[Cite as Ditech Fin., L.L.C. v. Global Capital Partners, 2018-Ohio-1998.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Ditech Financial, LLC,                                  :

                 Plaintiff-Appellee,                    :
                                                                                 No. 17AP-470
v.                                                      :                     (C.P.C. No. 16CV-6013)

Global Capital Partners et al.,                         :                   (REGULAR CALENDAR)

                 Defendants-Appellants.                 :




                                            D E C I S I O N

                                       Rendered on May 22, 2018


                 On brief: Lerner, Sampson & Rothfuss, Rick D. DeBlasis
                 and William P. Leaman, for appellee.

                 On brief: McGeorge Legal Services, LLC, and Anthony
                 McGeorge, for appellant Global Capital Partners.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

        {¶ 1} Defendant-appellant, Global Capital Partners, LLC ("Global"), appeals a
judgment of the Franklin County Court of Common Pleas that granted summary judgment
to plaintiff-appellee, Ditech Financial, LLC ("Ditech"). For the following reasons, we affirm
that judgment.
        {¶ 2} CitiMortgage, Inc., the original plaintiff in this case, filed a complaint in
foreclosure on June 24, 2016. In the complaint, CitiMortgage alleged that June Strickland
had entered into a note, which was secured by a mortgage on property located at 2376
Marcia Drive in Columbus, Ohio. CitiMortgage asserted that it had possession of the note,
No. 17AP-470                                                                               2

a default on the note had occurred, it had performed all the conditions precedent set forth
in the note and mortgage, and it had accelerated the debt owed. CitiMortgage did not seek
a personal judgment for breach of the note because Strickland had died on June 3, 2015.
Instead, CitiMortgage requested only that the trial court foreclose on the mortgage, sell the
property, and pay it out of the proceeds of the sale. CitiMortgage named Global as a
defendant in the foreclosure action because, as trustee of the 2376 Marcia Drive Trust,
Global was the property's titleholder at the time CitiMortgage filed suit.
        {¶ 3} Approximately four months after filing its complaint, CitiMortgage moved
for an order substituting Ditech as plaintiff. CitiMortgage represented in its motion that
Ditech had become the holder of the note and mortgage executed by Strickland. In an order
dated October 18, 2016, the trial court granted CitiMortgage's motion and substituted
Ditech as plaintiff in place of CitiMortgage.
        {¶ 4} On November 7, 2016, Ditech achieved service of the complaint and
summons on Global. Global filed an answer to the complaint 29 days later, on December 6,
2016.
        {¶ 5} On January 23, 2017, Global moved for an order requiring the parties to
participate in mediation. Global also requested that the trial court stay the proceedings
until the completion of mediation. The trial court granted Global's motion in an order dated
February 9, 2017.
        {¶ 6} Mediation occurred on March 30, 2017. In an order issued that same date,
the magistrate overseeing the mediation reported that the parties were unable to reach a
settlement.
        {¶ 7} Ditech moved for summary judgment in its favor on March 31, 2017. Global
did not respond with a memorandum in opposition to Ditech's motion. Rather, Global filed
a Civ.R. 56(F) motion asking the trial court to refuse Ditech's motion or, alternatively, to
grant Global additional time in which to conduct discovery. Global informed the trial court
that it needed 60 additional days in order to complete discovery and respond to Ditech's
motion for summary judgment.
        {¶ 8} On June 5, 2017, the trial court issued a judgment denying Global relief under
Civ.R. 56(F) and granting Ditech summary judgment. Global now appeals that judgment,
and it assigns the following error:
No. 17AP-470                                                                                3

              The Trial Court abused its discretion by granting Appellee's
              Motion for Summary Judgment because there were genuine
              issues of fact and Appellee was not entitled to judgment as a
              matter of law; furthermore, Appellant was not afforded
              adequate due process.

       {¶ 9} We will first address Global's contention that the trial court did not afford it
adequate due process. In the argument section of its brief, Global asserts that it "was not
afforded an opportunity to defend its interests in the Property as the Trial Court did not
permit Appellant an adequate opportunity to determine the validity of Appellee's claims."
(Appellant's Brief at 7-8.) Global does not state that the trial court's refusal to provide an
"adequate opportunity" for discovery constitutes the violation of due process it advances in
its assignment of error. Global, in fact, fails to mention due process at all in its argument.
However, the assertion that Global lacked an adequate opportunity for discovery is the only
contention in the brief that we can correlate to the due-process error alleged in the
assignment of error. Accordingly, we will analyze whether the trial court contravened due
process when it denied Global's request for additional time in which to conduct discovery.
       {¶ 10} We find no error in the trial court's ruling for two reasons. First, we reject
Global's assertion that the trial court deprived it of an adequate opportunity to conduct
discovery. According to the original case schedule, the discovery cut-off date was April 14,
2017. Global answered the complaint on December 6, 2016, so Global had four months in
which to conduct discovery. For the first two months, Global did not pursue any discovery
method. Then, despite its inactivity, and with knowledge of the looming discovery cut-off
date, Global moved for a stay of proceedings in conjunction with seeking mediation. Only
when Ditech's motion for summary judgment caught Global flat-footed, did Global ask for
a 60-day extension of the discovery period. Global ignores that it could have used the 64
days between December 6, 2016 (the date it filed its answer) and February 9, 2017 (the date
the stay began) to conduct the discovery. Global also ignores that it made the strategic
decision to ask for a stay, which truncated the remaining discovery period. In short, Global
squandered its opportunity for discovery, and it cannot blame the trial court for its
shortcomings.
       {¶ 11} Second, the denial of additional time to conduct discovery does not rise to the
level of a due process violation because " '[t]here is no general constitutional right to
No. 17AP-470                                                                                                   4

discovery.' " Midland Steel Prods. Co. v. Internatl. Union, United Auto., Aerospace and
Agricultural Implement Workers, Local 486, 61 Ohio St.3d 121, 131 (1991), quoting
Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (concluding that a trial court's denial of a
continuance in which to conduct discovery did not deprive the appellants of any due process
rights). The Ohio Rules of Civil Procedure—not the Ohio or United States Constitutions—
enable parties to conduct discovery and set the parameters applicable to the discovery
process in civil cases. Global, however, does not assert in its assignment of error that the
trial court's denial of additional discovery contravened the Ohio Rules of Civil Procedure.
Consequently, we do not consider that issue. See App.R. 12(A)(1)(b) (stating that courts of
appeal "[d]etermine [an] appeal on its merits on the assignments of error set forth in the
briefs"). On the alleged constitutional error set forth in the assignment of error, we
conclude that Global lacks any legal basis for reversal.
        {¶ 12} Next, Global argues that the trial court erred in granting Ditech summary
judgment.1 We disagree.
        {¶ 13} A trial court must grant summary judgment under Civ.R. 56 when the moving
party demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party
is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one
conclusion when viewing the evidence most strongly in favor of the nonmoving party, and
that conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc., 127 Ohio
St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-
Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for summary
judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an
independent review, without deference to the trial court's determination. Zurz v. 770 W.
Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v.
Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
        {¶ 14} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the



1 Global actually states in its assignment of error that the trial court abused its discretion in granting Ditech

summary judgment. Appellate courts review judgments granting summary judgment de novo, not under
the abuse-of-discretion standard. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29.
However, we will overlook Global's error in relying on the wrong standard of review and, instead, consider
whether the trial court erred in granting summary judgment.
No. 17AP-470                                                                                5

record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt,
75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden
under Civ.R. 56 by simply making conclusory allegations. Id. Rather, the moving party
must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that
there are no genuine issues of material fact and the moving party is entitled to judgment as
a matter of law. Id. If the moving party meets its burden, then the nonmoving party has a
reciprocal burden to set forth specific facts showing that there is a genuine issue for trial.
Civ.R. 56(E); Dresher at 293. If the nonmoving party does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party. Dresher at 293.
       {¶ 15} To support a motion for summary judgment in a foreclosure action, the
plaintiff must present evidentiary quality materials establishing: (1) the plaintiff is the
holder of the note, or a person entitled to enforce the note, and the holder of the mortgage;
(2) if the plaintiff is not the original mortgagee, the chain of transfers and assignments;
(3) the debt is in default; (4) all conditions precedent are met; and (5) the amount of the
principal and interest due. Green Tree Servicing LLC v. Asterino-Starcher, 10th Dist. No.
16AP-675, 2018-Ohio-977, ¶ 33; HSBC Bank USA, NA v. Webb, 10th Dist. No. 16AP-845,
2017-Ohio-9285, ¶ 9.
       {¶ 16} Here, Ditech relied on the affidavit of Henri Berberi, a Ditech document
execution representative, and various documents to establish the evidentiary requirements
for foreclosure. Berberi testified that, on September 24, 2003, Strickland executed and
delivered to ABN AMRO Mortgage Group, Inc. ("ABN AMRO") a note in the amount of
$61,600. Strickland also executed a mortgage to secure the note. ABN AMRO endorsed
the note in blank and recorded the mortgage with the Franklin County Recorder.
       {¶ 17} In September 2007, ABN AMRO merged with CitiMortgage. CitiMortgage
possessed the note when the complaint in foreclosure was filed on June 24, 2016. However,
after CitiMortgage filed for foreclosure, it transferred the note and assigned the mortgage
to Ditech. When Berberi executed his affidavit on March 30, 2017, Ditech was in possession
of the note.
       {¶ 18} According to the payment history report attached to Berberi's affidavit, no
payments were made on the mortgage loan after June 2015. On or about August 31, 2015,
CitiMortgage mailed a notice of default to Strickland's estate. When the estate did not make
No. 17AP-470                                                                                6

payments to bring the loan current or cure the default, CitiMortgage accelerated the
account, making the entire balance due. Thus, the amount outstanding on the note was
$49,404.92 in principal, plus interest at the rate of 6.1250 percent per year from June 1,
2015.
        {¶ 19} Based on Berberi's affidavit testimony and the documents adduced, we
conclude that Ditech satisfied the requirements for foreclosure and established its
entitlement to summary judgment. Global asserts that genuine issues of material fact
remain, but it fails to point to any conflicting evidence to demonstrate the alleged issues of
fact. Global also attacks Berberi's competency to testify to the matters contained in his
affidavit. Global argues that Berberi failed to (1) provide sufficient information regarding
his job responsibilities to establish his personal knowledge, (2) show he was competent to
qualify the documents attached to his affidavit as business records, and (3) compare the
copy of the note to the original. Global, however, did not raise these three arguments below.
Therefore, Global has waived the arguments on appeal, and we do not address them. See
Columbus City School Bd. of Edn. v. Franklin Cty. Bd. of Revision, 144 Ohio St.3d 549,
2015-Ohio-4837, ¶ 14 (holding that a party waives the right to appeal an issue that the party
could have, but did not, raise in earlier proceedings); Nationstar Mtge., LLC v. Payne, 10th
Dist. No. 16AP-185, 2017-Ohio-513, ¶ 22 ("[A] party who fails to timely argue to the trial
court that an affiant lacks personal knowledge waives that argument on appeal.").
        {¶ 20} In sum, we conclude that the trial court did not err in denying Global relief
under Civ.R. 56(F) or in granting Ditech summary judgment. Accordingly, we overrule
Global's assignment of error.
        {¶ 21} For the foregoing reasons, we overrule the sole assignment of error, and we
affirm the judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.

                                TYACK and SADLER, JJ., concur.
