Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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
McCORMACK, PRESIDING JUDGE
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.
History and Substantive Facts
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.
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.
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.
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.
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]
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
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 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
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.
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 ...