Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
2016 CF 001034.
Turner Bautista, McGlinchey Stafford, (For
H. Meister, 23951 Lakeshore Boulevard, (For
CYNTHIA WESTCOTT RICE, J.
Appellants, Michael R. Van and Theresa L. Van ("the
Vans"), appeal the January 17, 2018 Judgment of the Lake
County Court of Common Pleas granting summary judgment in
favor of appellee, Ocwen Loan Serving, LLC
("Ocwen"). For the reasons set forth herein, we
In June 2016, Ocwen initiated the underlying action for
foreclosure against the Vans seeking to foreclose the
owners' rights of redemption in certain property in
Mentor, Ohio. The court referred the case to mediation, which
ultimately proved unsuccessful. Ocwen filed a motion to
remove the case from mediation and reinstate the case to the
active docket and, two months later, filed motions for
default judgment and summary judgment.
On September 1, 2017, the court issued an order returning the
case to the active docket, which stated, in pertinent part,
"[opposition to the pending motion for summary judgment
is due by 9/18/19." The "9" in "19"
is then written over by hand with blue ink turning
"9/18/19" into "9/18/17". Next to the
corrected date is an initial, also handwritten in blue ink.
The docket indicates the correct "9/18/17" due
On September 18, 2017, the Vans filed a "Motion for
Additional Time to Respond to Summary Judgment Motion No
Objection by Opposing Counsel," which acknowledges
"[t]he present due date of the Brief is September 18,
2017" and requests a 14 day extension. The court granted
this extension through October 6, 2017, but the Vans failed
to file a response. Therefore, on January 17, 2018, the court
granted both of Ocwen's unopposed motions for default
judgment and summary judgment. The Vans filed the instant
Four days after filing the notice of appeal, the Vans filed a
"Motion for Relief from Judgment 60(B) and for Vacation
of Judgment" in the trial court, which cited no case
law, statute, rule, nor did the motion engage in any legal
analysis. This court remanded the case to allow the trial
court to rule on the pending motion. The court denied the
Vans' motion on May 8, 2018.
This court then granted the Vans' four motions for
extension of time to file their brief supporting their appeal
of the January 17, 2018 judgment entry, but at the end of the
extension period the Vans had not filed an appellants'
brief. A Magistrate's Order issued September 25, 2018,
directed the Vans to file, within 14 days, a merit brief or
show cause as to why their appeal should not be dismissed for
failure to prosecute. On October 9, 2018, the Vans filed
their brief assigning one assignment of error for our review:
"It is reversible error to refuse filing of a summary
judgment response when the court has inadvertently given a
date a year later than intended."
An appellate court reviews a trial court's decision to
grant summary judgment de novo. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105 (1996). "A de novo
review requires the appellate court to conduct an independent
review of the evidence before the trial court without
deference to the trial court's decision." Peer
v. Sayers, 11th Dist. Trumbull No. 2011-T-0014,
"In order to obtain summary judgment, the movant must
show that (1) there is no genuine issue of material fact; (2)
the moving party is entitled to judgment as a matter of law;
and (3) it appears from the evidence that reasonable minds
can come to but one conclusion when viewing evidence in favor
of the nonmoving party, and that conclusion is adverse to the
nonmoving party." Grafton, supra, at 245.
"[T]he moving party bears the initial burden of
demonstrating that there are no genuine issues of material
fact concerning an essential element of the opponent's
case," by pointing to evidentiary materials of the type
listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio
St.3d 280, 292 (1996). If the movant fails to meet this
initial burden, the motion for summary judgment must be
denied. If, however, this initial burden is met, the
nonmoving party "must set forth specific facts showing
that there is a ...