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Bank of America, N.A. v. Mark

Court of Appeals of Ohio, Twelfth District

August 19, 2013

BANK OF AMERICA, N.A., Plaintiff-Appellee,
DAVID J. MARK, Defendant-Appellant.


Manley Deas Kochalski LLC, Edward H. Cahill, for plaintiff-appellee

Charles H. Bartlett, Jr., for defendant-appellant



(¶ 1} Defendant-appellant, David Mark, appeals a decision of the Butler County Court of Common Pleas denying his motion for a continuance and granting summary judgment in favor of plaintiff-appellee, Bank of America, N.A., in a foreclosure action.

(¶ 2} On May 10, 2010, U.S. Bank, N.A. filed a foreclosure complaint against Mark. Mark timely filed an answer generally denying each of U.S. Bank's allegations, and a counterclaim. Identifying U.S. Bank as the "successor in interest" to Countrywide Bank, Mark alleged that Countrywide induced him to refinance his original mortgage to his detriment, "thereby breaching its fiduciary duties to [Mark], committing fraud in the inducement, and deriving unconscionable profits and fees to Countrywide[.]" U.S. Bank timely filed a reply to the counterclaim. Mark did not seek discovery regarding either U.S. Bank's claims or his counterclaim at this time.

(¶ 3} Over the next several months, the parties attempted to reach a loan modification; the trial court held status reports to monitor the progress of the case. However, the parties' efforts proved to be unsuccessful.

(¶ 4} On February 3, 2012, U.S. Bank served its First Set of Interrogatories, Request for Admissions, and Request for Production of Documents on Mark. On February 22, the trial court substituted "Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP" (the "Bank") as the plaintiff. On June 20, counsel for Mark filed a Notice of Disqualification. Six days later, new counsel entered an appearance on behalf of Mark.

(¶ 5} On July 6, 2012, the trial court was informed that Mark was denied a loan modification because (1) he was $90, 000 in arrears, (2) he needed $45, 000 to buy down the arrears to secure a loan modification, and (3) he had not been escrowing a sufficient amount of the mortgage payments over the past three years to reach that amount. On July 10, the trial court issued a scheduling order with a discovery cut-off date of October 10, 2012. Summary judgment motions were to be filed by October 31, 2012, with responses by November 21, 2012, and replies by November 28, 2012. At the time, Mark had still not conducted any discovery with regard to either the Bank's claims or his counterclaim.

(¶ 6} On October 31, 2012, Mark filed responses to the Bank's request for admissions. Mark, however, never responded to the Bank's interrogatories. Mark continued to forego discovery with regard to either the Bank's claims or his counterclaim. In fact, Mark never conducted any discovery during the entire pendency of the case. On October 31, 2012, the Bank moved for summary judgment and default judgment.

(¶ 7} On November 26, 2012, Mark filed a memorandum opposing the Bank's motion for summary judgment. Mark also filed a Civ.R. 56(F) motion for additional time to conduct discovery as it "may raise issues of fact" that would preclude summary judgment. Mark asserted that (1) he had never been provided with a copy of the "Credit File Documents, " (2) in order to "completely address" the Bank's motion for summary judgment, it was necessary to "obtain appropriate documents and discovery from Plaintiff and depose Plaintiff's representatives and witnesses, " (3) "a legal argument need[ed] to be explored as to whether or not [Mark] was a minority shareholder in [the Bank], " (4) he was in the process of applying for a loan modification for a third time, (5) "[f]or these reasons, [he had] been of the understanding that discovery and other proceedings were better suspended while attempting to reach [an] agreement" with the Bank, and (6) the motion for summary judgment "should be overruled because it unreasonably denies [him] a pretrial opportunity to fully prepare his case for litigation."

(¶ 8} The Bank filed a reply to Mark's memorandum. On December 14, 2012, with leave of court, Mark filed a supplemental memorandum opposing the Bank's motion for summary judgment and a second Civ.R. 56(F) motion for continuance. Mark asserted (1) he was the victim of subprime lending practices by Countrywide, (2) he needed to "obtain the loan origination and closing documents" and "cross-examine the Plaintiff's loan officers (whose identity was unknown to him) regarding Countrywide's practices, " (3) up until then, he had concentrated his efforts and finances in trying to obtain a loan modification, (4) however, his efforts had failed and he was "in need of additional time to now apply his efforts and finances to discover evidence of the fraud and predatory lending practices of Plaintiff's predecessor in interest, Countrywide, " and (5) he was asking for an opportunity to obtain the loan documents "so that he may review these documents and supplement his response" to the Bank's motion for summary judgment.

(¶ 9} Mark filed an affidavit in support of his supplemental memorandum as well as an affidavit in support of his Civ.R. 56(F) motion. The latter states:

The reason I have, up until now, directed my attorneys not to pursue discovery from Bank of America of my loan documents * * * together with depositional testimony, is that I have very limited resources from which to save for any lump sum payment required of me by Bank of America for a loan modification. So far, it has been my understanding that once loan modification is approved, I will have to provide a substantial payment, possibly up to 50%, on my mortgage arrears, which are estimated to be in excess of $90, 000.00. In hopes that I would be able to save enough money to satisfy Bank of America's demand and modify my loan, I have not been willing to expend those resources for attorney fees and other costs of taking depositions of Bank of America's employees. I believe these documents will establish the predatory and fraudulent practices of Countrywide, in support of counterclaim for damages and my defense based on failure of ...

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