Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ditech Financial, LLC. v. Akers

Court of Appeals of Ohio, Third District, Union

July 23, 2018

DITECH FINANCIAL, LLC, PLAINTIFF-APPELLEE,
v.
KEITH AKERS, ET AL., DEFENDANTS-APPELLEES, and TERESA AKERS, DEFENDANT-APPELLANT.

          Appeal from Union County Common Pleas Court Trial Court No. 2016-CV-0150

          Bruce M. Broyles for Appellant

          Ashley Mueller and Laura C. Infante for Appellee, Ditech Financial, LLC.

          OPINION

          WILLAMOWSKI, P.J.

         {¶1} Although originally placed on our accelerated calendar, we have elected pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary judgment entry.

         {¶2} Defendant-appellant Teresa Akers ("Teresa") appeals the judgment of the Union County Court of Common Pleas for granting Ditech Financial L.L.C.'s ("Ditech") motion for summary judgment. For the reasons set forth below, the judgment of the trial court is affirmed.

         Facts and Procedural History

         {¶3} Ditech filed a complaint in foreclosure on June 21, 2016, that named Keith Akers ("Keith")[1] and Teresa Akers (collectively "the Akers") as defendants. Doc. 2. The complaint alleged that the Akers had defaulted on a note that was secured by real property. Doc. 2. On August 19, 2016, the Akers filed an answer that listed several assertions as affirmative defenses. One of the affirmative defenses that the Akers listed was the claim that Ditech had not complied with the requirements of 12 C.F.R. 1024, Subpart C, § 1024.41 ("12 C.F.R. § 1024.41"), which governs certain loss mitigation procedures. Doc. 29. 12 C.F.R. § 1024.41.

         {¶4} On February 6, 2017, Ditech filed a motion for summary judgment, alleging that 12 C.F.R. § 1024.41 did not apply. In this motion, Ditech alleged that the Akers had not triggered the protections of this provision because they had not submitted a complete loan modification application. Doc. 51. On April 5, 2017, the Akers' attorney filed a motion that requested an extension of time to submit a response to Ditech's motion for summary judgment. Doc. 59. This motion was submitted with a proposed memorandum ("proposed memorandum") attached but did not include any references to facts in the record or additional evidentiary materials. Doc. 59.

         {¶5} In this proposed memorandum, the Akers suggested what arguments the trial court could anticipate in a future response to Ditech's motion for summary judgment if the extension the Akers requested was granted. Doc. 59. On April 10, 2017, the trial court issued a stay order that removed this case from the active docket for thirty days, [2] but the Akers never submitted a response to Ditech's motion for summary judgment. Doc. 61. On January 4, 2018, the trial court granted Ditech's motion for summary judgment and entered a decree of foreclosure. Doc. 75.

         Assignment of Error

         {¶6} Teresa filed notice of appeal on February 1, 2018. Doc. 81. On appeal, appellant raises the following assignment of error:

The trial court erred in granting judgment when there were genuine issues of material fact that remained in dispute regarding whether the Bank complied with conditions precedent after Appellant had put the Bank's compliance with 12 CFR 1024 Subpart C, § 1024.41 at issue.

         Specifically, Teresa argues on appeal that 12 C.F.R. § 1024.41 is a condition precedent to foreclosure and that Ditech has not demonstrated compliance with this provision. She asserts that she put the satisfaction of this condition precedent at issue in this case, making the grant of summary judgment inappropriate.

         Legal Standard

         {¶7} Appellate courts consider a summary judgment order under a de novo standard of review. Eber Beverage Co. v. Labatt USA Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9. "[B]ecause summary judgment is a procedural device to terminate litigation, it must be awarded with caution." Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992). On review, "[t]he nonmoving party * * * receives the benefit of all favorable inferences when evidence is reviewed for the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.