from Union County Common Pleas Court Trial Court No.
M. Broyles for Appellant
Mueller and Laura C. Infante for Appellee, Ditech Financial,
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.
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.
and Procedural History
Ditech filed a complaint in foreclosure on June 21, 2016,
that named Keith Akers ("Keith") 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.
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.
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,
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.
Teresa filed notice of appeal on February 1, 2018. Doc. 81.
On appeal, appellant raises the following assignment of
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.
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
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 ...