Huntington Natl. Bank v. Blue ( 2023 )

[Cite as Huntington Natl. Bank v. Blue, 2023-Ohio-3881.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
THE HUNTINGTON NATIONAL :
BANK,
Plaintiff-Appellee, :
No. 112535
v.
MARIO D. BLUE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 26, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-923193
Appearances:
Weltman Weinberg & Reis Co., L.P.A., and Larry R.
Rothenberg, for appellee.
Mario D. Blue, pro se.
MICHAEL JOHN RYAN, J.:
Defendant-appellant, Mario D. Blue, pro se, appeals from the trial
court’s March 20, 2023 judgment in which the trial court (1) adopted the January
20, 2022 magistrate’s decision; (2) overruled Blue’s objection to the January 19,
2022 magistrate’s order granting Huntington’s motion to quash subpoena; (3)
denied Blue’s January 24, 2022 motion for contempt of court and motion to dismiss;
and (4) denied Blue’s February 14, 2022 motion to dismiss. After a thorough review
of the facts and pertinent law, we affirm.
Procedural History
In October 2019, plaintiff-appellee, The Huntington National Bank
(“Huntington” or the “bank”), filed this foreclosure action in the trial court based on
a promissory note and mortgage executed by Blue. The bank alleged that Blue was
in default due to nonpayment. A foreclosure magistrate was assigned to the case.
Within days of the case being filed, Blue, who acted pro se throughout the trial court
proceeding, filed an “objection to complaint [and] demand for dismissal,” which the
trial court deemed as an answer.
On February 19, 2020, Huntington filed a motion for summary
judgment. The motion was supported by documentation including: (1) the affidavit
of an authorized representative of Huntington; (2) merger documents showing the
transfer of assets from FirstMerit Bank to Huntington; (3) the subject note and
mortgage; (4) the bank’s notice to Blue of its intent to accelerate the loan and
foreclose on the property; and (5) the bank’s customer activity account statement
for Blue’s loan.
In August 2021, Blue filed a motion to compel discovery; he had not
previously requested discovery, however. In September 2021, the magistrate denied
the motion to compel. Blue filed another motion to compel discovery without having
first requested discovery; that motion was also denied.
In early October 2021, Blue filed a motion to dismiss that the trial
court deemed as a motion to set aside the magistrate’s order denying his second
motion to compel discovery; the trial court denied Blue’s motion. In mid-October
2021, Blue filed another motion to dismiss.
In December 2021, Blue issued a subpoena to the bank seeking it to
file the original promissory note with the clerk of courts. Huntington filed a motion
to quash the subpoena. On January 19, 2022, the magistrate entered an order
granting the bank’s motion to quash the subpoena. The magistrate noted that
Huntington had made the original of the promissory note available for inspection
by Blue, but Blue failed to avail himself of the opportunity to inspect it. The
magistrate further noted that there is no requirement under Ohio law that the
original promissory note must be filed with the clerk of courts.
On January 20, 2022, the magistrate issued a magistrate’s decision
granting Huntington’s motion for summary judgment. Thereafter, Blue made
several filings: (1) an “objection to magistrate order, motion for contempt of court”;
(2) an “objection to magistrate decision, motion to dismiss”; (3) a “response to
magistrate decision”; (4) three other motions to dismiss; and (5) without seeking
leave of court, a counterclaim.
On March 20, 2023, the trial court overruled Blue’s motions and
adopted the January 20, 2022 magistrate’s decision. Blue appeals, raising the
following assignment of error for our review:
I. Appell[ee’s] alleged Order of Sheriff Sale was in violation of the
Appellant[’]s Due Process under the 5th and 14th
[A]mendment[s] of the United States Constitution, as well as 28
USC 1691. Trial court also erred for allowing the case to move
forward without proving standing to the court during trial.
Law and Analysis
Blue makes a number of contentions within his assigned error. He
first contends that the trial court denied him due process by failing to consider his
counterclaim and his motions for discovery.
This action was filed in October 2019, and Blue timely filed what was
deemed as an answer. In January 2022, Blue filed a counterclaim without seeking
leave of court. “When a pleader fails to set up a counterclaim through oversight,
inadvertence, or excusable neglect, or when justice requires, he [or she] may by
leave of court set up the counterclaim by amendment.” (Emphasis added).
Civ.R. 13(F). A supplemental pleading filed without leave of court “is not properly
before the court and should be ignored.” Widder & Widder v. Kutnick, 113 Ohio
App.3d 616, 623, 681 N.E.2d 977 (8th Dist.1996), citing Rayl v. E. Ohio Gas Co., 46
Ohio App.2d 167, 179, 348 N.E.2d 385 (9th Dist.1973). Because Blue filed his
counterclaim late in the proceeding without leave of court, the trial court properly
ignored it.
In regard to Blue’s contention regarding discovery, he filed motions
to compel the bank to respond to discovery without having first propounded
discovery on the bank. See Civ.R. 26 through 36 for provisions for serving
interrogatories, taking depositions, and making requests for production of
documents; and Civ.R. 37 for provisions for a party’s failure to respond to discovery,
including motions to compel. Because Blue did not follow the appropriate course to
obtain discovery from Huntington, there was no ground for the trial court to grant
his motions to compel.
Blue also challenges the validity of the order of sale issued by the clerk
of courts to the sheriff. The order was issued after Blue filed his notice of appeal.
App.R. 3 governs appeals “as of right” and provides in part that the notice of appeal
“shall designate the judgment, order or part thereof appealed from.” App.R. 3(D).
The purpose of App.R. 3(D) is “‘to notify potential appellees of an appeal and advise
them as to what orders the appellant is appealing from.’” Armbruster v. Hampton,
9th Dist. Lorain No. 05CA008716, 2006-Ohio-4530, ¶ 15, quoting State v. Dixon,
9th Dist. Summit No. 21463, 2004-Ohio-1593, ¶ 7. Thus, “[i]t is axiomatic that an
appellee would not be advised that an appellant is appealing from an order issued in
the trial court after the filing of the notice of appeal unless the appellant has taken
steps to amend the notice of appeal pursuant to App.R. 3(F).” Armbruster at id.Blue did not amend his notice of appeal to include the order of sale.
Regardless of Blue’s failure to amend his notice of appeal (which is
not a jurisdictional bar to our review of the order of sale),1 we are not persuaded by
Blue’s alleged irregularity with the order. Blue contends that the order of sale was
improper because it did not contain the clerk of courts seal pursuant to 28
U.S.C. 1691. Blue’s citation to that federal statute is misplaced — this foreclosure
action was brought in state court, not federal court, and that statute, a federal
statute, did not apply to it nor has Ohio adopted a similar statutory requirement.
Moreover, any alleged irregularity or impropriety with the order of sale is moot.
Specifically, the docket reflects that on April 26, 2023, the trial court ordered the
sheriff to recall the order of sale without execution.
We next consider the trial court’s decision to grant summary
judgment in favor of Huntington. Summary judgment, according to Civ.R. 56, is
appropriate only when there is no genuine issue of material fact, the moving party
is entitled to judgment as a matter of law, and the evidence is such that reasonable
minds can come to only one conclusion when viewing the evidence in a light most
strongly in favor of the nonmoving party and that conclusion is adverse to the non-
moving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267(1977). This court normally reviews summary judgment de novo, or without
1
See Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320, 322, 649 N.E.2d 1229(1995) (“Pursuant to App.R. 3(A), the only jurisdictional requirement for the filing of a
valid appeal is the timely filing of a notice of appeal. When presented with other defects
in the notice of appeal, a court of appeals is vested with discretion to determine whether
sanctions, including dismissal, are warranted, and its decision will not be overturned
absent an abuse of discretion.”).
deference to the trial court’s decision. Brewer v. Cleveland City Schools Bd. of Edn.,
122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997).
The documentation submitted in support of the bank’s motion for
summary judgment established that it was the successor by merger to FirstMerit
Bank, N.A., and to FirstMerit Mortgage Corporation. Further, the affidavit from
Huntington’s representative established that the bank is the holder of a promissory
note executed by Blue and a mortgage securing the promissory note, that Blue
defaulted on the payment terms of the promissory note and the mortgage, that the
bank accelerated the balance due and owing, and that the principal balance is
$100,612.47, with interest accruing thereon at 4.25% per annum from March 1,
2019.
It is well-settled in Ohio that the party opposing a motion for
summary judgment may not simply rest upon the allegations of his or her pleadings
but must come forward with affirmative evidence demonstrating a material issue of
fact. Paul v. Uniroyal Plastics Co., 62 Ohio App.3d 277, 282, 575 N.E.2d 484(6th Dist.1988), citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91, 106 S.Ct. 2548,
L.Ed.2d 265 (1986). “A motion for summary judgment forces the non-moving party
to produce evidence on any issue for which that party bears the burden of production
at trial.” Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 111, 570 N.E.2d
1095 (1991); see also Hubbard v. Laurelwood Hosp., 85 Ohio App.3d 607, 611, 620
N.E.2d 895 (11th Dist.1993).
Blue did not come forward with affirmative evidence demonstrating
that there is a genuine issue of material fact. As such, the trial court properly granted
summary judgment in favor of Huntington.
We are not persuaded by Blue’s contention that he was denied the
right to discovery. Although he filed numerous motions to compel discovery, the
record demonstrates that he did not utilize the Ohio Rules of Civil Procedure in the
appropriate manner to obtain discovery. For example, one of the items Blue
apparently sought was the original promissory note. Despite his lack of a proper
request for the note, the bank maintains that “through its counsel [it] delivered a
letter to Mr. Blue agreeing to make the original promissory note available for
inspection at 9:00 a.m. on October 26, 2021[,] at plaintiff’s counsel’s office.”
According to the bank, Blue failed to appear, despite acknowledging on the record
that he received the letter.
The record reflects that on December 15, 2021, Blue issued a
subpoena to Huntington commanding it to produce the original note at 10:00 a.m.
on December 29, 2021[,] at the “Justice Center-Court Tower, Clerks Office.” The
subpoena further commanded Huntington to file the original note. The bank filed a
motion to quash the subpoena, which the trial court granted.
A foreclosing bank is not required to present the original documents
to the trial court; a trial court can rely on copies of a note and mortgage in ruling on
a motion for summary judgment in a foreclosure case. See U.S. Bank Natl. Assn. v.
Higgins, 2d Dist. Montgomery No. 24963, 2012-Ohio-4086, ¶ 18;
CitiMortgage, Inc. v. Draper, 2d Dist. Clark No. 2012 CA 78, 2013-Ohio-2927, ¶ 20.
As such, we find that the trial court properly granted the bank’s motion to quash and
that Blue was not denied his right to discovery.
Finally, we consider Blue’s contention that Huntington lacked
standing and find it to be without merit. A party commencing litigation must have
standing to sue in order to invoke the jurisdiction of the common pleas court.
Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017,
979 N.E.2d 1214, ¶ 38. To have standing, a plaintiff must have “a personal stake in
the outcome of the controversy and have suffered some concrete injury that is
capable of resolution by the court.” Bank of Am., N.A. v. Adams, 8th Dist. Cuyahoga
No. 101056, 2015-Ohio-675, ¶ 7, citing Tate v. Garfield Hts., 8th Dist. Cuyahoga No.
99099, 2013-Ohio-2204, ¶ 12, and Middletown v. Ferguson, 25 Ohio St.3d 71, 75,
495 N.E.2d 380 (1986). Because it is required to invoke the jurisdiction of the
common pleas court, standing to sue “‘is to be determined as of the commencement
of suit,’” Schwartzwald at ¶ 24, quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 570-571, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), fn. 5, and “‘depends on the state
of things at the time of the action brought,’” Schwartzwald at ¶ 25, quoting Mollan
v. Torrance, 22 U.S. 537, 539, 6 L.Ed. 154 (1824). If a plaintiff lacks standing at the
time the foreclosure complaint is filed, the case must be dismissed; it cannot be
cured through an assignment or other transfer prior to judgment. Schwartzwald at
¶ 39-40.
In this case, Huntington presented evidence that, as of the time it filed
its complaint, it was both entitled to enforce the note and was the current assignee
of the mortgage. This was sufficient to establish standing on its foreclosure claim.
See Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-Ohio-4603,
60 N.E.3d 1243, ¶ 2-3, 30-33, 35.
In light of the above, Blue’s sole assignment of error is without merit
and hereby overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
MICHAEL JOHN RYAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR