BANK OF AMERICA, N.A., Plaintiff-Appellee, v. DAVID J. MARK, Defendant-Appellant.
CASE NO. CA2013-01-012
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
8/19/2013
2013-Ohio-3575
M. POWELL, J.
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2010-05-2042
Charles H. Bartlett, Jr., 917 Main Street, Suite 300, Cincinnati, Ohio 45202, for defendant-appellant
OPINION
M. POWELL, J.
{¶ 1} Defendant-appellant, David Mark, appeals a decision of the Butler County Court of Common Pleas denying his motion for a continuance and granting summary judgment in favor of plaintiff-appellee, Bank of America, N.A., in a foreclosure action.
{¶ 2} On May 10, 2010, U.S. Bank, N.A. filed a foreclosure complaint against Mark. Mark timely filed an answer generally denying each of U.S. Bank‘s allegations, and a
{¶ 3} Over the next several months, the parties attempted to reach a loan modification; the trial court held status reports to monitor the progress of the case. However, the parties’ efforts proved to be unsuccessful.
{¶ 4} On February 3, 2012, U.S. Bank served its First Set of Interrogatories, Request for Admissions, and Request for Production of Documents on Mark. On February 22, the trial court substituted “Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP” (the “Bank“) as the plaintiff. On June 20, counsel for Mark filed a Notice of Disqualification. Six days later, new counsel entered an appearance on behalf of Mark.
{¶ 5} On July 6, 2012, the trial court was informed that Mark was denied a loan modification because (1) he was $90,000 in arrears, (2) he needed $45,000 to buy down the arrears to secure a loan modification, and (3) he had not been escrowing a sufficient amount of the mortgage payments over the past three years to reach that amount. On July 10, the trial court issued a scheduling order with a discovery cut-off date of October 10, 2012. Summary judgment motions were to be filed by October 31, 2012, with responses by November 21, 2012, and replies by November 28, 2012. At the time, Mark had still not conducted any discovery with regard to either the Bank‘s claims or his counterclaim.
{¶ 6} On October 31, 2012, Mark filed responses to the Bank‘s request for admissions. Mark, however, never responded to the Bank‘s interrogatories. Mark continued
{¶ 7} On November 26, 2012, Mark filed a memorandum opposing the Bank‘s motion for summary judgment. Mark also filed a
{¶ 8} The Bank filed a reply to Mark‘s memorandum. On December 14, 2012, with leave of court, Mark filed a supplemental memorandum opposing the Bank‘s motion for summary judgment and a second
{¶ 9} Mark filed an affidavit in support of his supplemental memorandum as well as an affidavit in support of his
The reason I have, up until now, directed my attorneys not to pursue discovery from Bank of America of my loan documents * * * together with depositional testimony, is that I have very limited resources from which to save for any lump sum payment required of me by Bank of America for a loan modification. So far, it has been my understanding that once loan modification is approved, I will have to provide a substantial payment, possibly up to 50%, on my mortgage arrears, which are estimated to be in excess of $90,000.00. In hopes that I would be able to save enough money to satisfy Bank of America‘s demand and modify my loan, I have not been willing to expend those resources for attorney fees and other costs of taking depositions of Bank of America‘s employees. I believe these documents will establish the predatory and fraudulent practices of Countrywide, in support of counterclaim for damages and my defense based on failure of consideration. * * * This will establish that I have been the victim of illegal lending practices, and that there is a genuine issue of material fact from which this Court can determine that I should obtain Judgment in my favor as a matter of law.
{¶ 10} On December 21, 2012, the trial court denied Mark‘s
{¶ 11} Mark appeals, raising two assignments of error which will be considered together.
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT ERRED IN DENYING APPELLANT‘S CIVIL RULE 56(F) MOTION TO PERMIT APPELLANT ADDITIONAL TIME TO CONDUCT DISCOVERY.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S MOTION FOR SUMMARY JUDGMENT.
{¶ 16} In his first assignment of error, Mark argues the trial court abused its discretion in denying his
{¶ 17} Specifically, Mark asserts that (1) during the two and one-half years the case was pending, the parties were actively trying to reach a loan modification, and Mark was led to believe a loan modification was feasible, (2) as a result, Mark “was of the understanding that discovery and other proceedings were better suspended while attempting to reach [an] agreement,” (3) “it was as if the case were in limbo and only just began in earnest when [the Bank] decided to file for Summary Judgment,” (4) having unsuccessfully concentrated his efforts and finances in trying to obtain a loan modification, he was “in need of additional time to apply his efforts and finances to discover evidence of [Countrywide‘s] fraud and predatory lending practices,” and (5) adequate time to conduct discovery was not available to him.
{¶ 18}
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the
party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
{¶ 19}
{¶ 20} “A party who seeks a continuance for further discovery is not required to specify what facts he hopes to discover, especially where the facts are in the control of the party moving for summary judgment. However, the court must be convinced that there is a likelihood of discovering some such facts.” Bank of Am. v. McGlothin, 2d Dist. Clark No. 2012 CA 96, 2013-Ohio-2755, ¶ 15. Lack of diligence in pursuing discovery by the party moving under
{¶ 21} A trial court maintains the discretion to manage the discovery process. Settle-Muter, 2012-Ohio-4524 at ¶ 38. Granting a continuance under
{¶ 22} The trial court denied Mark‘s
{¶ 23} Based upon the facts of this case, the trial court did not abuse its discretion in denying Mark‘s
In fact, [Mark] knew as early as August 30, 2011 when [the Bank] informed him that it may not be able to offer a loan modification as the arrears were excessive. The [Bank‘s] file was placed on hold to allow consideration of [Mark‘s] application for a loan modification and [Mark] was advised to save his mortgage payments for a lump sum good faith payment. On February 23, 2012, [Mark] was denied a loan modification due to his income not being sufficient. At that time, [Mark] was informed that [the Bank] would consider attempts at loan modification, but that [the Bank] was proceeding with its file towards judgment. Furthermore, [the Bank‘s] intentions clearly were to proceed to judgment as [it] propounded discovery to [Mark] in February 2012. On June 26, 2012, [Mark] was notified of a second denial of loan modification. At that time, a Case Scheduling Order was issued and the parties were informed that this matter was going to trial in approximately six months. No discovery efforts were made by [Mark] thereafter. Instead, [Mark] chose to continue to work towards a loan modification.
{¶ 24} Contrary to Mark‘s assertion, this is not a case where a party was denied a meaningful opportunity to fully prepare his case and assert his defenses and counterclaims. Rather, the predicament in which Mark found himself was of his own doing. A party involved in litigation cannot sit on his hands and ignore the proceedings only to later claim an unfair disadvantage. See Jenkins v. Jenkins, 12th Dist. Butler No. CA2010-09-238, 2012-Ohio-48; PHH Mtge. Corp. v. Northrup, 4th Dist. Pickaway No. 11CA6, 2011-Ohio-6814. Even if Mark was involved in negotiations toward a loan modification, he was still under an obligation to
{¶ 25} “The tools and devices of discovery are more than options and opportunities.” Southern Rambler Sales, Inc. v. Am. Motors Corp., 375 F.2d 932, 937 (5th Cir.1967). As the Second Appellate District noted in Doriott, ”
{¶ 26} In light of the foregoing, we find the trial court did not err in denying Mark‘s
{¶ 27} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.