Huntington Bank v. Popovec
2013 Ohio 4363
Ohio Ct. App.2013Background
- Huntington filed a foreclosure complaint on March 12, 2008 against Popovec and others for default on a note secured by a mortgage.
- Popovec and her then-husband executed the note and mortgage on 6405 Farmington Circle, Canfield; Huntington is Sky Bank's successor by merger.
- Popovec was properly served and did not answer the foreclosure complaint.
- Huntington moved for default judgment, which was granted in June 2008; later a stay and sale issues occurred.
- Popovec filed a Civ.R. 60(B) motion to vacate the default judgment, asserting Huntington was not the real party in interest and challenging notice.
- Huntington sought summary judgment contending Popovec defaulted and Huntington properly accelerated; Popovec opposed with no supporting affidavits.
- The trial court granted Huntington’s summary judgment for foreclosure on June 6, 2012; Popovec appealed.
- The appellate court holds that Popovec failed to file an answer contesting performance of a condition precedent, Civ.R. 9(C).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Huntington’s notice of default/acceleration satisfied the mortgage’s condition precedent. | Huntington met the condition precedent; notice admitted by Popovec’s lack of answer. | Popovec contested the notice but failed to deny performance of the condition precedent. | Huntington’s notice is deemed admitted; no genuine issue; judgment affirmed. |
Key Cases Cited
- First Financial Bank v. Doellman, 2007-Ohio-222 (12th Dist. 2007) (notice as a condition precedent governed by Civ.R. 9(C))
- Fifth Third Mtge. Co. v. Orebaugh, 2013-Ohio-1730 (12th Dist. 2013) (denial must be specific under Civ.R. 9(C))