BANK OF AMERICA, N.A., Plaintiff-Appellee, - vs - MEET PAL SINGH, et al., Defendants-Appellants.
CASE NO. CA2012-07-146
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
4/1/2013
2013-Ohio-1305
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV11-08-3068
Manjit Kaur, 7993 Dorsetshire Drive, West Chester, Ohio 45069, defendant-appellant, pro se
Manjinder Pal Singh, 7993 Dorsetshire Drive, West Chester, Ohio 45069, defendant-appellant, pro se
Michael DeWine, Ohio Attorney General, Melanie Cornelius, 150 East Gay Street, 21st Floor, Columbus, Ohio 43229, for defendant, State of Ohio Tax Division
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Manjit Kaur, appeals a decision of the Butler County Court of Common pleas granting summary judgment and a decree of foreclosure in favor of plaintiff-appellee, Bank of America, N.A., successor by merger to BAC Home Loans
{¶ 2} In June 1992, Meet Pal Singh and appellant, as husband and wife, took title to the real property commonly known as 7993 Dorsetshire Drive in West Chester, Ohio. On January 10, 2000, Singh executed a promissory note in favor of America‘s Wholesale Lender in the principal amount of $168,000. The note was secured by a mortgage on the Dorsetshire property. Payments were routinely made under the terms of the note until Singh died in June 2008. Shortly after Singh‘s death, appellant defaulted on the note.
{¶ 3} Bank of America, after becoming the holder of the note and mortgage as a result of merger, initiated a foreclosure action on August 31, 2011.2 In its complaint, Bank of America alleged that it was the holder of the note secured by the mortgage on the Dorsetshire property that was in default for $153,035.68, together with interest at the rate of 8.75 percent per year from October 1, 2008. Bank of America further alleged that it had a valid first lien upon the property and it sought to have the mortgage foreclosed, the property sold, and the proceeds distributed. Appellant filed an answer, setting forth several defenses.
{¶ 4} On February 16, 2011, Bank of America filed a motion for default judgment against those defendants who failed to answer or otherwise appear in the case as well as a motion for summary judgment against appellant. Within its motion for summary judgment, Bank of America argued the mortgage loan account was delinquent and $153,035.68, plus
{¶ 5} On March 7, 2011, appellant moved for an extension of time to respond to Bank of America‘s motion for summary judgment, which was granted by the trial court. On April 24, 2012, prior to the expiration of appellant‘s deadline for filing her memorandum in opposition to Bank of America‘s motion for summary judgment, the trial court entered judgment in favor of Bank of America. On May 2, 2012, an agreed entry setting aside summary judgment was entered, and appellant was given an additional three days to respond to the motion.
{¶ 6} Appellant filed a memorandum opposing summary judgment on May 4, 2012. In her memorandum in opposition, appellant argued that summary judgment was “premature” as the parties had not yet engaged in discovery, which appellant contended was necessary in order for factual and legal defenses to be presented. In support of her position, appellant attached an affidavit in which she avers that while she has not “yet conducted any discovery in this case * * * [i]t is [her] plan to conduct discovery to support [her] defenses.”
{¶ 7} On June 29, 2012, the trial court issued a decision granting summary judgment to Bank of America. The trial court specifically noted that although appellant believed Bank
{¶ 8} A final appealable order granting summary judgment and a decree in foreclosure was filed on July 27, 2012. Appellant timely appealed the trial court‘s decision, raising three assignments of error.
{¶ 9} In her first assignment of error, appellant does not challenge the trial court‘s decision to grant summary judgment to Bank of America, but rather raises three separate procedural issues that she claims are reversible error. Appellant argues that Bank of America failed to comply with the rules of court by neglecting to have its counsel file a notice of appearance, by incorrectly identifying the trial court judge on some of its filings, and by failing to file a response to her answer in a timely manner.
{¶ 10} Loc.R. 4.01(A) of the Butler County Court of Common Pleas requires that retained counsel in all cases file a Notice of Appearance. “Information set forth in the initial Notice of Appearance which is subsequently changed, such as attorney or address, shall be immediately reported by filing of a new Notice of Appearance.” Loc.R. 4.01(B). From the record, it is clear that Bank of America was at all times represented by Lerner, Sampson & Rothfuss. Julia E. Steelman, an attorney with Lerner, Sampson & Rothfuss, filed a Notice of Appearance on behalf of Bank of America on August 31, 2011. Another attorney from Lerner, Sampson & Rothfuss, Dustin K. Looser, later became involved in the case. Looser did not file a separate Notice of Appearance.
{¶ 11} There is no indication that Looser‘s failure to file a Notice of Appearance
{¶ 12} We further do not find reversible error in Bank of America‘s incorrect identification of the trial court judge assigned to the case. Although Bank of America‘s filings continued to identify Judge Spaeth as the trial court judge after the case was reassigned to Judge Hedric, this error was not prejudicial. Erroneous captions and labels on parties’ filings do not amount to prejudicial error where the parties are given the opportunity to present the merits of their respective positions. McLoughlin v. McLoughlin, 10th Dist. No. 05AP-621, 2006-Ohio-1530, ¶ 21.
{¶ 13} Finally, we do not find any merit to appellant‘s argument that Bank of America failed to file a timely response to her answer. Bank of America was not required to file a responsive pleading. See
{¶ 14} Accordingly, we hereby overrule appellant‘s first assignment of error.
{¶ 15} In her second assignment of error, appellant contends the trial court erred by failing to allow adequate time for discovery prior to ruling on Bank of America‘s motion for summary judgment. Appellant further argues that the trial court erred in only allowing her three days to file a memorandum in opposition to Bank of America‘s motion for summary judgment after the court vacated its April 24, 2012 entry.
{¶ 16}
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.
Thus, ”
{¶ 17} A trial court maintains the discretion to manage the discovery process. Silver at ¶ 21. A trial court‘s decision regarding the regulation of discovery will not be reversed on appeal absent an abuse of discretion. Kolenich at ¶ 19. An abuse of discretion constitutes more than an error of law or judgment; it requires a finding that the trial court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 18} We find that the trial court did not abuse its discretion in refusing to continue the matter so that additional discovery could be conducted. Although appellant submitted an affidavit in which she stated her plan to conduct discovery, appellant did not provide a factual basis or sufficient reasons why she was unable to present evidence in support of her affirmative defenses without the continuance. The present lawsuit was commenced on August 31, 2011. The Rules of Civil Procedure allow parties to conduct discovery immediately “after commencement of the action.” See
{¶ 19} We also find that the trial court did not err in ordering appellant to file her memorandum in opposition within three days of the order vacating the April 24, 2012 entry granting summary judgment to Bank of America. Bank of America‘s motion for summary judgment was filed on February 16, 2012. Appellant was given 78 days to prepare and file her memorandum in opposition. If additional time was needed to respond, appellant should have filed a motion for an extension of time.
{¶ 20} For the foregoing reasons, appellant‘s second assignment of error is overruled.
{¶ 21} In her third assignment of error, appellant argues that the trial court erred in “overlooking” a motion for mediation filed by both parties. Appellant contends that “[t]he Trial Court was moving to[o] fast, both sides had agreed to mediation, when this happens, the Court always allows for mediation.”
{¶ 22}
{¶ 23} A joint motion to refer the case to mediation was filed by the parties on June 1,
{¶ 24} Appellant‘s third assignment of error is overruled.
{¶ 25} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.