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The Huntington Bank v. Popovec

Court of Appeals of Ohio, Seventh District

September 23, 2013

THE HUNTINGTON BANK SUCCESSOR BY MERGER WITH SKY BANK, PLAINTIFF-APPELLEE,
v.
DAVID B. POPOVEC, et al., DEFENDANTS-APPELLANT.

Civil Appeal from Common Pleas Court, Case No. 08 CV 1014.

For Plaintiff-Appellee: Attorney Eric Deighton Carlisle, McNellie, Rini, Kramer & Ulrich Co., LPA.

For Defendants-Appellant: Attorney Bruce Broyles.

JUDGES Hon. Mary DeGenaro, Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite.

OPINION

DeGenaro, P.J.

(¶1} Defendants-Appellant, Eva Popovec, appeals the June 6, 2012 judgment of the Mahoning County Court of Common Pleas granting summary judgment in favor of Plaintiff-Appellee, The Huntington National Bank, in a foreclosure action. On appeal, Popovec asserts that summary judgment was improper because she presented evidence demonstrating that Huntington failed to meet a condition precedent to foreclosure, namely that it failed to provide proper notice of default and acceleration, pursuant to the note and mortgage. Huntington counters that Popovec was precluded from contesting the validity of Huntington's notice because she failed to file an answer.

(¶2} Upon review, Huntington is correct and Popovec's assignment of error is meritless. Popovec failed to file an answer in this case and thus has failed to specifically deny Huntington's compliance with the notice provision, pursuant to Civ.R. 9(C). Thus, Huntington's performance of this condition precedent is deemed admitted, and Popovec was barred from later contesting the propriety of Huntington's notice in her brief in opposition to Huntington's motion for summary judgment, and consequently, now on appeal. Accordingly, the judgment of the trial court is affirmed.

Facts and Procedural History

(¶3} On October 3, 2003, Popovec, along with her then-husband David executed and delivered a promissory note to Sky Bank. The note was secured by a mortgage on property located at 6405 Farmington Circle in Canfield. Huntington is Sky Bank's successor by merger.

(¶4} On March 12, 2008, Huntington filed a complaint for foreclosure, naming, among others, Popovec as a defendant and asserting that Popovec had defaulted on the Note and owed $182, 642.82 plus interest. In the Complaint, Huntington generally pled that it had satisfied all conditions precedent to filing the foreclosure action. Popovec was properly served with the summons and complaint.

(¶5} After no answer was filed, Huntington filed a motion for default judgment which was granted by the trial court on June 19, 2008. Therein the trial court noted that Popovec had filed for bankruptcy, listing Huntington's claim, and that as a result no money judgment could be entered against Popovec.

(¶6} The initial order of sale was recalled. On June 3, 2011, just before the property was again set to be sold at sheriffs sale, Popovec filed a motion to vacate the default judgment. The trial court stayed the sale pending ruling on the motion. As her meritorious defense in her 60(B) motion, Popovec alleged that Huntington was not the real party in interest. She asked the trial court to vacate the June 19, 2008 order granting default judgment under Civ.R. 60(B)(5), the so-called "catch-all" provision, and sought leave to file an answer setting forth her meritorious defense. Huntington filed a brief in opposition and Popovec replied, alleging additionally that since Huntington was merely a servicer and not the real party in interest that it could not have provided Popovec notice of default pursuant to the terms of the promissory note.

(¶7} On October 27, 2011, the magistrate issued a decision granting Popovec's 60(B) motion to afford her "the opportunity to present her meritorious defense(s)."

(¶8} When five months went by and Popovec had still not filed an answer or responsive pleading, Huntington filed a motion for summary judgment. It alleged that there was no genuine issue of material fact: Popovec defaulted on the note and mortgage by failing to pay; and Huntington properly exercised its option to accelerate the unpaid balance of the note and proceed with foreclosure. Attached to its motion for summary judgment were the affidavit of Clair Turk, an authorized signer for Huntington, the acceleration and ...


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