Nationstar Mtge., L.L.C. v. Jessie

[Cite as Nationstar Mtge., L.L.C. v. Jessie, 2021-Ohio-439.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
NATIONSTAR MORTGAGE L.L.C., :
Plaintiff-Appellee, :
No. 109394
v. :
D’ANDRE L. JESSIE, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 18, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-886469
Appearances:
Reimer Law Co. and Mike L. Wiery, for appellee.
Sam A. Zingale, for appellants.
MARY J. BOYLE, A.J.:
Defendants-appellants, D’Andre Jessie and Emma Warner, appeal
the trial court’s judgment granting a decree of foreclosure to substitute plaintiff,
New Penn Financial, L.L.C., d/b/a Shellpoint Mortgage Servicing (“Shellpoint”).
Appellants raise three assignments of error for our review:
1. The trial court failed to recognize that defendants-appellants, who
were pro se[,] had moved for time to conduct discovery pursuant to
[Civ.R. 56(F)].
2. The trial court abused its discretion in deny[ing] defendant[s]-
appellants the right to conduct discovery pursuant to Civ.R. 56(F).
3. The trial court improperly granted summary judgment to the
plaintiff-appellee.
Finding no merit to appellants’ arguments, we affirm.
I. Procedural History and Factual Background
Appellants executed a promissory note on April 9, 2004, promising
to pay National City Mortgage Company (“National City”) $165,900 plus interest at
a rate of 5.75 percent per annum to purchase a home located on Allston Road in
Cleveland, Ohio. That same day, appellants also executed a mortgage as security for
the promissory note giving National City, and its successors and assignees, first and
best lien on the property.
On July 13, 2017, “National Association, successor by merger to
National City Bank, successor by merger to National City Mortgage Company,”
recorded a document in Cuyahoga County that was executed on June 30, 2017,
assigning appellants’ “Deed of Trust/Mortgage” to Nationstar Mortgage L.L.C.
(“Nationstar”).
On September 26, 2017, Nationstar filed a complaint for foreclosure
against appellants, alleging that it was the party entitled to enforce the promissory
note due to default in payment of the note and mortgage securing the note.
Nationstar alleged that appellants owed $125,273.17 plus interest at a rate of 5.75
percent per annum from April 1, 2017.
On November 12, 2018, Nationstar recorded a document in Cuyahoga
County establishing that it assigned appellants’ mortgage to Shellpoint. That same
month, Nationstar moved to substitute Shellpoint as plaintiff in the foreclosure case
against appellants. The trial court granted Nationstar’s motion to substitute
Shellpoint as the plaintiff.
In December 2018, Shellpoint moved for summary judgment.
Appellants responded by filing an “Answer to Plaintiff’s request for Judgment Lien
and Motion to Strike Plaintiff’s Request for Judgment Lien.” Shellpoint filed a reply
brief to appellants’ response. Appellants responded a second time to Shellpoint’s
reply, titling it, “Response to Plaintiff’s Reply Brief of Substitute Answer to Strike
Motion for Judgment Lien and Request for Production of Documents.”
According to John Dalton Lazar’s affidavit, which was attached to
Shellpoint’s summary judgment motion, Shellpoint was unable to find the original
promissory note and would instead “separately file as Lost Note Affidavit evidence
in this case in accordance with Ohio Revised Code 1303.38,” which it did. Lazar
further averred that the note “was duly endorsed in blank prior to being lost and the
original [p]laintiff was the holder and in possession of the original [n]ote at the time
the loss of the original [n]ote occurred.”
In April 2019, the magistrate issued an order granting Shellpoint’s
summary judgment motion. The magistrate indicated that she would issue a
magistrate’s decision at a later date and make specific findings as to the rights and
liabilities of the parties. The magistrate issued her decision in September 2019.
Appellants objected to the magistrate’s decision. In December 2019, the trial court
overruled appellants’ objections, adopted the magistrate’s decision, and issued the
decree of foreclosure. Appellants appealed from this judgment.
Appellants moved for a stay of execution in the trial court. The trial
court denied their motion because they failed to file a supersedeas bond.
On January 30, 2020, after appellants filed their notice of appeal,
Shellpoint moved to substitute “U.S. Bank National Association, not in its individual
capacity but solely as trustee for the RMAC Trust, Series 2016-CTT” (“U.S. Bank”)
as plaintiff. Shellpoint attached the assignment of appellants’ mortgage to U.S. Bank
to its motion to substitute. The trial court granted Shellpoint’s motion to substitute
the plaintiff.
On February 12, 2020, appellants moved for a stay of execution in this
court. We granted appellants’ motion “upon [them] depositing $900.00 into escrow
by the 28th of each month, commencing on February 28, 2020.” We further ordered
that failure to do so would result in the stay being immediately lifted, allowing the
foreclosure sale to proceed.
We will address the appellants’ assignments of error out of order for
ease of discussion.
II. Summary Judgment Standard
We review an appeal from summary judgment under a de novo
standard. Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000).
Accordingly, we afford no deference to the trial court’s decision and independently
review the record to determine whether summary judgment is appropriate. N.E.
Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699
N.E.2d 534 (8th Dist.1997).
Civ.R. 56(C) provides that before summary judgment may be granted,
a court must determine the following:
(1) no genuine issue as to any material fact remains to be litigated, (2)
the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one
conclusion, and viewing the evidence most strongly in favor of the
nonmoving party, that conclusion is adverse to the nonmoving party.
State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d
654 (1996).
The moving party carries an initial burden of setting forth specific
facts that demonstrate his or her entitlement to summary judgment. Dresher v.
Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to
meet this burden, summary judgment is not appropriate. Id. at 293. If the movant
does meet this burden, the burden shifts to the nonmovant to establish the existence
of genuine issues of material fact. Id.
III. Standing
In their third assignment of error, appellants argue that the trial court
erred in granting substitute plaintiff’s motion for summary judgment. At the time
the summary judgment motion was filed, Shellpoint was the plaintiff. According to
appellants, “[t]he critical issue in this case is standing.” They maintain that
substitute plaintiff did not put forth sufficient evidence to establish standing because
“[t]he only evidence regarding standing is a self-serving affidavit by a Shellpoint
employee.” They further contend that the self-serving affidavit does not contain the
requisite “personal knowledge” of the assignment transaction.
After review, however, we find that appellants failed to raise these
issues in their objections to the magistrate’s decision.
Under Civ.R. 53(D)(3)(b)(i), a party must file objections within 14
days of the filing of the magistrate’s decision.1 The objections must be “specific and
state with particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii). “Except
for a claim of plain error, a party shall not assign as error on appeal the court’s
adoption of any factual finding or legal conclusion, whether or not specifically
designated as a finding of fact or conclusion of law * * *, unless the party has objected
to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R.
53(D)(3)(b)(iv). “‘In essence, the rule is based on the principle that a trial court
should have a chance to correct or avoid a mistake before its decision is subject to
scrutiny by a reviewing court.’” Liming v. Damos, 4th Dist. Athens No. 08CA34,
2009-Ohio-6490, ¶ 14, quoting Barnett v. Barnett, 4th Dist. Highland No. 04CA13,
2008-Ohio-3415, ¶ 16.
1 The magistrate filed its decision on September 10, 2019. Appellants filed their
objections 15 days later, on September 25, 2019, which was one day late.
Where a party fails to raise an issue in its objections to a magistrate’s
decision, the party has waived the issue for purposes of appeal. Civ.R. 53(D)(3)(b).
Therefore, appellants waived their arguments that they raised here because they did
not raise them to the trial court in their objections to the magistrate’s decision.
Moreover, appellants have not invoked the plain-error doctrine on
appeal. Under these circumstances, we need not address it. See State v. Gavin, 4th
Dist. Scioto No. 13CA3592, 2015-Ohio-2996, ¶ 25, citing State v. Quarterman, 140
Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 17-20 (an appellate court need
not consider plain error where appellant fails to timely raise plain-error claim);
State v. Sims, 10th Dist. Franklin No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (appellant
cannot meet burden of demonstrating error on appeal when she only preserved
plain error and did not argue plain error on appeal); In re A.R., 12th Dist. Butler No.
CA2015-08-143, 2016-Ohio-4919, ¶ 33 (appellant is precluded from raising plain
error on appeal where he does not argue it in his brief); Coleman v. Coleman, 9th
Dist. Summit No. 27592, 2015-Ohio-2500, ¶ 9 (when claims are forfeited on appeal
and appellants do not raise plain error, appellate courts will not create an argument
on their behalf).
Further,
[i]n appeals of civil cases, the plain error doctrine is not favored and
may be applied only in the extremely rare case involving exceptional
circumstances where error, to which no objection was made at the trial
court, seriously affects the basic fairness, integrity, or public reputation
of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself.
Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus. We have
independently reviewed the evidence presented in this case, and this is not the
extremely rare case that would seriously affect the fairness, integrity, or public
reputation of the judicial process if the plain-error doctrine were not invoked.
Accordingly, we overrule appellants’ third assignment of error.
IV. Civ.R. 56(F)
In their first assignment of error, appellants contend that the trial
court should have granted them “leeway” as pro se litigants and construed their
response in opposition to Shellpoint’s summary judgment motion as a request for a
continuance under Civ.R. 56(F). In their second assignment of error, appellants
argue that the trial court abused its discretion when it failed to grant them a
continuance to conduct discovery pursuant to Civ.R. 56(F). Because these
assignments of error are interrelated, we will address them together.
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 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.
After Shellpoint moved for summary judgment in December 2018,
appellants responded by filing an “Answer to Plaintiff’s request for Judgment Lien
and Motion to Strike Plaintiff’s Request for Judgment Lien.” Shellpoint filed a reply
brief to appellants’ response in opposition. Appellants then filed a surreply brief
without seeking leave to do so, titling it, “Response to Plaintiff’s Reply Brief of
Substitute Answer to Strike Motion for Judgment Lien and Request for Production
of Documents.” They contend that the trial court should have construed their sur-
reply response in opposition as a Civ.R. 56(F) motion to continue to permit them to
conduct discovery.
“The trial court has wide discretion to grant or deny a request for a
continuance pursuant to Civ.R. 56(F) and its decision will not be reversed absent an
abuse of that discretion.” Scanlon v. Scanlon, 2013-Ohio-2694, 993 N.E.2d 855,
¶ 24 (8th Dist.). An abuse of discretion connotes that the trial court’s attitude was
unreasonable, arbitrary, or unconscionable. Ruwe v. Bd. of Twp. Trustees, 29 Ohio
St.3d 59, 61, 505 N.E.2d 957 (1987).
After review, however, we find that appellants did not file an affidavit
in support of their surreply response as Civ.R. 56(F) requires. “Where no affidavit
is presented in support of a motion for extension under Civ.R. 56(F), a court may
not grant an extension pursuant thereto.” Cook v. Toledo Hosp., 169 Ohio App.3d
180, 2006-Ohio-5278, 862 N.E.2d 181, ¶ 42 (6th Dist.); see also State ex rel.
Coulverson v. Ohio Adult Parole Auth., 62 Ohio St.3d 12, 14, 577 N.E.2d 352 (1991)
(where no valid affidavit was filed, the court “could not act under Civ.R. 56(F)”).
Appellants contend that because they were not represented by an
attorney at that time, the trial court should have given them “leeway” and granted
their request. However, pro se litigants are “held to the same standard of
conforming to legal procedure as attorneys.” State v. Williams, 8th Dist. Cuyahoga
No. 107748, 2019-Ohio-2335, ¶ 47, quoting Cleveland v. Lane, 8th Dist. Cuyahoga
No. 75151, 1999 Ohio App. LEXIS 5893, 8 (Dec. 9, 1999); see also In re Estate of
O’Toole, 8th Dist. Cuyahoga No. 108122, 2019-Ohio-4165, ¶ 23, citing Kilroy v. B.H.
Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996) (“Under
Ohio law, pro se litigants are held to the same standard as all other litigants; that is,
they must comply with the rules of procedure and must accept the consequences of
their own mistakes.”).
Appellants cite to a case from this court, Millennia Hous. Mgt. Ltd. v.
Johnson, 8th Dist. Cuyahoga No. 96854, 2012-Ohio-1044, ¶ 10, in support of their
argument that pro se litigants should be “granted reasonable leeway such that their
motions and pleadings should be liberally construed so as to decide the issues on the
merits, as opposed to technicalities.” Id. at ¶ 10. We find Millennia Hous. Mgt. to
be distinguishable from the present case. There we found that the trial court had
arbitrarily construed and improperly and unfairly discounted the defendant’s
pleadings. Here, however, there is nothing in the record establishing that the trial
court failed to construe appellants’ surreply brief in opposition to Shellpoint’s
summary judgment motion. Even if the trial court gave appellants “leeway” and
construed their surreply brief as a request for a continuance to conduct discovery
under Civ.R. 56(F), appellants still failed to file an affidavit as the rule requires.
Accordingly, we overrule appellants’ first and second assignments of
error.
Judgment affirmed.
It is ordered that appellee recover from appellants the 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.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR