BAC Home Loans Servicing, LP. v. Mullins
2014 Ohio 4761
Ohio Ct. App.2014Background
- Mullins borrowed $94,606 on May 23, 2008, secured by a mortgage on a Somers Street Eaton, Ohio property; he defaulted and BAC (successor servicer) sued for foreclosure on December 3, 2009.
- Mullins filed a pro se letter-answer and later sought loan modification; BAC moved for summary judgment on January 15, 2010; Mullins failed to timely respond and the trial court granted summary judgment on March 9, 2010.
- The case was stayed during loan-modification efforts, later reactivated; Mullins attempted (1) a belated motion for leave to assert a countersuit/ fraud counterclaim, (2) a continuance of a default-judgment hearing, and (3) a Civ.R. 60(B) petition to set aside the summary judgment.
- The trial court denied leave to add the counterclaim as untimely, denied the continuance, and denied the Civ.R. 60(B) petition as not timely and not supported by operative facts; it entered a decree of foreclosure on December 3, 2013.
- Mullins appealed pro se, challenging denial of opportunity to be heard, the denial of Civ.R. 60(B) relief, alleged fraud, and BAC’s standing after an alleged transfer to PennyMac; this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying leave to file a late counterclaim for fraud | BAC: denial proper because counterclaim was untimely and leave is discretionary | Mullins: counterclaim timely because filed within a year of first reactivation; he should be allowed to prove fraud | Court: No abuse; leave denied as untimely and after summary judgment was already granted |
| Whether denial of continuance and denial of Civ.R. 60(B) relief violated Mullins’ due-process/right to be heard; and whether summary judgment was improper because BAC transferred the note or committed fraud | BAC: proceeding and summary judgment proper; negotiations do not suspend enforceability; 60(B) petition untimely and unsupported by operative facts | Mullins: he was denied meaningful participation; BAC committed fraud during loan-modification and/or transferred the note to PennyMac making BAC not real party in interest | Court: No due-process violation; continuance denial proper; 60(B) denied for untimeliness (filed >1 year after judgment) and lack of operative facts; summary judgment proper—Mullins admitted default and failed to raise genuine issue of material fact; transfer argument waived on appeal |
Key Cases Cited
- GTE Automatic Elec. v. ARC Indus., 47 Ohio St.2d 146 (1976) (three independent requirements for Civ.R. 60(B) relief)
- Mootispaw v. Eckstein, 76 Ohio St.3d 383 (1996) (nonmoving party cannot rest on allegations; must produce specific facts to create genuine issue of material fact)