Bank of Am., N.A. v. Mark
2013 Ohio 3575
Ohio Ct. App.2013Background
- Bank of America, N.A. filed a foreclosure action against David Mark on May 10, 2010 in Butler County.
- Mark answered generally denying the Bank's allegations and asserted a counterclaim alleging Countrywide induced refinancing with fiduciary breach and fraud.
- The Bank later substituted as plaintiff after merger, and discovery efforts were minimal with Mark failing to respond to interrogatories.
- The parties pursued loan modification efforts for years, but those efforts were unsuccessful and discovery deadlines approached.
- On October 31, 2012, the Bank moved for summary and default judgment; Mark opposed with Civ.R. 56(F) motions seeking time to conduct discovery.
- The trial court denied Mark’s Civ.R. 56(F) motions, granted summary and default judgment, and ordered sale of the property; Mark appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 56(F) denial was error | Bank argues Mark did not show need for discovery; diligent discovery was available but not pursued. | Mark contends additional time was needed to obtain loan documents and depose witnesses to prove fraud and predatory lending. | No abuse; Civ.R. 56(F) denial affirmed. |
| Whether summary judgment was proper given lack of discovery | Bank argues undisputed prima facie evidence of default and loan obligation, with no genuine issue created by lack of discovery. | Mark asserts denial of opportunity to discover facts showing fraud in inducement; summary judgment precluded by genuine issues. | Summary judgment affirmed; lack of discovery does not preclude judgment where no genuine issues of material fact are shown. |
Key Cases Cited
- Bank of Am. v. McGlothin, 2013-Ohio-2755 (2d Dist. Clark 2013) (discretion in Civ.R. 56(F) continuances; diligence matters)
- Settle-Muter Elec., Ltd. v. Settle-Muter Elec., 2012-Ohio-4524 (12th Dist. Fayette 2012) (trial court discretion in discovery management)
- Doriott v. M.V.H.E., Inc., 2004-Ohio-867 (2d Dist. Montgomery 2004) (necessity of demonstrating specific material facts in Civ.R. 56(F) context)
- Jenkins v. Jenkins, 2012-Ohio-48 (12th Dist. Butler 2012) (litigation cannot proceed by inaction; diligence required)
- Southern Rambler Sales, Inc. v. American Motors Corp., 375 F.2d 932 (5th Cir. 1967) (discovery tools are not mere options; inability to present facts at summary judgment can foreclose relief)