Preview
ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Monday, August 11, 2014 4:21:54 PM
CASE NUMBER: 2014 CV 03959 Docket ID: 19340380
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
HARVEST LAND CO-OP., INC. * CASE NO. 2014 CV 03959
Plaintiff,
-v- *
FRANKIE J. HORA, et al.
* JUDGE DENNIS J. ADKINS
Defendants.
MOTION TO DISMISS COUNTERCLAIM PURSUANT TO CIV. R. 12(B)(6)
Pursuant to §12(B)(6) of the Ohio Rules of Civil Procedure, and for the reasons stated in
the memorandum attached hereto and made a part hereof, Plaintiff moves the Court for an order
dismissing Defendants Frankie J. Hora and Mary Horas’ counterclaim on the grounds that the
counterclaim fails to state a claim against Plaintiff upon which relief can be granted.
Respectfully submitted,
/s/ Ray A. Cox
Ray A. Cox, Esq. (0011711)
265 Regency Ridge Drive
Dayton, OH 45459
RAY A. COX Telephone: 937 291-3119
ATTORNEY AT LAW Facsimile: 937 291-3229
265 REGENCY RIDGE DRIVE ray.a.cox@sbcglobal.net
DAYTON, OHIO 45459-4221 Trial Attorney for Plaintiff
POST OFFICE BOX 751292
DAYTON, OHIO 45475-1292
937-291-3119
FAX 937-291-3229
-1-
RAY A. COX
ATTORNEY AT LAW
MEMORANDUM IN SUPPORT
CIVIL RULE 12(B) STANDARDS
Civil R. 12(B) provides certain defenses may be raised by motion, including the failure to
state a claim upon which relief can be granted, [Civ. R. 12(B)(6)]. Counterclaims are subject to
dismissal procedure along with complaints, crossclaims or third party claims, [Civ. R. 16B].
It is acknowledged that a complaint (here counterclaim) is sufficient in Ohio unless it
appears beyond doubt Plaintiff (here Defendants) can prove no set of facts in support of his
claim, which would entitle him to relief. O’Brien v. University Community Tenants Union, Inc.,
42 O.S. 2d 242, 71 O.O. 2d 223 (1975). However, our Supreme Court appears to have
resurrected “fact pleading” and suggests lower courts should refuse to allow a Plaintiff (here
Defendants) to survive a motion to dismiss for failure to state claim through the “mere
incantation of an abstract legal standard” while stating that a Plaintiff (here Defendants) must
plead operative facts with specificity to survive a Civ. R. 12(B)(6) motion. Byrd v. Faber, 57
O.S. 3d 56, 565 NE 2d 584 (1981). (Underlining ours.)
We suggest this case is an eminently appropriate one for Civ. R. 12(B) proceedings
because none of Defendants’ Causes of Action survive 12(B) scrutiny; they are, at best
inappropriate and at worst incomprehensible.
THE FACTS
Plaintiff filed its complaint in foreclosure against judgment debtors, Frankie J. Hora and
RAY A. COX
Mary Hora, (hereafter collectively, “Hora”) on July 8, 2014, pursuant to certificate of judgment
ATTORNEY AT LAW
265 REGENCY RIDGE DRIVE dated February 14, 2014, in the amended amount of $89,307.15, plus per diem interest of $21.17
DAYTON, OHIO 45459-4221
until paid, along with attorney fees of $25,062.50.
POST OFFICE BOX 751292
DAYTON, OHIO 45475-1292
937-291-3119
FAX 937-291-3229
-2-
RAY A. COX
ATTORNEY AT LAW
Other Defendants who may have an interest in the subject property were added to the
complaint to protect their interest(s) in the subject real property.
Plaintiff properly filed of record a Preliminary Judicial Report pursuant to
2329.19(C)(B)(c) O.R.C.
Hora filed their answer and counterclaim on July 24, 2014.
This motion to dismiss addresses each of Horas’ counterclaims pursuant to Civ. R.
12(B)(6) in the order presented suggesting the counterclaim fails to state any claim against
Plaintiff upon which relief may be granted.
“DEFENDANTS’ COUNTERCLAIM ONE”
“Defendants aver that, “by virtue of the evidence attached to
Defendants Affidavit Plaintiffs Harvest Land Co Op, Inc. have committed
fraud on the Court of Common Pleas, in Montgomery County, Ohio by filing
two (2) false Writs that meets the (6) merits of fraud, in an attempt to
deceitfully use the court to obtain an unjust enrichment through executing
the judgment certificate in Case No: 2012-EX-60089, and, by deception, by
intent, against the Defendants Frank and Mary Hora”.”(See Counterclaim)
In Counterclaim One, we believe Horas are arguing that there was legal wrongdoing by
Plaintiff’s counsel when he suggested in his motion for debtor’s exam, and its supportive
affidavit, that the attorney fee judgment against the Horas was $33,075.00 not $25,062.50, as
contained in the certificate of judgment attached to the complaint. This, Hora suggests, is “fraud
on the Court”. (See Counterclaim One.)
Even if allegations of “fraud on the Court” were true, (which it isn’t), it is not a cause of
action for Hora. Actions by counsel are not actions by his client. Anyway, it’s a matter for the
RAY A. COX
Court, not Hora.
ATTORNEY AT LAW
265 REGENCY RIDGE DRIVE Actually the quoted $33,075.00 was the correct attorney fee until it was reduced by the
DAYTON, OHIO 45459-4221
Magistrate in his order of February 6, 2012. The total reduced figure was correctly stated by
POST OFFICE BOX 751292
DAYTON, OHIO 45475-1292
937-291-3119
FAX 937-291-3229
-3-
RAY A. COX
ATTORNEY AT LAW
Plaintiff in the certificate of judgment and complaint filed. The figure had been changed by that
time.
Horas correctly identify the elements of civil fraud in their counterclaim. Unfortunately,
none of the elements of fraud have been met by Horas, or even addressed.
We suggest, therefore, that Horas’ Counterclaim One should be dismissed. It simply does
not state a claim which can withstand Civ. R. 12(B)(6) scrutiny.
“DEFENDANTS’ COUNTERCLAIM TWO”
“Defendants aver that, “by virtue of the evidence attached to
Defendant’s Affidavit Plaintiffs Harvest Land Co Op, Inc. have committed
Contempt of Court, proves dishonest and deceitful, and intentionally so by
propounding false writs in Exhibit A(1);A(2) that rises to level of a finding by
the court and hearing to determine what value Defendants are entitled to
under Ohio Rules of Procedure R. 56(G), but not limited to.”(See
Counterclaim)
It appears that Hora’s fraud allegations in Counterclaim Two again points to the motion
for debtor’s exam [Horas’ Exhibit (A)(1)], affidavit in support of said motion [Ex. (A)(2)],
praecipe for certificate of judgment [Ex. (B)], writ of appellee/cross appellant (Plaintiff, here)
[Ex. (C)], and notice of final judgment by Appellant Court [Ex. (H)], and is the same argument
as Counterclaim One. However, Horas now attach their “damages” [Ex. (G)].
So again, Horas argue that Plaintiff’s counsel should be held in contempt of court; and so
again, this is not a cause of action against Plaintiff.
We understand, and have understood throughout this litigation, that Hora uses the phrase
“fraud”, without understanding what it is. Each element, (correctly identified by Hora), has to be
RAY A. COX
proved by Hora. They weren’t.
ATTORNEY AT LAW
265 REGENCY RIDGE DRIVE Counterclaim Two does not even address any of the fraud elements, and therefore should
DAYTON, OHIO 45459-4221
be dismissed pursuant to Civ. R. 12(B)(6).
POST OFFICE BOX 751292
DAYTON, OHIO 45475-1292
937-291-3119
FAX 937-291-3229
-4-
RAY A. COX
ATTORNEY AT LAW
“DEFENDANTS’ COUNTERCLAIM THREE”
“By Defendant’s Affidavit and attached Rule 60(B), aver “Plaintiffs
have committed misrepresentation, and misconduct more defined and
allowed to be heard under a Ohio Civil Rule R. 60(B) (3)(5), but not limited
to, thereby Plaintiffs are liable to Defendants for an discretionary award by
the court, even dismissal of any judgment in It’s entirety, to the favor the
violated party, the Defendants Frank and Mary Hora.”(See Counterclaim)
Here, Hora again requests dismissal of judgment pursuant to Ohio Civ. R. 60(B)(3)(5).
Hora has already (unsuccessfully) filed a Civ. R. 60(B) motion, which was denied by this Court,
(Docket No. 19122454).
This cause of action should be dismissed because it does not state a claim against
Plaintiff upon which relief can be granted, pursuant to Civ. R. 12(B)(6).
“DEFENDANTS’ COUNTERCLAIM FOUR”
“Plaintiffs have proceeded illegally under the rules as there was a
Legal Stay in effect before the first 2014 filing for debtor exam which by
estttoppel is against the law, and thereby have continued in a pattern that
rises to the level of malicious prosecution.”(See Counterclaim)
Here, Horas raise their age old argument that an earlier stay of proceeding exists which
should have precluded the debtor’s exam. This is not a cause of action for a counterclaim.
In any event, this Court had already vacated the earlier stay, (order and entry overruling
in part and granting “in part Defendants’ Motion to Vacate”), filed April 15, 2014, (Docket No.
19017902).1 Prosecution cannot be “malicious” if the prosecution is successful.
RAY A. COX
ATTORNEY AT LAW
1
265 REGENCY RIDGE DRIVE
It should be noted that the “Order and Entry Overruling in Part and Granting in Part Defendant’s Motion to
DAYTON, OHIO 45459-4221Vacate” filed on April 15, 2014, was apparently refiled by Defendant Frankie J. Hora, representing to the Clerk’s
office that said document was a release of the Certificate of Judgment. The Clerk did, however, reverse the
POST OFFICE BOX 751292 “release”. See Docket. (Attachment A.)
DAYTON, OHIO 45475-1292
937-291-3119
FAX 937-291-3229
-5-
RAY A. COX
ATTORNEY AT LAW
“DEFENDANTS’ COUNTERCLAIM FIVE”
“Plaintiffs have caused an egregious and undue hardship, propounded
upon the Pro Se defending litigants-Hora, that meets a legal application of
law, by Harassment, and Pain and suffering, and delay, and extra costs of
litigation (by remand trial), Therefore Plaintiffs are liable to Defendants.”
(See Counterclaim)
We are not sure what to make of this counterclaim. It appears as though Horas’ argue that
Plaintiff’s filing in Case No. 2010 CV 02284 (previous case) was frivolous and therefore the
Horas are entitled to dismissal of this foreclosure claim, again under Civ. R. 60 (already denied)
and are entitled to damages as a result.
Plaintiff prevailed in 2010 CV 02284, except for a remand for accounting purposes and
its corresponding discovery. The balance of the case, including the judgment, was confirmed by
the Appellant Court. The remand was also won by Plaintiff except for some accounting changes
and interest adjustment.
Said simply, Horas seem to argue that although they lost the earlier case, the pleadings of
Plaintiff were frivolous. That is an interesting way of looking at a case.
In any event, Counterclaim Number Five does not appear to state a claim upon which
relief can be granted pursuant Civ. R. 12(B)(6).
ARGUMENT AND CONCLUSION
This is an action for foreclosure on a judgment. The judgment has been confirmed by the
Court of Appeals.
Civ. R. 13 provides for counterclaims, including compulsory counterclaims (Civ. R.
RAY A. COX
13(A) and permissive counterclaims (Civ. R. 13(B).
ATTORNEY AT LAW
265 REGENCY RIDGE DRIVE
DAYTON, OHIO 45459-4221
POST OFFICE BOX 751292
DAYTON, OHIO 45475-1292
937-291-3119
FAX 937-291-3229
-6-
RAY A. COX
ATTORNEY AT LAW
Compulsory counterclaims include:
“. . . counterclaim . . . arises out of the transaction or occurrence that is the
subject matter of the opposing party’s claim . . . (Civ. R. 13(A) )
Horas’ counterclaim certainly does not relate to this section.
Permissive counterclaims include:
“ . . . any claim against an opposing party . . .” (Civ. R. 13(B))(Underlining ours.)
Horas’ counterclaim deals mostly with alleged “contempt(s) of Court”, not a claim of
Horas. It also deals with prior litigation that Horas’ lost. Further, the counterclaim raised once
again Civ. R. 60(B) which has already been decided by this Court. There are not, therefore, “any
claim against an opposing party”, in Horas’ Counterclaim.
We believe the requirements for a pleading on the counterclaim are the same as the
original complaint. A counterclaim should contain a short and plain statement of the claim
showing that the Horas are entitled to relief, and demand for judgment for relief to which they
deem themselves entitled. Civ. R. 8(A). We would challenge anyone to find that Horas’
counterclaim satisfies this requirement.
Horas are serving as Pro Se litigants, although from the pleadings Frankie J. Hora
appears to be representing Mary Hora, which is an unauthorized practice of law. It is
unquestionable that while the constitution allows every person the right to represent themselves;
they have no right to represent others, nor to use the court system in the manner used by Frankie
Hora in this and any companion case. Horas cannot pled “ignorance”.
“ . . . a pro se litigant is presumed to have knowledge of the law and correct legal
procedures so that he remains subject to the same rules and procedures to which
represented litigants are bound. He is not given greater rights than represented
RAY A. COX
parties, and must bear the consequences of his mistakes.” Ergun Fikri v. Best Buy,
ATTORNEY AT LAW
Inc., et al., 2013-Ohio-4869; 1 N.E. 3d 484; 2013 Ohio App. LEXIS 5054
265 REGENCY RIDGE DRIVE (Headnote)
DAYTON, OHIO 45459-4221
POST OFFICE BOX 751292
DAYTON, OHIO 45475-1292
937-291-3119
FAX 937-291-3229
-7-
RAY A. COX
ATTORNEY AT LAW
The counterclaim should be dismissed pursuant to Civ. R. 12(B). The law and facts
require it.
/s/ Ray A. Cox, Esq.
Ray A. Cox, Esq. (0011711)
265 Regency Ridge Drive
Dayton OH 45459
Telephone: 937-291-3119
Facsimile: 937-291-3229
ray.a.cox@sbcglobal.net
Trial Attorney for Plaintiff
RAY A. COX
ATTORNEY AT LAW
265 REGENCY RIDGE DRIVE
DAYTON, OHIO 45459-4221
POST OFFICE BOX 751292
DAYTON, OHIO 45475-1292
937-291-3119
FAX 937-291-3229
-8-
RAY A. COX
ATTORNEY AT LAW
CERTIFICATE OF SERVICE
I hereby certify that on August 11, 2014, that electronic notification through the Court’s
system has been sent to the registered parties:
Tami Hark Kirby, Esq.
Porter Wright Morris & Arthur LLP
One South Main Street, Ste. 1600
Dayton, Ohio 45402
Attorney for Defendant Twin Valley Bank
Nolan Thomas, Esq.
301 West Third Street
Dayton, Ohio 45422
Attorney for Defendant Carolyn Rice, Treasurer of Montgomery County, Ohio
Peter B. Hoshor
Gammell, Ross & Hoshor, LLC
7925 Paragon Road
Dayton, Ohio 45459
Attorney for Defendant Lynda B. Sappington, Trustee of the Lynda B. Sappington Revocable
Living Trust Agreement
I hereby certify that on August 11, 2014, I served Motion to Dismiss Counterclaim
Pursuant to Civ. R. 12(B)(6) by U.S. mail to the following parties:
Frankie J. Hora and
Mary D. Hora
15725 Eaton Pike
West Alexandria, OH 45381
Defendants, Pro Se
KEY BANK NATIONAL ASSOC.
4910 Tiedeman Road, Suite C
Brooklyn, OH 44144
Defendant, Pro Se
KEY BANK NATIONAL ASSOC.
34 N. Main Street
Dayton, OH 45402
Defendant, Pro Se
RAY A. COX
ATTORNEY AT LAW
265 REGENCY RIDGE DRIVE s/ Ray A. Cox, Esq.
DAYTON, OHIO 45459-4221 Ray A. Cox, Esq. (0011711)
Trial Attorney for Plaintiff
POST OFFICE BOX 751292
DAYTON, OHIO 45475-1292
937-291-3119
FAX 937-291-3229
-9-
RAY A. COX
ATTORNEY AT LAW
Montgomery County PRO V2
ATTACHMENT
A
Montgomery County Ohio
Clerk Of Courts
Gregory A. Brush
Public Records Online System Version II
2012 CJ 183311 - HARVEST LAND CO OP INC Vs FRANKIE J HORA
IMAGE DA TEO ENTRY
AMENDED CERllFICATE OF JUDGMENT-PER ORDER SUBSTlTUllNG AMOUNT ON
05110512014
CIVIL REFUND FRANKIE HORA $5.00 PER CHIEF DEPUTY CJ RELEASED IN ERROR-CN
VOided on 0610212014. Re-lssued Check.
IJ\C'C"E~LI THE CJ AS
.InIllIW20141 RELEASED AND CLOSED. THIS WAS AN ERROR ON THE CLERK'S PART. THE DECISION
MODIFIES THE JUDGMENT AMOUNT ONLY -IT DOES NOT RELEASE THE CJ • THIS WAS
VERIFIED BY SPEAKING TO THE COURT· THE $5.00 WILL BE RETURNED TO THE
DEFENDANT. Receipt 977667 Date: 0510512014 Receipt 977657 reversed by 981996 on
CERllFICATE OF JUDGMENT
1U;U'I4IZU'I;!I
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Monday, August 11, 2014 4:21:54 PM CASE NUMBER: 2014 CV 03959 Docket ID: 19340380 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION HARVEST LAND CO-OP., INC. * CASE NO. 2014 CV 03959 Plaintiff, -v- * FRANKIE J. HORA, et al. * JUDGE DENNIS J. ADKINS Defendants. MOTION TO DISMISS COUNTERCLAIM PURSUANT TO CIV. R. 12(B)(6) Pursuant to §12(B)(6) of the Ohio Rules of Civil Procedure, and for the reasons stated in the memorandum attached hereto and made a part hereof, Plaintiff moves the Court for an order dismissing Defendants Frankie J. Hora and Mary Horas’ counterclaim on the grounds that the counterclaim fails to state a claim against Plaintiff upon which relief can be granted. Respectfully submitted, /s/ Ray A. Cox Ray A. Cox, Esq. (0011711) 265 Regency Ridge Drive Dayton, OH 45459 RAY A. COX Telephone: 937 291-3119 ATTORNEY AT LAW Facsimile: 937 291-3229 265 REGENCY RIDGE DRIVE ray.a.cox@sbcglobal.net DAYTON, OHIO 45459-4221 Trial Attorney for Plaintiff POST OFFICE BOX 751292 DAYTON, OHIO 45475-1292 937-291-3119 FAX 937-291-3229 -1- RAY A. COX ATTORNEY AT LAW MEMORANDUM IN SUPPORT CIVIL RULE 12(B) STANDARDS Civil R. 12(B) provides certain defenses may be raised by motion, including the failure to state a claim upon which relief can be granted, [Civ. R. 12(B)(6)]. Counterclaims are subject to dismissal procedure along with complaints, crossclaims or third party claims, [Civ. R. 16B]. It is acknowledged that a complaint (here counterclaim) is sufficient in Ohio unless it appears beyond doubt Plaintiff (here Defendants) can prove no set of facts in support of his claim, which would entitle him to relief. O’Brien v. University Community Tenants Union, Inc., 42 O.S. 2d 242, 71 O.O. 2d 223 (1975). However, our Supreme Court appears to have resurrected “fact pleading” and suggests lower courts should refuse to allow a Plaintiff (here Defendants) to survive a motion to dismiss for failure to state claim through the “mere incantation of an abstract legal standard” while stating that a Plaintiff (here Defendants) must plead operative facts with specificity to survive a Civ. R. 12(B)(6) motion. Byrd v. Faber, 57 O.S. 3d 56, 565 NE 2d 584 (1981). (Underlining ours.) We suggest this case is an eminently appropriate one for Civ. R. 12(B) proceedings because none of Defendants’ Causes of Action survive 12(B) scrutiny; they are, at best inappropriate and at worst incomprehensible. THE FACTS Plaintiff filed its complaint in foreclosure against judgment debtors, Frankie J. Hora and RAY A. COX Mary Hora, (hereafter collectively, “Hora”) on July 8, 2014, pursuant to certificate of judgment ATTORNEY AT LAW 265 REGENCY RIDGE DRIVE dated February 14, 2014, in the amended amount of $89,307.15, plus per diem interest of $21.17 DAYTON, OHIO 45459-4221 until paid, along with attorney fees of $25,062.50. POST OFFICE BOX 751292 DAYTON, OHIO 45475-1292 937-291-3119 FAX 937-291-3229 -2- RAY A. COX ATTORNEY AT LAW Other Defendants who may have an interest in the subject property were added to the complaint to protect their interest(s) in the subject real property. Plaintiff properly filed of record a Preliminary Judicial Report pursuant to 2329.19(C)(B)(c) O.R.C. Hora filed their answer and counterclaim on July 24, 2014. This motion to dismiss addresses each of Horas’ counterclaims pursuant to Civ. R. 12(B)(6) in the order presented suggesting the counterclaim fails to state any claim against Plaintiff upon which relief may be granted. “DEFENDANTS’ COUNTERCLAIM ONE” “Defendants aver that, “by virtue of the evidence attached to Defendants Affidavit Plaintiffs Harvest Land Co Op, Inc. have committed fraud on the Court of Common Pleas, in Montgomery County, Ohio by filing two (2) false Writs that meets the (6) merits of fraud, in an attempt to deceitfully use the court to obtain an unjust enrichment through executing the judgment certificate in Case No: 2012-EX-60089, and, by deception, by intent, against the Defendants Frank and Mary Hora”.”(See Counterclaim) In Counterclaim One, we believe Horas are arguing that there was legal wrongdoing by Plaintiff’s counsel when he suggested in his motion for debtor’s exam, and its supportive affidavit, that the attorney fee judgment against the Horas was $33,075.00 not $25,062.50, as contained in the certificate of judgment attached to the complaint. This, Hora suggests, is “fraud on the Court”. (See Counterclaim One.) Even if allegations of “fraud on the Court” were true, (which it isn’t), it is not a cause of action for Hora. Actions by counsel are not actions by his client. Anyway, it’s a matter for the RAY A. COX Court, not Hora. ATTORNEY AT LAW 265 REGENCY RIDGE DRIVE Actually the quoted $33,075.00 was the correct attorney fee until it was reduced by the DAYTON, OHIO 45459-4221 Magistrate in his order of February 6, 2012. The total reduced figure was correctly stated by POST OFFICE BOX 751292 DAYTON, OHIO 45475-1292 937-291-3119 FAX 937-291-3229 -3- RAY A. COX ATTORNEY AT LAW Plaintiff in the certificate of judgment and complaint filed. The figure had been changed by that time. Horas correctly identify the elements of civil fraud in their counterclaim. Unfortunately, none of the elements of fraud have been met by Horas, or even addressed. We suggest, therefore, that Horas’ Counterclaim One should be dismissed. It simply does not state a claim which can withstand Civ. R. 12(B)(6) scrutiny. “DEFENDANTS’ COUNTERCLAIM TWO” “Defendants aver that, “by virtue of the evidence attached to Defendant’s Affidavit Plaintiffs Harvest Land Co Op, Inc. have committed Contempt of Court, proves dishonest and deceitful, and intentionally so by propounding false writs in Exhibit A(1);A(2) that rises to level of a finding by the court and hearing to determine what value Defendants are entitled to under Ohio Rules of Procedure R. 56(G), but not limited to.”(See Counterclaim) It appears that Hora’s fraud allegations in Counterclaim Two again points to the motion for debtor’s exam [Horas’ Exhibit (A)(1)], affidavit in support of said motion [Ex. (A)(2)], praecipe for certificate of judgment [Ex. (B)], writ of appellee/cross appellant (Plaintiff, here) [Ex. (C)], and notice of final judgment by Appellant Court [Ex. (H)], and is the same argument as Counterclaim One. However, Horas now attach their “damages” [Ex. (G)]. So again, Horas argue that Plaintiff’s counsel should be held in contempt of court; and so again, this is not a cause of action against Plaintiff. We understand, and have understood throughout this litigation, that Hora uses the phrase “fraud”, without understanding what it is. Each element, (correctly identified by Hora), has to be RAY A. COX proved by Hora. They weren’t. ATTORNEY AT LAW 265 REGENCY RIDGE DRIVE Counterclaim Two does not even address any of the fraud elements, and therefore should DAYTON, OHIO 45459-4221 be dismissed pursuant to Civ. R. 12(B)(6). POST OFFICE BOX 751292 DAYTON, OHIO 45475-1292 937-291-3119 FAX 937-291-3229 -4- RAY A. COX ATTORNEY AT LAW “DEFENDANTS’ COUNTERCLAIM THREE” “By Defendant’s Affidavit and attached Rule 60(B), aver “Plaintiffs have committed misrepresentation, and misconduct more defined and allowed to be heard under a Ohio Civil Rule R. 60(B) (3)(5), but not limited to, thereby Plaintiffs are liable to Defendants for an discretionary award by the court, even dismissal of any judgment in It’s entirety, to the favor the violated party, the Defendants Frank and Mary Hora.”(See Counterclaim) Here, Hora again requests dismissal of judgment pursuant to Ohio Civ. R. 60(B)(3)(5). Hora has already (unsuccessfully) filed a Civ. R. 60(B) motion, which was denied by this Court, (Docket No. 19122454). This cause of action should be dismissed because it does not state a claim against Plaintiff upon which relief can be granted, pursuant to Civ. R. 12(B)(6). “DEFENDANTS’ COUNTERCLAIM FOUR” “Plaintiffs have proceeded illegally under the rules as there was a Legal Stay in effect before the first 2014 filing for debtor exam which by estttoppel is against the law, and thereby have continued in a pattern that rises to the level of malicious prosecution.”(See Counterclaim) Here, Horas raise their age old argument that an earlier stay of proceeding exists which should have precluded the debtor’s exam. This is not a cause of action for a counterclaim. In any event, this Court had already vacated the earlier stay, (order and entry overruling in part and granting “in part Defendants’ Motion to Vacate”), filed April 15, 2014, (Docket No. 19017902).1 Prosecution cannot be “malicious” if the prosecution is successful. RAY A. COX ATTORNEY AT LAW 1 265 REGENCY RIDGE DRIVE It should be noted that the “Order and Entry Overruling in Part and Granting in Part Defendant’s Motion to DAYTON, OHIO 45459-4221Vacate” filed on April 15, 2014, was apparently refiled by Defendant Frankie J. Hora, representing to the Clerk’s office that said document was a release of the Certificate of Judgment. The Clerk did, however, reverse the POST OFFICE BOX 751292 “release”. See Docket. (Attachment A.) DAYTON, OHIO 45475-1292 937-291-3119 FAX 937-291-3229 -5- RAY A. COX ATTORNEY AT LAW “DEFENDANTS’ COUNTERCLAIM FIVE” “Plaintiffs have caused an egregious and undue hardship, propounded upon the Pro Se defending litigants-Hora, that meets a legal application of law, by Harassment, and Pain and suffering, and delay, and extra costs of litigation (by remand trial), Therefore Plaintiffs are liable to Defendants.” (See Counterclaim) We are not sure what to make of this counterclaim. It appears as though Horas’ argue that Plaintiff’s filing in Case No. 2010 CV 02284 (previous case) was frivolous and therefore the Horas are entitled to dismissal of this foreclosure claim, again under Civ. R. 60 (already denied) and are entitled to damages as a result. Plaintiff prevailed in 2010 CV 02284, except for a remand for accounting purposes and its corresponding discovery. The balance of the case, including the judgment, was confirmed by the Appellant Court. The remand was also won by Plaintiff except for some accounting changes and interest adjustment. Said simply, Horas seem to argue that although they lost the earlier case, the pleadings of Plaintiff were frivolous. That is an interesting way of looking at a case. In any event, Counterclaim Number Five does not appear to state a claim upon which relief can be granted pursuant Civ. R. 12(B)(6). ARGUMENT AND CONCLUSION This is an action for foreclosure on a judgment. The judgment has been confirmed by the Court of Appeals. Civ. R. 13 provides for counterclaims, including compulsory counterclaims (Civ. R. RAY A. COX 13(A) and permissive counterclaims (Civ. R. 13(B). ATTORNEY AT LAW 265 REGENCY RIDGE DRIVE DAYTON, OHIO 45459-4221 POST OFFICE BOX 751292 DAYTON, OHIO 45475-1292 937-291-3119 FAX 937-291-3229 -6- RAY A. COX ATTORNEY AT LAW Compulsory counterclaims include: “. . . counterclaim . . . arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim . . . (Civ. R. 13(A) ) Horas’ counterclaim certainly does not relate to this section. Permissive counterclaims include: “ . . . any claim against an opposing party . . .” (Civ. R. 13(B))(Underlining ours.) Horas’ counterclaim deals mostly with alleged “contempt(s) of Court”, not a claim of Horas. It also deals with prior litigation that Horas’ lost. Further, the counterclaim raised once again Civ. R. 60(B) which has already been decided by this Court. There are not, therefore, “any claim against an opposing party”, in Horas’ Counterclaim. We believe the requirements for a pleading on the counterclaim are the same as the original complaint. A counterclaim should contain a short and plain statement of the claim showing that the Horas are entitled to relief, and demand for judgment for relief to which they deem themselves entitled. Civ. R. 8(A). We would challenge anyone to find that Horas’ counterclaim satisfies this requirement. Horas are serving as Pro Se litigants, although from the pleadings Frankie J. Hora appears to be representing Mary Hora, which is an unauthorized practice of law. It is unquestionable that while the constitution allows every person the right to represent themselves; they have no right to represent others, nor to use the court system in the manner used by Frankie Hora in this and any companion case. Horas cannot pled “ignorance”. “ . . . a pro se litigant is presumed to have knowledge of the law and correct legal procedures so that he remains subject to the same rules and procedures to which represented litigants are bound. He is not given greater rights than represented RAY A. COX parties, and must bear the consequences of his mistakes.” Ergun Fikri v. Best Buy, ATTORNEY AT LAW Inc., et al., 2013-Ohio-4869; 1 N.E. 3d 484; 2013 Ohio App. LEXIS 5054 265 REGENCY RIDGE DRIVE (Headnote) DAYTON, OHIO 45459-4221 POST OFFICE BOX 751292 DAYTON, OHIO 45475-1292 937-291-3119 FAX 937-291-3229 -7- RAY A. COX ATTORNEY AT LAW The counterclaim should be dismissed pursuant to Civ. R. 12(B). The law and facts require it. /s/ Ray A. Cox, Esq. Ray A. Cox, Esq. (0011711) 265 Regency Ridge Drive Dayton OH 45459 Telephone: 937-291-3119 Facsimile: 937-291-3229 ray.a.cox@sbcglobal.net Trial Attorney for Plaintiff RAY A. COX ATTORNEY AT LAW 265 REGENCY RIDGE DRIVE DAYTON, OHIO 45459-4221 POST OFFICE BOX 751292 DAYTON, OHIO 45475-1292 937-291-3119 FAX 937-291-3229 -8- RAY A. COX ATTORNEY AT LAW CERTIFICATE OF SERVICE I hereby certify that on August 11, 2014, that electronic notification through the Court’s system has been sent to the registered parties: Tami Hark Kirby, Esq. Porter Wright Morris & Arthur LLP One South Main Street, Ste. 1600 Dayton, Ohio 45402 Attorney for Defendant Twin Valley Bank Nolan Thomas, Esq. 301 West Third Street Dayton, Ohio 45422 Attorney for Defendant Carolyn Rice, Treasurer of Montgomery County, Ohio Peter B. Hoshor Gammell, Ross & Hoshor, LLC 7925 Paragon Road Dayton, Ohio 45459 Attorney for Defendant Lynda B. Sappington, Trustee of the Lynda B. Sappington Revocable Living Trust Agreement I hereby certify that on August 11, 2014, I served Motion to Dismiss Counterclaim Pursuant to Civ. R. 12(B)(6) by U.S. mail to the following parties: Frankie J. Hora and Mary D. Hora 15725 Eaton Pike West Alexandria, OH 45381 Defendants, Pro Se KEY BANK NATIONAL ASSOC. 4910 Tiedeman Road, Suite C Brooklyn, OH 44144 Defendant, Pro Se KEY BANK NATIONAL ASSOC. 34 N. Main Street Dayton, OH 45402 Defendant, Pro Se RAY A. COX ATTORNEY AT LAW 265 REGENCY RIDGE DRIVE s/ Ray A. Cox, Esq. DAYTON, OHIO 45459-4221 Ray A. Cox, Esq. (0011711) Trial Attorney for Plaintiff POST OFFICE BOX 751292 DAYTON, OHIO 45475-1292 937-291-3119 FAX 937-291-3229 -9- RAY A. COX ATTORNEY AT LAW Montgomery County PRO V2 ATTACHMENT A Montgomery County Ohio Clerk Of Courts Gregory A. Brush Public Records Online System Version II 2012 CJ 183311 - HARVEST LAND CO OP INC Vs FRANKIE J HORA IMAGE DA TEO ENTRY AMENDED CERllFICATE OF JUDGMENT-PER ORDER SUBSTlTUllNG AMOUNT ON 05110512014 CIVIL REFUND FRANKIE HORA $5.00 PER CHIEF DEPUTY CJ RELEASED IN ERROR-CN VOided on 0610212014. Re-lssued Check. IJ\C'C"E~LI THE CJ AS .InIllIW20141 RELEASED AND CLOSED. THIS WAS AN ERROR ON THE CLERK'S PART. THE DECISION MODIFIES THE JUDGMENT AMOUNT ONLY -IT DOES NOT RELEASE THE CJ • THIS WAS VERIFIED BY SPEAKING TO THE COURT· THE $5.00 WILL BE RETURNED TO THE DEFENDANT. Receipt 977667 Date: 0510512014 Receipt 977657 reversed by 981996 on CERllFICATE OF JUDGMENT 1U;U'I4IZU'I;!I