Ettayem v. H.E.R., L.L.C. , 2020 Ohio 4647 ( 2020 )

[Cite as Ettayem v. H.E.R., L.L.C., 2020-Ohio-4647.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ASHRAF A. ETTAYEM : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 19 CAE 12 0070
:
H.E.R., LLC, ET AL. :
:
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, Case No. 18 CV H
12 0690
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 28, 2020
APPEARANCES:
For Plaintiff-Appellant: For Defendants-Appellees:
ASHRAF A. ETTAYEM, PRO SE MARK R. METERKO
1195 BREAKERS COURT 1650 LAKE SHORE DRIVE, SUITE 150
WESTERVILLE, OHIO 43082 COLUMBUS, OHIO 43204
NATHAN H. BLASKE
SHANNON O’CONNELL EGAN
255 EAST FIFTH STREET, SUITE 1900
CINCINNATI, OHIO 45202
Delaware County, Case No. 19 CAE 12 0070 2
Delaney, J.
{¶1} Appellant Ashraf Ettayem, pro se, appeals the May 15, 2019 and November
27, 2019 judgment entries of the Delaware County Court of Common Pleas in this
foreclosure-related action concerning household furnishings.
FACTS AND PROCEDURAL HISTORY
{¶2} On December 29, 2004, Ettayem executed a Promissory Note in favor of
America’s Wholesale Lender and both he and his wife Natasha Ettayem executed a
Mortgage in favor of Mortgage Electronic Registration Systems, Inc., solely as nominee
for America’s Wholesale Lender for $472,000.00. The Mortgage was subsequently
assigned to Appellee The Bank of New York Mellon, as Trustee for the Certificate holders
of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-1, Mortgage Pass-Through
Certificates, Series 2001-1 (BONYM) (fka The Bank of New York) in May 2012
{¶3} On September 19, 2012, BONYM filed a complaint in foreclosure in the
Delaware County Court of Common Pleas. Ultimately on March 6, 2014, a final Order
granting BONYM judgment on the Note and decree in foreclosure was issued. Ettayem
appealed the order and this Court affirmed on October 8, 2014. The Bank of New York
Mellon, fka The Bank of New York, as Trustee, v. Ettayem, et al., 5th Dist. Delaware No.
15 CAE 01 0006, 2015-Ohio-4157.
{¶4} A Notice of Sheriff Sale was posted on July 28, 2014. On August 8, 2014,
Ettayem filed an emergency motion to stay the judgment for foreclosure and the sheriff’s
sale. On August 12, 2014, the trial court granted the motion to stay, but ordered the stay
was not effective until Ettayem posted a supersedeas bond. Ettayem did not post the
bond.
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{¶5} The real property was sold at sheriff’s sale to BONYM on August 13, 2014.
{¶6} On September 3, 2014, Ettayem filed a motion to set aside the sheriff’s sale
and objected to the confirmation of sale. The trial court held a hearing on the motion on
September 23, 2014. On October 14, 2014, the trial court denied Ettayem’s motion to set
aside the sheriff’s sale and confirmed the sheriff’s sale of August 13, 2014. Ettayem
appealed and this Court affirmed on October 2, 2015. Bank of New York Mellon v.
Ettayem, 5th Dist. Delaware No. 15 CAE 01 0006, 2015-Ohio-4157.
{¶7} On October 12, 2016, Ettayem filed a civil complaint in the Delaware County
Court of Common Pleas, Case No. 16 CV H 10 0624, alleging claims against H.E.R. LLC,
and William Funtjar, a real estate broker, stemming from actions that occurred on October
12, 2014, in which the subject property was listed for sale, the locks changed on the
doors, and Ettayem’s personal property allegedly removed.
{¶8} On May 26, 2017, Ettayem amended the complaint to name BONYM and
Shellpoint Mortgage Servicing (Shellpoint) as defendants. The parties pursued discovery,
and relevant to this appeal, Ettayem issued a notice to take the deposition of BONYM
and Shellpoint through their representative(s) on August 25, 2016. On that date, Ettayem
conducted the deposition of a Shellpoint representative, which is the servicing agent of
BONYM.
{¶9} On October 11, 2017, all defendants filed motions for summary judgment.
Ettayem sought and was granted an extension of time to respond to the motions.
However, he voluntarily dismissed the action on December 7, 2017.
{¶10} Ettayem refiled the instant lawsuit on December 7, 2018 against the same
defendants who answered the complaint and then proceeded to refile the same motions
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for summary judgment in April 2019. Ettayem requested another extension of time to
respond and he issued another notice of deposition to take the deposition of a BONYM
representative. BONYM filed a motion to quash the notice of deposition and for a
protective order against further discovery. The trial court granted the motion but gave
Ettayem further extensions of time to respond the dispositive motions, which he ultimately
did on May 31, 2019.
{¶11} In a lengthy opinion, the trial court granted summary judgment to the
defendants on all counts of Ettayem’s refiled complaint.
{¶12} Ettayem timely appealed and asserts the following two assignments of error
for our review:
ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ERRED IN STAYING DISCOVERY.
{¶14} “ll. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT COLLECTIOVLEY (SIC).”
I.
{¶15} Ettayem’s first assignment of error argues the trial court erred in staying
discovery in the refiled case. It is difficult to discern from Ettayem’s brief his specific
argument in this regard, but it appears to this Court that Ettayem faults counsel for
BONYM/Shellpoint for not cooperating or complying with his notice of deposition, which
then “precluded” him from prosecuting his claims properly. Appellant’s Brief, p. 18.
{¶16} Civ.R. 26(C) provides: “Upon motion by any party or by the person from
whom discovery is sought, and for good cause shown, the court in which the action is
pending may make any order that justice requires to protect a party or person from
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annoyance, embarrassment, oppression, or undue influence or expense, including one
or more of the following: (1) that the discovery not be had * * *.”
{¶17} The trial court issued a protective order to prevent the deposition. The
decision to grant or deny a protective order is within the trial court’s discretion. Scott
Processing Sys., Inc. v. Mitchell, 5th Dist. Stark No. 2012CA00021, 2012-Ohio-5971, ¶21.
Absent an abuse of discretion, an appellate court may not overturn the trial court’s ruling
on discovery matters. Id. In order to find an abuse of discretion, the appellate court must
determine the trial court’s decision was unreasonable, arbitrary, or unconscionable. Id.
{¶18} BONYM argues Ettayem was attempting to conduct a second deposition on
the same subject matter in the original case. BONYM points out that Ettayem had already
deposed a representative of Shellpoint – BONYM’s servicing agent, in the original case.
The Shellpoint representative explained during her deposition that no one at BONYM
would have personal knowledge of the mortgage, property maintenance, or other relevant
information, because BONYM contracted with Shellpoint to service the mortgage for
BONYM. Consequently, BONYM filed a protective order so that it did not have to bear the
additional burden and expense of submitting to a duplicative deposition, particularly since
it involved traveling from out-of-state.
{¶19} The trial court agreed and further found that Ettayem had not shown any
reason why he could not present facts essential to justify his opposition to the motions for
summary judgment and denied his request under Civ.R. 56(F) for a continuance to
conduct discovery.
{¶20} The record reflects BONYM and Shellpoint filed a joint answer, a joint
motion for summary judgment, and are represented by the same legal counsel. BONYM
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held the mortgage as a trustee and had contracted with Shellpoint to service the mortgage
loan. Shellpoint, as servicer, was responsible for, among other things, receiving and
crediting mortgage payments, managing the foreclosure and sale of the property,
managing the maintenance and protection of the property, managing BONYM’s purchase
at the sheriff’s sale, and managing the ultimate sale of the property to a third-party
purchaser. Affidavit of Amber Knight Costello, ¶1, filed April 9, 2019. BOYNM stated
there was no deponent who would have personal knowledge of the facts of this case from
which to testify beyond those already testified to in the prior case.
{¶21} In the context of this refiled case, the trial court acted within its discretion to
regulate discovery, despite the absence of a case scheduling order, as Ettayem failed to
provide sufficient reasons why additional discovery was necessary to respond to the
issues presented by the BONYM/Shellpoint’s motion for summary judgment.
{¶22} Accordingly, the first assignment of error is overruled.
II.
{¶23} The second assignment of error contests the granting of summary
judgment. In a very thorough written judgment, the trial court granted summary judgment
to the defendants on all counts of Ettayem’s complaint.
{¶24} Our review of the briefs and the record convinces us that the trial court’s
November 27, 2019 judgment fully addressed the relevant issues and law, and that the
trial court did not err by granting summary judgment to Appellees. We therefore affirm the
summary judgment for the reasons stated in the court’s opinion, which we adopt and set
forth as an appendix to this opinion.
{¶25} Accordingly, the second assignment of error is overruled.
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CONCLUSION
{¶26} The judgment of the Delaware County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, Earle, J., concur.
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Appendix
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