Bank of Am., N.A. v. Mark , 2013 Ohio 3575 ( 2013 )


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  • [Cite as Bank of Am., N.A. v. Mark, 
    2013-Ohio-3575
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    BUTLER COUNTY
    BANK OF AMERICA, N.A.,                                 :
    CASE NO. CA2013-01-012
    Plaintiff-Appellee,                            :
    OPINION
    :         8/19/2013
    - vs -
    :
    DAVID J. MARK,                                         :
    Defendant-Appellant.                           :
    CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
    Case No. CV2010-05-2042
    Manley Deas Kochalski LLC, Edward H. Cahill, P.O. Box 165028, Columbus, Ohio 43216, for
    plaintiff-appellee
    Charles H. Bartlett, Jr., 917 Main Street, Suite 300, Cincinnati, Ohio 45202, for defendant-
    appellant
    M. POWELL, J.
    {¶ 1} Defendant-appellant, David Mark, appeals a decision of the Butler County Court
    of Common Pleas denying his motion for a continuance and granting summary judgment in
    favor of plaintiff-appellee, Bank of America, N.A., in a foreclosure action.
    {¶ 2} On May 10, 2010, U.S. Bank, N.A. filed a foreclosure complaint against Mark.
    Mark timely filed an answer generally denying each of U.S. Bank's allegations, and a
    Butler CA2013-01-012
    counterclaim. Identifying U.S. Bank as the "successor in interest" to Countrywide Bank, Mark
    alleged that Countrywide induced him to refinance his original mortgage to his detriment,
    "thereby breaching its fiduciary duties to [Mark], committing fraud in the inducement, and
    deriving unconscionable profits and fees to Countrywide[.]" U.S. Bank timely filed a reply to
    the counterclaim. Mark did not seek discovery regarding either U.S. Bank's claims or his
    counterclaim at this time.
    {¶ 3} Over the next several months, the parties attempted to reach a loan
    modification; the trial court held status reports to monitor the progress of the case. However,
    the parties' efforts proved to be unsuccessful.
    {¶ 4} On February 3, 2012, U.S. Bank served its First Set of Interrogatories, Request
    for Admissions, and Request for Production of Documents on Mark. On February 22, the
    trial court substituted "Bank of America, N.A., Successor by Merger to BAC Home Loans
    Servicing, LP fka Countrywide Home Loans Servicing, LP" (the "Bank") as the plaintiff. On
    June 20, counsel for Mark filed a Notice of Disqualification. Six days later, new counsel
    entered an appearance on behalf of Mark.
    {¶ 5} On July 6, 2012, the trial court was informed that Mark was denied a loan
    modification because (1) he was $90,000 in arrears, (2) he needed $45,000 to buy down the
    arrears to secure a loan modification, and (3) he had not been escrowing a sufficient amount
    of the mortgage payments over the past three years to reach that amount. On July 10, the
    trial court issued a scheduling order with a discovery cut-off date of October 10, 2012.
    Summary judgment motions were to be filed by October 31, 2012, with responses by
    November 21, 2012, and replies by November 28, 2012. At the time, Mark had still not
    conducted any discovery with regard to either the Bank's claims or his counterclaim.
    {¶ 6} On October 31, 2012, Mark filed responses to the Bank's request for
    admissions. Mark, however, never responded to the Bank's interrogatories. Mark continued
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    Butler CA2013-01-012
    to forego discovery with regard to either the Bank's claims or his counterclaim. In fact, Mark
    never conducted any discovery during the entire pendency of the case. On October 31,
    2012, the Bank moved for summary judgment and default judgment.
    {¶ 7} On November 26, 2012, Mark filed a memorandum opposing the Bank's motion
    for summary judgment. Mark also filed a Civ.R. 56(F) motion for additional time to conduct
    discovery as it "may raise issues of fact" that would preclude summary judgment. Mark
    asserted that (1) he had never been provided with a copy of the "Credit File Documents," (2)
    in order to "completely address" the Bank's motion for summary judgment, it was necessary
    to "obtain appropriate documents and discovery from Plaintiff and depose Plaintiff's
    representatives and witnesses," (3) "a legal argument need[ed] to be explored as to whether
    or not [Mark] was a minority shareholder in [the Bank]," (4) he was in the process of applying
    for a loan modification for a third time, (5) "[f]or these reasons, [he had] been of the
    understanding that discovery and other proceedings were better suspended while attempting
    to reach [an] agreement" with the Bank, and (6) the motion for summary judgment "should be
    overruled because it unreasonably denies [him] a pretrial opportunity to fully prepare his case
    for litigation."
    {¶ 8} The Bank filed a reply to Mark's memorandum. On December 14, 2012, with
    leave of court, Mark filed a supplemental memorandum opposing the Bank's motion for
    summary judgment and a second Civ.R. 56(F) motion for continuance. Mark asserted (1) he
    was the victim of subprime lending practices by Countrywide, (2) he needed to "obtain the
    loan origination and closing documents" and "cross-examine the Plaintiff's loan officers
    (whose identity was unknown to him) regarding Countrywide's practices," (3) up until then, he
    had concentrated his efforts and finances in trying to obtain a loan modification, (4) however,
    his efforts had failed and he was "in need of additional time to now apply his efforts and
    finances to discover evidence of the fraud and predatory lending practices of Plaintiff's
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    Butler CA2013-01-012
    predecessor in interest, Countrywide," and (5) he was asking for an opportunity to obtain the
    loan documents "so that he may review these documents and supplement his response" to
    the Bank's motion for summary judgment.
    {¶ 9} Mark filed an affidavit in support of his supplemental memorandum as well as
    an affidavit in support of his Civ.R. 56(F) motion. The latter states:
    The reason I have, up until now, directed my attorneys not to
    pursue discovery from Bank of America of my loan documents * *
    * together with depositional testimony, is that I have very limited
    resources from which to save for any lump sum payment
    required of me by Bank of America for a loan modification. So
    far, it has been my understanding that once loan modification is
    approved, I will have to provide a substantial payment, possibly
    up to 50%, on my mortgage arrears, which are estimated to be in
    excess of $90,000.00. In hopes that I would be able to save
    enough money to satisfy Bank of America's demand and modify
    my loan, I have not been willing to expend those resources for
    attorney fees and other costs of taking depositions of Bank of
    America's employees. I believe these documents will establish
    the predatory and fraudulent practices of Countrywide, in support
    of counterclaim for damages and my defense based on failure of
    consideration. * * * This will establish that I have been the victim
    of illegal lending practices, and that there is a genuine issue of
    material fact from which this Court can determine that I should
    obtain Judgment in my favor as a matter of law.
    {¶ 10} On December 21, 2012, the trial court denied Mark's Civ.R. 56(F) motion for
    additional time to conduct discovery, granted the Bank's motions for summary judgment and
    default judgment, entered a judgment in favor of the Bank in the amount of $156,165.85, and
    ordered the sale of the property. The trial court noted that Mark did not dispute the execution
    of the note and mortgage, or that he was in default. Rather, Mark argued there was a
    genuine issue of material fact as to whether he was fraudulently induced into refinancing his
    home. The trial court noted, however, that Mark's affidavit in support of his supplemental
    memorandum in opposition to the motion for summary judgment was self-serving. Further,
    Mark had failed to provide any "evidentiary quality material or specific facts required by
    [Civ.R.] 56(E) to demonstrate that summary judgment should be precluded."
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    Butler CA2013-01-012
    {¶ 11} Mark appeals, raising two assignments of error which will be considered
    together.
    {¶ 12} Assignment of Error No. 1:
    {¶ 13} THE TRIAL COURT ERRED IN DENYING APPELLANT'S CIVIL RULE 56(F)
    MOTION TO PERMIT APPELLANT ADDITIONAL TIME TO CONDUCT DISCOVERY.
    {¶ 14} Assignment of Error No. 2:
    {¶ 15} THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR
    SUMMARY JUDGMENT.
    {¶ 16} In his first assignment of error, Mark argues the trial court abused its discretion
    in denying his Civ.R. 56(F) motion. In his second assignment of error, Mark argues the trial
    court erred in granting summary judgment in favor of the Bank because it unreasonably
    denied him the opportunity to conduct discovery and show genuine issues of material fact
    exist.
    {¶ 17} Specifically, Mark asserts that (1) during the two and one-half years the case
    was pending, the parties were actively trying to reach a loan modification, and Mark was led
    to believe a loan modification was feasible, (2) as a result, Mark "was of the understanding
    that discovery and other proceedings were better suspended while attempting to reach [an]
    agreement," (3) "it was as if the case were in limbo and only just began in earnest when [the
    Bank] decided to file for Summary Judgment," (4) having unsuccessfully concentrated his
    efforts and finances in trying to obtain a loan modification, he was "in need of additional time
    to apply his efforts and finances to discover evidence of [Countrywide's] fraud and predatory
    lending practices," and (5) adequate time to conduct discovery was not available to him.
    {¶ 18} Civ.R. 56(F) provides:
    Should it appear from the affidavits of a party opposing the
    motion for summary judgment that the party cannot for sufficient
    reasons stated present by affidavit facts essential to justify the
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    Butler CA2013-01-012
    party's opposition, the court may refuse the application for
    judgment or may order a continuance to permit affidavits to be
    obtained or discovery to be had or may make such other order
    as is just.
    {¶ 19} Civ.R. 56(F) "affords a party a mechanism whereby it can seek deferral of
    action on a motion for summary judgment so that it may obtain affidavits opposing the motion
    or conduct discovery relevant to it." Gates Mills Invest. Co. v. Pepper Pike, 
    59 Ohio App.2d 155
    , 168-169 (8th Dist.1978). A motion for a continuance to conduct discovery under Civ.R.
    56(F) "'must be supported by a proper affidavit. Mere allegations requesting a continuance
    or deferral of action for the purpose of discovery are not sufficient reasons why a party
    cannot present affidavits in opposition to the motion for summary judgment. Instead, the
    party seeking the Civ.R. 56(F) continuance must state a factual basis and reasons why the
    party cannot present sufficient documentary evidence without a continuance.'" Silver v.
    Jewish Home of Cincinnati, 
    190 Ohio App.3d 549
    , 
    2010-Ohio-5314
    , ¶ 20 (12th Dist.), quoting
    St. Joseph's Hosp. v. Hoyt, 4th Dist. Washington App. No. 04CA20, 
    2005-Ohio-480
    , ¶ 24.
    "Simply requesting a continuance in order to conduct discovery is not a sufficient explanation
    for why a party cannot present affidavits in opposition to the motion for summary judgment."
    Perpetual Fed. Sav. Bank v. TDS2 Property Mgt., L.L.C., 10th Dist. Franklin No. 09AP-285,
    
    2009-Ohio-6774
    , ¶ 13.
    {¶ 20} "A party who seeks a continuance for further discovery is not required to specify
    what facts he hopes to discover, especially where the facts are in the control of the party
    moving for summary judgment. However, the court must be convinced that there is a
    likelihood of discovering some such facts." Bank of Am. v. McGlothin, 2d Dist. Clark No.
    2012 CA 96, 
    2013-Ohio-2755
    , ¶ 15. Lack of diligence in pursuing discovery by the party
    moving under Civ.R. 56(F) militates against grant of a delay and undermines that party's
    claim that sufficient reasons exist for a Civ.R. 56(F) continuance. Internatl. Bhd. of Electrical
    -6-
    Butler CA2013-01-012
    Workers, Loc. Union No. 575 v. Settle-Muter Elec., Ltd., 12th Dist. Fayette No. CA2012-02-
    003, 
    2012-Ohio-4524
    , ¶ 37; Doriott v. M.V.H.E., Inc., 2d Dist. Montgomery No. 20040, 2004-
    Ohio-867, ¶ 47. The bare assertion that supporting evidence is in the hands of the other
    party is insufficient to warrant relief under Civ.R. 56(F).            Christian v. Beacon Journal
    Publishing Co., 9th Dist. Summit No. 11564, 
    1984 WL 5179
    , *1 (July 18, 1984).
    {¶ 21} A trial court maintains the discretion to manage the discovery process. Settle-
    Muter, 
    2012-Ohio-4524
     at ¶ 38. Granting a continuance under Civ.R. 56(F) is within the
    discretion of the trial court and is not mandatory. 
    Id.
     Therefore, an appellate court will not
    reverse a trial court's decision regarding the discovery process absent an abuse of discretion.
    
    Id.
    {¶ 22} The trial court denied Mark's Civ.R. 56(F) motion on the grounds Mark
    "voluntarily ignored" the discovery deadline in the scheduling order, and "that to extend
    discovery for [Mark] less than one month before trial for the sole purpose of determining
    whether a defense or claim exists for [Mark] would be prejudicial to the [Bank]."1 The trial
    court also found that (1) Mark's insistence he was denied an opportunity to fully defend his
    claim was disingenuous, (2) Mark, who was legally represented throughout the case, had
    ample time to conduct discovery and amend his answer as litigation had been ongoing for
    two and one-half years, (3) Mark had indications throughout the process that a loan
    modification was not certain, and (4) yet, after the scheduling order was issued and the
    parties were informed the matter was going to trial in about six months, Mark chose not to
    conduct any discovery and instead chose to continue working toward a loan modification.
    {¶ 23} Based upon the facts of this case, the trial court did not abuse its discretion in
    denying Mark's Civ.R. 56(F) motion. As noted earlier, Mark failed to conduct any discovery
    1. A bench trial was scheduled for January 8, 2013. Mark filed a Civ.R. 56(F) motion on November 26, 2012
    and again on December 14, 2012.
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    Butler CA2013-01-012
    during the entire pendency of this case. Further, Mark did not move the trial court to stay
    discovery while negotiations regarding loan modification were ongoing, and never sought an
    extension of the discovery deadlines.2 Rather, Mark deliberately chose to forego any
    discovery and instead, chose to solely focus on trying to get a loan modification. However,
    as the trial court found, Mark had "indications throughout the process that a loan modification
    was not certain."
    In fact, [Mark] knew as early as August 30, 2011 when [the Bank]
    informed him that it may not be able to offer a loan modification
    as the arrears were excessive. The [Bank's] file was placed on
    hold to allow consideration of [Mark's] application for a loan
    modification and [Mark] was advised to save his mortgage
    payments for a lump sum good faith payment. On February 23,
    2012, [Mark] was denied a loan modification due to his income
    not being sufficient. At that time, [Mark] was informed that [the
    Bank] would consider attempts at loan modification, but that [the
    Bank] was proceeding with its file towards judgment.
    Furthermore, [the Bank's] intentions clearly were to proceed to
    judgment as [it] propounded discovery to [Mark] in February
    2012. On June 26, 2012, [Mark] was notified of a second denial
    of loan modification. At that time, a Case Scheduling Order was
    issued and the parties were informed that this matter was going
    to trial in approximately six months. No discovery efforts were
    made by [Mark] thereafter. Instead, [Mark] chose to continue to
    work towards a loan modification.
    {¶ 24} Contrary to Mark's assertion, this is not a case where a party was denied a
    meaningful opportunity to fully prepare his case and assert his defenses and counterclaims.
    Rather, the predicament in which Mark found himself was of his own doing. A party involved
    in litigation cannot sit on his hands and ignore the proceedings only to later claim an unfair
    disadvantage. See Jenkins v. Jenkins, 12th Dist. Butler No. CA2010-09-238, 
    2012-Ohio-48
    ;
    PHH Mtge. Corp. v. Northrup, 4th Dist. Pickaway No. 11CA6, 
    2011-Ohio-6814
    . Even if Mark
    was involved in negotiations toward a loan modification, he was still under an obligation to
    2. We also note that Mark failed to give the trial court a specific time frame for the completion of discovery nor
    presented a detailed assessment of what the depositions of still unknown loan officers would reveal.
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    Butler CA2013-01-012
    properly attend to his legal affairs.
    {¶ 25} "The tools and devices of discovery are more than options and opportunities."
    Southern Rambler Sales, Inc. v. Am. Motors Corp., 
    375 F.2d 932
    , 937 (5th Cir.1967). As the
    Second Appellate District noted in Doriott, "Civ.R. 56(C) imposes burdens on non-moving
    parties which they ignore at their peril." Doriott, 
    2004-Ohio-867
     at ¶ 50. While the rule does
    not provide for sanctions, "a non-moving party who fails to preserve a genuine issue of
    material fact risks a merit judgment in favor of the movant. The same applies to a Civ.R.
    56(F) motion." 
    Id.
     Where the party seeking the continuance has not undertaken any
    discovery since an action was filed, and ample time to do that has passed, the party's own
    lack of diligence undermines any claim that the Civ.R. 56(F) motion should be granted. Id. at
    ¶ 47, 50; Settle-Muter, 
    2012-Ohio-4524
     (a party's lack of diligence weighs against the
    granting of a Civ.R. 56(F) continuance).
    {¶ 26} In light of the foregoing, we find the trial court did not err in denying Mark's
    Civ.R. 56(F) motion for additional time to conduct discovery. Because Mark challenged the
    grant of summary judgment in favor of the Bank solely on the ground he was unreasonably
    denied the opportunity to conduct discovery, we likewise find the trial court did not err in
    granting summary judgment in favor of the Bank. Mark's first and second assignments of
    error are overruled.
    {¶ 27} Judgment affirmed.
    S. POWELL, P.J., and PIPER, J., concur.
    -9-
    

Document Info

Docket Number: CA2013-01-012

Citation Numbers: 2013 Ohio 3575

Judges: M. Powell

Filed Date: 8/19/2013

Precedential Status: Precedential

Modified Date: 10/30/2014