CitiMortgage, Inc. v. Hoge

196 Ohio App.3d 40

2011 -Ohio- 3839

962 N.E.2d 327

CITIMORTGAGE, INC., Appellee,

v.HOGE, Appellant, et al.

No. 96054.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Aug. 4, 2011.

Manley Deas Kochalski, L.L.C., David F. Hanson, David B. Bokor, Matthew P. Curry, Columbus, and John E. Codrea, for appellee.

James G. Dawson, Richmond Heights, for appellant.

FRANK D. CELEBREZZE, JR., Judge.

[Ohio App.3d 43] {¶ 1} Appellant, Cynthia Hoge (now known as Cynthia Gordon), brings the instant appeal challenging the trial court's grant of summary judgment in favor of appellee, CitiMortgage, Inc., in a foreclosure action. After a thorough review of the record and law, we affirm.

{¶ 2} Appellant sought to refinance her home mortgage in 2005. She found what she thought was favorable financing through American Equity Mortgage (“AEM”). On January 9, 2006, she executed a note and mortgage to AEM in the amount of $85,500. Later, this note and mortgage were assigned to CitiFinancial Mortgage Company, Inc., and assigned again to its successor by merger, CitiMortgage. Appellant alleges that AEM represented to her that her monthly payment would be $680 per month, but failed to inform her that this did not include real estate taxes and insurance, which brought the monthly payment to $872. She also alleges that AEM did not provide her with loan documents at least three days before closing.

[Ohio App.3d 44] {¶ 3} Prior to December 27, 2007, CitiMortgage alleged that appellant became delinquent on her payments, and on that date, it filed a complaint in foreclosure. Appellant sought four extensions of time to research the loan documents, find an attorney, and draft a response and counterclaims before filing an answer. Finally, on September 2, 2008, appellant filed an answer and counterclaim, which the trial court accepted. Appellant asserted claims of fraud and misrepresentation, violations of the Truth in Lending Act (“TILA”) and the Real Estate Settlement Procedures Act (“RESPA”), and intentional infliction of emotional distress.

{¶ 4} CitiMortgage moved for summary judgment on February 2, 2009, and appellant twice moved for an extension of time before filing a motion to dismiss the complaint. In this motion, appellant alleged that CitiMortgage did not have standing to bring its action. A hearing was held regarding this motion, and on March 26, 2010, the magistrate found that CitiMortgage had standing and overruled appellant's motion. On that same date, the magistrate also granted CitiMortgage's motion for summary judgment even though appellant had not filed a response. After various procedural irregularities resulted in a prior dismissed appeal and adoption of the magistrate's decision by the trial court, appellant perfected the instant appeal, assigning two errors for our review.

Law and Analysis

Period of Time to Respond to Summary Judgment

{¶ 5} Appellant first argues that “[t]he trial court erred to the prejudice of the appellant and abused its discretion by denying appellant the opportunity to respond to the merits of appellee's motion for summary judgment.”

{¶ 6} The Rules of Civil Procedure provide a means to terminate clearly unmeritorious litigation at an early stage through summary judgment. Civ.R. 56. According to Civ.R. 56(C), a summary-judgment motion “shall be served at least fourteen days before the time fixed for hearing. The adverse party, prior to the day of hearing, may serve and file opposing affidavits. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Emphasis added.) Loc.R. 11(I) of this jurisdiction gives a party 30 days within which to file a motion opposing summary judgment and makes judgment upon the pleadings the default method of hearing unless otherwise stated by the trial court.

[Ohio App.3d 45] {¶ 7} Appellant argues that she was denied an opportunity to respond to CitiMortgage's summary-judgment motion. However, over a year passed between the time the motion was filed and the magistrate's ruling. Appellant asserts that she asked the trial court to extend the time for filing her response until after a ruling on the motion to dismiss, but nothing in the record demonstrates that appellant was prevented from filing her response. The trial court never ruled on appellant's motions to expand the time in which to respond, and “[w]hen a trial court fails to rule on a motion, the motion is considered denied.” State v. Pate, Cuyahoga App. No. 95382, 2011-Ohio-1692, 2011 WL 1326357, ¶ 33, citing Solon v. Solon Baptist Temple, Inc. (1982), 8 Ohio App.3d 347, 351–352, 457 N.E.2d 858; Georgeoff v. O'Brien (1995), 105 Ohio App.3d 373, 378, 663 N.E.2d 1348.

{¶ 8} The trial court did not deprive appellant of an opportunity to oppose summary judgment, and the case law she points to is not applicable to her case. In those cases,¹ the trial courts ruled on motions for summary judgment before the period set by the applicable civil rule, by local rule, or by the court had expired. In each case, the reviewing court reversed that determination to give the parties an opportunity to respond.

{¶ 9} Although appellant requested a 30–day extension from the time the trial court ruled on her motion to dismiss to file a response, that motion was impliedly denied when the court had not ruled on it.

{¶ 10} In some cases, where additional discovery is required to adequately respond to a summary-judgment motion, the trial court should allow more time so this discovery can be completed. Tucker v. Webb Corp. (1983), 4 Ohio St.3d 121, 447 N.E.2d 100. However, appellant's motion set forth no such need. The February 9, 2010 motion for an extension asserted only that the additional time was required because her attorney was busy. The final request for an extension of time did not include any reason why an additional 30 days from the time the court ruled on appellant's motion to dismiss was necessary.

{¶ 11} This court has previously held that “[i]f a party opposing a motion for summary judgment cannot present by affidavit facts which are sufficient to justify his opposition he may seek a continuance or deferral of the court's action on the motion by filing affidavits which must state sufficient reasons why he cannot then present by affidavit facts essential to justify his opposition to the motion and why or how the continuance, deferral of action, or discovery would [Ohio App.3d 46] permit him to obtain such facts.” Gates Mills Inv. Co. v. Pepper Pike (1978), 59 Ohio App.2d 155, 392 N.E.2d 1316, paragraph two of the syllabus. A motion pursuant to Civ.R. 56(F) must set forth the reasons justifying delay. Appellant's motions failed to do so.

{¶ 12} Appellant also failed to request that the trial court rule on her motions for extension of time or her motion to dismiss. While CitiMortgage did twice request such action, appellant sat by and waited for a year while nothing happened in the case. All that is required to preserve appellant's due process rights is sufficient notice of the filing of the motion for summary judgment and sufficient opportunity to prepare a response. Brown v. Akron Beacon Journal Publishing Co. (1991), 81 Ohio App.3d 135, 139, 610 N.E.2d 507, citing Civ.R. 56(C). According to CitiMortgage's calculation, appellant had 414 days to respond. This is a sufficient time under Civ.R. 56(C) when appellant advanced no extenuating circumstances justifying the failure to respond in that time.

{¶ 13} Appellant's first assignment of error is overruled.

Grant of Summary Judgment

{¶ 14} The fact that no response was filed should not automatically lead to the granting of CitiMortgage's motion. Rose v. Natl. Mut. Ins. Co. (1999), 134 Ohio App.3d 229, 730 N.E.2d 1014. CitiMortgage still has the burden of showing that no genuine issue of material fact exists, and it must carry that burden whether or not a response is filed. Id. See also Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. This is the foundation of appellant's second assignment of error, in which she argues that “[t]he trial court erred to the prejudice of the appellant and abused its discretion by granting appellee's motion for summary judgment where, pursuant to Civ.R. 56(C), there are clearly genuine issues of material facts and the appellee is not entitled to judgment as a matter of law.”

{¶ 15} “Civ.R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267.

{¶ 16} Although appellant argues that the portion of CitiMortgage's brief justifying summary judgment based on appellant's answer and counterclaim is irrelevant, this court reviews the lower court's granting of summary judgment de [Ohio App.3d 47] novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). “[T]he reviewing court evaluates the record * * * in a light most favorable to the nonmoving party. * * * [T]he motion must be overruled if reasonable minds could find for the party opposing the motion.” Saunders v. McFaul (1990), 71 Ohio...