Glazer v. Chase Home Fin. L.L.C., 99875

Decision Date19 December 2013
Docket NumberNo. 99875,No. 99736,99875,99736
CourtUnited States Court of Appeals (Ohio)


No. 99875
No. 99736





Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-725557

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

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Lawrence R. Glazer
Nicolette Glazer
Law Office of Larry R. Glazer


For Chase Home Finance L.L.C.

Nelson M. Reid
Anne Marie Sferra
Bricker & Eckler L.L.P.

Bryan Kostura
Bricker & Eckler L.L.P.

Danielle J. Szukala
Burke, Warren, Mackay & Serritella

For First American Default Information Services

Matthew C. Corcoran
Matthew A. Kairis
Jones Day

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Robert P. Ducatman
Jones Day

For Reimer, Arnovitz, Chernek, Jeffrey, et al.

Timothy T. Brick
Lori E. Brown
Holly Olarczuk-Smith
Gallagher Sharp

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{¶1} This case involves allegations premised on multiple defendants' debt collection activities related to the filing of a foreclosure lawsuit and allegations that the defendants submitted fraudulent documents in connection with the lawsuit. The trial court granted each defendant's motion to dismiss and the plaintiff-appellant Lawrence Glazer appeals. We affirm.

I. Procedural History

{¶2} In April 2010, Lawrence Glazer, a California resident and attorney, filed a putative class action complaint against the following parties: Chase Home Finance, L.L.C. ("Chase"); law firm Reimer, Arnovitz, Chernek & Jeffrey, Co. and attorneys Ronald Chernek and Darryl Gormley (collectively "the Reimer Firm"); Safeguard Properties, Inc. ("Safeguard Properties"); First American Default Outsourcing, L.L.C.; Cindy Smith; and John Does 1-4.

{¶3} Glazer's individual complaint revolved around a piece of real property located at 2498 Bristol Road in Upper Arlington, Ohio. In his complaint, Glazer alleged the following causes of action: (1) violations of the Ohio Consumer Sales Practices Act ("OCSPA"), against all defendants; (2) violations of R.C. 1319.12, against Chase; (3) conspiracy, against all defendants; (4) intentional misrepresentation of material facts, against all defendants; (5) negligent misrepresentation of material facts, against all defendants; (6) concealment of material facts, against all defendants; and (7) trespass, against Safeguard Properties. The complaint further listed "Class Action Allegations,"

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proposing two different classes: a "Corporate Advances Class" and a "Breaking and Entering Class."

{¶4} On August 30, 2010, Glazer filed his first amended complaint. The only change was in one party name: First American Default Information Services, L.L.C. ("First American") was substituted for First American Default Outsourcing, L.L.C.

{¶5} In October 2010, the defendants filed individual motions to dismiss. In First American's motion to dismiss, it argued that Glazer did not have standing to bring a lawsuit against the company, any claims against it were barred by privilege, and Glazer was not a "consumer," nor was First American a "supplier" under the OCSPA.

{¶6} The Reimer Firm argued in its motion to dismiss that (1) Glazer could not establish he was entitled to protection under the OCSPA; (2) the Reimer Firm was immune from liability on the misrepresentation and concealment claims, and (3) Glazer failed to set forth sufficient facts to support his claims. The Reimer Firm attached various exhibits to its motion, and Glazer responded by filing a motion to strike the exhibits or alternatively for time to conduct additional discovery. The trial court denied Glazer's motion.

{¶7} Chase filed a motion to dismiss or alternatively for a more definite statement, arguing that (1) Glazer was not a "consumer" under the OCSPA; (2) Glazer could not bring a class action under the OCSPA; (3) R.C. 1319.12 does not create a private cause of action; and (4) there was no further evidence to support his other claims against Chase.

{¶8} On October 29, 2010, Glazer filed a notice of voluntary dismissal of all claims against Safeguard Properties.

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{¶9} Glazer responded to the defendants' motions to dismiss with an omnibus memorandum in opposition, arguing that he had pleaded sufficient facts to withstand the motions to dismiss. On the last page of his brief in opposition, Glazer motioned for leave to amend his complaint a second time. This motion was not filed under separate cover nor did Glazer attach a proposed second amended complaint to his motion.

{¶10} The defendants individually filed reply briefs to support their motions to dismiss. In an order dated January 12, 2011, the trial court granted each defendant's motion to dismiss. In its order, the trial court agreed with the defendants that (1) Glazer was not a "consumer," nor were the defendants "suppliers" under the OCSPA; (2) R.C. 1319.12 did not create a private cause of action; (3) Glazer could not show "the requisite justifiable reliance" on the alleged misrepresentation or concealment by the defendants; and (4) Glazer had not alleged facts that supported his claim that the defendants were involved in a conspiracy. In a separate order dated the same day, the trial court denied Glazer's request to amend his complaint a second time.

{¶11} Glazer filed a timely notice of appeal, but this court sua sponte dismissed the appeal for lack of a final appealable order. Glazer v. Chase Home Finance, 8th Dist. Cuyahoga No. 96353, Motion No. 447166. This court found that claims were still pending against Cindy Smith and the four John Doe defendants, and the trial court had not entered a Civ.R. 54(B) order certifying that there was no just reason for delay. Id. This court further stated: "Parties may move to reinstate this appeal within thirty days if the trial court issues a final order." Id. Glazer did not file a motion with the trial court

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requesting a final order.

{¶12} Nothing occurred in the case until February 19, 2013, when Chase's successor by merger, J.P. Morgan Chase Bank ("J.P. Morgan Chase") filed a motion for certification under Civ.R. 54(B) in the trial court.

{¶13} In response, the trial court issued an order dated March 6, 2013, which stated: "Plaintiff is ordered to file a notice of intent to proceed with this matter by 3/20/13. Failure to do so will result in a dismissal of all remaining claims for failure to prosecute." The trial court issued a second order, granting J.P. Morgan Chase's motion, and certified that "there is no just cause for delay," as to its previous order granting Chase's motion to dismiss.

{¶14} The next day, on March 7, Glazer filed a response to J.P. Morgan Chase's motion. On March 19, 2013, Glazer filed a motion titled "Plaintiff's Response to Court Order Issued on 6 March 2013," in which he asked the trial court (1) to determine whether it had continuing jurisdiction due to the parties' litigation in federal court, (2) to reconsider its January 12, 2011 decision granting defendants' motions to dismiss, and (3) renewing his motion for leave to file a second amended complaint.

{¶15} On March 28, 2013, Glazer filed a motion titled "Plaintiff's Civ.R. 60(B)(4) motion for relief from judgment entered for Chase Home Finance L.L.C."

{¶16} On April 4, 2013, Glazer filed his notice of appeal with this court in regard to the trial court's Civ.R. 54(B) certification of a final order as to defendant J.P. Morgan Chase.

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{¶17} On April 4 and April 8, 2013, First American and the Reimer Firm respectively filed motions for Civ.R. 54(B) certification, which the trial court granted, entering final orders on May 8, 2013. The trial court further denied Glazer's Civ.R. 60(B) motion as to Chase and dismissed the claims against Cindy Smith and John Does 1-4 for failure to prosecute.

{¶18} Glazer filed another notice of appeal and we have consolidated the two appeals for review and decision. Glazer is appealing as an individual and does not raise any issues with regard to the putative class; therefore, we only consider those issues that deal with Glazer's individual claims.

II. Facts

{¶19} In 2003, Charles Klie purchased residential property located at 2498 Bristol Road in Upper Arlington, Ohio. Coldwell Banker Mortgage Corporation was the mortgagor. Coldwell sold the promissory note and assigned the mortgage to the Federal National Mortgage Corporation ("Fannie Mae") in September 2003, but remained the servicer of the mortgage until October 2007, when it assigned its servicing rights to JP Morgan Chase. In November 2007, Chase began servicing the mortgage pursuant to an agreement with JP Morgan Chase. Thus, as of November 2007, Chase was the mortgage servicer.

{¶20} Charles Klie died in January 2008. In his will, Klie devised the Bristol Road property to Susan Maney O'Leary, but she disclaimed the devise in May 2008. The disclaimer caused the property to become part of Charles Klie's residuary estate, the

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beneficiaries of which were Glazer and Susan Klie. Susan Klie and Glazer entered into an agreement, whereby Susan gave up her interest in the Bristol Road property in exchange for other assets of the estate. The probate court approved the transfer of the Bristol Road property to Glazer on July 25, 2008. Thus, Glazer became the owner of the Bristol Road property on or about July 25, 2008.

{¶21} The note on the property had already fallen into default at the time Glazer became the owner. Chase hired the Reimer Firm to foreclose on the Bristol Road property. On June 2, 2008, the Reimer Firm prepared an assignment of the note and mortgage on behalf of JP Morgan Chase that purported to "sell, convey and transfer all rights and interests in the Klie promissory note and the mortgage * * * to Chase" in order to establish Chase's right to foreclose. According to Glazer, the assignment transferred absolutely no rights because Fannie Mae still owned the note and mortgage by virtue of Coldwell Banker's...

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