CITIMORTGAGE, INC., Appellee, v. HOGE, Appellant, et al.
No. 96054.
Court of Appeals of Ohio, Eighth District, Cuyahoga County.
Decided Aug. 4, 2011.
[Cite as CitiMortgage, Inc. v. Hoge, 196 Ohio App.3d 40, 2011-Ohio-3839.]
{18} Accordingly, defendant‘s third assignment of error is sustained.
V. Disposition
{19} Having sustained defendant‘s first and fourth assignments of error to the extent indicated, rendering moot her second assignment of error, and having sustained defendant‘s third assignment of error, we reverse the judgment of the trial court and remand this matter for further proceedings.
Judgment reversed and cause remanded.
FRENCH and TYACK, JJ., concur.
James G. Dawson, for appellant.
FRANK D. CELEBREZZE, JR., Judge.
{11} Appellant, Cynthia Hoge (now known as Cynthia Gordon), brings the instant appeal challenging the trial court‘s grant of summary judgment in favor of appellee, CitiMortgage, Inc., in a foreclosure action. After a thorough review of the record and law, we affirm.
{12} Appellant sought to refinance her home mortgage in 2005. She found what she thought was favorable financing through American Equity Mortgage (“AEM“). On January 9, 2006, she executed a note and mortgage to AEM in the amount of $85,500. Later, this note and mortgage were assigned to CitiFinancial Mortgage Company, Inc., and assigned again to its successor by merger, CitiMortgage. Appellant alleges that AEM represented to her that her monthly payment would be $680 per month, but failed to inform her that this did not include real estate taxes and insurance, which brought the monthly payment to $872. She also alleges that AEM did not provide her with loan documents at least three days before closing.
{14} CitiMortgage moved for summary judgment on February 2, 2009, and appellant twice moved for an extension of time before filing a motion to dismiss the complaint. In this motion, appellant alleged that CitiMortgage did not have standing to bring its action. A hearing was held regarding this motion, and on March 26, 2010, the magistrate found that CitiMortgage had standing and overruled appellant‘s motion. On that same date, the magistrate also granted CitiMortgage‘s motion for summary judgment even though appellant had not filed a response. After various procedural irregularities resulted in a prior dismissed appeal and adoption of the magistrate‘s decision by the trial court, appellant perfected the instant appeal, assigning two errors for our review.
Law and Analysis
Period of Time to Respond to Summary Judgment
{15} Appellant first argues that “[t]he trial court erred to the prejudice of the appellant and abused its discretion by denying appellant the opportunity to respond to the merits of appellee‘s motion for summary judgment.”
{16} The Rules of Civil Procedure provide a means to terminate clearly unmeritorious litigation at an early stage through summary judgment.
{18} The trial court did not deprive appellant of an opportunity to oppose summary judgment, and the case law she points to is not applicable to her case. In those cases,1 the trial courts ruled on motions for summary judgment before the period set by the applicable civil rule, by local rule, or by the court had expired. In each case, the reviewing court reversed that determination to give the parties an opportunity to respond.
{19} Although appellant requested a 30-day extension from the time the trial court ruled on her motion to dismiss to file a response, that motion was impliedly denied when the court had not ruled on it.
{110} In some cases, where additional discovery is required to adequately respond to a summary-judgment motion, the trial court should allow more time so this discovery can be completed. Tucker v. Webb Corp. (1983), 4 Ohio St.3d 121, 447 N.E.2d 100. However, appellant‘s motion set forth no such need. The February 9, 2010 motion for an extension asserted only that the additional time was required because her attorney was busy. The final request for an extension of time did not include any reason why an additional 30 days from the time the court ruled on appellant‘s motion to dismiss was necessary.
{111} This court has previously held that “[i]f a party opposing a motion for summary judgment cannot present by affidavit facts which are sufficient to justify his opposition he may seek a continuance or deferral of the court‘s action on the motion by filing affidavits which must state sufficient reasons why he cannot then present by affidavit facts essential to justify his opposition to the motion and why or how the continuance, deferral of action, or discovery would
permit him to obtain such facts.” Gates Mills Inv. Co. v. Pepper Pike (1978), 59 Ohio App.2d 155, 392 N.E.2d 1316, paragraph two of the syllabus. A motion pursuant to
{113} Appellant‘s first assignment of error is overruled.
Grant of Summary Judgment
{114} The fact that no response was filed should not automatically lead to the granting of CitiMortgage‘s motion. Rose v. Natl. Mut. Ins. Co. (1999), 134 Ohio App.3d 229, 730 N.E.2d 1014. CitiMortgage still has the burden of showing that no genuine issue of material fact exists, and it must carry that burden whether or not a response is filed. Id. See also Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. This is the foundation of appellant‘s second assignment of error, in which she argues that “[t]he trial court erred to the prejudice of the appellant and abused its discretion by granting appellee‘s motion for summary judgment where, pursuant to
{115} ”
{116} Although appellant argues that the portion of CitiMortgage‘s brief justifying summary judgment based on appellant‘s answer and counterclaim is irrelevant, this court reviews the lower court‘s granting of summary judgment de
a. The Foreclosure Claim
{117} In CitiMortgage‘s motion for summary judgment, it argued that appellant was delinquent on her mortgage, that it notified her pursuant to the instrument that it was accelerating her payments so the entire outstanding balance was due, and that no payment was forthcoming. It also established that it was the holder and owner of the note and mortgage and that the outstanding balance was $84,369.83. “It is well settled that a mortgagee is entitled to judgment after there has been a default on the conditions of the mortgage and the debt as evidenced by the note having been accelerated.” Wells Fargo Bank, N.A. v. Sessley, 188 Ohio App.3d 213, 2010-Ohio-2902, 935 N.E.2d 70, ¶ 20, citing Bank One, N.A. v. Swartz, Lorain App. No. 03CA008308, 2004-Ohio-1986, 2004 WL 840118, ¶ 18.
{118} As a defense, appellant alleged that AEM had committed fraud during the origination of the note and mortgage. CitiMortgage claims that it was not the loan originator and did not participate in the original transaction. However, “the assignee of a contract takes that contract with all rights of the assignor and subject to all defenses that the obligor may have had against the assignor.” Citizens Fed. Bank, F.S.B. v. Brickler (1996), 114 Ohio App.3d 401, 410, 683 N.E.2d 358.
{119} “The default rule for consumer and commercial mortgages alike is that a mortgage lender‘s assignee takes subject to the claims and defenses that the borrower might assert against the original lender.” Peterson, Predatory Structured Financing, 28 CDZLR 2185, 2233, citing 4; Corbin on Contracts (1996) 892, 892A; 3 Williston on Contracts (1960) 432; Farnsworth on Contracts (2d Ed.1990) 11.8. This is subject to two limitations embodied in the ability to draft waiver-of-defense clauses in contracts and the “holder in due course” rule.2
{120}
b. The Counterclaims
{121} Regarding appellant‘s counterclaim, CitiMortgage demonstrated in its motion for summary judgment that it was entitled to judgment as a matter of law. Appellant‘s first claim was for fraud and misrepresentation that allegedly occurred during the loan origination.
{122} “A claim for common-law fraud requires proof of the following elements: (1) a representation or, where there is a duty to disclose, concealment of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance.
{123} “Failure to specifically plead the operative facts constituting an alleged fraud presents a defective claim * * *. The “particularity” requirement of
{125} With respect to the federal claims, TILA actions carry a one-year statute of limitations.
{126} Even if the claims were timely brought, this does not create a genuine issue of fact because appellant points only to
{127} Congress specifically limited assignee liability in TILA.
{128} Appellant also asserted a claim of intentional infliction of emotional distress. “The Ohio Supreme Court has declared that, absent contemporaneous physical injury, compensable emotional distress must be severe and disabling.” Knief v. Minnich (1995), 108 Ohio App.3d 103, 108, 658 N.E.2d 1072, citing Paugh v. Hanks (1983), 6 Ohio St.3d 72, 451 N.E.2d 759, paragraph three of the syllabus. Cases following Paugh have required a plaintiff to “present some guarantee of genuineness in support of their claim, such as expert evidence, to prevent a court from granting summary judgment in favor of the defendant.” Knief at 108, 658 N.E.2d 1072, citing Grote v. J.S. Mayer & Co. (1990), 59 Ohio App.3d 44, 48, 570 N.E.2d 1146. Here, appellant has not offered any “guarantee of genuineness” that she has, in fact, suffered debilitating emotional distress of the type compensable in Ohio. See Hayes v. Heintz, Cuyahoga App. No. 79335, 2002-Ohio-2608, 2002 WL 1041370.
{129} Therefore, the trial court did not err in granting summary judgment to CitiMortgage on appellant‘s counterclaims. Appellant‘s second assignment of error is overruled.
Judgment affirmed.
STEWART, P.J., and ROCCO, J., concur.