likelys’ assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas is affirmed.

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellants. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

HENSAL, P. J. 

CONCURS. 

CARR, J. 

CONCURS IN JUDGMENT ONLY. 

APPEARANCES: 

MARC E. DANN and EMILY WHITE, Attorneys at Law, for Appellants. 

JASON A. WHITACRE and LAURA C. INFANTE, Attorneys at Law, for Appellee.