bayview loan servicing, l.l.c. v. st. m. donnersbach ... 150 east gay street, 21st floor columbus,...

[Cite as Bayview Loan Servicing, L.L.C. v. St. Cyr, 2017-Ohio-2758.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 104655

BAYVIEW LOAN SERVICING L.L.C.

PLAINTIFF-APPELLEE

vs.

DARWIN ST. CYR, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-15-848614

BEFORE: McCormack, P.J., Blackmon, J., and Jones, J.

RELEASED AND JOURNALIZED: May 11, 2017

ATTORNEY FOR APPELLANTS Ivan G. Haggins 3363 Chelsea Drive Cleveland Heights, OH 44118 ATTORNEYS FOR APPELLEE For Bayview Loan Servicing, L.L.C. Ted A. Humbert Laura C. Infante Jason A. Whitacre Law Offices of John D. Clunk Co. L.P.A. 4500 Courthouse Blvd., Ste. 400 Stow, OH 44224 For City of Cleveland Heights Sara M. Donnersbach Weltman Weinberg & Reis Co., L.P.A. Lakeside Place, Ste. 200 323 Lakeside Ave., West Cleveland, OH 44113 ALSO LISTED: Dollar Bank, F.S.B. 3 Gateway Center 401 Liberty Ave. Pittsburgh, PA 15222 State of Ohio Department of Taxation 150 East Gay Street, 21st Floor Columbus, OH 43215 Samantha Elizabeth Thorpe 2111 Miramar Blvd. Cleveland, OH 44121

TIM McCORMACK, P.J.:

{1} Defendant-appellant Darwin St. Cyr appeals from a judgment of the

Cuyahoga County Court of Common Pleas granting foreclosure in favor of

plaintiff-appellee Bayview Loan Servicing, L.L.C. (Bayview). For the following

reasons, we affirm.

Procedural History and Substantive Facts

{2} In June 2008, St. Cyr purchased a home in Cleveland, Ohio. He executed

a promissory note in the amount of $106,575. The note was secured by a mortgage

against this property, executed in favor of Mortgage Electronic Registration Systems, Inc.

(MERS) as nominee for Taylor, Bean & Whitaker Mortgage Corp. and its successors

and assigns. In May 2010, MERS assigned the mortgage to BAC Home Loans

Servicing, L.P., f.k.a., Countrywide Home Loans Servicing, L.P. In March 2014, Bank

of America, N.A., successor by merger to BAC Home Loans Servicing, L.P., f.k.a.

Countrywide Home Loans Servicing, L.P., assigned the mortgage to the Secretary of

Housing and Urban Development (HUD). Thereafter, in April 2014, HUD assigned

the mortgage to appellee, Bayview, who was the current loan servicer at the time this

action was filed.

{3} In July 2015, Bayview filed its complaint in foreclosure, seeking judgment

on the note and foreclosure of the mortgage. Bayview alleged that it was entitled to

enforce the note, it was in possession of the note, and it was the record holder of the

mortgage at the time it filed the complaint. Bayview further alleged that St. Cyrs loan

account had fallen into default and St. Cyr had not cured the default, which resulted in the

acceleration of the note and mortgage. Bayview stated that it was therefore entitled to

foreclosure.

{4} When St. Cyr did not answer the complaint, Bayview moved for default

judgment. At the default judgment hearing, however, St. Cyr filed a motion for leave to

file an answer instanter, which the trial court granted. Thereafter, upon the courts

instructions, Bayview provided St. Cyr with a loss mitigation packet and trial payment

plan offer. St. Cyr rejected Bayviews offer and requested a case management

conference be scheduled. The court granted St. Cyrs motion for a case management

conference and ordered all discovery to be completed by April 18, 2016, and all

dispositive motions due by May 2, 2016.

{5} On February 29, 2016, St. Cyr served upon Bayview a request for

admissions, among other discovery requests. On April 15, 2016, Bayview filed its first

notice of service of discovery. On April 18, 2016, Bayview filed a combined motion to

amend case management schedule and motion for extension to respond to St. Cyrs

discovery requests. St. Cyr, however, filed a brief in opposition to this motion. Both

motions were denied on April 20, 2016, and with this order, the court indicated that all

nonexpert discovery is now closed. On April 21 and April 25, Bayview filed notices

of service of discovery responses. Bayview filed a notice of service of supplemental

discovery responses on May 9, 2016.

{6} After discovery was complete, St. Cyr moved for summary judgment,

alleging, essentially, that because Bayview failed to timely respond to St. Cyrs discovery

requests, Bayview admitted to certain facts and these facts establish that no genuine

issues of material fact exist and he was therefore entitled to judgment as a matter of

law. Bayview then filed its own motion for summary judgment, a motion for default

judgment, and a brief in opposition to St. Cyrs motion for summary judgment. Along

with its reply brief in support of its summary judgment, Bayview moved the court to

withdraw deemed admissions or for the court to rule that the same were not admitted and

allow responses [the] plaintiff provided.

{7} On June 6, 2016, the trial court granted Bayviews motion for summary

judgment and motion for default judgment, and it denied St. Cyrs motion. The trial

court issued a supplemental journal entry on June 13, 2016. St. Cyr now appeals,

assigning two errors for our review:

I. The trial court erred in granting Bayviews motion for summary judgment and in denying St. Cyrs motion for summary judgment, particularly given the deemed admissions by Bayview. II. The trial court erred in granting Bayviews motion for summary judgment and in denying St. Cyrs motion for summary judgment, as Bayview failed to provide sufficient evidence of entitlement to foreclosure and/or damages.

Summary Judgment

{8} Summary judgment is appropriate when: (1) there is no genuine issue of

material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) after

construing the evidence most favorably for the party against whom the motion is made,

reasonable minds can reach only a conclusion that is adverse to the nonmoving party.

Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267

(1977).

{9} In a motion for summary judgment, 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). Once

a moving party satisfies its burden under Civ.R. 56(C), the nonmoving party may not rest

upon the mere allegations or denials of the moving partys pleadings; rather, it has a

reciprocal burden of setting forth specific facts demonstrating that there is a genuine

triable issue. Id.; State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449, 663

N.E.2d 639 (1996). Summary judgment is appropriate if the nonmoving party fails to

meet this burden. Dresher at 293.

{10} A motion for summary judgment in a foreclosure action must be supported

by evidentiary quality materials establishing that: (1) the plaintiff is the holder of the note

and mortgage or is a party entitled to enforce the instrument; (2) if the plaintiff bank 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. See, e.g., Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist.

Cuyahoga No. 98502, 2013-Ohio-1657, 17; Bank of Am., N.A. v. Sweeney, 8th Dist.

Cuyahoga No. 100154, 2014-Ohio-1241, 8.

{11} We review the trial courts decision on a motion for summary judgment de

novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Law and Analysis

{12} As the arguments overlap, we address the assignments of error together.

St. Cyr contends that the trial court erred when it denied his motion for summary

judgment and granted Bayviews motion for summary judgment because Bayview

admitted it had no legal interest in the note or the mortgage by virtue of failing to timely

respond to St. Cyrs request for admissions. In support, St. Cyr attached to his motion

the request for admissions propounded to Bayview, which called upon the plaintiff to

admit, among other statements, that it has no legal interest, a beneficial interest, or any

other interest in the mortgage or note (Request No. 1); it has no documents

demonstrating the note was physically transferred to the plaintiff before commencement

of the instant matter (Request No. 9); the plaintiff was not the party who entered and

maintained MERS records (Request No. 10); and the original lender, Taylor, Bean &

Whitaker had no right to assign any purported interest in the property, note, mortgage, or

otherwise (Request No. 15).

{13} St. Cyr also contends that even if the requests were not deemed admitted,

there were no genuine issues of material fact and he was entitled to judgment as a matter

of law. In support, he advances the following arguments: (1) Bayviews affidavit in

support of summary judgment was insufficient; and (2) Bayview failed to provide

sufficient evidence that it was a real party in interest, it had standing, it was entitled to

foreclosure on the property, and it was entitled to d