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Bayview Loan Servicing L.L.C. v. St. Cyr

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 11, 2017

BAYVIEW LOAN SERVICING L.L.C., PLAINTIFF-APPELLEE
v.
DARWIN ST. CYR, ET AL., DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-848614.

          ATTORNEY FOR APPELLANTS Ivan G. Haggins

          ATTORNEYS FOR APPELLEE For Bayview Loan Servicing, L.L.C. Ted A. Humbert Laura C. Infante Jason A. Whitacre Law Offices of John D. Clunk Co. L.P.A. For City of Cleveland Heights Sara M. Donnersbach Weltman Weinberg & Reis Co., L.P.A. ALSO LISTED: Dollar Bank, F.S.B.

          BEFORE: McCormack, P.J., Blackmon, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, PRESIDING JUDGE

         {¶1} Defendant-appellant Darwin St. Cyr appeals from a judgment of the Cuyahoga County Court of Common Pleas granting foreclosure in favor of plaintiff-appellee Bayview Loan Servicing, L.L.C. ("Bayview"). For the following reasons, we affirm.

         Procedural History and Substantive Facts

         {¶2} In June 2008, St. Cyr purchased a home in Cleveland, Ohio. He executed a promissory note in the amount of $106, 575. The note was secured by a mortgage against this property, executed in favor of Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Taylor, Bean & Whitaker Mortgage Corp. and its successors and assigns. In May 2010, MERS assigned the mortgage to BAC Home Loans Servicing, L.P., f.k.a., Countrywide Home Loans Servicing, L.P. In March 2014, Bank of America, N.A., successor by merger to BAC Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P., assigned the mortgage to the Secretary of Housing and Urban Development ("HUD"). Thereafter, in April 2014, HUD assigned the mortgage to appellee, Bayview, who was the current loan servicer at the time this action was filed.

         {¶3} In July 2015, Bayview filed its complaint in foreclosure, seeking judgment on the note and foreclosure of the mortgage. Bayview alleged that it was entitled to enforce the note, it was in possession of the note, and it was the record holder of the mortgage at the time it filed the complaint. Bayview further alleged that St. Cyr's loan account had fallen into default and St. Cyr had not cured the default, which resulted in the acceleration of the note and mortgage. Bayview stated that it was therefore entitled to foreclosure.

         {¶4} When St. Cyr did not answer the complaint, Bayview moved for default judgment. At the default judgment hearing, however, St. Cyr filed a motion for leave to file an answer instanter, which the trial court granted. Thereafter, upon the court's instructions, Bayview provided St. Cyr with a loss mitigation packet and trial payment plan offer. St. Cyr rejected Bayview's offer and requested a case management conference be scheduled. The court granted St. Cyr's motion for a case management conference and ordered all discovery to be completed by April 18, 2016, and all dispositive motions due by May 2, 2016.

         {¶5} On February 29, 2016, St. Cyr served upon Bayview a request for admissions, among other discovery requests. On April 15, 2016, Bayview filed its first notice of service of discovery. On April 18, 2016, Bayview filed a "combined motion to amend case management schedule and motion for extension to respond" to St. Cyr's discovery requests. St. Cyr, however, filed a brief in opposition to this motion. Both motions were denied on April 20, 2016, and with this order, the court indicated that all "nonexpert discovery is now closed." On April 21 and April 25, Bayview filed notices of service of discovery responses. Bayview filed a notice of service of supplemental discovery responses on May 9, 2016.

         {¶6} After discovery was complete, St. Cyr moved for summary judgment, alleging, essentially, that because Bayview failed to timely respond to St. Cyr's discovery requests, Bayview admitted to certain facts and these facts establish that no genuine issues of material fact exist and he was therefore entitled to judgment as a matter of law. Bayview then filed its own motion for summary judgment, a motion for default judgment, and a brief in opposition to St. Cyr's motion for summary judgment. Along with its reply brief in support of its summary judgment, Bayview moved the court to "withdraw deemed admissions or for the court to rule that the same were not admitted and allow responses [the] plaintiff provided."

         {¶7} On June 6, 2016, the trial court granted Bayview's motion for summary judgment and motion for default judgment, and it denied St. Cyr's motion. The trial court issued a supplemental journal entry on June 13, 2016. St. Cyr now appeals, assigning two errors for our review:

I. The trial court erred in granting Bayview's motion for summary judgment and in denying St. Cyr's motion for summary judgment, particularly given the deemed admissions by Bayview.
II. The trial court erred in granting Bayview's motion for summary judgment and in denying St. Cyr's motion for summary judgment, as Bayview failed to provide sufficient evidence of entitlement to foreclosure and/or damages.

         Summary Judgment

         {¶8} Summary judgment is appropriate when: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

         {¶9} In a motion for summary judgment, the moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). Once a moving party satisfies its burden under Civ.R. 56(C), the nonmoving party may not rest upon the mere allegations or denials of the moving party's pleadings; rather, it has a reciprocal burden of setting forth specific facts demonstrating that there is a genuine triable issue. Id; State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996). Summary judgment is appropriate if the nonmoving party fails to meet this burden. Dresher at 293.

         {¶10} A motion for summary judgment in a foreclosure action must be supported by evidentiary quality materials establishing that: (1) the plaintiff is the holder of the note and mortgage or is a party entitled to enforce the instrument; (2) if the plaintiff bank is not the original mortgagee, the chain of assignments and transfers; (3) that the mortgagor is in default; (4) that all conditions precedent have been met; and (5) the amount of principal and interest due. See, e.g., Deutsche Bank Natl. Trust Co. v. Najar, 8th ...


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