Huntington Natl. Bank v. Slodov

[Cite as Huntington Natl. Bank v. Slodov, 2021-Ohio-2932.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
HUNTINGTON NATIONAL BANK, :
Plaintiff-Appellee, :
No. 110113
v. :
ANDREW SLODOV, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 26, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-910810
Appearances:
Carlisle, McNellie, Rini, Kramer & Ulrich, Co., L.P.A., and
Eric T. Deighton, for appellee.
Javitch Block L.L.C. and Michael D. Slodov, for
appellants.
MICHELLE J. SHEEHAN, J.:
In 2007, defendants-appellants Andrew Slodov and Lisa Slodov (“the
Slodovs”) signed a promissory note for $764,000 in favor of Sky Bank, secured by a
property located in Pepper Pike, Ohio. Beginning in August 2018, the Slodovs were
unable to make payments on the note. The Huntington National Bank
(“Huntington”), successor in interest by merger to Sky Bank, filed this foreclosure
case in February 2019. The foreclosure matter was tried before a magistrate on the
issue of whether Huntington satisfied the condition precedent to foreclosure by
mailing the Notice of Intention to Accelerate and Foreclosure (“the acceleration
notice”) with sufficient first-class postage. The magistrate found the condition
precedent was satisfied. The trial court adopted the magistrate’s decision and issued
a judgment of foreclosure.
On appeal, the Slodovs raise the following five assignments of error for
our review:
I. The trial court prejudicially erred, abused its discretion and
committed reversible error in denying defendants’ motion under
Civ.R. 56(F).
II. The trial court prejudicially erred, abused its discretion and
committed reversible error in denying defendants’ motion to dismiss
or in the alternative, motion in limine, for failure to timely file a
witnesses list identifying each person purportedly involved in mailing
the acceleration notice.
III. The trial court prejudicially erred, abused its discretion and
committed reversible error in relying solely on inadmissible hearsay
from a witness lacking personal knowledge of the business routine
used at the time the acceleration notice was purportedly mailed, to
support its decision.
IV. The trial court’s determination that the notice of intention to
accelerate and foreclose was properly addressed, had sufficient
postage and was properly deposited in the mail was against the
manifest weight of the admissible evidence.
V. The trial court prejudicially erred, abused its discretion and
committed reversible error overruling defendants’ objections,
ordering the adoption of the decision of the magistrate, finding that
all conditions precedent to foreclose the defendants’ mortgage were
satisfied, and entering a foreclosure judgment in favor of Huntington.
All five assignments of error relate to the Slodovs’ claim that
Huntington failed to prove that it has satisfied the condition precedent to
foreclosure, in particular, that it properly mailed the acceleration notice to the
Slodovs prior to accelerating the subject note. Having reviewed the record and
applicable case law precedent, we find no merit to the claims raised by Slodovs and
affirm the judgment of the trial court.
Procedural Background
Our review of the record reflects the following procedural facts
pertinent to the claims raised by the Slodovs on appeal.
On February 8, 2019, Huntington filed a complaint seeking to
foreclose the Slodovs’ home. In their answer, the Slodovs denied Huntington mailed
the acceleration notice prior to accelerating the subject note.
On September 4, 2019, Huntington filed a motion for summary
judgment, which the trial court denied “as moot” while staying the case to allow
Huntington to review the Slodovs’ loss mitigation application. Huntington
subsequently filed a second motion for summary judgment. The trial court again
denied the motion “as moot” while granting the Slodovs leave to file an amended
answer.
On February 28, 2020, Huntington filed its third motion for summary
judgment. To establish that Huntington mailed the acceleration notice, Huntington
attached an affidavit of a Huntington employee to its motion for summary
judgment. The affidavit authenticated Exhibit F, a copy of the acceleration notice
addressed to the Slodovs at the subject property’s address and dated September 24,
2018. The employee averred that “a true and accurate copy of the notice of default,
mailed by first-class mail on the date of the letter, is attached hereto as Exhibit ‘F’.”
On March 4, 2020, the Slodovs filed notice of their request for
discovery. The discovery request sought specific evidence relating to the mailing of
the subject acceleration notice, including documents identifying all persons involved
in the mailing of the notice as well as documents reflecting the amount of postage
and the fact of mailing.
On March 11, 2020, the Slodovs filed a motion under Civ.R. 56(F),
asking the trial court to refuse the application of judgment or, in the alternative, to
grant an extension of time to May 1, 2020, for their response to the summary
judgment motion. They contended that the information sought in their discovery
request was necessary to rebut the bank employee’s averment that the acceleration
notice was mailed by first class on the date of the letter.
In response, on March 17, 2020, Huntington filed notice that it had
already responded to the Slodovs’ discovery request. On March 26, 2020,
Huntington filed an opposition to the Slodovs’ Civ.R. 56(F) motion, asserting that
no extension of time would be warranted because it had fully responded to the
discovery request.
On April 14, 2020, Huntington’s counsel sent a supplemental
discovery response to the Slodovs. The supplemental discovery included
Consolidated Note Logs. Huntington’s counsel stated that his review of this
business record appeared to indicate that two copies of the acceleration notice were
mailed to the Slodovs “by First Class Mail at an expense of 33 cents each.” Counsel’s
statement regarding the first-class postage, as the trial court determined later,
precluded summary judgment in this foreclosure case because it created a question
of whether the notice was sent with sufficient postage.
On June 2, 2020, the trial court denied the Slodovs’ Civ.R. 56(F)
motion requesting that the trial court refuse the application for judgment, but
granted the Civ.R. 56(F) motion for an extension of time, allowing the Slodovs to file
their brief in opposition to the summary judgment motion by July 6, 2020.
On June 18, 2020, the Slodovs filed their opposition to Huntington’s
motion for summary judgment, claiming that Huntington failed to prove it mailed
the acceleration notice with sufficient postage. They pointed to Huntington’s
supplemental discovery response sent on April 14, 2020, where counsel stated the
notices to them were mailed with 33-cents postage, yet the last time first-class
postage cost 33 cents was in 1999. The Slodovs’ opposition also included their
affidavits averring that they did not receive the acceleration notice from Huntington.
On July 17, 2020, Huntington filed a reply brief, pointing out that its
business reflected an entry that indicated that the acceleration notice was properly
sent to the Slodovs on September 24, 2018.
On July 21, 2020, the trial court granted Huntington’s motion for
summary judgment in part and denied it in part, finding there were no issues of
material fact as to the amount due or the Slodovs’ lack of payments entitling the
bank to enforce the note. However, the trial court found a material issue of fact
regarding whether the acceleration notice was properly mailed to the Slodovs. The
trial court held that Huntington’s counsel stated in its supplemental discovery
response that the copies of the acceleration notice were mailed to the Slodovs by
first-class mail at an expense of 33 cents while the cost of first-class postage at the
time was 55 cents. The sole issue for trial was whether the acceleration notice was
properly mailed with sufficient postage.
On July 31, 2020, Huntington filed a pretrial statement indicating it
intended to call a bank employee to testify regarding his or her review of the bank’s
business records.
On October 27, 2020, before the bench trial commenced, the Slodovs
filed a motion to dismiss or, in the alternative, motion in limine to exclude
Huntington’s witness and all of its exhibits. They claimed that Huntington failed to
sufficiently identify the witness who would be testifying at trial and it was prejudicial
to them. The Slodovs requested that the trial court exclude testimony of any witness
who had knowledge of the facts and circumstances surrounding the mailing of the
September 24, 2018 acceleration notice. The magistrate denied the motion.
Trial Testimony
Because the trial court had granted summary judgment in favor of
Huntington on the other elements of the foreclosure claim, the only remaining issue
to be tried was whether the acceleration notice was properly mailed to the Slodovs
with sufficient postage. David Esakov, a representative for Huntington, testified for
the bank, and the Slodovs testified on their own behalf.
Esakov testified he held the position of litigation specialist and
litigation specialists are “the witnesses and the custodians of the bank.” He testified
that, as a part of his training, he was trained on how the bank maintains its business
records created in the normal course of business, and that the business records are
created contemporaneous with the transactions or events. He had reviewed the
bank business records regarding the Slodovs’ note. In particular, he had reviewed
all the notational systems the bank had for that account, including mailers and notes
on the bank’s mortgage system. He had also specifically reviewed the status of the
mail for that account.
Esakov then authenticated a copy of the acceleration notice at issue,
which was submitted by Huntington as Exhibit F. He testified that the acceleration
notice was coded as an “XC413” letter in the bank’s system and the code was what
the bank uses to create a copy of the acceleration notice to be sent to a borrower in
default.
Esakov testified regarding the bank’s practice and procedure for the
generation and mailing of the notices. To familiarize himself with the mailing
practice and procedure, he had spoken to individuals working in Huntington’s
Home Savers Department and in the mailroom, and he was directed to the bank’s
written practice and procedure regarding mailing.
Before testifying about the mailing of the acceleration notice to the
Slodovs, Esakov authenticated the bank’s Consolidated Note Logs regarding the
Slodovs’ loan, which was submitted as Huntington’s Exhibit J. Esakov then testified
regarding the various codes in the logs regarding the Slodovs’ account. The codes
reflect the acceleration notice (coded as XC413) was sent on September 24, 2018.
The code “33” in the logs refers to 33 days the bank would wait to review the account
to see if the acceleration notice has been responded to or if the notice should be
resent. Esakov confirmed that Huntington’s counsel had earlier mistakenly
interpreted “33” to be the amount of postage the acceleration notice was sent with.
Esakov also testified regarding the mailing process for sending the
notices based on his review of the bank’s mailing practice and procedure. Each
acceleration notice is sent by both ordinary first-class mail and certified mail. For
the regular first-class mail, a letter containing the acceleration notice would go
through a mail meter machine, which weighs the envelope and applies the first-class
postage, and the first-class postage is the default setting for the meter machine.
Esakov testified he had reviewed the practice and procedure and also verified the
meter machine’s first-class postage default setting with the employees in the
mailroom. After being run through the meter machine, the mail is put in an
outgoing box and then collected by a courier service and taken to the post office.
Esakov testified that, according to the business records he reviewed
and the bank’s mailing processes, he was able to determine that the acceleration
notice was prepared and mailed properly to the Slodovs.
Esakov also testified that if incorrect postage was put on the envelope
containing the acceleration notice, it would have been returned to the bank and a
business record would have been made of it. There was no indication from the logs
regarding the Slodovs’ account that the first-class mail was returned for insufficient
postage. Regarding the certified mail, Esakov testified it was not accepted and
returned to the bank.
There was no objection to Esakov’s testimony or the two exhibits
submitted by Huntington. On cross-examination, the Slodovs questioned Esakov if
he had direct knowledge of the mailing of the notice, pointing out that he was not
working at the bank at the time the acceleration notice was mailed.
Lisa Slodov testified that the foreclosure case had torn her family
apart and that she did not receive the notices sent to her and her husband. On cross-
examination, however, she acknowledged that other members of the household
would collect the mail sometimes. She also testified she had no recollection of the
mail received from Huntington in September 2018 because she would pass such
mail, some of them unopened, on to her husband. Andrew Slodov testified that the
variable interest rate for the loan was initially one-and-half percent but the bank
increased it to five-and-half percent, multiplying the amount they were originally
paying. Notably, he did not testify that he did not receive the subject notice from
Huntington.
Trial Court Decision and Appeal
The magistrate issued a decision after the bench trial. Noting that
there is no requirement in the Slodovs’ note that Huntington prove receipt of the
acceleration notice, the magistrate concluded that Huntington properly provided
the acceleration notice.
The Slodovs filed their objections to the magistrate’s decision,
claiming the magistrate erred in finding Huntington provided the requisite notice to
the Slodovs because Esakov lacked personal knowledge of the mailing practice used
by Huntington in September 2018 and also that he was not competent to testify
regarding the matter because he was not employed by Huntington at the time the
acceleration notice was mailed. The Slodovs also claimed the magistrate erred in
denying their motion to dismiss or, in the alternative, motion in limine to exclude
testimony of Huntington’s witness due to its failure to identify the name of the
witness.
The trial court issued a decision overruling the Slodovs’ objections
and adopted the magistrate’s decision. The court noted the trial was limited to one
simple issue — whether Huntington attached the correct postage to the subject
acceleration notice given Huntington’s counsel’s representation that the code “33”
referred to the postage used to mail the acceleration notice. The court found
Huntington’s witness’s testimony admissible even though he had not been identified
by name. The court in addition found the witness’s testimony regarding his review
of the business record proper.
Notice of Acceleration as Condition Precedent to Foreclosure
It is undisputed where prior notice of default and acceleration is
required by a provision in a note, the provision of notice is a condition precedent to
foreclosure. See, e.g., Wells Fargo Bank, N.A. v. Scott, 2d Dist. Montgomery
No. 26552, 2015-Ohio-3269. Paragraph 8 of the Slodovs’ note states that “any
notice that must be given to me under this Note will be given by delivering it or by
mailing it by first class mail to me at the property address above * * *.” (Emphasis
added.)
The only issue at trial and in this appeal is whether Huntington
satisfied the condition precedent. More specifically, whether Huntington mailed the
acceleration notice to the Slodovs by first-class mail. All five assignments of error
on appeal relate to this issue. We address the assignments of error out of order for
ease of discussion.
Business Records as Evidence for Mailing
Under the third assignment of error, the Slodovs argue the trial court
abused its discretion in permitting a witness without personal knowledge to offer
evidence regarding the mailing of the acceleration notice. Under the fourth
assignment of error, they argue the trial court’s determination that Huntington had
mailed the acceleration notice to them was against the manifest weight of the
evidence because the bank failed to offer admissible evidence that the envelope
containing the acceleration notice was properly addressed, had sufficient postage,
and was properly deposited in the U.S. mail on September 24, 2018. Under the fifth
assignment of error, they argue that, without direct evidence of mailing in the form
of a witness with personal knowledge regarding the mailing of the acceleration
notice, the condition precedent to foreclosure was not satisfied and the trial court
erred in adopting the magistrate’s decision. Because the claims are related, we
address the third, fourth, and fifth assignments of error jointly.
In this case, the bank’s witness Esakov testified about the mailing of
the subject notice based on his review of Huntington’s business records, in
particular, the Consolidated Note Logs.
Evid.R. 803(6) governs authentication of business records and it
provides a hearsay exception for business records.1 Ocwen Loan Servicing, L.L.C.
v. Malish, 2018-Ohio-1056, 109 N.E.3d 659, ¶ 16 (2d Dist.). As this court has noted,
the business records exception under Evid.R. 803(6) is
“based on the assumption that the records, made in the regular course
of business by those who have a competent knowledge of the facts
1Evid.R. 803(6) provides that, even though a business record contains hearsay, it is
admissible if it satisfies the following requirements:
A memorandum, report, record, or data compilation, in any form, of acts,
events, or conditions, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other
qualified witness or as provided by Rule 901(B)(10), unless the source of
information or the method or circumstances of preparation indicate lack of
trustworthiness.
recorded and a self-interest to be served through the accuracy of
entries made and kept with knowledge that they will be relied upon in
a systematic conduct of such businesses, are accurate and
trustworthy.”
Herrera v. Phil Wha Chung, 8th Dist. Cuyahoga No. 109793, 2021-Ohio-1728, ¶ 24,
quoting Weis v. Weis, 147 Ohio St. 416, 425-426, 72 N.E.2d 245 (1947).
To meet the authentication requirement in the business-records
hearsay exception under Evid.R. 803(6), “‘the testifying witness must possess a
working knowledge of the specific record-keeping system that produced the
document.’” Id., quoting State v. Davis, 62 Ohio St.3d 326, 342, 581 N.E.2d 1362(1991).
However, the witness need not have personal knowledge of the
creation of the particular record in question and need not have been in the employ
of the company at the time the record was made; all that is required is that the
witness must be able to vouch from personal knowledge of the record-keeping
system that such records were kept in the regular course of business. M&T Bank v.
Wood, 2d Dist. Clark No. 2019-CA-46, 2020-Ohio-10, ¶ 46, citing Fifth Third Mtge.
Co. v. Campbell, 2d Dist. Montgomery No. 25458, 2013-Ohio-3032, ¶ 8.
The court has also emphasized that a witness providing the
foundation for a recorded business activity need not have firsthand knowledge of
the particular transaction. U.S. Bank N.A. v. Wilkens, 8th Dist. Cuyahoga
No. 96617, 2012-Ohio-1038, ¶ 46 (a loan analysis for a bank averred that her
affidavit was based on her personal knowledge obtained from reviewing the files and
this court rejected appellant’s claim that the affiant must have firsthand knowledge
of the transaction at issue). See also Bank of Am., N.A. v. Merlo, 11th Dist. Trumbull
No. 2012-T-0103, 2013-Ohio-5266, ¶ 27 (the witness authenticating a business
record need not have firsthand knowledge of the transaction and the only
requirement is “the witness be sufficiently familiar with the operation of the
business and with the circumstances of the record’s preparation and maintenance
that he can reasonably testify, on the basis of this knowledge, that the record is what
it purports to be and that it was made in the ordinary course of business”).
The trial court has wide discretion in determining whether a witness
has sufficient personal knowledge to testify, Starinchak v. Sapp, 10th Dist. Franklin
No. 04AP-484, 2005-Ohio-2715, ¶ 27, and we will not disturb such a determination
absent an abuse of discretion. Id.Here, our review of Esakov’s testimony indicates that he properly
authenticated the business record at issue, the Consolidated Note Logs
(Huntington’s Exhibit J). He testified that, as a litigation specialist, he worked as a
witness and custodian for the bank. He was trained on the bank’s operation
involving how it maintains its business records, which are created in the normal
course of business and contemporaneous with the pertinent transactions or events
by a person with knowledge. He also testified he was familiar with and had reviewed
the business records involved in the Slodovs’ note.
By way of Esakov’s testimony regarding its business records,
Huntington produced evidence that the subject acceleration notice was properly
mailed to the Slodovs. He described at great length Huntington’s automated mailing
procedure involved in the mailing of the acceleration notices. Based on his review
and knowledge of the business record (the Consolidated Note Logs), he testified that
the notation in the business record indicates the subject notice was mailed to the
Slodovs with appropriate first-class postage on September 24, 2018. In particular,
he testified that the meter machine that affixes the postage is set to appropriate first-
class mail postage and the code “33” refers to the number of days for subsequent
review rather than first-class postage.
The Slodovs claim there is no direct evidence that the acceleration
notice was properly mailed to them as there was no witnesses with firsthand
knowledge regarding the mailing of the envelope containing the notice. The Slodovs
argue the evidence regarding the mailing must come from employees who actually
handled the mailing, claiming Esakov was not employed by the bank at that time
and lacked personal knowledge of the mailing on September 24, 2018. The Slodovs
also claim Esakov’s testimony was not based on firsthand knowledge because his
testimony mentioned several bank employees in the mailroom to whom he talked
concerning the bank’s mailing operation.
Contrary to the Slodovs’ claim, the witness testifying about the
business records need not have personal knowledge of the creation of the particular
record in question and need not have been employed by the company at the time the
record was made. M&T Bank, supra. Moreover, such a witness need not possesses
firsthand knowledge of the particular transaction. U.S. Bank N.A., supra. Esakov
authenticated the business record involved in the mailing and testified that the
business record indicated the notice was mailed with appropriate first-class mail
postage to the Slodovs on September 24, 2018. Huntington was not required to
prove it mailed the subject notice by presenting witnesses who actually addressed
the envelope, affixed the postage, and deposited the notice in the mail.
Paragraph 7(C) of the Slodovs’ note requires that Huntington “send”
written notice and paragraph 8 requires the acceleration notice to be “given by
delivering it or by mailing it first class mail.” The condition precedent to foreclosure
is satisfied by Huntington’s mailing of the acceleration notice, not Slodovs’ receipt
of the notice. The evidence presented by Huntington was sufficient evidence that it
mailed the subject notice to the Slodovs by first-class mail and thereby satisfied the
condition precedent to foreclosure.
Finally, Esakov did not testify to any improper hearsay statements
made by the mailroom employees regarding the Slodovs’ account. They simply
verified the bank’s meter machine is set by default to first-class mail and referred
Esakov to the bank’s written practice and procedure.
For the same reasons, we find no merit to Slodovs claim that the trial
court’s finding that the envelope containing the notice was properly addressed, had
sufficient postage, and was properly deposited in the mail was against the manifest
weight of the evidence.
Generally, in an appeal from a civil bench trial, we review the trial
court’s judgment under a manifest-weight standard of review. United States Fire
Ins. v. Am. Bonding Co., 1st Dist. Hamilton Nos. C-160307 and C-160317, 2016-
Ohio-7968, ¶ 16-17. We weigh the evidence and all reasonable inferences, consider
the credibility of the witnesses, and determine whether in resolving conflicts in the
evidence, the trial court clearly lost its way and created such a manifest miscarriage
of justice that its judgment must be reversed and a new trial ordered. E.G. Licata,
L.L.C. v. E.G.L., Inc., 6th Dist. Lucas Nos. L-17-1124 and L-17-1125, 2018-Ohio-
2032, ¶ 12, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 20. When weighing the evidence in a civil appeal, we must make every
presumption in favor of the finder of fact and construe the evidence, if possible, to
sustain the trial court’s judgment. Bank of Am., N.A. v. Calloway, 2016-Ohio-7959,
74 N.E.3d 843, ¶ 24 (8th Dist.).
Under the terms of the Slodovs’ note, the bank is only required to send
the acceleration notice by first-class mail. When the foreclosing bank produces
evidence that a notice was “sent” and the mortgage does not require the bank to
show receipt of notice, the borrower’s averment that he or she did not receive the
notice does not create a genuine issue for trial. GMAC Bank v. Bradac, 8th Dist.
Cuyahoga No. 105242, 2017-Ohio-7888, ¶ 48.
Here, because Huntington’s counsel stated in discovery that the code
“33” in the Consolidated Note Logs refers to postage, which was insufficient for first-
class postage, the trial court found a genuine issue of fact and set the matter for trial.
At trial, Huntington produced evidence of the mailing of the acceleration notice with
appropriate first-class postage. Lisa Slodov testified she did not receive the
acceleration notice but acknowledged she had no recollection of the mail received
from Huntington in September 2018 because she would pass such mail, some of
them unopened, to her husband; Andrew Slodov did not testify that he did not
receive the subject notice from Huntington. Given the testimony presented by the
parties, the trial court’s finding that the acceleration notice was mailed to the
Slodovs is not against the manifest weight of the evidence.
The Slodovs also claim the trial court abused its discretion in adopting
the magistrate’s decision when there was no direct evidence of the mailing. For the
foregoing reasons, we also find no merit to this claim. The third, fourth, and fifth
assignments of error are overruled.
Business Records Witness
The second assignment of error raised in this appeal relates to whether
Huntington must identify the name of the witness who would be testifying at trial.
They argue that, because Huntington failed to identify the witness by name, the trial
court abused its discretion in denying its motion in limine.
“A motion in limine is a means of raising objection to an area of inquiry
to prevent prejudicial questions and statements until the admissibility of the
questionable evidence can be determined during the course of the trial.” Mender v.
Chauncey, 2015-Ohio-4105, 41 N.E.3d 1289, ¶ 14 (4th Dist.), quoting Independent
State Bank of Ohio v. Hartzell, 4th Dist. Washington No. 90CA02, 1991 Ohio App.
LEXIS 39, 1991 WL 2197, 2 (Jan. 7, 1991). “The purpose of a motion in limine is to
avoid injection into the trial of matters which are irrelevant, inadmissible and
prejudicial.” Id., citing State v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887(1995). See also Groves v. Ihsanullah, 2016-Ohio-7703, 66 N.E.3d 771, ¶ 32 (8th
Dist.). We review a trial court’s ruling on a motion in limine for an abuse of
discretion. United States Bank v. Amir, 8th Dist. Cuyahoga No. 97438, 2012-Ohio-
2772, ¶ 18.
We find no merit to the Slodovs’ claim. The record reflects that
Huntington filed a pretrial statement on July 31, 2020, stating that it would call “a
Huntington employee, who will testify at the trial about his or her review of
Huntington’s business records,” and Huntington attached the business records at
issue to its pretrial statement. On the day of trial, the Slodovs filed a motion to
dismiss or, in the alternative, motion in limine on the ground that Huntington did
not identify the name of the specific witness who would be testifying or the subject
matter of his or her testimony. The magistrate denied the motion. The trial court,
in adopting the magistrate’s decision, found there was no surprise or prejudice to
the Slodovs because the Slodovs were aware of the subject of the witness’s testimony
and the exhibits regarding which the witnesses would be testifying, given that the
only issue for trial was whether there was sufficient postage affixed to the envelope
containing the notice sent to the Slodovs. The trial court’s finding regarding the lack
of surprise or prejudice and its denial of the motion in limine did not constitute an
abuse of discretion. The second assignment of error is without merit.
Civ.R. 56(F) Motion
Under the first assignment of error, the Slodovs claimed the trial court
abused its discretion in denying their Civ.R. 56(F) motion.
Civ.R. 56(F) (“When affidavits unavailable”) states:
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.
The record reflects that Huntington filed its third motion for
summary judgment on February 28, 2020, attaching an affidavit of an employee.
On March 4, 2020, the Slodovs filed notice of their request for discovery. Among
other requests, they asked Huntington to identify all employees “who participated
in delivering (or mailing via first-class mail to the defendants [at their address]) a
certain letter dated September 24, 2018, captioned Notice of Intention to Accelerate
and Foreclosure * * *.” They also sought production of pertinent documents relating
to the mailing.
On March 11, 2020, the Slodovs filed a motion under Civ.R. 56(F)
asking the trial court to deny the motion for summary judgment or “grant leave to
respond after the completion of discovery.” They requested an extension of time
until May 1, 2020, for their opposition to the summary judgment motion.
On March 17, 2020, Huntington filed a notice of service of discovery
responses in response to the Slodovs’ discovery request. On April 15, 2020, it filed
another notice that it served supplemental responses to the Slodovs’ discovery
request.
On the day the Slodovs’ opposition to Huntington’s motion for
summary judgment would have been due, March 27, 2020, the Supreme Court of
Ohio issued a tolling order in response to the COVID-19 pandemic. The order tolled,
retroactive to March 9, all the deadlines in the Ohio Revised Code until July 30,
2020.2
On June 2, 2020, the trial court denied the Slodovs’ Civ.R. 56(F)
motion to refuse the application for judgment, but granted their request for an
extension of time. Two days later, the trial court issued an order extending the
deadline of Slodovs’ opposition to Huntington’s motion for summary judgment to
July 6, 2020, noting that the Supreme Court of Ohio had lifted the tolling order as it
relates to foreclosure cases.
On June 18, 2020, the Slodovs filed their opposition to Huntington’s
motion for summary judgment.
On appeal, the Slodovs claim they were deprived of discovery going to
the issue of the mailing of the acceleration notice and the trial court abused its
2 We also note that on March 16, 2020, the Cuyahoga County Common Pleas Court issued
an “Order Declaring a Judicial Emergency and Continuity of Operations of the Court due
to COVID-19 Pandemic.” As part of this order, the court issued a stay of “all foreclosure
cases” for a period of 60 days. See Tax Ease Ohio, L.L.C. v. Keeton, 8th Dist. Cuyahoga
No. 109862, 2021-Ohio-1815, ¶ 16. On May 15, 2020, the 60-day stay of all foreclosure
cases terminated; on May 26, 2020, the common pleas court issued a specific order
regarding foreclosure cases, stating that the tolling provisions of the Ohio Supreme
Court’s March 27, 2020 order are henceforth inapplicable to foreclosure cases. Id. at ¶ 19.
discretion in denying their Civ.R. 56(F) motion on June 2, 2020, when the date for
their opposition to the summary judgment had been tolled.
The trial court has wide discretion to grant or deny a request for a
continuation pursuant to Civ.R. 56(F) and we will not reverse the trial court’s
decision absent an abuse of discretion. Nationstar Mtge. L.L.C. v. Jessie, 8th Dist.
Cuyahoga No. 109394, 2021-Ohio-439, ¶ 27.
Under Civ.R. 6, the due date of the Slodovs’ response to the summary
judgment motion would have been March 27, 2020. The Slodovs’ Civ.R. 56(F)
motion requested a continuation to May 1, 2020. While there was a 60-day stay for
foreclosure cases, the common pleas court terminated the 60-days stay on May 15,
2020. The trial court nonetheless allowed the Slodovs to file the opposition to the
summary judgment motion by July 6, 2020.
When considering a Civ.R. 56(F) motion, “the trial court was in the
best position to determine whether an extension and/or additional discovery was
necessary.” Grill v. Artistic Renovations, 2018-Ohio-747, 106 N.E.3d 934, ¶ 35 (8th
Dist.). After the Slodovs filed the Civ.R. 56(F) motion, Huntington supplemented
their discovery response. While they claim on appeal the discovery was insufficient
for them to properly oppose the motion for summary judgment, the Slodovs never
filed a motion to compel discovery before filing their opposition to the summary
judgment motion, more than two weeks before it would be due. Having reviewed
the record, we cannot say that the trial court abused its discretion in denying the
Civ.R. 56(F) motion to refuse the application for judgment while granting an
extension of time for the Slodovs to file their opposition to the summary judgment
motion. The first assignment of error is without merit.
Judgment affirmed.
It is ordered that appellee recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas 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.
____________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
LISA B. FORBES, J., CONCUR