2021 Ohio 439
Ohio Ct. App.2021Background
- Appellants D’Andre Jessie and Emma Warner executed a promissory note and mortgage in 2004 to National City Mortgage for a Cleveland property.
- Assignments: National City’s interests were assigned to Nationstar (2017); Nationstar later assigned the mortgage to Shellpoint, which was substituted as plaintiff in the foreclosure action.
- Shellpoint moved for summary judgment (Dec. 2018), attaching an affidavit stating the original note was lost, had been endorsed in blank, and that Shellpoint would file a lost-note affidavit.
- Appellants, pro se, filed an opposition, a reply, and an unauthorized surreply but did not file a Civ.R. 56(F) affidavit or other evidentiary affidavit.
- The magistrate granted summary judgment to Shellpoint; the trial court adopted the magistrate’s decision and entered a decree of foreclosure. Appellants’ objections were filed one day late.
- On appeal, the court affirmed: appellants waived standing challenges by failing to object timely to the magistrate’s decision, and they were not entitled to a Civ.R. 56(F) continuance because they did not submit the required affidavit; pro se status did not excuse procedural compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellants’ surreply should be treated as a Civ.R. 56(F) request for continuance | Shellpoint argued summary judgment was proper and no continuance was warranted | Appellants argued their filings (as pro se litigants) should be liberally construed as a Civ.R. 56(F) request to conduct discovery | Court held the surreply was not a proper Civ.R. 56(F) motion because appellants failed to file the required affidavit; pro se status does not excuse the requirement |
| Whether the trial court abused its discretion by denying a Civ.R. 56(F) continuance | Shellpoint: court acted within discretion; no affidavit = no entitlement to continuance | Appellants: denial was an abuse because they needed discovery to oppose summary judgment | Court: no abuse of discretion; rule requires an affidavit and, absent one, a continuance may not be granted |
| Whether substitute plaintiff had standing and whether summary judgment was proper | Shellpoint presented affidavit and a lost-note affidavit to show entitlement to enforce the note; therefore summary judgment appropriate | Appellants contended Shellpoint lacked standing and affidavit lacked personal knowledge | Court: appellants waived standing challenge by failing to timely object to the magistrate’s decision; on the merits not reached; summary judgment affirmed |
Key Cases Cited
- Baiko v. Mays, 140 Ohio App.3d 1 (2000) (de novo review and summary judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (movant’s initial burden and burden-shifting framework for summary judgment)
- State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190 (1996) (requirements before granting summary judgment under Civ.R. 56(C))
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997) (plain-error doctrine in civil appeals is disfavored and limited to exceptional cases)
- Cook v. Toledo Hosp., 169 Ohio App.3d 180 (2006) (absence of a Civ.R. 56(F) affidavit precludes granting a continuance under that rule)
- State ex rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio St.3d 12 (1991) (court cannot act under Civ.R. 56(F) where no valid affidavit is filed)
- Ruwe v. Bd. of Twp. Trustees, 29 Ohio St.3d 59 (1987) (standard for abuse of discretion)
- Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357 (1996) (pro se litigants must comply with procedural rules)