[Cite as Bank of Am., N.A. v. Litteral, 2013-Ohio-38.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

BANK OF AMERICA, N.A.                                    :

        Plaintiff-Appellee                               :            C.A. CASE NO.    25086

v.                                                       :            T.C. NO.   09CV2149

RODNEY K. LITTERAL, et al.                               :            (Civil appeal from
                                                                      Common Pleas Court)
        Defendant-Appellant                              :

                                                         :

                                               ..........

                                             OPINION

                          Rendered on the        11th        day of       January     , 2013.

                                               ..........

ELIZABETH S. FULLER, Atty. Reg. No. 0081032, 120 East Fourth Street, 8th Floor,
Cincinnati, Ohio 45202
       Attorney for Plaintiff-Appellee

RODNEY K. LITTERAL, P. O. Box 8228, Franklin, Ohio 45005
    Defendant-Appellant

                                               ..........

FROELICH, J.

        {¶ 1}      Rodney K. Litteral appeals from a judgment of the Montgomery County

Court of Common Pleas, which granted summary judgment to Bank of America on its
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claims and Litteral’s counterclaims and entered a judgment and decree of foreclosure. For

the following reasons, the trial court’s judgment will be affirmed.

                                                           I.

        {¶ 2}        In March 2009, Bank of America filed suit against Litteral,1 claiming that

Litteral defaulted on his residential note and mortgage. Bank of America was the original

lender, and it alleged that it was the holder of the note and the mortgagee. The bank

requested a judgment on the note in the amount of approximately $43,600 (plus interest and

costs), that the mortgage be foreclosed, and that the property be sold. Litteral filed an

answer and asserted several counterclaims.

        {¶ 3}        In December 2009, Bank of America moved for summary judgment on its

claims and against Litteral on his counterclaims. On January 11, 2010, the submission date

for the bank’s summary judgment motion, Litteral moved for mediation and for an extension

of time to respond to the bank’s motion. On January 15, the court denied the motion for

mediation, but granted Litteral 14 day additional days (until January 29) to respond to the

motion for summary judgment. At 4:06 p.m. on January 29, 2010, the trial court found that

Bank of America was entitled to a judgment and decree of foreclosure, with dismissal of the

counterclaims. Minutes later, Litteral filed a motion for an extension of time to respond to

the bank’s motion; he indicated that he had retained counsel and needed additional time to

file an appropriate response.

        {¶ 4}        Litteral appealed from the trial court’s judgment and decree of foreclosure.


            1
             The complaint named other potentially interested parties, including the Montgomery County Treasurer, American
   Express Company, and First Property Group, Ltd. These parties are not relevant to this appeal.
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In May 2010, while the appeal was pending, the property was purchased by Bank of America

at a sheriff’s sale. The bid was later assigned to Federal Home Loan Mortgage Corporation.

 The trial court confirmed the sale and distributed the proceeds in July 2010.

       {¶ 5}     In December 2010, we reversed the judgment and decree of foreclosure,

concluding that the trial court erred when it rendered summary judgment before the deadline

set by the court for a response had expired. Bank of Am. v. Litteral, 191 Ohio App.3d 303,

2010-Ohio-5884, 945 N.E.2d 1114, ¶ 24 (2d Dist.). We stated: “By prematurely entering

the judgment, the trial court erroneously removed Litteral’s timely filed motion for a

continuance from its consideration. By depriving Litteral of the consideration of his motion

within its sound discretion, the trial court erred to Litteral’s prejudice. Accordingly, the

judgment of the trial court is reversed, and this cause is remanded for further proceedings

consistent with this opinion.” Id. at ¶ 2.

       {¶ 6}     Upon remand in December 2010, the trial court promptly issued a notice

that the claims may be appropriately addressed by summary judgment. It ordered the parties

to respond to the notice within 14 days. Bank of America responded and asked the court for

a 60-day extension to file a renewed motion for summary judgment. That request was

granted.

       {¶ 7}     Bank of America’s renewed motion was ultimately filed on January 20,

2012, and the court set a submission deadline of 1:00 p.m. on February 13. The court’s

entry further indicated that any response to the motion “must be filed with a copy delivered

to the Court not later than 24 hours prior to the aforesaid date and time set for submission.”

       {¶ 8}     On February 13, Litteral notified the court that he intended to proceed with
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a defense. He continued: “For good cause, and pursuant to ORC Procedure Rule 6(b),

defendant requests additional time to prepare affidavits and to gather additional evidence,

which is necessary in preparation of Defendant’s response and further defense of this

complaint.” Litteral argued that summary judgment was inappropriate at that time and a

continuance should be granted, because (1) Bank of America had recently reached a

settlement with the U.S. Department of Justice regarding Real Estate Settlement Procedures

Act (RESPA) violations in foreclosure actions, (2) he had paid federal and state taxes to the

Internal Revenue Service based on a 1099-C that Bank of America issued in July 2010, (3)

the property was sold in 2010, and (4) the bank “made no effort to file the appropriate

documents to provide legal ownership of this property.”          Litteral requested a 30-day

extension to file a memorandum in opposition to summary judgment, an amended

complaint, and “other appropriate filings.”

       {¶ 9}     Two days later, on February 15, the trial court overruled the motion for an

extension on the ground that Litteral had failed to comply with Civ.R. 56, and it entered

summary judgment in favor of Bank of America on its claims and Litteral’s counterclaims.

The court entered judgment on the note, foreclosed the equity of redemption, and ordered the

property sold. (In April 2012, upon the motion of Bank of America, the trial court vacated

the 2010 confirmation of sale and sheriff’s deed. In August 2012, Bank of America again

purchased the property for $6,000.)

       {¶ 10}    Litteral appeals from the trial court’s judgment and decree of foreclosure.

                                               II.

       {¶ 11}    Litteral’s sole assignment of error states:
[Cite as Bank of Am., N.A. v. Litteral, 2013-Ohio-38.]
        THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED

        APPELLANT DUE PROCESS AND A FAIR TRIAL BY FAILING TO

        PROVIDE ADDITIONAL TIME TO RESPOND AND ALLOWING THE

        DEFENDANT TO BE HEARD.

        {¶ 12}     Litteral claims that the trial court’s denial of his motion for an extension of

time to respond to the bank’s amended summary judgment motion was an abuse of

discretion and denied him due process. Litteral asserts that the trial court treated Bank of

America more favorably, because the court granted the bank’s request for an extension and

permitted the bank to file its amended summary judgment motion several months late.

Litteral further argues that he was denied the opportunity for discovery, to subpoena

witnesses, and to provide relevant testimony due to the denial of his motion to amend his

complaint.     Finally, Litteral argues, as he did in his prior appeal, that the trial court

erroneously granted summary judgment to Bank of America in 2010 before his time to

respond had expired.

        {¶ 13}     As an initial matter, Litteral suggests that the trial court was biased against

him, as reflected by the entries directing Bank of America to file motions for default

judgment and for summary judgment, by the court’s entry granting the bank a 60-day

continuance to file an amended motion for summary judgment, and by allowing the bank to

file its amended summary judgment motion approximately eleven months after the time for

filing the motion had expired.

        {¶ 14}     “Judicial bias is ‘a hostile feeling or spirit of ill will or undue friendship or

favoritism toward one of the litigants or his attorney, with the formation of a fixed

anticipatory judgment on the part of the judge, as contradistinguished from an open state of
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mind which will be governed by the law and the facts.’ State v. LaMar, 95 Ohio St.3d 181,

189, 2002-Ohio-2128. Trial judges are ‘presumed not to be biased or prejudiced, and the

party alleging bias or prejudice must set forth evidence to overcome the presumption of

integrity.’ Eller v. Wendy's Internatl., Inc. (2000), 142 Ohio App.3d 321, 340, 755 N.E.2d

906. In Eller, the court also noted that ‘[t]he existence of prejudice or bias against a party is

a matter that is particularly within the knowledge and reflection of each individual judge and

is difficult to question unless the judge specifically verbalizes personal bias or prejudice

toward a party.’”     (Additional internal citations omitted.)     Weiner v. Kwait, 2d Dist.

Montgomery No. 19289, 2003-Ohio-3409, ¶ 89-90.

       {¶ 15}    Intermediate appellate courts, such as this one, have no jurisdiction to

disqualify a judge based on claims of bias; such claims must be brought to the Chief Justice

of the Ohio Supreme Court. See Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d

775 (1978). If there were a concern about judicial bias, Litteral should have raised the issue

at that time and not waited for the appeal. Janis v. Janis, 2d Dist. Montgomery No. 23898,

2011-Ohio-3731, ¶ 95.       Nevertheless, we find nothing in the trial court’s orders that

indicated a bias against Litteral, and the trial court’s grant of a continuance to Bank of

America and allowing the bank to file an untimely motion are insufficient to demonstrate

favoritism toward the bank and/or a bias against Litteral.

       {¶ 16}    Litteral claims that the trial court abused its discretion and violated his right

to due process when it denied his request for a continuance, pursuant to Civ.R. 6(B). Civ.R.

6(B) states:

       When by these rules or by a notice given thereunder or by order of court an
                                                                                               7

       act is required or allowed to be done at or within a specified time, the court

       for cause shown may at any time in its discretion (1) with or without motion

       or notice order the period enlarged if request therefor is made before the

       expiration of the period originally prescribed or as extended by a previous

       order, or (2) upon motion made after the expiration of the specified period

       permit the act to be done where the failure to act was the result of excusable

       neglect; but it may not extend the time for taking any action under Civ.R.

       50(B), Civ.R. 59(B), Civ.R. 59(D), and Civ.R. 60(B), except to the extent and

       under the conditions stated in them.

       {¶ 17}    The grant or denial of a continuance is a matter entrusted to the broad,

sound discretion of the trial judge, which will not be reversed absent an abuse of discretion.

State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). An abuse of discretion

requires a finding that the decision was unreasonable, arbitrary, or unconscionable. State v.

Anderson, 2d Dist. Montgomery No. 24657, 2012-Ohio-957, ¶ 6.

       {¶ 18}    “In determining whether a trial court abused its discretion when ruling on a

motion for a continuance, a reviewing court must weigh any potential prejudice to the

defendant against the trial court’s ‘right to control its own docket and the public’s interest in

the prompt and efficient dispatch of justice.’” State v. Pattson, 2d Dist. Montgomery No.

23785, 2010-Ohio-5755, ¶ 19, quoting Unger. The trial court should consider such factors

as: (1) the length of the delay requested; (2) whether other continuances have been requested

and received; (3) the inconvenience to litigants, witnesses, opposing counsel and the court;

(4) whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful,
                                                                                              8

or contrived; (5) whether the defendant contributed to the circumstance which gives rise to

the request for a continuance; and (6) any other relevant factors, depending on the unique

facts of the case. Unger at 67-68.

       {¶ 19}    Bank of America’s original summary judgment was filed on December 17,

2009. Litteral sought a 30-day extension to respond to the motion; the court granted a

14-day extension, with a response deadline of January 29, 2010.            Bank of America’s

amended summary judgment motion, filed on January 20, 2012, was identical to the bank’s

original motion, except for an updated statement of the case. The bank also provided a new

affidavit in support of its motion, which authenticated the note and the mortgage.

       {¶ 20}    The trial court notified the parties that the motion would be submitted for

decision on February 13, 2012 by 1:00 p.m. The entry further stated, “All memoranda

and/or affidavits either [in] support of or in opposition to the motion must be filed with a

copy delivered to the Court not later than 24 hours prior to the aforesaid date and time set for

submission unless the Court, upon oral or written request, grants an extension.”

       {¶ 21}    Litteral’s request for an extension and to file an amended complaint and

other appropriate filings was filed at 12:28 p.m. on February 13. The request for an

extension was required to be filed by February 12, and thus it was untimely. Litteral

claimed that he was requesting an extension under Civ.R. 6(B), due to excusable neglect.

But Litteral did not explain why he had failed to file a timely request for a continuance or

otherwise respond to the motion for summary judgment. The trial court did not abuse its

discretion or violate Litteral’s right to due process by denying his untimely request for a

continuance under Civ.R. 6(B).
                                                                                                 9

       {¶ 22}        The trial court denied Litteral’s request for a continuance, because it failed

to comply with Civ.R. 56. Litteral did not seek a continuance under Civ.R. 56(F), and his

request for an extension of time to respond to the summary judgment motion did not satisfy

that rule. Civ.R. 56(F) provides:

       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.

       {¶ 23}        As this Court noted in Doriott v. MVHE, Inc., 2d Dist. Montgomery No.

20040, 2004-Ohio-867:

                Pursuant to Civ.R. 7[B], the grounds for a Civ.R. 56(F) motion for a

       continuance must be stated with particularity. In addition, Civ.R. 56(F)

       requires the motion to be supported by an affidavit containing “sufficient

       reasons why (the nonmoving party) cannot present by affidavit facts sufficient

       to justify its opposition” to the summary judgment motion.              Id. “Mere

       allegations requesting a continuance or deferral of action for the purpose of

       discovery are not sufficient reasons why a party cannot present affidavits in

       opposition to the motion for summary judgment.”           “There must be a factual

       basis stated and reasons given within an affidavit why a party cannot present

       facts essential to its opposition to the motion.”
                                                                                              10

                A party who seeks a continuance for further discovery is not required

       to specify what facts he hopes to discover, especially where the facts are in

       the control of the party moving for summary judgment. However, the court

       must be convinced that there is a likelihood of discovering some such facts.

       Further, a claim that the party has not completed discovery is more likely to

       be rejected by the court where the party has not shown some diligence in

       attempting discovery.

(Citations omitted.) Id. at ¶ 40-41.

       {¶ 24}    Litteral did not support his request for a continuance with an affidavit

setting forth his bases for his alleged inability to timely respond to the motion for summary

judgment. Although Litteral mentioned alleged wrongdoing by Bank of America and a

purported settlement with the U.S. Department of Justice, Litteral did not specify how Bank

of America had allegedly engaged in misconduct in his case and why he had been unable to

obtain evidence to support his defense. This case was remanded to the trial court in 2010,

and the bank’s motion was virtually identical to its prior motion; yet there is no indication

that Litteral engaged in discovery regarding his and/or the bank’s claims or otherwise

pursued evidence with respect to this action during the pendency of the case (before or after

remand). Under the circumstances of this case, we cannot conclude that the trial court

abused its discretion in denying Litteral a continuance.

       {¶ 25}    Litteral further argues that the trial court erred in denying his motion to file

an amended complaint. The trial court did not explicitly mention the motion to amend the

complaint when it denied Litteral’s motion for an extension to respond to the amended
                                                                                            11

summary judgment motion.       However, by overruling the motion for an extension and

entering judgment in favor of Bank of America, the trial court implicitly overruled the

request to file an amended complaint.

       {¶ 26}    Civ.R. 15(A) provides that “[l]eave of court [to amend a pleading] shall be

freely given when justice so requires.” “The grant or denial of leave to amend a pleading is

discretionary and will not be reversed absent an abuse of discretion.” Englewood v. Turner,

178 Ohio App.3d 179, 2008-Ohio-4637, 897 N.E.2d 213, ¶ 49 (2d Dist.).

       {¶ 27}    Litteral did not seek to file an amended complaint until the day that his

response to Bank of America’s amended summary judgment motion was due. More than

one year had elapsed since our remand to the trial court. Litteral did not attach an amended

complaint or otherwise specify how his complaint would be amended. As stated above,

Litteral’s motion discussed general wrongdoing by Bank of America, which resulted in a

settlement with the U.S. Department of Justice, but he did not articulate the specific

additional claims that he wished to assert against the bank. The trial court did not abuse its

discretion when it denied Litteral’s motion to file an amended complaint.

       {¶ 28}    Finally, Litteral raises that the trial court granted Bank of America’s motion

for summary judgment in 2010, prior to the deadline set for his response to the bank’s

motion. We addressed this issue in Litteral’s prior appeal, and we need not address it again.

       {¶ 29}    The assignment of error is overruled.

                                             III.

       {¶ 30}    The trial court’s judgment will be affirmed.

                                         ..........
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DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Elizabeth S. Fuller
Rodney K. Litteral
Hon. Mary Katherine Huffman
