[Cite as Wells Fargo Bank, N.A. v. Hazel, 2016-Ohio-305.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Wells Fargo Bank, N.A.,                             :

                Plaintiff-Appellee,                 :
                                                                  No. 15AP-93
v.                                                  :        (C.P.C. No. 10CV-9874)

Karin Hazel, et al.,                                :       (REGULAR CALENDAR)

                Defendants-Appellants.              :



                                             DECISION

                                   Rendered on January 28, 2016


                Thompson Hine, LLP, Scott A. King and Terry W. Posey, for
                appellee.

                Karin Hazel, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Defendants-appellants, Karin Hazel, et al. ("Hazel"), pro se appeals from a
judgment of the Franklin County Court of Common Pleas sustaining plaintiff-appellee's,
Wells Fargo Bank N.A. ("Wells Fargo"), objections to the magistrate's decision and
denying Hazel's Civ.R. 60(B) motion for relief from judgment. For the following reasons,
we affirm.
        {¶ 2} The procedural history and the facts of this action were sufficiently stated in
our prior case, Wells Fargo Bank N.A. v. Hazel, 10th Dist. No. 11AP-1061, 2012-Ohio-
5770 ("Hazel"). In Hazel, we reversed the judgment of the trial court in adopting the
magistrate's decision in favor of Hazel and remanded the case for the trial court "to
No. 15AP-93                                                                                     2

consider [Wells Fargo's] objections and to determine whether [Hazel] complied with
Civ.R. 9(C)."1
       {¶ 3} Civ.R. 9(C) states:
                 In pleading the performance or occurrence of conditions
                 precedent, it is sufficient to aver generally that all conditions
                 precedent have been performed or have occurred. A denial
                 of performance or occurrence shall be made specifically
                 and with particularity.

       {¶ 4} The trial court followed our instructions and found that because Hazel's:

                 [G]eneral denial did not specifically controvert the plaintiffs
                 claim that it had complied with all the conditions precedent to
                 foreclosure it was insufficient to satisfy the Civ.R. 9(C)’s
                 requirement that denial of a condition precedent be raised
                 specifically and with particularity. * * * The effect of Hazel’s
                 failure to deny conditions precedent in the manner provided
                 by Civ.R. 9(C) is that they are deemed admitted. * * * Since
                 Hazel’s answer was insufficient to put the plaintiffs
                 compliance with the HUD regulations at issue in the case, the
                 Court finds that she has not established that she has a
                 meritorious defense to present if relief is granted.
                 Accordingly, her motion for relief from judgment is not well-
                 taken.

(Decision 4-5.)

I. ASSIGNMENTS OF ERROR
       {¶ 5} Hazel appeals, assigning the following errors:
                 [I.] Where a defendant fails to meet all conditions precedent
                 can it be deemed as a matter of law where the court lacks
                 jurisdiction to entertain the complaint.

                 [II.] The affirmative defense of failure to meet HUD
                 regulations as presented by Motion pursuant to Civ.R. 12(B) is
                 not waived.

II. FIRST AND SECOND ASSIGNMENTS OF ERROR—THE LAW OF THE
CASE DOCTRINE—NO ABUSE OF DISCRETION



1 Hazel appealed our prior decision to the Supreme Court of Ohio in case No. 2013-0397.       On
May 22, 2013, the Supreme Court of Ohio declined jurisdiction, and on June 3, 2013, denied Hazel's
motion for reconsideration.
No. 15AP-93                                                                              3

       {¶ 6} A trial court exercises its discretion when ruling on a Civ.R. 60(B) motion,
and, thus, an appellate court will not disturb such a ruling on appeal absent an abuse of
discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987); Boddie v. Prisley, 10th
Dist. No. 13AP-247, 2013-Ohio-4462, ¶ 5. We note that Hazel's assignments of error do
not directly address whether or not the trial court properly considered and decided the
issue of compliance with Civ. R. 9(C).
       {¶ 7} Under normal circumstances, Hazel would be law of the case.            As we
recently stated in State v. Monroe, 10th Dist. No. 13AP-598, 2015-Ohio-844, ¶ 29:
              The law of the case is a longstanding doctrine in Ohio
              jurisprudence. "[T]he doctrine provides that the decision of a
              reviewing court in a case remains the law of that case on the
              legal questions involved for all subsequent proceedings in the
              case at both the trial and reviewing levels." Nolan v. Nolan, 11
              Ohio St.3d 1, 3, 11 Ohio B. 1, 462 N.E.2d 410 (1984). "The
              doctrine is necessary to ensure consistency of results in a case,
              to avoid endless litigation by settling the issues, and to
              preserve the structure of superior and inferior courts as
              designed by the Ohio Constitution." State ex rel. Potain v.
              Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979).

In the present case, the court finds the dissent's arguments persuasive. However, in order
to ensure consistency of results, and to avoid endless litigation, the court is inclined to
follow the law of the case doctrine.
       {¶ 8} Therefore, our review shows that the trial court, in light of our rationale in
Hazel, followed our instructions on remand. We find that the trial court did not abuse its
discretion in finding that Hazel did not comply with Civ.R. 9(C), and thereby sustaining
Wells Fargo's objections to the magistrate's decision, and denying Hazel's Civ.R. 60(B)
motion for relief from judgment. As such, Hazel's two assignments of error are overruled.
III. DISPOSITION
       {¶ 9} Having overruled Hazel's two assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.


                                   KLATT, J., concurs.
                                  BRUNNER, J., dissents.
No. 15AP-93                                                                               4

BRUNNER, J. dissenting.
       {¶ 10} I would reverse the decision of the trial court sustaining plaintiff-appellee
Wells Fargo Bank N.A.'s ("Wells Fargo") objections to the magistrate's decision and
denying defendant-appellant Karin Hazel's, pro se, Civ.R. 60(B) motion for relief from
judgment. In doing so, I would overrule our prior decision in this action, Wells Fargo
Bank, N.A. v. Hazel, 10th Dist. No. 11AP-1061, 2012-Ohio-5770, and remand for further
proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 11} The procedural history and the facts of this action are stated in Hazel.
However, I believe it is important to reiterate the facts that are relevant to this opinion.
Wells Fargo filed this foreclosure action on July 6, 2010. The only documents Wells Fargo
attached to the complaint were copies of the note and mortgage. Wells Fargo's complaint
for foreclosure included a pleading that:
              The mortgage was filed for record on March 23, 2009, in
              instrument No. 200903230040172, of the county recorder's
              records. The conditions of defeasance contained therein have
              been broken; plaintiff has complied with all conditions
              precedent; and plaintiff is entitled to have said mortgage
              foreclosed.

(Emphasis added.) (Complaint, ¶ 3.) Hazel answered this (like every other allegation)
with, "Defendant is without information sufficient to form a belief as to the truth or
accuracy of the allegations as set forth in Paragraph 3 of Plaintiff's complaint, and
therefore denies same." (Answer, ¶ 3.) Though Hazel set forth affirmative defenses, none
of them specifically asserted that Wells Fargo had failed to comply with any conditions
precedent to foreclosure.
       {¶ 12} On September 20, 2010, the trial court entered summary judgment in favor
of Wells Fargo finding there were no genuine issues of material fact and that Wells Fargo
was entitled to judgment as a matter of law. On October 13, 2010, Hazel filed a motion to
vacate judgment pursuant to Civ.R. 60(B). In the motion to vacate, Hazel argued that
Wells Fargo did not aver or provide evidence verifying any signed certified mail receipt of
default and accelerations notice as required by United States Department of Housing and
Urban Development ("HUD") regulations pursuant to 24 C.F.R. 201.50(b). Hazel had
No. 15AP-93                                                                              5

also previously averred that she never received a certified mail notice. The trial court
referred the motion to a magistrate, who heard the matter on June 8, 2011.
       {¶ 13} The magistrate, on July 11, 2011, entered a decision and entry granting
Hazel's motion to set aside the judgment. The magistrate found that the motion was
timely and that Hazel established excusable neglect for failing to respond to Wells Fargo's
summary judgment motion. The magistrate also found that Hazel had established "a
plausible meritorious defense claiming that [Wells Fargo] did not comply with" HUD
regulations pursuant to 24 C.F.R. 201.50—specifically, Hazel's assertion that Wells Fargo
did not serve notice of acceleration via certified mail. (Magistrate's Decision, 3.) Wells
Fargo filed objections to this finding. Wells Fargo did not argue that it had complied with
24 C.F.R. 201.50.     Instead, Wells Fargo argued, as it had previously argued in its
memorandum contra Hazel's motion to vacate, and at the hearing before the magistrate,
that because Wells Fargo had alleged in its complaint that it had complied with all
conditions precedent, Hazel had waived such a meritorious defense as she did not assert it
with particularity and specificity in her answer. On November 2, 2011, the trial court
adopted the magistrate's decision.
       {¶ 14} In this case, the contract document (the note) and the mortgage document
subject the holder's rights upon default to applicable HUD regulations. The note provides
under "Borrower's Failure to Pay," section "(B) Default," in relevant part, that:
              If Borrower defaults by failing to pay in full any monthly
              payment, then Lender may, except as limited by regulations of
              the Secretary in the case of payment defaults, require
              immediate payment in full of the principal balance remaining
              due and all accrued interest * * * In many circumstances
              regulations issued by the Secretary will limit Lender's rights to
              require immediate payment in full in the case of payment
              defaults. This Note does not authorize acceleration when not
              permitted by HUD regulations. As used in this Note,
              "Secretary" means the Secretary of Housing and Urban
              Development or his or her designee.

(Complaint, exhibit A.)
       {¶ 15} The mortgage contains similar language. Under section nine, captioned
"Grounds for Acceleration of Debt," the mortgage provides that, "Lender may, except as
limited by regulations issued by the Secretary in the case of payment defaults, require
No. 15AP-93                                                                                 6

immediate payment in full." (Complaint, exhibit B, 4.) Subsection (d) of that section,
entitled "Regulations of HUD Secretary," provides that:
              In many circumstances regulations issued by the Secretary
              will limit Lender's rights, in the case of payment defaults, to
              require immediate payment in full and foreclose if not paid.
              This Security Instrument does not authorize acceleration or
              foreclosure if not permitted by regulations of the Secretary.

(Complaint, exhibit B, 5.)
       {¶ 16} Nothing in the complaint, or its attachments, i.e., the note or mortgage,
specifically states what conditions precedent Wells Fargo was required to satisfy prior to
foreclosure. Likewise, nothing in these attachments specifically alerts the reasonable
homeowner to the conditions precedent required by HUD regulations and where such
conditions precedent are to be found. The homeowner was not even notified that the
HUD regulations contain conditions precedent that the lender must comply with prior to
filing the foreclosure action.
       {¶ 17} In Hazel, we reversed the judgment of the trial court in adopting the
magistrate's decision in favor of Hazel and remanded the case for the trial court "to
consider [Wells Fargo's] objections and to determine whether [Hazel] complied with
Civ.R. 9(C)." Id. at ¶ 15. The trial court, left with no other alternative under our decision,
followed our instructions in Hazel and found that because Hazel's:
              [G]eneral denial did not specifically controvert the plaintiff's
              claim that it had complied with all the conditions precedent to
              foreclose it was insufficient to satisfy the Civ.R. 9(C)'s
              requirement that denial of a condition precedent be raised
              specifically and with particularity. The effect of Hazel's failure
              to deny conditions precedent in the manner provided by
              Civ.R. 9(C) is that they are deemed admitted. Since Hazel's
              answer was insufficient to put the plaintiff's compliance with
              the HUD regulations at issue in the case, the Court finds that
              she has not established that she has a meritorious defense to
              present if relief is granted. Accordingly, her motion for relief
              from judgment is not well-taken.

(Citations omitted.) (Jan. 14, 2015 Decision 4-5.)
       {¶ 18} In other words, having failed to specifically deny the satisfaction of
conditions precedent with particularity as set forth in Civ.R. 9(C), the trial court, in
following our instructions in Hazel, concluded that Hazel was deemed to have admitted
No. 15AP-93                                                                             7

that Wells Fargo satisfied all conditions precedent to foreclosure based on Wells Fargo's
general allegation to that effect, even when those conditions, established by HUD
regulations and not specifically contained in either the note or mortgage, were not
specifically or with particularity denied. In other words, our instructions and ruling in
Hazel were that Wells Fargo did not need to plead in its complaint with particularity, but
Hazel had to defend by affirmatively and with particularity denying matters not pled with
specificity.
II. ASSIGNMENTS OF ERROR
         {¶ 19} Hazel's assignments of error from the trial court's decision are:
                [I.] Where a defendant fails to meet all conditions precedent
                can it be deemed as a matter of law where the court lacks
                jurisdiction to entertain the complaint.

                [II.] The affirmative defense of failure to meet HUD
                regulations as presented by Motion pursuant to Civ.R. 12(B) is
                not waived.

III. DISCUSSION
         {¶ 20} I would address Hazel's second assignment of error first.
         A. Second Assignment of Error – Whether Hazel Waived the Argument
         that Wells Fargo Failed to Satisfy Conditions Precedent

         {¶ 21} Hazel's arguments do not expressly address whether or not the trial court
properly considered and decided the issue of compliance with Civ.R. 9(C). However, I
find it necessary to address that issue when considering whether the "affirmative defense
of failure to meet HUD regulations" was waived, as asserted in the second assignment of
error. Accordingly I consider that question and, in so doing, find that we should reverse
Hazel.
            1. The Trial Court's Decision as a Result of Hazel
         {¶ 22} Civ.R. 9(C) provides:
                In pleading the performance or occurrence of conditions
                precedent, it is sufficient to aver generally that all conditions
                precedent have been performed or have occurred. A denial of
                performance or occurrence shall be made specifically and with
                particularity.
No. 15AP-93                                                                                            8

        {¶ 23} In this case, Wells Fargo in its complaint for foreclosure pled that, "plaintiff
has complied with all conditions precedent; and plaintiff is entitled to have said mortgage
foreclosed." (Complaint, ¶ 3.) Nowhere did the complaint or attachments thereto list the
conditions precedent to foreclosure and, other than this general allegation, Wells Fargo
has never argued that it complied with, for example, the requirements precedent to
foreclosure set forth by 24 C.F.R. 201.50(b). See also BAC Home Loans Servicing v.
Taylor, 9th Dist. No. 26423, 2013-Ohio-355, ¶ 14 (collecting cases and holding that "if the
terms of the note and mortgage subject it to HUD regulations regarding default and
acceleration, then a homeowner may use a servicer's failure to comply with those
regulations to defend a foreclosure action"); CitiMortgage, Inc. v. Ferguson, 5th Dist. No.
2006CA00051, 2008-Ohio-556, ¶ 33 (holding that the plaintiff's failure to offer evidence
that it followed the notice requirements of 24 C.F.R. 201.50(b) created a genuine issue of
fact, rendering the matter inappropriate for summary judgment).
        {¶ 24} Hazel answered allegations of the complaint concerning this and other
allegations with, "Defendant is without information sufficient to form a belief as to the
truth or accuracy of the allegations as set forth in Paragraph 3 of Plaintiff's complaint, and
therefore denies same." (Answer, ¶ 3.) Because Hazel's affirmative defenses did not deny
the satisfaction of specific conditions with particularity pursuant to Civ.R. 9(C)
demonstrating that Wells Fargo had failed to comply with any conditions precedent to
foreclosure, in keeping with our instructions in Hazel,2 the trial court concluded that
Hazel was deemed to have admitted that Wells Fargo satisfied all conditions precedent to
foreclosure. See Triangle Properties v. Homewood Corp., 10th Dist. No. 12AP-933, 2013-
Ohio-3926, ¶ 71 (noting that the effect of a failure to deny conditions precedent in the
manner provided by Civ.R. 9(C) is that they are deemed admitted); Natl. City Mtge. Co. v.
Richards, 182 Ohio App.3d 534, 2009-Ohio-2556, ¶ 21 (10th Dist.) (holding that
conditions precedent to foreclosure actions can be governed by Civ.R. 9(C) when they are
contained within the mortgage or note).




2 In reaching this holding, the trial court relied on our instruction in Hazel, which overruled the trial
court's prior decision in favor of Hazel and directed it "to consider [Wells Fargo's] objections and to
determine whether [Hazel] complied with Civ.R. 9(C)." Id. at ¶ 15.
No. 15AP-93                                                                             9

       {¶ 25} However, reading Civ.R. 9(C) in pari materia with the other civil rules and
considering the historical precedent and origins of Civ.R. 9(C), I would conclude that our
instruction to the trial court was in error and that Hazel must be revisited.
          2. History of Civ.R. 9(C)
       {¶ 26} The predecessor to Civ.R. 9 is former R.C. 2309.37. Prior to the adoption of
the Ohio Rules of Civil Procedure, R.C. 2309.37 provided:
              In pleading the performance of conditions precedent in a
              contract it is sufficient to state that the party performed all
              the conditions on his part. If such allegation is controverted,
              the party pleading must establish, on the trial, the facts
              showing such performance.

(Emphasis added.) R.C. 2309.37 (1953). Its predecessors were, apart from minor stylistic
differences, identical. G.C. 11339 (1930); Ohio Civil Code, Section CXXI (Swan 1854).
       {¶ 27} One notable aspect all the predecessor sections to modern Civ.R. 9(C) have
in common is that the conditions precedent they address are conditions precedent "in a
contract." R.C. 2309.37 (1953); G.C. 11339 (1930); Ohio Civil Code, Section CXXI (Swan
1854). Although the modern version of Civ.R. 9(C) no longer contains the phrase "in a
contract," there is no other indication that the omission was intended to change the
general import of the section. For example, the staff notes to Civ.R. 9(C) read:
              Rule 9(C) abolishes the old common law technicalities
              concerning the allegation of conditions precedent and in that
              sense the rule is very similar to § 2309.37, R.C.

Moreover, the civil rules first became effective on July 1, 1970. Civ.R. 86(A). The first
edition of McCormac's Ohio Civil Rules Practice (published in 1970 with the first edition
of the Ohio Civil Rules) includes a section on pleading conditions precedent, which does
not suggest that Civ.R. 9(C) was intended to apply outside of the contract context:
              It is sufficient to plead generally that all conditions precedent
              have been performed or have occurred. This rule is similar to
              the Federal Rule and to an Ohio statute. The rule makes clear
              the fact that denial of performance of a particular condition
              precedent must be made specifically and with particularity.
              The reason is that sometimes there are many conditions
              precedent, particularly in insurance contracts, and usually
              most of the conditions precedent are not in issue. If the
              defendant seeks to challenge the performance of one or more
No. 15AP-93                                                                               10

               conditions precedent, he should do so specifically and with
               particularity.

               Frequently, plaintiff may be uncertain as to whether he can
               prevail on the grounds that the condition precedent was
               performed or because it was waived. Since both waiver and
               performance of conditions precedent can be alleged generally
               and alternative pleading is permitted, plaintiff may allege that
               all conditions precedent have been performed, have occurred
               or have been waived. The burden will then be on defendant to
               challenge any particular condition precedent.

(Emphasis added.) McCormac, Ohio Civil Rules Practice, Section 5.11 (1st Ed.1970).
        {¶ 28} The present version of Civ.R. 9(C) does not explicitly limit itself to
conditions precedent set forth in contracts. However, all its historical predecessors,
through the very earliest Ohio statutes, did contain such a limitation. The materials
commenting on the creation of the Rules of Civil Procedure show that Civ.R. 9(C) was
intended to be "very similar" to its statutory predecessors. Civ.R. 9(C), staff notes; see
also McCormac, Ohio Civil Rules Practice, Section 5.11 (1st Ed.1970). Clearly, history
demonstrates that Civ.R. 9(C) was principally intended for use in the context of contract
actions. The other civil rules as well as the very concept of notice pleading support this
view.
           3. Whether, Notwithstanding Civ.R. 9(C)'s Permission to Plead
           "Generally," Allegations that Fail to Put the Defendant on Notice of
           What is Alleged in Violation of Civ.R. 8(A) Can be Deemed Admitted

        {¶ 29} The corpus Ohio Civil Rules is "not a compendium of isolated rules; rather it
is an integrated whole involving an interrelated series of procedural steps from
commencement of the action through the entering of judgment." McCormac, Ohio Civil
Rules Practice (1st Ed.1970) (Foreword by Professor Stanley Harper, Staff Director, Rules
Advisory Committee). Accordingly, the Supreme Court of Ohio reads the civil rules in
pari materia with each other. See, e.g., Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-
5224, ¶ 21; Thomas v. Freeman, 79 Ohio St.3d 221, 225 (1997). Thus, Civ.R. 9(C), a rule
regarding pleading, is to be read in the context of the other pleading rules, including
Civ.R. 8(A)'s notice pleading provisions.
        {¶ 30} Ohio has long been a notice-pleading state. As this court stated in Leichliter
v. Natl. City Bank, 134 Ohio App.3d 26, 31 (10th Dist.1999):
No. 15AP-93                                                                                 11

              Civ.R. 8(A) sets forth the necessities for pleading a claim for
              relief and provides in relevant part: "A pleading that sets forth
              a claim for relief * * * shall contain (1) a short and plain
              statement of the claim showing that the party is entitled to
              relief, and (2) a demand for judgment for the relief to which
              the party claims to be entitled." The purpose of Civ.R. 8(A) is
              to give the defendant fair notice of the claim and an
              opportunity to respond. Fancher v. Fancher (1982), 8 Ohio
              App. 3d 79, 83, 455 N.E.2d 1344.

Accordingly, "an appellate court will not consider conclusions that are not supported by
factual allegations in the pleading because such conclusions cannot be deemed admitted
and are insufficient to withstand a motion to dismiss." Arms Trucking Co. v. Fannie Mae,
11th Dist. No. 2014-G-3186, 2014-Ohio-5077, ¶ 22, citing State ex rel. Hickman v. Capots,
45 Ohio St.3d 324 (1989); Silverman v. Roetzel & Andress, L.P.A., 168 Ohio App.3d 715,
2006-Ohio-4785, ¶ 6 (10th Dist.); see also Hickman at 324 ("Unsupported conclusions of
a complaint are not considered admitted."). In short, the purpose of pleading is to put the
other party on notice of the substance of the claims and give them an opportunity to
respond. Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416, 2015-Ohio-1484, ¶ 13. If
the allegations are not factual, but merely hollow legal conclusions, the other party is not
on notice, and a party cannot be deemed to have admitted an allegation that failed to put
the party on notice as to what it was admitting. See, e.g., Hickman at 324.
       {¶ 31} Civ.R. 9(C) and its predecessor statutes have historically provided a short-
cut for persons filing suit in contract that was nonetheless consistent with the principles of
notice pleading. That is, they allowed general pleading of contract conditions, because all
parties to a contract already know (and thus already have "notice of") the conditions of the
contract, and so, more specificity in a complaint is not required. See R.C. 2309.37 (1953);
G.C. 11339 (1930); Ohio Civil Code, Section CXXI (Swan 1854). In that scenario the party
challenging the contract was deemed to be in the best position to specifically state which
conditions he or she believed were unsatisfied. McCormac, Ohio Civil Rules Practice,
Section 5.11 (1st Ed.1970). In other words, all parties to a typical contract already have
notice about what the conditions precedent are (and thus a general allegation is sufficient)
and only the party claiming a failure of conditions knows which conditions have allegedly
gone unsatisfied (thus justifying a specific denial). While this pleading model is cogent in
No. 15AP-93                                                                                12

the typical contract scenario, in actions for foreclosure on a mortgage that has been
secured by a note, it is neither sensible nor equitable.
       {¶ 32} In U.S. Bank Natl. Assn. v. George, 10th Dist. No. 14AP-817, 2015-Ohio-
4957, we noted the differences between a note and a mortgage and stated that "[i]t is well-
recognized that actions in foreclosure arise in equity." (Citations omitted.) Id. at ¶ 13. In
foreclosure we have recognized that "a determination of liability under the note is a
prerequisite to enforcement of the mortgage itself because a mortgage is but an incident
to the debt it secures." (Citation omitted.) Id. at ¶ 10. The relevant HUD requirements
relate first and foremost to the note, as part of the contract, but they are not specifically
stated in either the note or the mortgage. Thus, in the foreclosure context, unlike the
typical contract scenario, the defendant, who is often pro se, is frequently not placed on
notice of the conditions precedent by a general and conclusory allegation such as occurred
in the complaint here, and the defendant is therefore not adequately situated to
specifically and particularly deny such conditions. Under the principle of notice pleading,
the defendant cannot be deemed to have admitted a fact of which the defendant had no
notice. Civ.R. 9(C) therefore cannot be applied consistently with Civ.R. 8(A) in the
foreclosure context when conditions precedent are not contained wholly within a stated
contract (note) or referenced in a mortgage document, or are not alleged with enough
specificity in the complaint to put the defendant on notice. In this case, the vague
references to HUD regulations in the note and mortgage, when nothing indicated that the
HUD regulations contain or create conditions precedent, let alone what those conditions
might be, was not sufficient to place Hazel on notice as to the nature of the conditions
precedent. Without notice, her failure to deny with specificity and particularity should
not, consistent with notice pleading and Civ.R. 8, be deemed to result in an admission.
       {¶ 33} This view of Civ.R. 9(C) is also supported by some of the case law of this and
other districts. That is, in Richards, we held that Civ.R. 9(C) had potential applicability in
the mortgage foreclosure context but expressly limited that holding. Id. at ¶ 21. In
Richards we said, " '[w]here prior notice of default and/or acceleration is required by a
provision in a note or mortgage instrument, the provision of notice is a condition
precedent,' and it is subject to the requirements of Civ.R. 9(C)." (Emphasis added.) Id.,
quoting First Fin. Bank v. Doellman, 12th Dist. No. CA2006-02-029, 2007-Ohio-222,
No. 15AP-93                                                                                13

¶ 20. That is, in Richards we applied Civ.R. 9(C) to conditions precedent in a foreclosure
action when the conditions in question were "required by a provision in a note or
mortgage instrument." (Emphasis added.) Id.             Indeed in Richards, the condition
precedent at issue was set forth explicitly in both the note and the mortgage. Id. at ¶ 16-
17; see also U.S. Bank Natl. Assn. v. Martz, 11th Dist. No. 2013-P-0028, 2013-Ohio-4555,
¶ 17-22 (where conditions were set forth in the mortgage). Here, unlike in Richards, the
matter under review concerns an FHA loan with conditions precedent provided by HUD
regulations that were not stated in the complaint or the note or mortgage. As such,
Richards is factually distinct from the present case and wholly consistent with the intent
and purposes of notice pleading and Civ.R. 9(C).
          {¶ 34} Wells Fargo did not plead any facts whatsoever in order to support the legal
conclusion that "plaintiff has complied with all conditions precedent."          There is no
indication that prior to discovery Hazel had any idea what the conditions precedent to
foreclosure were, including the HUD compliance issues she eventually raised, since they
are not plainly disclosed by the note contract document and mortgage appended to the
complaint. I would find that Hazel cannot fairly be deemed to have admitted Wells
Fargo's unsupported conclusion of law, even though Hazel failed to specifically and
particularly deny conditions precedent in her answer. Simply put, Hazel could not have
been deemed to have admitted an allegation that failed to put her on notice of what she
was admitting when she denied it generally and not with particularity.
             4. Civil Rule 10(D)(1)
          {¶ 35} Civ.R. 9(C)'s limitations are further clarified by the fact that Civ.R. 10(D)
required Wells Fargo to attach its contract with Hazel to the complaint. Civ.R. 10(D)(1)
states:
                When any claim or defense is founded on an account or other
                written instrument, a copy of the account or written
                instrument must be attached to the pleading. If the account or
                written instrument is not attached, the reason for the
                omission must be stated in the pleading.

" 'The purpose of the requirement to attach an account [or other written instrument]
imposed by Civ.R. 10(D) is to exemplify the basis of the particular claim for relief alleged,
in order to confine the issues in the action to matters related to the course of dealings
No. 15AP-93                                                                                             14

between the parties the attachment portrays.' " GMAC Mtge., L.L.C. v. Herring, 189 Ohio
App.3d 200, 2010-Ohio-3650, ¶ 49 (2d Dist.), quoting Asset Acquisitions Group L.L.C. v.
Gettis, 186 Ohio App.3d 586, 2010-Ohio-950, ¶ 14.
        {¶ 36} In this case, Wells Fargo's claim in contract on the note and for enforcement
in foreclosure is founded on written instruments, that is, the note and mortgage which,
pursuant to Civ.R. 10(D)(1), it attached to the complaint.3 However, Wells Fargo also
claimed that it "complied with all conditions precedent." The conditions precedent were
not set forth in the terms of the contract or the mortgage (and thus cannot be fairly
deemed to have been pled or admitted under Civ.R. 8 and 9). Rather, the note and
mortgage merely made vague reference to HUD regulations. Even if Wells Fargo were to
assert that the conditions precedent were incorporated by reference to HUD regulations,
in order to take advantage of Civ.R. 9(C), Wells Fargo would have needed first to comply
with Civ.R. 10(D) and attach the documents that are the basis of its claim–including
terms set down elsewhere that are incorporated by reference. In other words, Wells Fargo
having made a "claim," was required by Civ.R. 10(D)(1) to "attach to the pleading" a copy
of the operative document. The failure to set forth the conditions precedent pursuant to
Civ.R. 10(D)(1) in order to put Hazel on notice of the conditions precedent, disqualifies
Wells Fargo from being able to take advantage of general pleading permitted by Civ.R.
9(C), and accordingly, Hazel cannot be required to answer with specificity. The trial court
was correct in the first instance in Hazel to have overruled Wells Fargo's objections.
            5. Analogous Case Law of this and Other Districts
        {¶ 37} I recognize that other cases outside the Tenth District Court of Appeals have
considered Civ.R. 9(C) and have reached analyses on these matters differently. However,
not one of these cases has considered the historical origins and uses of Civ.R. 9(C) in the
contexts of Civ.R. 8(A) and 10(D). I, therefore, respectfully disagree with cases from other
districts, which would apply Civ.R. 9(C) under these facts or similar facts in the mortgage
foreclosure litigation context. See, e.g., Wells Fargo Bank, N.A. v. Goebel, 2d Dist. No.
25745, 2014-Ohio-472, ¶ 17-27; Citimortgage, Inc. v. Cathcart, 5th Dist. No.
2013CA00179, 2014-Ohio-620, ¶ 19-22.

3It is clear that Civ.R. 10(D)(1) requires copies of the notes and mortgages secured by them to be attached
to complaints in foreclosure. Beneficial Mtge. of Ohio v. Jacobs, 2d Dist. No. 01CA0080, 2002-Ohio-
3162, ¶ 10.
No. 15AP-93                                                                                 15

       {¶ 38} I would also reject interpretations of cases from this district which might
suggest that Civ.R. 9(C) applies in the mortgage foreclosure litigation context to
conditions not disclosed in the plain terms of contracts and mortgages between parties as
attached to complaints in accordance with Civ.R. 10.           See Hazel; GMAC Mtge. of
Pennsylvania v. Gray, 10th Dist. No. 91AP-650 (Dec. 10, 1991).
       {¶ 39} Finally, despite the fact that I would sustain the second assignment of error
which refers to the failure of conditions precedent as an affirmative defense, I would
expressly reject the notion that non-compliance with conditions precedent is an
affirmative defense. See, e.g., Goebel at ¶ 17; Gray. First, this district has, since releasing
the unpublished decision in Gray, released Richards, which expressly states that
conditions precedent are directly tied to the merits of the plaintiff's cause of action; not an
affirmative defense to be raised by the defendant. Richards at ¶ 20. Second, the federal
regulations at issue place the burden of satisfying the regulatory conditions prior to
foreclosure on the mortgagee, not the homeowner. 24 C.F.R. 201.50(a) ("The lender shall
undertake foreclosure or repossession of the property securing a Title I loan that is in
default only after the lender has serviced the loan in a timely manner and with diligence
in accordance with the requirements of this part, and has taken all reasonable and
prudent measures to induce the borrower to bring the loan account current.") (Emphasis
added.); see also 24 C.F.R. 203.500 ("It is the intent of the Department [of Housing and
Urban Development] that no mortgagee shall commence foreclosure or acquire title to a
property until the requirements of this subpart have been followed."); 24 C.F.R.
203.606(a) ("Before initiating foreclosure, the mortgagee must ensure that all servicing
requirements of this subpart have been met.").         Moreover, the burden to prove an
affirmative defense is on the defendant asserting it. See, e.g., Roman v. Estate of Gobbo,
99 Ohio St.3d 260, 2003-Ohio-3655, ¶ 20. If the failure to satisfy conditions precedent
were considered an affirmative defense, the foreclosing entity would no longer be
required to prove compliance with the conditions precedent to the contract it seeks to
enforce. Rather the burden would be on the defendant to disprove the plaintiff's case.
This is not the law.
No. 15AP-93                                                                                16

          6. Whether Hazel is Law of the Case
       {¶ 40} In Hazel, this court required the trial court "to consider [Wells Fargo's]
objections and to determine whether [Hazel] complied with Civ.R. 9(C)." Id. at ¶ 15.
Under normal circumstances, Hazel would be law of the case on the issues decided
therein. "The law-of-the-case doctrine provides that the ' "decision of a reviewing court in
a case remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels." ' " State v. Davis, 139 Ohio
St.3d 122, 2014-Ohio-1615, ¶ 27, quoting Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d
402, 404 (1996), quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). However, the
Supreme Court of Ohio has recognized that: " 'The [law of the case] doctrine is considered
to be a rule of practice rather than a binding rule of substantive law and will not be
applied so as to achieve unjust results.' " Hubbard at 404, quoting Nolan at 3. In
addition, this court has recognized an exception in that " ' "[a]n Appellate Court may
choose to re-examine the law of the case it has itself previously created, if that is the only
means to avoid injustice." ' " (Emphasis omitted.) State v. Monroe, 10th Dist. No. 13AP-
598, 2015-Ohio-844, ¶ 30, quoting Koss v. Kroger Co., 10th Dist. No. 07AP-450, 2008-
Ohio-2696, ¶ 19, quoting Pavlides v. Niles Gun Show, Inc., 112 Ohio App.3d 609 (5th
Dist.1996).
       {¶ 41} With due respect to the prior panel and to the majority, Hazel creates an
untenable scenario: the continued application of this court's earlier decision will allow
entities seeking foreclosure to aver generally under Civ.R. 9(C) the performance or
occurrence of unnamed and unspecified conditions precedent (possibly whether or not
the conditions precedent were actually performed), and yet serve no notice as to just what
those conditions or occurrences are. The effect of this is to unfairly shift the burden to
defendants to plead with specificity and particularity that certain matters have not been
performed or occurred without notice of what the conditions are or a discovery period in
which to find out before being forced to plead.        Under Hazel, if defendants fail to
specifically plead, they are deemed to have admitted that all conditions precedent have
occurred and risk an early adverse judgment, but if they plead without ascertaining the
specifics in order to avoid adverse judgment, they or their counsel could face the potential
sanctions of Civ.R. 11. The law does not contemplate an absurd result, and I would not
No. 15AP-93                                                                               17

countenance one, even if it means re-examining a recent decision. State ex rel. Barley v.
Ohio Dept. of Job & Family Servs., 132 Ohio St.3d 505, 2012-Ohio-3329, ¶ 25 ("courts
construe statutes and rules to avoid unreasonable or absurd results").
         {¶ 42} While I would agree that the trial court was compelled to follow this court's
instructions in Hazel to determine "whether Hazel complied with Civ.R. 9(C)," I would
conclude that, in light of history and related Civ.R. 8(A) and 10(D)(1), our instruction was
misdirected. Our instruction implied that Civ.R. 9(C) was applicable in the case and that
Wells Fargo had alleged conditions precedent sufficiently. Upon further examination, I
would find that our instruction to the trial court in Hazel has resulted in a misapplication
of both Civ.R. 9(C) and of our earlier holding in Richards. As the case stands, Wells Fargo
may not have satisfied conditions precedent, but Hazel, having no idea what the
conditions were at the time she answered the complaint, failed to specifically and
particularly set forth and deny the conditions precedent and, thus, has been deemed to
have admitted them. Both as precedent and as applied in this case, Hazel, operates to
obscure the truth by allowing easy termination of cases, even when conditions precedent
are not apparent in any written document attached to the complaint, and long before
discovery would permit an accurate and effective defense. In my view, allowing Hazel to
stand would cause injustice throughout foreclosure actions in this jurisdiction, and that
conclusion would compel my refusal to apply the law of the case doctrine at this juncture.
Again, with respect to the prior panel and the majority, having reflected further on the
justifications for and consequences of Hazel, I would overrule this court's prior decision in
Hazel.
         {¶ 43} I would sustain Hazel's second assignment of error–she has not waived the
opportunity to argue that Wells Fargo failed to comply with conditions precedent.
         B. First Assignment of Error–Whether the Trial Court Lacks
         Jurisdiction in a Foreclosure Action when Conditions Precedent Have
         Not Been Satisfied

         {¶ 44} Because I would sustain Hazel's second assignment of error and reverse and
remand, I would hold that consideration of Hazel's first assignment of error is moot.
IV. CONCLUSION
         {¶ 45} In short, I would overrule this court's prior decision in Hazel, sustain
Hazel's second assignment of error for the reasons stated above and thereby render
No. 15AP-93                                                                             18

Hazel's first assignment of error moot. I would reverse the decision of the Franklin County
Court of Common Pleas and overrule Hazel. I would remand the case to the trial court
where the trial court would be free to reinstate the decision appealed in Hazel and/or to
proceed otherwise consistently with this opinion.

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