Ditech Fin., L.L.C. v. Ebbing
136 N.E.3d 757
Ohio Ct. App.2019Background
- In 2001 Jeannette Weik executed a $75,200 promissory note and mortgage (MERS as nominee) on property at 1001 Hayes Ave.; the note was endorsed in blank. By 2016–2017 the loan was in default with an unpaid balance around $53,480.94.
- After Weik died, Samantha Ebbing became the titleholder of the property and was named a defendant in Ditech Financial, LLC’s foreclosure complaint filed August 17, 2017; Ditech had an assignment of the mortgage from MERS dated August 3, 2017.
- Service: Ditech served Ebbing by certified mail at the address she used in court filings; Bank of New York Mellon (a junior lienholder) also appeared and answered.
- Procedural history: Ebbing moved to dismiss under Civ.R. 12(B)(6); the court denied that motion (Dec. 13, 2017). Ditech moved for summary judgment (Apr. 26, 2018). Ebbing filed late pleadings and a motion for leave to file out of time; the trial court denied leave, struck her filings, and granted Ditech summary judgment (July 13, 2018 entry and same-day summary-judgment entry).
- Ebbing appealed, arguing (1) the complaint should have been dismissed because Ditech lacked standing/party-in-interest, (2) the court deprived her due process by issuing entries without giving her an opportunity to be heard and by failing to serve copies, and (3) the court erred in denying leave to file out of time and in entering a “false” judgment.
Issues
| Issue | Plaintiff's Argument (Ebbing) | Defendant's Argument (Ditech) | Held |
|---|---|---|---|
| 1. Whether the complaint should be dismissed under Civ.R. 12(B)(6) for lack of standing/party-in-interest | Ditech is not the party in interest or lender named on the note; complaint fails to state a claim | Ditech alleged it was holder of the note and assignee of the mortgage and pleaded the elements for foreclosure | Denied — complaint pleaded sufficient facts; dismissal under Civ.R. 12(B)(6) was improper |
| 2. Whether the trial court violated due process by issuing its Dec. 13, 2017 decision without hearing and by failing to serve Ebbing a copy | Court issued decision before giving Ebbing opportunity to be heard and did not serve her, depriving her of process | Court mailed the decision to the address Ebbing used in filings; issuing the decision before Ditech’s late memorandum did not prejudice Ebbing | Denied — no due-process violation; record shows decision was sent to Ebbing and she suffered no prejudice |
| 3. Whether the court abused discretion in denying leave to file an answer/counterclaims out of time and in granting summary judgment | Denial of leave and striking of pleadings was unjust; summary judgment was a false judgment because material issues remain | Ebbing delayed months after the court’s December decision; no excusable neglect shown; Ditech met summary-judgment burden and Ebbing failed to produce specific contrary facts | Denied — court did not abuse its discretion; summary judgment appropriate because no genuine issue of material fact |
Key Cases Cited
- Byrd v. Faber, 57 Ohio St.3d 56 (Ohio 1991) (on motion to dismiss: accept complaint allegations as true and draw inferences for nonmoving party)
- York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143 (Ohio 1991) (motion to dismiss standards — plaintiff may recover if any set of facts in complaint would entitle recovery)
- LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323 (Ohio 2007) (standard for dismissal under Civ.R. 12(B)(6))
- Roberts v. RMB Enters., Inc., 197 Ohio App.3d 435 (Ohio Ct. App.) (summary-judgment procedural overview)