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Ocwen Loan Servicing, LLC v. Van

Court of Appeals of Ohio, Eleventh District, Lake

June 3, 2019

OCWEN LOAN SERVICING, LLC, Plaintiff-Appellee,
v.
MICHAEL R. VAN, et al., Defendants-Appellants.

          Civil Appeal from the Lake County Court of Common Pleas, Case No. 2016 CF 001034.

          Brooke Turner Bautista, McGlinchey Stafford, (For Plaintiff-Appellee).

          Brian H. Meister, 23951 Lakeshore Boulevard, (For Defendants-Appellants).

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} 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 affirm.

         {¶2} 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.

         {¶3} 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 date.

         {¶4} 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 appeal.

         {¶5} 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.

         {¶6} 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:

         {¶7} "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."

         {¶8} 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, 2011-Ohio-5439, ¶27.

         {¶9} "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.

         {¶10} "[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 ...


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