Case Information
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[Cite as
Fifth Third Mtge. Co. v. Salahuddin
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Fifth Third Mоrtgage Company, :
Plaintiff-Appellee, : v. : (C.P.C. No. 12CV-015290) Ameena C. Salahuddin, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on July 29, 2014 Graydon Head & Ritchey LLP , and Jeffrey M. Hendricks , for appellee.
Ameena C. Salahuddin , pro se.
APPEAL from the Franklin County Court of Common Pleas SADLER, P.J.
Defendant-appellant, Ameena C. Salahuddin, appeals from a judgment of
the Franklin County Court of Common Pleas granting summary judgment in favor of plaintiff-appellee, Fifth Third Mortgage Company. For the reasons that follow, the judgment of the trial court is affirmed.
I. BACKGROUND The property at issue in this appeal is located at 2743 Mellowbrook Street in
Columbus, Ohio ("the property"). In May 2005, appellant executed a promissory note ("the note") in favor of apрellee in the amount of $75,000. To secure payment of the note, appellant also executed a mortgage ("the mortgage") on the property to appellee.
{¶ 3} In December 2012, appellee filed a complaint for foreclosure asserting thаt it is the holder of a promissory note, appellant was in default of the terms and conditions of the note, and the debt has been declared due. The complaint sought judgment for the outstanding balance and accrued interest due under the note, along with foreclosure of the mortgage and sale of the property. Appellant filed an answer generally denying the allegations in the complaint. On May 21, 2013, appellee moved for summary judgment seeking judgment
on its asserted claims. Appellant did not file a response to appellee's motion, and on June 12, 2013, the trial court rendered a decision granting the motion for summary judgment and instructing appellee's counsel to submit a judgment entry. Two days later, appellant filed a request for mediation, which the trial court granted. In the entry granting appellant's mediation request, thе trial court stated that, despite its decision granting appellee's motion for summary judgment, because final judgment had not yet been entered, "[i]n the interest of justice, the Court will GRANT her request." (Emphasis sic.) (July 10, 2013 Entry, 1.) The court also stated, "[s]hould the Project report that this action was not settlеd through the mediation process, the Court will then execute the proposed judgment entry that has been submitted by [appellee]." (July 10, 2013 Entry, 2.) A mediation report filed on September 17, 2013 indicated that the matter
was not resolved in mediation and that the case should be returned to the сourt's active docket. The following day, appellant filed a motion for leave to amend her answer to the complaint and a motion requesting an additional 45 days to file a response to appellee's motion for summary judgment. The trial court noted though the Ohiо Rules of Civil Procedure permit untimely filings upon motion where the failure to act was the result of excusable neglect, the only cause set forth by appellant was her pro se status and lack of experience with litigation. Finding pro se status alone was insufficient to demоnstrate excusable neglect and form a basis allowing the untimely filings, the trial court denied appellant's motions on October 10, 2013. Also on October 10, 2013, the trial court issued judgment against appellant
and in favor of appellee on its claims for judgment on the note and foreсlosure of the *3 mortgage. Approximately three and one-half weeks later, appellant filed a memorandum in opposition to appellee's motion for summary judgment and a motion to show cause. II. ASSIGNMENTS OF ERROR Appellant timely appealed from the judgment of the trial court granting
summary judgment in favor of appellee and brings two assignments of error for our review:
[I.] TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF- APPELLEE, AS THERE WERE GENUINE ISSUES OF MATERIAL FACT, INCLUDING BUT NOT LIMITED TO, WHETHER PLAINTIFF-APPELLEE IS A HOLDER IN DUE COURSE, WHETHER PLAINTIFF VIOLATED THE REAL ESTATE SETTLEMENT PROCEDURES ACT, THE OHIO CONSUMER SALES PRACTICES ACT, ALLOCATION OF PAYMENTS, DOCTRINE OF UNCLE[A]N HANDS, EQUITABLE ESTOPPEL, AND WHETHER THE MORTGAGE WAS PROPERLY EXECUTED.
[II.] TRIAL COURT ERRED IN GRANTING PLAINTIFF- APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE DEFENDANT-APPELLANT WAS NEITHER AFFORDED A FULL AND FAIR OPPORTUNITY TO CONDUCT DISCOVERY ON ALL FACTUAL MATTERS IN DISPUTE NOR VERIFY THE MERIT OF PLAINTIFF- APPELLEE'S COMPLAINT.
III. DISCUSSION
A. Standard of Review
We review a summary judgment motion de novo.
Koos v. Cent. Ohio
Cellular, Inc.
,
the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion, that conclusion being adverse to the nonmоving party.
Harless v. Willis Day Warehousing Co.
,
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmоving party's claim."
Dresher v. Burt
,
B. First Assignment of Error In her first assignment of error, appellant contends summary judgment was inappropriate in this case because several genuine issues of material fact remain. Specifically, appellant asserts genuine issues of fact remain regarding whether appellee is a holder in due course, whether appellee violated the Real Estate Settlement Procedures *5 Act, the Ohio Consumer Sales Practices Act, and/or the Fair Debt Collections Practices Act, allocation of payments, doctrine of unclean hands, equitable estoppel, proper execution of the mortgage, bad faith, fraud, and potential counterclaims. (Appellant's Brief, 5.) Despite the assertion that issues of fact remain as to all the above-
mentioned matters, the argument in appellant's brief is primarily limited to two assertions: (1) that appеllant met her reciprocal burden under Civ.R. 56 by submitting evidence consisting of two letters she received from appellee, and (2) that the evidence in the record is insufficient to establish that appellee is a holder in due course and has standing to bring this action. We will address each of these arguments in turn. With respect to the documents appellant argues create a genuine issue of
material fact, we note that this evidence was submitted on November 5, 2013, three and
one-half weeks
after
the trial court issued its final judgment in this case. Appellate review
is limited to the record as it existed at the time the trial court rendered judgment.
Paasewe v. Wendy Thomas 5 Ltd.
, 10th Dist. No. 09AP-510,
entered judgment, we cannot consider it in reviewing that judgment.
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Regarding appellant's argument pertaining to standing, in
Wells Fargo
Bank, N.A. v. Odita
, 10th Dist. No. 13AP-663,
appellant did not provide or direct the trial court to any evidence in accordance with
Civ.R. 56 to estаblish the same. Civ.R. 56(E) states that, when a motion for summary
judgment is properly made and supported, the nonmoving party may not rest upon the
mere allegations and denials in the pleadings but, instead, must point to or submit some
evidentiary material that demonstrates a genuine dispute over а material fact. Civ.R.
56(E);
Aurora Bank FSB v. Stevens
, 10th Dist. No. 13AP-768,
granting summary judgment in favor of appellee. Having so found, we overrule appellant's first assignment of error.
C. Second Assignment of Error
In her second assignment of error, appellant contends she was denied a full
and fаir opportunity to conduct discovery on disputed factual matters and to verify the
merits of appellant's complaint. In support, appellant cites to Civ.R. 56(F), which
provides that, "[s]hould 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." Civ.R. 56(F) allows a party the opportunity to request additional time to obtain
through discovery the facts necessary to adequately oppose a motion for summary
judgment.
Carolina Tobacco Co. v. Petro
, 10th Dist. No. 04AP-1125,
Appellant did not file a response to appellee's motiоn. Instead, after the trial court granted appellee's summary judgment motion, appellant requested that the matter be submitted to mediation. Following the September 18, 2013 mediation report indicating that the matter had not been resolved, appellant filed a motion for аn extension of time to respond to appellee's motion for summary judgment. However, appellant did not file a Civ.R. 56(F) motion seeking additional time to conduct the discovery she now contends she needed to respond to the summary judgment motion. Instead, appellant filed a motion seeking an additional 45 days in which "to respond to the motion and confer with an attorney." (Sept. 18, 2013 Motion, 1.) *8 Not only is the motion filed by appellant not expressly contemplated under
the civil rules, even construed as a Civ.R. 56(F) motion, said rule required appellant to
submit an affidavit stating the reasons justifying an extension.
Cook v. Toledo Hosp.
, 169
Ohio App.3d 180,
conduct discovery, but she chose not to do so. Because appellant had the opportunity to conduct discovery and did not avail herself to the procedures of Civ.R. 56(F), we find no merit to her argument that she was not afforded a full and fair opportunity to conduct discovery. Accordingly, we overrule appellant's second assignment of error.
IV. CONCLUSION Having overruled both of appellant's assignments of error in their entirety,
we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed. TYACK and O'GRADY, JJ., concur. _____________________________