[Cite as Ditech Fin., L.L.C. v. Balimunkwe, 2025-Ohio-4884.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DITECH FINANCIAL, LLC, : APPEAL NO. C-240060 TRIAL NO. A-1700815 Plaintiff-Appellee/Cross- : Appellant, : vs. JUDGMENT ENTRY : KALEMBA BALIMUNKWE, : Defendant-Appellant/Cross- Appellee, :
and :
CITY OF CINCINNATI, et al., :
Defendants. :
This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 10/24/2025 per order of the court.
By:_______________________ Administrative Judge [Cite as Ditech Fin., L.L.C. v. Balimunkwe, 2025-Ohio-4884.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DITECH FINANCIAL, LLC,1 : APPEAL NO. C-240060 TRIAL NO. A-1700815 Plaintiff-Appellee/Cross- : Appellant, : vs. OPINION : KALEMBA BALIMUNKWE, : Defendant-Appellant/Cross- Appellee, :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 24, 2025
McCarthy, Lebit, Crystal & Liffman, Charles A. Nemer, John E. Moran, Dinsmore & Shohl LLP, Nathan H. Blaske and W. Scott Leaman, for Plaintiff-Appellee/Cross- Appellant,
Arnold Law Firm, LLC, George M. Parker and James S. Arnold for Defendant- Appellant/Cross-Appellee.
1 On September 22, 2022, the trial court granted a motion to substitute NewRez, LLC, d.b.a.
Shellpoint Mortgage Servicing, for Ditech Financial, LLC, as party plaintiff. However, because the caption on the trial court’s judgment and Balimunkwe’s notice of appeal both continue to list Ditech Financial, LLC, as plaintiff, the appeal in this court was docketed under that caption. [Cite as Ditech Fin., L.L.C. v. Balimunkwe, 2025-Ohio-4884.]
CROUSE, Presiding Judge.
{¶1} Plaintiff-appellee NewRez, LLC, d.b.a. Shellpoint Mortgage Servicing
(“Shellpoint”) alleged that defendant-appellant Kalemba Balimunkwe defaulted on a
debt secured by a mortgage and sought to foreclose on that mortgage. The case went
to trial before a magistrate. Balimunkwe claimed the signatures on the promissory
note and mortgage were not his and sought to have a forensic document examiner
testify to that effect. He also maintained that Shellpoint lacked standing to seek
foreclosure. The magistrate excluded Balimunkwe’s expert under Evid.R. 702, found
that Shellpoint had standing, and entered a decision in Shellpoint’s favor. The trial
court adopted the magistrate’s decision and issued a judgment and decree in
foreclosure. Balimunkwe timely appealed. For the reasons set forth below, we affirm
the judgment of the trial court.
I. BACKGROUND
A. The Documents
{¶2} The case, at its heart, is about documents. The four most relevant of
these documents are as follows.
{¶3} First is an April 2, 1999 mortgage on a property at 931 Chateau Avenue,
Cincinnati, Ohio (“the 1999 mortgage”), which secured an obligation to repay a
$47,000 loan from First Franklin Financial Corporation (“First Franklin”). This
document lists Kalemba Balimunkwe and his then-wife (now ex-wife) as borrowers
and mortgagors and bears both of their signatures.
{¶4} Second is a promissory note dated February 10, 2004 (“the 2004 note”),
which obligated “Kalemba B Balimunkwe” to repay a sum of $63,750, plus interest at
an adjustable rate starting at 7.125 percent per annum, to First Franklin, a “subsidiary
of National City Bank of Indiana” (“NCBI”). Payments were to begin on April 4, 2004, OHIO FIRST DISTRICT COURT OF APPEALS
and the loan was to mature on March 1, 2034. The copy of the note admitted at trial
bore a signature that read “Kalemba B Balimunkwe.” Balimunkwe’s ex-wife’s name
does not appear on this document.
{¶5} Third is another mortgage on 931 Chateau Avenue, dated February 10,
2004 (“the 2004 mortgage”), which states that it secures the 2004 note. The copy of
the 2004 mortgage and riders admitted at trial contains several signatures of
“Kalemba Balimunkwe” or “Kalemba B Balimunkwe.” It also bears the signature and
seal of an Ohio notary public. Balimunkwe’s ex-wife’s signature does not appear on
this document.
{¶6} Fourth is a February 14, 2006 document purporting to modify the terms
of the 2004 note (“the 2006 modification agreement”). Under the modification
agreement, Balimunkwe agreed to pay the note holder—listed as National City Home
Loan Services, Inc. (“NCHLS”)—$62,495.23, plus interest at a fixed rate of 7.875
percent per annum, beginning April 1, 2006. The copy of the 2006 modification
agreement admitted at trial contains the signature of “Kalemba Balimunkwe” above a
handwritten social security number and the seal of an Ohio notary public. A separate
signature page contains only the signature of a “Sandy Owens,” listed as “Operations
Manager” of NCHLS.
B. Federal & Pretrial Litigation
{¶7} In 2014, Balimunkwe filed a fraud suit against Bank of America, First
Franklin’s successor in interest, and Residential Credit Solutions (“RCS”) in the
Hamilton County Court of Common Pleas. The suit was removed to federal court,
where it was rejected by a magistrate judge, the district court, and the Court of Appeals
for the Sixth Circuit. See Balimunkwe v. Bank of Am., N.A., 2016 U.S. Dist. LEXIS 981,
*1 (S.D. Ohio Jan. 6, 2016) (“Balimunkwe I”) (magistrate judge’s report and
4 OHIO FIRST DISTRICT COURT OF APPEALS
recommendation), adopted 2016 U.S. Dist. LEXIS 24781 (S.D. Ohio Feb. 29, 2016)
(“Balimunkwe II”), aff’d 2017 U.S. App. LEXIS 19875 (6th Cir. Jan. 17, 2017)
(“Balimunkwe III”).
{¶8} A month after the Sixth Circuit’s ruling, Ditech Financial, LLC
(“Ditech”), filed a complaint against Balimunkwe in the Hamilton County Court of
Common Pleas, alleging that Balimunkwe had defaulted on the 2004 note and
asserting a right to have the 2004 mortgage foreclosed. Specifically, Ditech’s
complaint alleged Balimunkwe owed $53,066.13 under the note, with interest to be
calculated from April 1, 2012, at a rate of 7.875 percent per annum.
{¶9} Balimunkwe answered Ditech’s complaint, asserting that his signatures
on the 2004 note and mortgage were both forged, and that the 2004 mortgage had
been “negligently and fraudulently notarized.”
{¶10} The case was referred to a magistrate, who granted summary judgment
for Ditech. The trial court adopted the magistrate’s summary-judgment decision, but
this court reversed in Ditech Fin., L.L.C. v. Balimunkwe, 2019-Ohio-3806 (1st Dist.)
(“Balimunkwe IV”). In our opinion, we noted that Balimunkwe had filed an affidavit,
report, and curriculum vitae of a handwriting expert who had opined “‘that Kalemba
Balimunkwe did not sign his signatures on the questioned documents.’” Id. at ¶ 3. This,
we held, “created a genuine issue of material fact as to whether Balimunkwe entered
into the 2004 loan refinance agreement.” Id. at ¶ 10. After also rejecting Ditech’s
ratification argument, we reversed the trial court’s summary judgment and remanded
the cause for further proceedings. Id. at ¶ 13-14.
{¶11} The case then went quiet until Shellpoint moved to substitute itself for
Ditech as party plaintiff in April 2022. Shellpoint attached to its motion a copy of a
document, dated December 4, 2019, whereby Ditech had assigned its interest in the
5 OHIO FIRST DISTRICT COURT OF APPEALS
mortgage to Shellpoint. The trial court granted the motion.
{¶12} Shellpoint then filed a second motion for summary judgment against
Balimunkwe. Shellpoint’s principal argument was that Balimunkwe was precluded
from relitigating the issue of forgery, because it had already been decided against
Balimunkwe in his federal litigation. Shellpoint further argued that Balimunkwe
ratified the 2004 note and mortgage by signing a 2006 modification agreement.
{¶13} The magistrate denied both of Shellpoint’s arguments as governed by
the law of the case following Balimunkwe IV, and further suggested that Shellpoint’s
collateral-estoppel argument was untimely and substantively incorrect. The trial court
adopted the magistrate’s ruling as to both issues.
C. Daubert Hearing, Trial & Aftermath
{¶14} In February 2023, Balimunkwe filed an expert report from his forensic
document examiner (“FDE”), Wendy Carlson. Two months later, Shellpoint moved to
exclude Carlson’s testimony pursuant to Evid.R. 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). After holding a hearing at which Carlson
testified, the magistrate concluded that Carlson’s examination procedures were not
“conducted in a way that will yield an accurate result.” He found that Carlson was not
qualified to testify as an expert under Evid.R. 702 and granted Shellpoint’s motion to
exclude her testimony and report.
{¶15} The case proceeded to trial before the magistrate the next day. The trial
involved numerous items of documentary evidence and the testimony of two
witnesses: Carli Jo Wilcox, a foreclosure litigation manager for Shellpoint, and
Balimunkwe.
{¶16} The magistrate ultimately issued a written decision in favor of
Shellpoint. He concluded that, “on the evidence adduced[,] . . . there is due to
6 OHIO FIRST DISTRICT COURT OF APPEALS
Shellpoint on the modified promissory note . . . , as set forth in Count One of Plaintiff’s
Complaint, the principal sum of $53,966.13, plus interest on the outstanding principal
balance at the rate of 7.8750 percent per annum from April 1, 2012, plus late charges,
plus advances made for the payment of taxes and/or insurance premiums, costs
incurred for the protection of the Property under” R.C. 5301.233.
{¶17} Balimunkwe filed four objections to the magistrate’s decision, to which
Shellpoint responded. After hearing argument, the trial court overruled Balimunkwe’s
objections, adopted the magistrate’s decision, and entered judgment for Shellpoint.
{¶18} Balimunkwe appealed, and Shellpoint cross-appealed.
II. BALIMUNKWE’S APPEAL
{¶19} We begin with Balimunkwe’s appeal. He raises four assignments of
error, contending that the trial court erred by overruling his objections to the
magistrate’s (A) “ruling to exclude the testimony of his handwriting expert witness at
trial,” (B) “finding that his signatures were not forged,” (C) “finding that Ditech had
standing when it filed the complaint,” and (D) “finding that the 2004 note was
modified.”
{¶20} In considering these assignments of error, we review not the
magistrate’s findings themselves, but the trial court’s decision to adopt them. Under
Civ.R. 53, a trial court may adopt a magistrate’s decision if it (1) discovers no “error of
law or other defect evident on the face of the magistrate’s decision,” and (2) determines
that any objections lodged should be overruled, after an independent review of the
matters objected to. Civ.R. 53(D)(4)(c) and (d). The trial court may engage in further
independent review of the magistrate’s decision and the underlying record, but it need
not do so. See Civ.R. 53(D)(4)(b).
{¶21} In light of these requirements, we consider a trial court’s decision
7 OHIO FIRST DISTRICT COURT OF APPEALS
adopting or rejecting a magistrate’s decision under a three-tiered standard of review.
{¶22} First, where a party on appeal (1) challenges a trial court’s decision
adopting a magistrate’s finding of fact, conclusion of law, or decision, but (2) never
raised that objection before the trial court, we review the trial court’s decision only for
plain error. Civ.R. 53(D)(3)(b)(iv).
{¶23} Second, in all other instances, we review a trial court’s adoption or
rejection of a magistrate’s finding, conclusion, or decision for an abuse of discretion.
See In re Estate of Knowlton, 2006-Ohio-4905, ¶ 43 (1st Dist.). However, because
“courts lack the discretion to make errors of law,” Johnson v. Abdullah,
2021-Ohio-3304, ¶ 39, we consider questions of law effectively de novo. See Stephan
Business Ents. v. Lamar Outdoor Advertising Co., 2008-Ohio-954, ¶ 13 (1st Dist.)
(holding that “[r]eferral to a magistrate should not circumvent an appellate court’s de-
novo review” of legal questions). Likewise, a trial court has no “discretion” to find facts
counter to the evidence; it must always rule according to the relevant burden of proof.
Thus, we will conclude that a trial court exceeded the limits of its discretion if it
adopted factual findings against the manifest weight of the evidence, just as we would
if the trial court had made such a finding in the first instance. See Washington v. Am.
Gen. Life Ins. Co., 2022-Ohio-339, ¶ 13 (1st Dist.), citing Qiming He v. Half Price
Heating & Air, 2021-Ohio-1599, ¶ 6 (1st Dist.).
{¶24} In other words, a trial court enjoys the same broad discretion when
considering objected-to matters in a magistrate’s decision as it would in managing
proceedings in any other context. But a trial court always exceeds the bounds of that
discretion by adopting, over objection, a magistrate’s erroneous legal conclusions or
factual findings contrary to the manifest weight of the evidence.
{¶25} Third, factual and legal determinations a trial court renders after
8 OHIO FIRST DISTRICT COURT OF APPEALS
rejecting the magistrate’s determinations are subject to ordinary appellate review.
A. Expert Testimony
{¶26} In his first assignment of error, Balimunkwe contends that the trial
court erred by failing to overrule the magistrate’s order excluding the testimony and
report of his FDE expert witness, Wendy Carlson. Balimunkwe asserts the magistrate,
by holding the hearing and granting the motion to exclude, (1) violated the trial court’s
local rules, (2) contradicted the law of the case established in Balimunkwe IV, and (3)
abused its evidentiary-gatekeeping discretion under Evid.R. 702 and Daubert.
{¶27} Because Balimunkwe raised neither of the first two arguments in his
objections before the trial court, we review them only for plain error. See Civ.R.
53(D)(3)(b)(iv). However, Balimunkwe did object on the third basis, so we review it
under the same abuse-of-discretion standard we would apply to any other Evid.R. 702
determination. See Terry v. Caputo, 2007-Ohio-5023, ¶ 16, citing Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137 (1999).
{¶28} First, Balimunkwe contends that Shellpoint failed to include “a written
request for oral argument” in its Daubert motion, and that the trial court therefore
erred in holding the hearing under Hamilton C.P., Gen.Div., Loc.R. 14(C)(1). This
argument is without merit. Even assuming, arguendo, that holding a pretrial Daubert
hearing without request was plainly erroneous, doing so was just as plainly harmless
in this case. Before Carlson could testify as an expert, the magistrate had to qualify her
as such under Evid.R. 702. After reading her report and hearing her testimony at a
hearing one day before trial, the magistrate concluded she was not qualified.
Balimunkwe does not explain how she would have been any more qualified to testify
had the magistrate waited to make his Evid.R. 702 assessment on the day of trial.
Balimunkwe therefore has not shown that the alleged error affected his substantial
9 OHIO FIRST DISTRICT COURT OF APPEALS
rights. See Civ.R. 61.
{¶29} Second, Balimunkwe argues that the magistrate’s refusal to qualify
Carlson as an expert undermined our ruling in Balimunkwe IV and therefore violated
the law of the case. But our decision in Balimunkwe IV held only that Carlson’s
“affidavit and expert report . . . created a genuine issue of material fact as to whether
Balimunkwe entered into” the 2004 note and mortgage and so precluded summary
judgment. Balimunkwe IV, 2019-Ohio-3806, at ¶ 10 (1st Dist.). We did not discuss
Carlson’s qualifications under Evid.R. 702, and we certainly did not render a final
determination on that question. The magistrate and trial court were therefore free—
indeed, obligated—to address the issue.
{¶30} Third, Balimunkwe argues that the magistrate and trial court
misapplied Evid.R. 702.
{¶31} A witness must be qualified as an expert to offer their expert opinion.
See Evid.R. 701 and 702. A witness is qualified to testify as an expert if the proponent
can show (A) that her “testimony either relates to matters beyond the knowledge or
experience possessed by lay persons or dispels a misconception common among lay
persons”; (B) that she has “specialized knowledge, skill, experience, training, or
education regarding the subject matter of the testimony”; and (C) that her testimony
“is based on reliable scientific, technical, or other specialized information and the
expert’s opinion reflects a reliable application of the principles and methods to the
facts of the case.” Evid.R. 702.
{¶32} This last requirement under Evid.R. 702(C) requires “‘not only an
examination of the trustworthiness of the tested principles on which the expert
opinion rests, but also an analysis of the reliability of an expert’s application of the
tested principals [sic] to the particular set of facts at issue.’” (Bracketed text and
10 OHIO FIRST DISTRICT COURT OF APPEALS
emphasis in original.) Terry, 2007-Ohio-5023, at ¶ 26, quoting Cavallo v. Star Ent.,
892 F.Supp. 756, 762-763 (E.D.Va. 1995). Testimony concerning “the results of a
procedure, test, or experiment” is reliable if (1) the underlying theory is “objectively
verifiable or is validly derived from widely accepted knowledge, facts, or principles,”
(2) the “design of the procedure, test, or experiment reliably implements the theory,”
and (3) the “particular procedure, test, or experiment was conducted in a way that will
yield an accurate result.” Evid.R. 702(C).
{¶33} It is under this reliability prong that the magistrate and trial court
excluded Carlson’s expert testimony.
{¶34} At the Daubert hearing, Carlson testified that she had received digital
copies of seven signatures “known” to be from Balimunkwe, as well as several
“questioned” signatures taken from the disputed documents, including the 2004 note
and mortgage and the 2006 modification agreement. She printed copies of each
signature, stapled the printed signatures together on a single page, and then
photocopied this stapled compilation to enlarge it.
{¶35} Carlson testified she then assessed authorship of the questioned
signatures using the “ACE” methodology, an acronym of the methodology’s three
steps: analyze, compare, and evaluate. Applying that methodology, Carlson began by
examining the seven “known” samples to understand how Balimunkwe generally
formed his signature. She then compared the “personal patterns,” “idiosyncrasies,”
and “habits” observed in these “known” samples to the “questioned” signatures
Balimunkwe had sent her. In making her comparison, Carlson employed the
photocopier’s magnification and, at times, a jeweler’s loop and compass.
{¶36} Carlson testified about various aspects of the signatures she deemed
relevant to her comparison, including the relative height of certain letters, the
11 OHIO FIRST DISTRICT COURT OF APPEALS
formation of the letters “k” and “m,” the formation and connections of the letter “b,”
the slant of the signature, and the angle of the final stroke’s slope. Ultimately, Carlson
testified that, in her opinion, the signatures on several documents, including the 2004
note and mortgage, “were highly probabl[y] signed by a person other than the person
that signed the known signatures,” i.e., Balimunkwe. Carlson further testified that she
“eliminated the author of the known Kalemba Balimunkwe signatures . . . as the author
of the questioned Kalemba Balimunkwe signatures” on several other questioned
documents, including the mortgage amendment signed ten days after the 2004
mortgage.
{¶37} Carlson testified that her conclusions came from “objective”
characteristics she observed, but were ultimately based upon her personal judgments
about degree of similarity and not empirical data about the frequency with which
certain habits occur in the general population. She also testified that she did not apply
the “ACE-V” methodology that “some document examiners use,” which requires the
examiner to employ verification procedures.
{¶38} During the hearing, Shellpoint’s attorneys, Carlson, and the trial court
all recognized that two of the seven “known” signatures used in Carlson’s report were,
in fact, duplicates from the same page of the same document (specifically, the original
1999 mortgage). Carlson did not note this fact in her report or in her testimony prior
to that point. When the magistrate asked her whether she had noticed the duplicates
while she was preparing her report, Carlson responded, “I’m sure I did. I just don’t
have that information in my folder.”
{¶39} Also discussed at the hearing and in Shellpoint’s Daubert motion was
the fact that Carlson’s testimony had been excluded as “fundamentally unreliable and
critically flawed in so many respects” by a federal court in Almeciga v. Ctr. for
12 OHIO FIRST DISTRICT COURT OF APPEALS
Investigative Reporting, Inc., 185 F.Supp.3d 401, 426 (S.D.N.Y. 2016).
{¶40} On these facts the magistrate held that Carlson’s testimony was not
“conducted in a way that will yield an accurate result,” and the trial court adopted his
decision to exclude her testimony under Evid.R. 702. We cannot say that either abused
their discretion in doing so.
{¶41} In making his ruling, the magistrate noted his concerns regarding
Carlson’s failure to note the two duplicate signatures. This was a reasonable
consideration. As Carlson testified, her first step was to “analyze” the known
signatures to find commonalities and points of variance. There were seven such
“known” samples in this case; two were duplicates. The failure to note this fact in her
report or in her descriptions of her process prior to prompting suggests one of two
possibilities: either Carlson did not notice the duplicates, or she did notice but chose
not to bring them up. The former possibility calls into question her application of a
methodology that depends entirely upon the FDE’s ability to notice and indicate
similarities and differences. The latter possibility suggests she was unconcerned about
the duplicate signature artificially inflating her “known” sample size, calling into
question what else she may not have mentioned.
{¶42} The magistrate also expressed concerns about the way in which Carlson
magnified the signatures. This concern, too, was neither arbitrary nor unreasonable.
The standards applicable to FDEs, as included in Carlson’s report, allow for
magnification of writings “sufficient to allow fine detail to be distinguished.” But the
images Carlson examined went through three transmissions, each of which risked
losses in quality and fine detail. Carlson testified that Balimunkwe had provided her
with scans of the signed pages—not the originals, which the standards indicate are
preferred. Then Carlson printed those scanned images out and stapled them together,
13 OHIO FIRST DISTRICT COURT OF APPEALS
allowing for loss in the printing process. Finally, she photocopied the printouts of
Balimunkwe’s scans, producing the grainy, black-and-white signatures in her report.
In light of these facts, it was not unreasonable for the magistrate to conclude that
Carlson’s method of magnification did not allow her to examine fine details, and may
instead have made such details harder to notice.
{¶43} Thus, even assuming the validity of the ACE method for comparing
signatures and identifying forgeries as a general matter, the magistrate did not act
arbitrarily or unreasonably in concluding that Carlson’s report and testimony did not
satisfy the requirements of Evid.R. 702(C). Given the small sample size, lack of
verification procedures, and reliance on personal judgment rather than statistical
data, the magistrate could legitimately conclude that the issues discussed above called
the reliability of Carlson’s analysis into question.
{¶44} We therefore hold that the magistrate did not abuse his discretion in
concluding that Carlson’s opinion did not reflect a “reliable application of the
principles and methods” of forensic document examination and that her “particular
procedure” was not “conducted in a way that will yield an accurate result.” Evid.R.
702(C) and (C)(3). Nor did the trial court abuse its discretion in accepting the
magistrate’s determination on this score.
{¶45} Balimunkwe’s first assignment of error is overruled.
B. Evidence of Forgery
{¶46} In his second assignment of error, Balimunkwe argues that the
magistrate’s finding that his signatures on the 2004 note and mortgage were not
forged was against the manifest weight of the evidence. Balimunkwe objected to this
finding before the trial court.
{¶47} A challenge to the weight of the evidence concerns a party’s burden of
14 OHIO FIRST DISTRICT COURT OF APPEALS
persuasion at trial. See State v. Messenger, 2022-Ohio-4562, ¶ 26; In re S/F Children,
2025-Ohio-822, ¶ 38 (1st Dist.). We will only hold that a finding was against the
manifest weight of the evidence if, after considering the record evidence, the
reasonable inferences, and the witnesses’ credibility (to the extent discernible from the
cold record), it is clear the factfinder lost its way in resolving evidentiary conflicts and
created a manifest miscarriage of justice. Washington, 2022-Ohio-339, at ¶ 13 (1st
Dist.), citing Qiming He, 2021-Ohio-1599, at ¶ 7 (1st Dist.).
{¶48} As an affirmative defense, Balimunkwe bore the burden of persuasion
on his claim of forgery.2 The magistrate concluded that Balimunkwe did not meet that
burden, and the trial court adopted that finding. Upon review, we conclude that
finding was not against the manifest weight of the evidence.
{¶49} Apart from his own testimony, Balimunkwe offered no trial evidence to
show the signatures on the 2004 note and mortgage were forged. Shellpoint, on the
other hand, introduced compelling circumstantial evidence suggesting they were not.
For example, Shellpoint introduced a divorce decree from September 2003, which
awarded Balimunkwe ownership of the house at 931 Chateau Avenue. However,
because the house was financed by a mortgage and note signed by both Balimunkwe
and his ex-wife, the court ordered Balimunkwe to use his “best efforts” to refinance
the home under his name alone. Five months later, Balimunkwe’s signature appeared
2 With respect to the 2004 mortgage, at least, Balimunkwe’s burden required “clear and convincing
evidence of . . . forgery.” See R.C. 5301.07(B)(2); see also Waddell v. Frasure, 2006-Ohio-6093, ¶ 14 (4th Dist.), citing Williamson v. Carskadden, 36 Ohio St. 664, 666 (1881) (“[I]n the absence of clear and convincing proof of fraud or forgery, the certificate of a notary stating that the [document] was freely signed and acknowledged . . . is conclusive evidence of the facts stated in the notary’s certification.”). It is less clear what standard of proof applied with respect to the unnotarized 2004 note. The magistrate and trial court make no mention of the heightened standard of proof and appear to have found that Balimunkwe failed to satisfy even the preponderance-of-the-evidence standard. We review the findings on that assumption and find, even under the lower standard, that the trial court’s finding was not against the manifest weight of the evidence.
15 OHIO FIRST DISTRICT COURT OF APPEALS
on the 2004 mortgage and note without his ex-wife’s name, in apparent compliance
with the court’s order.
{¶50} Shellpoint further introduced evidence that the records associated with
the 2004 mortgage and note contained highly personal documents pertaining to
Balimunkwe, apparently obtained in or around February 2004—the sort of documents
one submits in a refinancing application. For example, Shellpoint introduced a copy
of Balimunkwe’s child-support-payment history for a period ending on January 31,
2004, which included markings indicating it was faxed just days before the signing of
the 2004 note and mortgage. Carli Jo Wilcox, Shellpoint’s foreclosure litigation
manager, testified that this record was included with the loan-origination materials
that Shellpoint received from the prior loan servicer when Shellpoint began servicing
the loan under the 2004 note. Also included with the loan-origination materials were
a copy of Balimunkwe’s homeowner’s insurance policy faxed on February 4, 2004; a
copy of his 2002 tax return faxed on January 29, 2004; and a photocopy of
Balimunkwe’s driver’s license attached to an “Identification Verification
Acknowledgement,” signed by a closing agent on February 10, 2004.
{¶51} Further, while the 2004 note was not notarized, the 2004 mortgage was.
Shellpoint introduced the mortgage, which included a notary’s seal averring, “This
instrument was acknowledged before me this 10th of Feb. 2004, by KALEMBA B
BALIMUNKWE, unmarried.”
{¶52} Despite this strong circumstantial evidence suggesting the signatures’
validity, Balimunkwe argues that the trial court erred by refusing to compare the
signatures on his original, undisputed 1999 mortgage document with those on the
disputed 2004 note and mortgage.
{¶53} Balimunkwe is right that a trier of fact is entitled to compare signatures
16 OHIO FIRST DISTRICT COURT OF APPEALS
and make findings based on such comparisons. See Evid.R. 901(B)(3) (document may
be authenticated by comparison with other authenticated documents by trier of fact);
Medina Drywall Supply, Inc. v. Procom Stucco Sys., 2006-Ohio-5062, ¶ 7 (9th Dist.),
quoting State v. Norwood, 1991 Ohio App. LEXIS 304, *20 (6th Dist. Jan. 25 1991)
(“‘A trier of fact can make a comparison of a known writing by a person with other
writings without the assistance of an expert or a lay witness to determine whether all
the writings were executed by the same person.’”). But in this case, we have no
indication that the trial court did not make such a comparison. The signatures were all
in the record, and the magistrate and trial court both knew that Balimunkwe’s
arguments largely turned on the alleged inconsistencies between them. Neither
decision affirmatively stated that the magistrate or trial court did not consider the
appearance of the signatures. Rather, the magistrate and trial court may simply have
found that the signatures did not look particularly different—or that they did not look
different enough to undermine the circumstantial evidence of authorship.
{¶54} Having examined the signatures ourselves, we cannot say that either
conclusion would have run counter to the manifest weight of the evidence. While there
is a degree of variation among the signatures, there are also many, many consistencies.
A reasonable factfinder could easily conclude that the various iterations of
Balimunkwe’s signature fell within the plausible range of variation over a five-year
span.
{¶55} Given the significant circumstantial evidence presented by Shellpoint,
we hold that the magistrate did not lose his way in concluding that Balimunkwe failed
to prove the signatures were forgeries. His finding to that effect was therefore not
against the manifest weight of the evidence, and the trial court did not abuse its
discretion in adopting it. Balimunkwe’s second assignment of error is thus overruled.
17 OHIO FIRST DISTRICT COURT OF APPEALS
C. Standing
{¶56} In his third assignment of error, Balimunkwe contends that Ditech,
Shellpoint’s predecessor in interest and the original plaintiff in the action below,
lacked standing at the time it filed the complaint.
{¶57} In order to commence a lawsuit, a plaintiff must have standing to sue.
“Where the party does not rely on any specific statute authorizing invocation of the
judicial process, the question of standing depends on whether the party has alleged a
personal stake in the outcome of the controversy.” (Cleaned up.) Fed. Home Loan
Mtge. Corp. v. Schwartzwald, 2012-Ohio-5017, ¶ 21. Standing must be established as
of the time the party invokes the court’s jurisdiction, and a “lack of standing at the
commencement of a foreclosure action requires dismissal of the complaint.” Id. at
¶ 40. “In a foreclosure action, a party has standing when it has an interest in the note
or mortgage.” Bank of Am., N.A. v. Kenney, 2015-Ohio-2485, ¶ 7 (1st Dist.).
{¶58} In this case, the note was indorsed in blank, so that whoever held it
would have been entitled to enforce the mortgage securing the note. See U.S. Bank,
N.A. v. Tye, 2024-Ohio-2922, ¶ 17 (1st Dist.); Kernohan v. Manss, 53 Ohio St. 118, 133
(1895). Balimunkwe contends that Ditech and Shellpoint failed to prove that Ditech
held the note at the time it commenced its suit.
{¶59} We need not address who held the note, however, because Ditech clearly
had standing as mortgage assignee at the time it filed suit. We have said that “a party
has standing when it has an interest in the note or mortgage.” (Emphasis added.)
Kenney at ¶ 7; accord Secy. of Veterans Affairs v. Shaffer, 2015-Ohio-2237, ¶ 41 (5th
Dist.); CitiMortgage, Inc. v. Patterson, 2012-Ohio-5894, ¶ 21 (8th Dist.) (“[A] party
may establish its interest in the suit, and therefore have standing to invoke the
jurisdiction of the court when, at the time it files its complaint of foreclosure, it either
18 OHIO FIRST DISTRICT COURT OF APPEALS
(1) has had a mortgage assigned or (2) is the holder of the note.” (Emphasis in
original.)). Based on this principle, a plaintiff has standing to enforce an assigned
mortgage, regardless of whether that plaintiff proves it also held the note. See, e.g.,
Fannie Mae v. Walton, 2015-Ohio-2855, ¶ 22 (8th Dist.) (holding that assignment of
mortgage provided independent basis for standing); see also Fannie Mae v. DeMartin,
2019-Ohio-2136, ¶ 18 (10th Dist.) (“Accordingly, the record indicates the mortgage
was assigned to appellee before it filed its complaint, and, therefore, it had standing to
foreclose.”).
{¶60} In this case, the evidence showed that RCS assigned its interest in the
mortgage to Ditech in July 2016. Ditech then filed its complaint in February 2017.
Then, in December 2019, Ditech assigned its interest in the mortgage to Shellpoint.
Thus, the evidence plainly showed that, at the time Ditech filed the complaint, it had
“an interest in the . . . mortgage” as assignee and therefore had standing to enforce
that mortgage in foreclosure. See Kenney, 2015-Ohio-2485, at ¶ 14 (1st Dist.).
Balimunkwe’s third assignment of error is overruled.
D. Modification of Agreement & Interest Rate
{¶61} Balimunkwe’s fourth and final assignment of error concerns the
applicable interest rate. The trial court’s judgment for Shellpoint included an award of
the $53,966.13 balance, plus late charges and interest at a rate of 7.875 percent per
annum from April 12, 2012. This interest rate corresponds not to the rate listed in the
2004 note, which started at 7.125 percent, but to the rate in the 2006 modification
agreement.
{¶62} Balimunkwe contends that the trial court erred in adopting the
magistrate’s finding that Shellpoint was entitled to collect on the note as modified by
the 2006 modification agreement. His argument has three parts. First, Balimunkwe
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argues that Shellpoint (and Ditech) failed to include the modification in their
complaint, so that the modification fell outside the issues raised in the pleadings.
Second, Balimunkwe argues that the 2006 modification agreement was not properly
authenticated and should not have been admitted into evidence. Third, Balimunkwe
argues that, even assuming the issue of modification was in the case, and even
assuming the 2006 modification agreement was properly authenticated, Shellpoint
“failed to sufficiently demonstrate a sufficient nexus between all the parties in the
chain of title and lacks standing to enforce the Modification.”
1. Failure to Plead Modification
{¶63} Balimunkwe argues that Ditech/Shellpoint’s complaint failed to
adequately put the modification agreement in issue. But this misframes the question
before us. The complaint alleged that Ditech/Shellpoint was owed “the sum of
$53,966.13, with interest at the rate of 7.8750% per year from April 1, 2012.”
Balimunkwe denied this allegation in his answer. Shellpoint was obligated to prove the
alleged interest rate somehow. It did so by introducing the 2006 modification
agreement into evidence. The question is simply whether the failure to attach that
agreement to the complaint precluded its use as evidence at trial. It did not.
{¶64} The absence of the 2006 modification agreement did not render
Ditech/Shellpoint’s pleadings legally insufficient. Civ.R. 10(D)(1) requires that,
“[w]hen any claim or defense is founded on an account or other written instrument, a
copy of the account or written instrument must be attached to the pleading. If the
account or written instrument is not attached, the reason for the omission must be
stated in the pleading.” Ditech/Shellpoint’s operative complaint did not include a copy
of the 2006 modification agreement, any express reference to it, or any explanation
for its absence. However, a party’s failure to attach a written instrument under Civ.R.
20 OHIO FIRST DISTRICT COURT OF APPEALS
10(D)(1) is not fatal and does not render a complaint insufficient. See Fletcher v. Univ.
Hosps. of Cleveland, 2008-Ohio-5379, ¶ 11; Wells Fargo Bank N.A. v. Horn,
2015-Ohio-1484, ¶ 16. Had Balimunkwe wished for more specifics as to the basis for
the 7.875 percent rate at the pleading stage, his remedy was to move for a more definite
statement under Civ.R. 12(E). See Fletcher at ¶ 11. He did not do so.
{¶65} And, to the extent Balimunkwe suggests that the 2006 modification
agreement’s existence or validity were issues outside of the pleadings, Balimunkwe
consented to trying them. Under Civ.R. 15(B), “issues not raised by the pleadings” may
be “tried by express or implied consent of the parties,” and, if so tried, “shall be treated
in all respects as if they had been raised in the pleadings.” Under such circumstances,
parties may amend the pleadings “to cause them to conform to the evidence and to
raise these issues,” but a “[f]ailure to amend . . . does not affect the result of the trial
of these issues.” Id. If Balimunkwe believed that evidence regarding the 2006
modification agreement concerned issues not within the pleadings, then Balimunkwe
had to object to its admission “at the trial.” Civ.R. 15(B). He raised no such objection
before the magistrate. Instead he willingly litigated the substantive validity of the 2006
modification agreement. He therefore impliedly consented to try any issues
concerning the applicability and content of the 2006 modification agreement.
2. Authentication of 2006 Modification Agreement
{¶66} Next, Balimunkwe contends that the 2006 modification agreement was
never properly authenticated. But this claim, too, lacks merit, because the agreement
was self-authenticating.
{¶67} “Documents accompanied by a certificate of acknowledgment executed
in the manner provided by law by a notary public or other officer authorized by law to
take acknowledgments” do not require “[e]xtrinsic evidence of authenticity as a
21 OHIO FIRST DISTRICT COURT OF APPEALS
condition precedent to admissibility.” Evid.R. 902(B)(8). Neither do “[c]ommercial
paper, signatures thereon, and documents relating thereto to the extent provided by
general commercial law.” Evid.R. 902(B)(9). Encompassed within this latter category
are promissory notes “and loan modification agreement[s].” See U.S. Bank Natl. Assn.
v. George, 2020-Ohio-6758, ¶ 14 (10th Dist.).
{¶68} The 2006 modification agreement introduced at trial fit both these
molds. The record clearly demonstrates that the 2006 modification agreement
introduced at trial contained Balimunkwe’s original, blue-ink signature. The
magistrate noted on the record that “Mr. Bal[i]munkwe and Ms. Wilcox both testified
from original documents, but those are not being placed into the record, what is being
placed into the record are photo copies of the original documents.” The 2006
modification agreement was notarized and purported to modify the terms of a
promissory note. It was therefore self-authenticating, both as an original version of a
“document relating to” commercial paper, and because it was “accompanied by a
certificate of acknowledgment executed . . . by a notary public.” Evid.R. 902(B)(8) and
(9).
3. Chain of Title & Parties to the Modification
{¶69} Balimunkwe’s final contention is that Shellpoint’s evidence failed to
show that NCHLS, identified as the “Note Holder” in the 2006 modification
agreement, in fact held the note at the time the modification agreement was signed.
Balimunkwe contends—rightly—that NCHLS would have had no authority to modify
the terms of a promissory note it did not hold.
{¶70} The 2006 modification agreement identifies NCHLS as the “Note
Holder,” and states that “Note Holder is the holder of a Mortgage, Security Deed or
Deed of Trust . . . from the borrower encumbering property known as 931 CHATEAU
22 OHIO FIRST DISTRICT COURT OF APPEALS
AVE CINCINNATI, OH 45204 . . . dated February 10, 2004, . . . securing an obligation
evidenced by a promissory note . . . executed by Borrower on February 10, 2004, in the
original principal amount of $63,750.00.”
{¶71} NCHLS did not execute the 2004 note and mortgage; First Franklin, a
subsidiary of NCBI did. And the next record of assignment admitted at trial shows that
in August 2010, First Franklin—not NCHLS—assigned the mortgage to RCS.
{¶72} But because the note was indorsed in blank, whoever held the note was
permitted to enforce it, Tye, 2024-Ohio-2922, at ¶ 17 (1st Dist.)—and, presumably, to
enter into an agreement modifying its terms—regardless of to whom the mortgage was
assigned. While there is evidence that First Franklin held the note in 2008, that does
not preclude the possibility that NCHLS held it in 2006, when the modification
agreement was signed.
{¶73} There is no evidence in the record as to the relationship, if any, between
NCHLS and NCBI. Ms. Wilcox testified, while discussing the 2006 modification
agreement, that First Franklin is “a subsidiary of National City,” but this could mean
either NCHLS or NCBI, as both names begin with “National City.”
{¶74} There is at least some circumstantial evidence that NCHLS held the note
at the time it entered into the 2006 modification agreement with Balimunkwe. Ms.
Wilcox testified that the modification agreement bearing Balimunkwe’s original, blue-
ink signature was included in the collateral file received by Shellpoint. It is hard to
imagine how that document would get into the collateral file with the original note and
mortgage deed, unless NCHLS either held the note in 2006 and conveyed it back to
First Franklin/NCBI before 2008, or was an alter ego of First Franklin/NCBI at that
time. And this, in turn, supports an inference that NCHLS held rights in the 2004 note
when the 2006 modification agreement was signed.
23 OHIO FIRST DISTRICT COURT OF APPEALS
{¶75} This evidence is slight, but Shellpoint’s burden was a mere
preponderance of the evidence. The magistrate and trial court thus found only that the
evidence made it more likely than not that NCHLS was either an alter ego/subsidiary
of First Franklin/NCBI, or was the holder of the note at the time the 2006 modification
agreement was signed. We cannot say the magistrate or trial court lost its way or
created a manifest miscarriage of justice in finding that this evidence tipped the scales
slightly toward Shellpoint. Its finding, therefore, was not against the manifest weight
of the evidence.
{¶76} We therefore hold that the trial court did not err in considering the 2006
modification agreement and using the 7.875 percent interest rate to calculate the
amount Balimunkwe owed. Balimunkwe’s fourth assignment of error is overruled.
III. SHELLPOINT’S CROSS-APPEAL
{¶77} Shellpoint cross-appealed the trial court’s judgment. It raises a single
assignment of error, arguing that the “trial court should have granted Shellpoint’s
second motion for summary judgment” on grounds of collateral estoppel.
{¶78} We have already overruled Balimunkwe’s four assignments of error and
are thus compelled to affirm the trial court’s judgment. Even if we sustained
Shellpoint’s assignment of error, Shellpoint would be entitled to no greater relief than
this. Its assignment of error is therefore moot and we do not address it. See State v.
Gideon, 2020-Ohio-6961, ¶ 26 (“[A]n assignment of error is moot when an appellant
presents issues that are no longer live as a result of some other decision rendered by
the appellate court.”); App.R. 12(A)(1)(c).
IV. CONCLUSION
{¶79} Having overruled all four of Balimunkwe’s assignments of error and
having found Shellpoint’s sole assignment of error moot, we affirm the judgment of
24 OHIO FIRST DISTRICT COURT OF APPEALS
the trial court.
Judgment affirmed.
BOCK and MOORE, JJ., concur.