2018 Ohio 2874
Ohio Ct. App.2018Background:
- Ditech filed a foreclosure complaint against Keith and Teresa Akers for default on a mortgage note; Keith later died and was dismissed.
- The Akers’ answer raised several affirmative defenses, including that Ditech failed to comply with 12 C.F.R. § 1024.41 (RESPA loss-mitigation rules).
- Ditech moved for summary judgment, arguing § 1024.41 did not apply because the Akers never submitted a complete loss-mitigation application.
- The Akers requested an extension and attached a proposed memorandum but never filed a substantive response or evidentiary materials opposing summary judgment.
- The trial court granted summary judgment for Ditech and entered a decree of foreclosure; Teresa appealed, arguing § 1024.41 is a condition precedent and a genuine issue of material fact existed.
Issues:
| Issue | Plaintiff's Argument (Ditech) | Defendant's Argument (Akers/Teresa) | Held |
|---|---|---|---|
| Whether 12 C.F.R. § 1024.41 applied to bar foreclosure | § 1024.41 applies only if borrower submitted a complete loss-mitigation application; Akers did not do so | § 1024.41 is a condition precedent and Ditech failed to show compliance so foreclosure was improper | Court: § 1024.41 was not shown to apply because Akers failed to present evidence they submitted a complete application; summary judgment affirmed |
| Whether summary judgment was proper despite Akers’ pleadings | Ditech met initial burden; Akers failed to rebut with specific facts under Civ.R. 56(E) | Akers argued their pleadings/affirmative defense sufficed to create a triable issue | Court: Nonmoving party cannot rest on pleadings; without evidence or particularized pleading the motion must be granted |
| Whether § 1024.41 is an affirmative defense or condition precedent (dispositive) | Ditech: irrelevant if Akers cannot show § 1024.41 was triggered | Akers: characterized § 1024.41 as a condition precedent to foreclosure | Court: Did not decide classification — either way Akers failed to satisfy Civ.R. 56(E) or Civ.R. 9(C), so judgment stands |
| Whether proposed extension memorandum sufficed as opposition | Ditech: the proposed memo did not supply evidentiary material or identify record facts | Akers: sought extension and attached proposed memo outlining anticipated arguments | Court: Proposed memo was not a proper response under Civ.R. 56 and contained no evidentiary support; it did not defeat summary judgment |
Key Cases Cited
- Eber Beverage Co. v. Labatt USA Operating Co., L.L.C., 138 Ohio St.3d 71 (standard of review for summary judgment)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (summary judgment must be awarded with caution)
- Byrd v. Smith, 110 Ohio St.3d 24 (nonmoving party gets benefit of favorable inferences)
- Vahila v. Hall, 77 Ohio St.3d 421 (moving party’s initial burden under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party must identify record portions showing no genuine issue)
- Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461 (nonmoving party not relieved of producing evidence to rebut a supported motion)
- U.S. Bank, N.A. v. Detweiler, 191 Ohio App.3d 464 (discussing HUD regulation as condition precedent to foreclosure)