Huntington Bank v. Popovec

[Cite as Huntington Bank v. Popovec, 2013-Ohio-4363.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
THE HUNTINGTON BANK )
SUCCESSOR BY MERGER WITH ) CASE NO. 12 MA 119
SKY BANK, )
)
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
DAVID B. POPOVEC, et al., )
)
DEFENDANTS-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Case No. 08 CV 1014.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Eric Deighton
Carlisle, McNellie, Rini, Kramer
& Ulrich Co., LPA
24755 Chagrin Blvd., Suite 200
Cleveland, OH 44122
For Defendants-Appellant: Attorney Bruce Broyles
5815 Market Street, Suite 2
Youngstown, OH 44512
JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: September 23, 2013
[Cite as Huntington Bank v. Popovec, 2013-Ohio-4363.]
DeGenaro, P.J.
{¶1} Defendants-Appellant, Eva Popovec, appeals the June 6, 2012 judgment of
the Mahoning County Court of Common Pleas granting summary judgment in favor of
Plaintiff-Appellee, The Huntington National Bank, in a foreclosure action. On appeal,
Popovec asserts that summary judgment was improper because she presented evidence
demonstrating that Huntington failed to meet a condition precedent to foreclosure, namely
that it failed to provide proper notice of default and acceleration, pursuant to the note and
mortgage. Huntington counters that Popovec was precluded from contesting the validity
of Huntington's notice because she failed to file an answer.
{¶2} Upon review, Huntington is correct and Popovec's assignment of error is
meritless. Popovec failed to file an answer in this case and thus has failed to specifically
deny Huntington's compliance with the notice provision, pursuant to Civ.R. 9(C). Thus,
Huntington's performance of this condition precedent is deemed admitted, and Popovec
was barred from later contesting the propriety of Huntington's notice in her brief in
opposition to Huntington's motion for summary judgment, and consequently, now on
appeal. Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} On October 3, 2003, Popovec, along with her then-husband David executed
and delivered a promissory note to Sky Bank. The note was secured by a mortgage on
property located at 6405 Farmington Circle in Canfield. Huntington is Sky Bank's
successor by merger.
{¶4} On March 12, 2008, Huntington filed a complaint for foreclosure, naming,
among others, Popovec as a defendant and asserting that Popovec had defaulted on the
Note and owed $182,642.82 plus interest. In the Complaint, Huntington generally pled
that it had satisfied all conditions precedent to filing the foreclosure action. Popovec was
properly served with the summons and complaint.
{¶5} After no answer was filed, Huntington filed a motion for default judgment
which was granted by the trial court on June 19, 2008. Therein the trial court noted that
Popovec had filed for bankruptcy, listing Huntington's claim, and that as a result no
money judgment could be entered against Popovec.
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{¶6} The initial order of sale was recalled. On June 3, 2011, just before the
property was again set to be sold at sheriff's sale, Popovec filed a motion to vacate the
default judgment. The trial court stayed the sale pending ruling on the motion. As her
meritorious defense in her 60(B) motion, Popovec alleged that Huntington was not the
real party in interest. She asked the trial court to vacate the June 19, 2008 order granting
default judgment under Civ.R. 60(B)(5), the so-called "catch-all" provision, and sought
leave to file an answer setting forth her meritorious defense. Huntington filed a brief in
opposition and Popovec replied, alleging additionally that since Huntington was merely a
servicer and not the real party in interest that it could not have provided Popovec notice of
default pursuant to the terms of the promissory note.
{¶7} On October 27, 2011, the magistrate issued a decision granting Popovec's
60(B) motion to afford her "the opportunity to present her meritorious defense(s)."
{¶8} When five months went by and Popovec had still not filed an answer or
responsive pleading, Huntington filed a motion for summary judgment. It alleged that
there was no genuine issue of material fact: Popovec defaulted on the note and mortgage
by failing to pay; and Huntington properly exercised its option to accelerate the unpaid
balance of the note and proceed with foreclosure. Attached to its motion for summary
judgment were the affidavit of Clair Turk, an authorized signer for Huntington, the
acceleration and default notice sent to Popovec and the certified mail receipts showing
the mailing date and the date Popovec signed and received the notice.
{¶9} Popovec filed a combined cross-motion for summary judgment and brief in
opposition to Huntington's motion for summary judgment on May 2, 2012. Popovec
attached no affidavits or other exhibits to this motion. Therein, she alleged Huntington's
notice of acceleration and default failed to comply with the terms of the note and
mortgage insofar as it did not provide her sufficient time to cure the default and because it
was not sent by the proper party. This was the first time Popovec had ever raised the
time issue; she did allege that notice was sent by an improper party in her reply brief in
support of her motion to vacate.
{¶10} On May 24, 2012, Huntington filed a combined reply to Popovec's brief in
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opposition to summary judgment along with a brief in opposition to Popovec's summary
judgment motion. Again it attached the affidavit of Clair Turk, the acceleration and default
notice sent to Popovec and the various certified mail receipts.
{¶11} On June 6, 2012, the trial court granted Huntington's summary judgment
motion and ordered foreclosure, finding no just cause for delay. On June 27, 2012,
Popovec filed a notice of appeal with this court along with a motion for stay in the trial
court. On August 13, 2012, the magistrate issued an order granting a stay pending the
outcome of this appeal.
Failure to File Answer Contesting Performance of Condition Precedent
{¶12} In her sole assignment of error, Popovec asserts:
{¶13} "The trial court erred in granting summary judgment when there was
evidence demonstrating that Appellee failed to meet a condition precedent."
{¶14} Popovec asserts that the trial court erred in finding that there was no
genuine issue of material fact as to whether the notice of acceleration/default complied
with the terms of the note and mortgage. In response, Huntington asserts, as a threshold
matter, that Popovec failed to raise Huntington's alleged failure to meet this condition
precedent insofar as she did not file an answer in this case. As such, Huntington asserts
that it was improper for Popovec to raise this issue for the first time in her brief in
opposition to Huntington's motion for summary judgment.
{¶15} "Where prior notice of default and/or acceleration is required by a provision
in a note or mortgage instrument, the provision of notice is a condition precedent," and it
is subject to the requirements of Civ.R. 9(C). First Financial Bank v. Doellman, 12th Dist.
No. CA2006-02-029, 2007-Ohio-222, ¶20. Civ.R. 9(C) provides: "In pleading the
performance or occurrence of conditions precedent, it is sufficient to aver generally that
all conditions precedent have been performed or have occurred." By contrast, "[a] denial
of performance or occurrence shall be made specifically and with particularity." Id.Conditions precedent that are not denied in the manner provided by Civ.R. 9(C) are
deemed admitted. Fifth Third Mtge. Co. v. Orebaugh, 12th Dist. No. CA2012–08–153,
2013-Ohio-1730, ¶29, citing First Financial at ¶20; see also Civ.R. 8(D).
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{¶16} Here, Huntington alleged in its complaint that "it has performed all of the
conditions precedent required to be performed by it." This is sufficient under Civ.R. 9(C).
Popovec failed to file an answer in this case and thus has failed to deny Huntington's
performance of the condition precedent. Thus, Huntington's performance of the condition
precedent is deemed admitted. Accordingly, Popovec was barred from later contesting
the propriety of Huntington's notice in her brief in opposition to Huntington's motion for
summary judgment, and consequently, now on appeal. See, e.g., Satterfield v. Adams
Cty./Ohio Valley School Dist., 4th Dist. No. 95CA611, 1996 WL 655789, *5 (Nov. 6, 1996)
(where defendant failed to specifically deny performance of a condition precedent in its
answer pursuant to Civ.R. 9(C) compliance was deemed admitted and defendant could
not subsequently raise the issue on appeal.)
{¶17} In conclusion, Popovec's assignment of error is meritless. Popovec failed to
file an answer in this case and thus has failed to specifically deny Huntington's
compliance with the mortgage's notice provision, pursuant to Civ.R. 9(C). Performance of
the notice provision constitutes a condition precedent to foreclosure. Thus, Huntington's
performance of this condition precedent is deemed admitted, and Popovec was barred
from later contesting the propriety of Huntington's notice in her brief in opposition to
Huntington's motion for summary judgment, and consequently, now on appeal.
Accordingly, the judgment of the trial court is affirmed.
Vukovich, J., concurs.
Waite, J., concurs.