Bayview Loan Servicing, L.L.C. v. St. Cyr

[Cite as Bayview Loan Servicing, L.L.C. v. St. Cyr, 2017-Ohio-2758.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104655

BAYVIEW LOAN SERVICING L.L.C.

PLAINTIFF-APPELLEE vs.

DARWIN ST. CYR, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-15-848614 BEFORE: McCormack, P.J., Blackmon, J., and Jones, J. RELEASED AND JOURNALIZED: May 11, 2017

ATTORNEY FOR APPELLANTS

Ivan G. Haggins 3363 Chelsea Drive Cleveland Heights, OH 44118

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. 4500 Courthouse Blvd., Ste. 400 Stow, OH 44224

For City of Cleveland Heights

Sara M. Donnersbach Weltman Weinberg & Reis Co., L.P.A. Lakeside Place, Ste. 200 323 Lakeside Ave., West Cleveland, OH 44113

ALSO LISTED:

Dollar Bank, F.S.B. 3 Gateway Center 401 Liberty Ave. Pittsburgh, PA 15222

State of Ohio Department of Taxation 150 East Gay Street, 21st Floor Columbus, OH 43215

Samantha Elizabeth Thorpe 2111 Miramar Blvd. Cleveland, OH 44121

TIM McCORMACK, P.J.:

{?1}

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.

Procedural History and Substantive Facts

{?2} 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.

{?3} 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.

{?4} 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.

{?5} 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.

{?6} 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] plaintiff provided."

{?7} 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 Bayview.

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 {?8} 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 267 (1977). {?9} 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. {?10} 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 Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ? 17; Bank of Am., N.A. v. Sweeney, 8th Dist. Cuyahoga No. 100154, 2014-Ohio-1241, ? 8.

{?11} We review the trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Law and Analysis {?12} As the arguments overlap, we address the assignments of error together. St. Cyr contends that the trial court erred when it denied his motion for summary judgment and granted Bayview's motion for summary judgment because Bayview admitted it had no legal interest in the note or the mortgage by virtue of failing to timely respond to St. Cyr's request for admissions. In support, St. Cyr attached to his motion the request for admissions propounded to Bayview, which called upon the plaintiff to admit, among other statements, that it has no "legal interest, a beneficial interest, or any other interest in the mortgage or note" (Request No. 1); it has no documents demonstrating "the note was physically transferred to the plaintiff before commencement of the instant matter" (Request No. 9); the plaintiff "was not the party who entered and maintained MERS records" (Request No. 10); and the original lender, Taylor, Bean & Whitaker "had no right to assign any purported interest in the property, note, mortgage, or otherwise" (Request No. 15). {?13} St. Cyr also contends that even if the requests were not deemed admitted, there were no genuine issues of material fact and he was entitled to judgment as a matter

of law. In support, he advances the following arguments: (1) Bayview's affidavit in support of summary judgment was insufficient; and (2) Bayview failed to provide sufficient evidence that it was a real party in interest, it had standing, it was entitled to foreclosure on the property, and it was entitled to damages in the amount of $104,717.43 with interest from January 1, 2010.

{?14} We first address St. Cyr's request for admissions propounded to Bayview. St. Cyr alleges that because Bayview's discovery responses were served upon him three weeks or more past the discovery deadline, the responses must be deemed admitted and, therefore, he is entitled to judgment as a matter of law. In response, Bayview provides that, given the voluminous nature of the discovery requests, it required additional time in which to respond, and on March 24, 2016, it requested and received approval from St. Cyr's counsel to extend the time to file its discovery responses until April 18, 2016. On April 18, Bayview requested another extension and it received approval from defense counsel to extend the time until May 9, 2016. Bayview further states that after it received defense counsel's consent, St. Cyr withdrew its consent that same day via an after-hours email from defense counsel. Bayview learned that its motion for extension had been denied on April 20, and it served its response to the defendant's first set of admissions the following day. Bayview served supplemental discovery responses (to a request for production of documents) that included a new payoff quote on May 9, 2016.

{?15} It is well settled in Ohio that in accordance with Civ.R. 36(A), "`the matter set forth in the requests for admissions is deemed admitted if they are not answered within

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download