[Cite as PHH Mtge. Corp. v. Galvin, 2011-Ohio-6787.]


STATE OF OHIO                    )                          IN THE COURT OF APPEALS
                                 )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

PHH MORTGAGE CORPORATION fka                                C.A. No.   25917
CENDANT MORTGAGE
CORPORATION dba COLDWELL
BANKER MORTGAGE CORPORATION
                                                            APPEAL FROM JUDGMENT
        Appellee                                            ENTERED IN THE
                                                            COURT OF COMMON PLEAS
        v.                                                  COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV 2010 08 5649
JOHN W. GALVIN AND STEPHANIE B.
GALVIN, et al.

        Appellant

                                DECISION AND JOURNAL ENTRY

Dated: December 30, 2011



        BELFANCE, Presiding Judge.

        {¶1}    Appellant, John Galvin, appeals an order of the Summit County Court of

Common Pleas that granted summary judgment in favor of Appellee, PHH Mortgage

Corporation. This Court reverses.

                                                       I.

        {¶2}    In August 2010, PHH filed a complaint in foreclosure against John Galvin and

Stephanie Galvin, who were married at that time. John Galvin timely answered the complaint on

behalf of himself and Stephanie Galvin. In his answer he asserted that the Galvins were not in

default at the time the complaint was filed and that PHH had accepted and cashed the parties’

checks. However, according to Mr. Galvin, PHH then tendered a check to the Galvins refunding

the payments. PHH moved for default judgment against Stephanie Galvin. It also moved for
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summary judgment against John Galvin. John Galvin responded to PHH’s motion for summary

judgment. PHH replied and argued that John Galvin had failed to attach documents or other

evidence supporting his defenses.

       {¶3}    In February 2011, a pretrial conference took place. Stephanie Galvin appeared

and filed a document indicating that she had never received any papers from PHH mortgage.

PHH withdrew its motion for default judgment against Stephanie. In addition, the court issued

an order requiring Mr. Galvin to produce additional financial information to PHH and setting a

telephone status conference for March 22, 2011.

       {¶4}    On March 28, 2011, prior to the journalization of any order granting leave, PHH

filed its supplemental motion for summary judgment. On March 31, 2011, the trial court issued

an order in which it granted leave to PHH to file a motion for summary judgment on or before

April 8, 2011. The order further stated that “[r]esponses to the Motion for Summary Judgment

are due on or before April 22, 2011.”

       {¶5}    Nine days later, on April 6, 2011, the trial court granted summary judgment in

favor of PHH and against the Galvins. On April 22, 2011, John Galvin filed his response to

PHH’s motion for summary judgment which contained documents in support of his response.

Mr. Galvin, pro se, has timely appealed the trial court’s April 6, 2011 order.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ISSUED AN ORDER GRANTING SUMMARY
       JUDGMENT TO PLAINTIFF PHH MORTGAGE ON APRIL 6, 2011
       EVEN THOUGH THE COURT ON MARCH 31, 2011 HAD GRANTED
       DEFENDANT JOHN GALVIN UNTIL APRIL 22, 2011 TO FILE HIS
       RESPONSE TO MOTION FOR SUMMARY JUDGMENT. BY THE TIME
       JOHN GALVIN FILED HIS RESPONSE TO MOTION FOR SUMMARY
       JUDGMENT ON APRIL 22, 2011, THE COURT HAD ALREADY ISSUED
       A DECREE OF FORECLOSURE.”
                                               3


                               ASSIGNMENT OF ERROR II

       “THE TRIAL COURT ISSUED AN ORDER GRANTING SUMMARY
       JUDGMENT TO PLAINTIFF PHH MORTGAGE AFTER CONSIDERING
       PLAINTIFF’S SUPPLEMENTAL      MOTION       FOR   SUMMARY
       JUDGMENT FILED ON MARCH 28, 2011 BUT WITHOUT
       CONSIDERING DEFENDANT’S RESPONSE WHICH WASN’T
       SCHEDULED TO BE FILED UNTIL APRIL 22, 2011. THEREFORE THE
       COURT HEARD THE ARGUMENTS OF ONE PARTY ONLY, PHH, AND
       DISREGAREDED THE ARGUMENTS OF THE OTHER PARTY, JOHN
       GALVIN.”

       {¶6}   In his first two assignments of error, Mr. Galvin essentially argues that the trial

court erred in considering and granting PHH’s motion for summary judgment before he had an

opportunity to submit his response in conformity with the trial court’s March 31, 2011 order.

This Court agrees.

       {¶7}   In this matter, summary judgment was granted against Mr. Galvin in

contravention of the trial court’s March 31, 2011 order stating that responses were due on or

before April 22, 2011. Procedural fairness is fundamental to the summary judgment process.

We have previously stated that summary judgment should only be granted after all parties have

had a fair opportunity to be heard. Bank of New York v. Brunson, 9th Dist. No. 25118, 2010-

Ohio-3978, at ¶10, quoting Hooten v. Safe Auto Ins. Co., 1100 Ohio St.3d 8, 2003-Ohio-4829, at

¶34. Here, the trial court’s March 31, 2011 order provided that responses were due on or before

April 22, 2011, thus, any ruling on the motion for summary judgment prior to that date was

premature.

       {¶8}   It is troubling that PHH argues that the trial court’s order pertained only to Mrs.

Galvin. Contrary to this assertion, the March 31, 2011 order contains no such limitation and

simply states that “[r]esponses” are due on or before April 22, 2011, and the court’s use of the

plural further negates PHH’s suggestion.
                                                 4


       {¶9}    Accordingly, we sustain Mr. Galvin’s first and second assignments of error.

                                ASSIGNMENT OF ERROR III

       “THE ABOVE ERRORS WERE COMMITTED BY JUDGES PATRICIA
       A. COSGROVE AND TAMMY O’BRIEN, NEITHER OF WHOM HAS
       EVER BEEN ASSIGNED TO THIS CASE. NEITHER JUDGE HAD THE
       AUTHORITY TO ISSUE AN ORDER GRANTING SUMMARY
       JUDGMENT OR A DECREE OF FORECLOSURE SINCE THE CASE IS
       STILL ASSIGNED TO THE DECEASED JUDGE BRENDA BURNHAM-
       UNRUH AND NO DOCKET ENTRY HAS EVER BEEN ENTERED
       ASSIGNING THE CASE TO EITHER JUDGE COSGROVE OR JUDGE
       O’BRIEN.”

       {¶10} In light of the resolution of Mr. Galvin’s first and second assignments of error, his

third assignment of error is rendered moot. Accordingly, we decline to address it. See App.R.

12(A)(1)(c).

                                                III.

       {¶11} Mr. Galvin’s first and second assignments of error are sustained.          His third

assignment of error is moot. We reverse the judgment of the Summit County Court of Common

Pleas granting summary judgment in favor of PHH and remand this matter to the trial court for

further proceedings consistent with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                5


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



CARR, J.
MOORE, J.
CONCUR


APPEARANCES:

JOHN W. GALVIN, pro se, Appellant.

STACY L. HART and JULIA E. STEELMAN, Attorneys at Law, for Appellee.
