U.S. Bank Trust Natl. Assn. v. Keane ( 2024 )

[Cite as U.S. Bank Trust Natl. Assn. v. Keane, 2024-Ohio-727.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
U.S. BANK TRUST NATIONAL :
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY, BUT :
SOLELY AS TRUSTEE OF LSF10
MASTER PARTICIPATION TRUST, :
No. 112386
Plaintiff-Appellee, :
v. :
MARY JOAN KEANE, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 29, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-949682
Appearances:
Manley Deas Kochalski LLC and Matthew J. Richardson,
for appellee.
Herman Law, LLC, and Edward F. Herman, for
appellants.
FRANK DANIEL CELEBREZZE, III, J.:
Mary Joan Keane and James P. Keane (collectively “the Keanes”) appeal
the judgment of the trial court granting summary judgment for U.S. Bank Trust
National Association, not in its individual capacity, but solely as Trustee of LSF10
Master Participation Trust (“U.S. Bank”) on a foreclosure complaint. For the
reasons that follow, this court affirms.
I. Factual and Procedural History
On July 8, 2021, U.S. Bank filed a complaint in foreclosure naming as
defendants the Keanes, State of Ohio Department of Taxation, and Sheen Falls
Strategies, LLC (“Sheen”). The complaint alleged that in January 2008, the Keanes
executed a promissory note and secured the note with a mortgage on the property
located at 22250 Hilliard Boulevard in Rocky River, Ohio (“the premises”). The
complaint described that James’s personal obligations under the note had been
discharged in a bankruptcy proceeding and, as a result, Mary Joan remained
personally liable for the amount due on the note, $256,217.06, plus interest at 2.5
percent per annum, the deferred amount of $79,339.73, plus late charges, advances,
costs, and expenses. The complaint sought judgment against Mary Joan and
foreclosure of the property. About a month later, the court allowed U.S. Bank to file
an amended complaint adding two defendants, Kevin McGinty (“McGinty”) and
Daniel O. Geib (“Geib”), alleging that they may have an interest in the property as
well.
McGinty and Geib answered separately, both conceding that they had a
judgment lien on the premises. The Keanes answered and filed a counterclaim and
cross-claim against McGinty, Geib, and Sheen, asking to quiet their interest in the
premises and for a declaration that they are not entitled to any proceeds from the
foreclosure of the premises.
In March 2022, U.S. Bank sought default judgment against Sheen,
alleging that Sheen had failed to defend its interest despite proper service. Shortly
after the motion was filed, Sheen and U.S. Bank stipulated to Sheen’s untimely
answer to U.S. Bank’s amended complaint, and Sheen also answered the cross-
claims alleged by the Keanes. The trial court denied the motion for default judgment
against Sheen as moot.
At the same time the default judgment against Sheen was filed, U.S.
Bank also filed a motion for summary judgment as to its claims against the Keanes.
Relevant to this appeal, attached to the motion was an affidavit executed by Priscilla
Serrato (“Serrato”), an assistant secretary at Fay Servicing LLC, a Texas entity, the
servicer of U.S. Bank’s loan and nonparty to the instant action. The Keanes
responded to the motion with a response captioned “[Civ.R.] 56(F) Response to
Plaintiff’s Motion for Summary Judgment.” The motion alleged that the Keanes
sought to depose Serrato and requested that the court either deny the motion for
summary judgment or grant a continuance to allow the Keanes to depose Serrato.
At the April 2022 case-management conference, the court allowed the Keanes an
extension of time to respond to U.S. Bank’s summary judgment motion by June 21,
2022; allowed for a reply brief to be filed on or before July 5, 2022; and concluded
that the court would rule on the summary judgment motion thereafter.
In May 2022, the Keanes notified the court that Serrato had not
appeared at her deposition and filed a separate motion seeking for Serrato to be held
in contempt. The subpoenas attached to the motion demonstrated that the Keanes
attempted to serve Serrato at Fay Serving LLC’s corporate address in Texas and on
Fay Serving LLC’s statutory agent for service of process located in Ohio. U.S. Bank
filed a motion to quash the subpoena and a response to the motion for contempt,
arguing in both that Serrato had not been properly served with the subpoena, which
the court granted because the Keanes did not comply with Civ.R. 45(B). On June 8,
2022, the trial court denied the Keanes’ contempt motion and granted U.S. Bank’s
motion to quash the subpoena.
The June 21, 2022 deadline for a response to U.S. Bank’s summary
judgment motion came and went, and the Keanes did not respond.
On June 24, 2022, the Keanes filed a motion to strike Serrato’s affidavit
from the motion for summary judgment, alleging that U.S. Bank was purposefully
hiding the witness from the Keanes and refusing to accommodate the requested
deposition. U.S. Bank responded that the Keanes did not undertake the necessary
procedure to compel Serrato’s deposition, as a nonparty, out-of-state witness and
only recently served a Civ.R. 30(B)(5) notice seeking to depose a corporate witness
from U.S. Bank directly — well after the extension given to file a response to
summary judgment. U.S. Bank further argued that since the trial court granted U.S.
Bank’s motion to quash the original subpoena, there is no factual or legal basis to
grant the motion to strike.
Another case-management conference was held on August 3, 2022.
The journal entry following the conference indicated that the Keanes’ motion to
strike Serrato’s affidavit was denied and gave the Keanes a further extension to
September 19, 2022, to file a responsive brief to U.S. Bank’s motion for summary
judgment.
There is no further activity on the docket until September 20, 2022,
when the magistrate granted U.S. Bank’s motion for summary judgment and
ordered the Keanes to file dispositive motions on their pending counterclaims and
cross-claims by October 10, 2022, and warned that failure to do so would result in
dismissal of those claims. The magistrate’s decision was journalized the next day.
The Keanes timely raised two objections to the magistrate’s decision:
that the magistrate’s decision did not dispose of the Keanes’ counterclaims and
cross-claims and that the Keanes were not afforded a proper response to the motion
for summary judgment because they were unable to cross-examine and/or depose
Serrato. The magistrate withdrew the decision in full.
On October 18, 2022, the Keanes filed a motion for judgment on the
pleadings as to any claims against McGinty, Geib, and Sheen, alleging that the liens
of all three parties were extinguished in James’s bankruptcy proceeding. U.S. Bank,
McGinty, Geib, and Sheen all filed briefs in opposition. Nonetheless, on
November 3, 2022, the magistrate determined that the motion for judgment on the
pleadings was “unopposed and granted” and advised that a full magistrate’s decision
would follow. McGinty and Geib filed objections to the magistrate’s decision,
advising that they had responded to the Keanes’ judgment on the pleadings motion.
During this time, McGinty and Geib also filed a motion to strike the Keanes’ cross-
claims.
The magistrate issued another decision on November 4, 2022.
Relevant to this appeal, the decision granted U.S. Bank’s motion for summary
judgment and granted the Keanes’ claims for quiet title and declaratory judgment
against McGinty, Geib, and Sheen. All parties objected to the magistrate’s decision.
The court overruled all objections and adopted the magistrate’s
decision. It is from this journal entry that the Keanes took this appeal, assigning the
following assignment of error.
The trial court erred in granting summary judgment when the movant
refused to allow the cross-examination by the non-movant of the
movant’s summary judgment affiant.
II. Law and Analysis
The Keanes’ sole assignment of error contends that the trial court
erred in granting U.S. Bank’s motion for summary judgment because the trial court
did not take steps to ensure that the Keanes could cross-examine Serrato and
maintain that they were unable to properly oppose U.S. Bank’s motion without
conducting this deposition.
We review summary judgment rulings de novo, applying the same
standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996). The standard under Civ.R. 56 sets forth that summary judgment
is appropriate when (1) no genuine issue as to any material fact exists, (2) the party
moving for summary judgment is entitled to judgment as a matter of law, and (3)
viewing the evidence most strongly in favor of the nonmoving party, reasonable
minds can reach only one conclusion that is adverse to the nonmoving party. The
party moving for summary judgment bears this burden and must set forth specific
facts that demonstrate its entitlement to summary judgment. Dresher v. Burt, 75
Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet
this burden, summary judgment is not appropriate; if the moving party meets this
burden, summary judgment is appropriate only if the nonmoving party fails to
establish the existence of a genuine issue of material fact. Id. at 293.
To support a motion summary judgment in a foreclosure case, Civ.R.
56(C) requires the party moving for summary judgment to “present ‘evidentiary
quality materials’ establishing (1) that the plaintiff is the holder of the note and
mortgage, or is a party entitled to enforce the instrument; (2) if the plaintiff 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.” Deutsche Bank Natl. Trust Co. v. Najar, 8th
Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 17, quoting United States Bank, N.A.
v. Adams, 6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10, citing Wachovia Bank
v. Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶ 40-45.
When responding to a motion for summary judgment, the adverse
party “must set forth specific facts showing that there is a genuine issue for trial.”
Civ.R. 56(E). Civ.R. 56(E) continues, “If the party does not so respond, summary
judgment, if appropriate, shall be entered against the party.”
The Keanes never tendered a responsive motion to U.S. Bank’s
summary judgment motion disputing that any of the above prongs, as presented by
U.S. Bank, were inaccurate or incorrect, even though the trial court afforded them
two extensions to respond. As such, the Keanes did not meet their burden in
establishing that there is a genuine issue of material fact for trial.
On appeal, the Keanes raise several arguments relating to their
inability to depose Serrato, claiming that they were prevented from raising genuine
issues of material fact without being able to depose Serrato, U.S. Bank’s affiant.
When reviewing a trial court’s decisions on discovery matters, the appellate court
examines whether the trial court abused its discretion. BAC Home Loans Servicing,
L.P. v. Tabac, 8th Dist. Cuyahoga No. 99724, 2013-Ohio-5582, ¶ 20, citing Entingh
v. Old Man’s Cave Chalets, Inc., 4th Dist. Hocking No. 08CA14, 2009-Ohio-2242,
¶ 13.
The Keanes maintain that Civ.R. 56(E), which allows a court to
“permit affidavits to be supplemented or opposed by depositions or by further
affidavits,” should have excused their lack of response, claiming that they were
unable to set forth genuine issues of material fact without the necessary deposition
testimony from Serrato. Civ.R. 56(F) sets forth the procedure for alerting the trial
court as to this hardship:
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 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.
By its plain language, Civ.R. 56(F) required the Keanes to submit
affidavit testimony indicating that they could not support their brief in opposition
with facts essential to the opposition in the absence of further discovery. The Keanes
did not support their Civ.R. 56(F) motion with affidavit testimony, but the trial court
nonetheless permitted the Keanes extra time to attempt to serve the subpoena upon
Serrato and then respond to the summary judgment motion at two different times
during the pendency of this case.
The Keanes and U.S. Bank disagree as to whether the Keanes properly
subpoenaed Serrato pursuant to Civ.R. 45. Civ.R. 45(B) provides that service of a
subpoena
shall be made by delivering a copy of the subpoena to the person, by
reading it to him or her in person, by leaving it at the person’s usual
place of residence, or by placing a sealed envelope containing the
subpoena in the United States mail as certified or express mail return
receipt requested with instructions to the delivering postal authority to
show to whom delivered, date of delivery and address where
delivered[.] * * * If the witness being subpoenaed resides outside the
county in which the court is located, the fees for one day’s attendance
and mileage shall be tendered without demand.
The Keanes admit that they did not serve Serrato at her usual place of
residence nor did they tender the fees and mileage, despite requesting Serrato to
appear for an in-person deposition in Ohio. The Keanes attempted to serve Serrato
at her place of employment at Fay Servicing LLC, in Texas,1 and through Fay
Servicing LLC’s statutory agent in Ohio, neither of which are proper under
Civ.R. 45(B). Thus, the Keanes did not properly effectuate service upon Serrato, nor
did the trial court err in quashing the subpoena based on improper service.
Based on the foregoing, we are unable to find merit in the Keanes’
argument that they were “stonewalled” from deposing Serrato. The Keanes did not
follow the proper procedure for subpoenaing Serrato, did not adequately preserve
their right to continue discovery under Civ.R. 56(F), did not request a deposition
pursuant to Civ.R. 30(B)(5) under the court’s time constraints, and did not attempt
to file any responsive pleading to U.S. Bank’s motion for summary judgment.
Accordingly, we overrule the Keanes’ sole assignment of error and
affirm the judgment of the trial court.
III. Conclusion
The Keanes did not respond to U.S. Bank’s motion for summary
judgment and demonstrate that a genuine issue of material fact existed warranting
a trial of the issues. Even though the Keanes alleged that they were unable to
properly oppose U.S. Bank’s motion in the absence of a deposition, the Keanes were
unable to properly subpoena the witness, despite the allowance of ample time by the
trial court.
1 We note that service of a subpoena in a foreign jurisdiction is generally governed
by R.C. 2319.09 and, in this case, the Texas Rules of Civil Procedure. The Keanes did not
even attempt to follow these procedures; thus, the out-of-state subpoena had no force and
effect.
Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, JUDGE
EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR