Aurora Bank FSB v. Stevens
2014 Ohio 1713
Ohio Ct. App.2014Background
- In 2002 Stevens executed a promissory note and mortgage; the mortgage was later assigned through several entities and ultimately to Nationstar (appellee).
- Aurora (and later Nationstar) sued in 2012 to foreclose for default, seeking the unpaid balance and alleging acceleration.
- Nationstar moved for summary judgment in June 2013, supporting its motion with an affidavit from a loan servicer employee attaching the note and mortgage.
- Stevens filed a brief asserting numerous affirmative defenses and statutory claims but submitted no evidentiary materials under Civ.R. 56 to oppose summary judgment.
- Stevens did not serve discovery requests during the 16-month pendency nor file a Civ.R. 56(F) affidavit requesting a continuance to obtain discovery.
- The trial court granted summary judgment for Nationstar; the Tenth District affirmed, finding Nationstar met its summary judgment burden and Stevens failed to raise specific factual disputes or seek discovery relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was improper because genuine issues of material fact remained (e.g., holder in due course, RESPA, OCSPA, FDCPA, payment allocation, unclean hands, estoppel, execution) | Nationstar argued it held the note and mortgage and supported summary judgment with a servicer affidavit and copies of the note and mortgage | Stevens asserted multiple defenses and statutory violations but offered no evidentiary support under Civ.R. 56(E) | Court held Nationstar met its burden; Stevens failed to produce specific facts or evidence, so summary judgment was proper |
| Whether Stevens was denied a fair opportunity for discovery before summary judgment | Nationstar pointed out ample time had elapsed and no discovery requests were served; no Civ.R. 56(F) motion was filed | Stevens claimed she lacked time/opportunity to conduct discovery to oppose summary judgment | Court held Stevens waived this claim by not serving discovery and not invoking Civ.R. 56(F); ample time existed, so no relief granted |
Key Cases Cited
- Koos v. Central Ohio Cellular, 94 Ohio App.3d 579 (Ohio App. 1995) (standard for de novo appellate review of summary judgment)
- Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704 (Ohio App. 1993) (summary judgment standard and appellate review)
- Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103 (Ohio App. 1992) (appellate review of summary judgment)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (Ohio 1978) (three-part test for summary judgment appropriateness)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (moving party's initial burden and nonmoving party's reciprocal burden under Civ.R. 56)
- Vahila v. Hall, 77 Ohio St.3d 421 (Ohio 1997) (evidentiary support required for summary judgment motions)
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (Ohio 1988) (discussion of summary judgment burdens)
- Todd Dev. Co. v. Morgan, 116 Ohio St.3d 461 (Ohio 2008) (nonmovant cannot rest on pleadings; must produce evidence)
- Coventry Twp. v. Ecker, 101 Ohio App.3d 38 (Ohio App. 1995) (affirmation of judgment when any proper ground supports it)
- Benjamin v. Deffet Rentals, Inc., 66 Ohio St.2d 86 (Ohio 1981) (Civ.R. 56(F) continuance to permit discovery)