[Cite as CitiMortgage, Inc. v. Hoge, 196 Ohio App.3d 40, 2011-Ohio-3839.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96054


                               CITIMORTGAGE, INC.
                                                          APPELLEE,

                                                     v.

                                               HOGE,
                                                          APPELLANT, et al.



                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-652519

        BEFORE:          Celebrezze, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: August 4, 2011
      ATTORNEYS:

       Manley Deas Kochalski, L.L.C., David F. Hanson, David B. Bokor, Matthew P.
Curry, and John E. Codrea, for appellee.

      James G. Dawson, for appellant.




                                        2
       FRANK D. CELEBREZZE, JR., Judge.

       {¶ 1} Appellant, Cynthia Hoge (now known as Cynthia Gordon), brings the instant

appeal challenging the trial court’s grant of summary judgment in favor of appellee,

CitiMortgage, Inc., in a foreclosure action. After a thorough review of the record and law,

we affirm.

       {¶ 2} Appellant sought to refinance her home mortgage in 2005. She found what she

thought was favorable financing through American Equity Mortgage (“AEM”). On January

9, 2006, she executed a note and mortgage to AEM in the amount of $85,500. Later, this

note and mortgage were assigned to CitiFinancial Mortgage Company, Inc., and assigned

again to its successor by merger, CitiMortgage. Appellant alleges that AEM represented to

her that her monthly payment would be $680 per month, but failed to inform her that this did

not include real estate taxes and insurance, which brought the monthly payment to $872. She

also alleges that AEM did not provide her with loan documents at least three days before

closing.

       {¶ 3} Prior to December 27, 2007, CitiMortgage alleged that appellant became

delinquent on her payments, and on that date, it filed a complaint in foreclosure. Appellant

sought four extensions of time to research the loan documents, find an attorney, and draft a

response and counterclaims before filing an answer. Finally, on September 2, 2008,

                                             3
appellant filed an answer and counterclaim, which the trial court accepted. Appellant

asserted claims of fraud and misrepresentation, violations of the Truth in Lending Act

(“TILA”) and the Real Estate Settlement Procedures Act (“RESPA”), and intentional

infliction of emotional distress.

       {¶ 4} CitiMortgage moved for summary judgment on February 2, 2009, and appellant

twice moved for an extension of time before filing a motion to dismiss the complaint. In this

motion, appellant alleged that CitiMortgage did not have standing to bring its action. A

hearing was held regarding this motion, and on March 26, 2010, the magistrate found that

CitiMortgage had standing and overruled appellant’s motion. On that same date, the

magistrate also granted CitiMortgage’s motion for summary judgment even though appellant

had not filed a response. After various procedural irregularities resulted in a prior dismissed

appeal and adoption of the magistrate’s decision by the trial court, appellant perfected the

instant appeal, assigning two errors for our review.

                                         Law and Analysis

                      Period of Time to Respond to Summary Judgment

       {¶ 5} Appellant first argues that “[t]he trial court erred to the prejudice of the

appellant and abused its discretion by denying appellant the opportunity to respond to the

merits of appellee’s motion for summary judgment.”

       {¶ 6} The Rules of Civil Procedure provide a means to terminate clearly

unmeritorious litigation at an early stage through summary judgment. Civ.R. 56. According

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to Civ.R. 56(C), a summary-judgment motion “shall be served at least fourteen days before

the time fixed for hearing. The adverse party, prior to the day of hearing, may serve and file

opposing affidavits. Summary judgment shall be rendered forthwith if 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.” (Emphasis added.) Loc.R. 11(I) of this jurisdiction gives a party 30 days within which

to file a motion opposing summary judgment and makes judgment upon the pleadings the

default method of hearing unless otherwise stated by the trial court.

       {¶ 7} Appellant argues that she was denied an opportunity to respond to

CitiMortgage’s summary-judgment motion. However, over a year passed between the time

the motion was filed and the magistrate’s ruling. Appellant asserts that she asked the trial

court to extend the time for filing her response until after a ruling on the motion to dismiss,

but nothing in the record demonstrates that appellant was prevented from filing her response.

The trial court never ruled on appellant’s motions to expand the time in which to respond,

and “[w]hen a trial court fails to rule on a motion, the motion is considered denied.” State v.

Pate, Cuyahoga App. No. 95382, 2011-Ohio-1692, ¶33, citing Solon v. Solon Baptist Temple,

Inc. (1982), 8 Ohio App.3d 347, 351-352, 457 N.E.2d 858; Georgeoff v. O’Brien (1995), 105

Ohio App.3d 373, 378, 663 N.E.2d 1348.




                                                5
        {¶ 8} The trial court did not deprive appellant of an opportunity to oppose summary

judgment, and the case law she points to is not applicable to her case. In those cases,1 the

trial courts ruled on motions for summary judgment before the period set by the applicable

civil rule, by local rule, or by the court had expired. In each case, the reviewing court

reversed that determination to give the parties an opportunity to respond.

        {¶ 9} Although appellant requested a 30-day extension from the time the trial court

ruled on her motion to dismiss to file a response, that motion was impliedly denied when the

court had not ruled on it.

        {¶ 10} In some cases, where additional discovery is required to adequately respond to

a summary-judgment motion, the trial court should allow more time so this discovery can be

completed. Tucker v. Webb Corp. (1983), 4 Ohio St.3d 121, 447 N.E.2d 100. However,

appellant’s motion set forth no such need. The February 9, 2010 motion for an extension

asserted only that the additional time was required because her attorney was busy. The final

request for an extension of time did not include any reason why an additional 30 days from

the time the court ruled on appellant’s motion to dismiss was necessary.

        {¶ 11} This court has previously held that “[i]f a party opposing a motion for summary

judgment cannot present by affidavit facts which are sufficient to justify his opposition he

may seek a continuance or deferral of the court’s action on the motion by filing affidavits

        1
           Raben Tire Co. v. K&G Contracting Servs., Sandusky App. No. S-09-017, 2009-Ohio-6256; Willis & Linnen
Co. L.P.A. v. Linnen, 163 Ohio App.3d 400, 2005-Ohio-4934, 837 N.E.2d 1263; Hooten v. Safe Auto Ins. Co., 100 Ohio
St.3d 8, 2003-Ohio-4829, 795 N.E.2d 648; Harbor View v. Jones, Franklin App. Nos. 10AP-356 and 10AP-357, 2010-
Ohio-6533.
                                                        6
which must state sufficient reasons why he cannot then present by affidavit facts essential to

justify his opposition to the motion and why or how the continuance, deferral of action, or

discovery would permit him to obtain such facts.” Gates Mills Inv. Co. v. Pepper Pike

(1978), 59 Ohio App.2d 155, 392 N.E.2d 1316, paragraph two of the syllabus. A motion

pursuant to Civ.R. 56(F) must set forth the reasons justifying delay. Appellant’s motions

failed to do so.

       {¶ 12} Appellant also failed to request that the trial court rule on her motions for

extension of time or her motion to dismiss. While CitiMortgage did twice request such

action, appellant sat by and waited for a year while nothing happened in the case. All that is

required to preserve appellant’s due process rights is sufficient notice of the filing of the

motion for summary judgment and sufficient opportunity to prepare a response. Brown v.

Akron Beacon Journal Publishing Co. (1991), 81 Ohio App.3d 135, 139, 610 N.E.2d 507,

citing Civ.R. 56(C). According to CitiMortgage’s calculation, appellant had 414 days to

respond.   This is a sufficient time under Civ.R. 56(C) when appellant advanced no

extenuating circumstances justifying the failure to respond in that time.

       {¶ 13} Appellant’s first assignment of error is overruled.

                                  Grant of Summary Judgment

       {¶ 14} The fact that no response was filed should not automatically lead to the

granting of CitiMortgage’s motion. Rose v. Natl. Mut. Ins. Co. (1999), 134 Ohio App.3d

229, 730 N.E.2d 1014. CitiMortgage still has the burden of showing that no genuine issue of

                                              7
material fact exists, and it must carry that burden whether or not a response is filed. Id. See

also Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265;

Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. This is the foundation of

appellant’s second assignment of error, in which she argues that “[t]he trial court erred to the

prejudice of the appellant and abused its discretion by granting appellee’s motion for

summary judgment where, pursuant to Civ.R. 56(C), there are clearly genuine issues of

material facts and the appellee is not entitled to judgment as a matter of law.”

       {¶ 15} “Civ.R. 56(C) specifically provides that before summary judgment may be

granted, it must be determined that: (1) No genuine issue as to any material fact remains to

be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears

from the evidence that reasonable minds can come to but one conclusion, and viewing such

evidence most strongly in favor of the party against whom the motion for summary judgment

is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50

Ohio St.2d 317, 327, 364 N.E.2d 267.

       {¶ 16} Although appellant argues that the portion of CitiMortgage’s brief justifying

summary judgment based on appellant’s answer and counterclaim is irrelevant, this court

reviews the lower court’s granting of summary judgment de novo. Brown v. Scioto Cty. Bd.

of Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. An appellate court reviewing the

grant of summary judgment must follow the standards set forth in Civ.R. 56(C). “[T]he

reviewing court evaluates the record * * * in a light most favorable to the nonmoving party. *

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* * [T]he motion must be overruled if reasonable minds could find for the party opposing the

motion.” Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50, 593 N.E.2d 24.

                                    a. The Foreclosure Claim

       {¶ 17} In CitiMortgage’s motion for summary judgment, it argued that appellant was

delinquent on her mortgage, that it notified her pursuant to the instrument that it was

accelerating her payments so the entire outstanding balance was due, and that no payment

was forthcoming. It also established that it was the holder and owner of the note and

mortgage and that the outstanding balance was $84,369.83. “It is well settled that a

mortgagee is entitled to judgment after there has been a default on the conditions of the

mortgage and the debt as evidenced by the note having been accelerated.” Wells Fargo

Bank, N.A. v. Sessley, 188 Ohio App.3d 213, 2010-Ohio-2902, 935 N.E.2d 70, ¶ 20, citing

Bank One, N.A. v. Swartz, Lorain App. No. 03CA008308, 2004-Ohio-1986, ¶ 18.

       {¶ 18} As a defense, appellant alleged that AEM had committed fraud during the

origination of the note and mortgage. CitiMortgage claims that it was not the loan originator

and did not participate in the original transaction. However, “the assignee of a contract takes

that contract with all rights of the assignor and subject to all defenses that the obligor may

have had against the assignor.” Citizens Fed. Bank, F.S.B. v. Brickler (1996), 114 Ohio

App.3d 401, 410, 683 N.E.2d 358.

       {¶ 19} “The default rule for consumer and commercial mortgages alike is that a

mortgage lender’s assignee takes subject to the claims and defenses that the borrower might

                                              9
assert against the original lender.” Peterson, Predatory Structured Financing, 28 CDZLR

2185, 2233, citing 4; Corbin on Contracts (1996) 892, 892A; 3 Williston on Contracts (1960)

432; Farnsworth on Contracts (2d Ed.1990) 11.8. This is subject to two limitations embodied

in the ability to draft waiver-of-defense clauses in contracts and the “holder in due course”

rule.2 Id. A holder in due course takes free of certain claims and defenses that a party may

assert against the originator of the mortgage. Countrywide Home Loans Servicing, L.L.P. v.

Heck, Ottawa App. No. OT-10-011, 2011-Ohio-147, ¶12.

         {¶ 20} R.C. 1303.35(A)(1)(c) provides that fraud is still a valid defense even against a

holder in due course.3 In asserting her fraud defense, appellant alleged that AEM did not

include the payment of taxes and insurance in the stated monthly payment and that

CitiMortgage was liable for this fraud and misrepresentation through 16 C.F.R. 433.2(a).

CitiMortgage correctly pointed out that this regulation does not apply to real estate

transactions. After CitiMortgage demonstrated that it was entitled to judgment, appellant had

a burden to produce evidence that a genuine issue of material fact existed to preclude

summary judgment, and, based on the documents and pleadings before the court, appellant




         2
            A holder in due course is defined as one who takes an “instrument when issued or negotiated to the holder
[that] does not bear evidence of forgery or alteration that is so apparent, or is not otherwise so irregular or incomplete as
to call into question its authenticity; [and] (a) For value; (b) In good faith; (c) Without notice that the instrument is
overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued
as part of the same series; (d) Without notice that the instrument contains an unauthorized signature or has been altered
* * *.” R.C. 1303.32.
         3
          Appellant asserted only that CitiMortgage was liable for the actions of the loan originator as an assignee based
on 16 C.F.R. 433.2(a).

                                                             10
failed to do this. CitiMortgage was entitled to summary judgment as a matter of law on its

foreclosure claim based on the record before the court.

                                       b. The Counterclaims

       {¶ 21} Regarding appellant’s counterclaim, CitiMortgage demonstrated in its motion

for summary judgment that it was entitled to judgment as a matter of law. Appellant’s first

claim was for fraud and misrepresentation that allegedly occurred during the loan origination.

       {¶ 22} “A claim for common-law fraud requires proof of the following elements: (1) a

representation or, where there is a duty to disclose, concealment of a fact, (2) which is

material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with

such utter disregard and recklessness as to whether it is true or false that knowledge may be

inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance

upon the representation or concealment, and (6) a resulting injury proximately caused by the

reliance.

       {¶ 23} “ ‘Failure to specifically plead the operative facts constituting an alleged fraud

presents a defective claim * * *. The “particularity” requirement of Civ.R. 9(B) means that

the pleading must contain allegations of fact which tend to show each and every element of a

cause of action for fraud.’ Rieger v. Podeweltz, Montgomery App. No. 23520, 2010-Ohio-

5290, 2010 WL 2225398, ¶ 9.” (Citations omitted.) Sutton Funding, L.L.C. v. Herres, 188

Ohio App.3d 686, 2010-Ohio-3645, 936 N.E.2d 574, ¶ 49-50.




                                               11
         {¶ 24} Appellant failed to support her claim for fraud with specific facts. Therefore,

the trial court could properly grant CitiMortgage summary judgment.

         {¶ 25} With respect to the federal claims, TILA actions carry a one-year statute of

limitations. 15 U.S.C. 1640(e) (TILA actions must be brought “within one year from the date

of the occurrence of the violation.”). RESPA has one- to three-year limitations periods

depending on the specific violation. 12 U.S.C. 2614. Actions based on violations of 12

U.S.C. 2607 (kickbacks and unearned fees) and 2608 (seller requiring title insurance from a

specific title company) must be brought within one year, while violations of 12 U.S.C. 2605

(servicing of mortgage loans and administration of escrow accounts) must be brought within

three years. Since the alleged violations occurred on or about January 2006, appellant’s

TILA and RESPA claims could be barred by the applicable statutes of limitation. However,

when asserted as a defense or claim for recoupment,4 according to Beach v. Ocwen Fed.

Bank (1998), 523 U.S. 410, 118 S.Ct. 1408, 140 L.Ed.2d 566, TILA claims may be raised

regardless of the one-year statute of limitations. “Prior to Beach, Ohio courts similarly held

that a TILA counterclaim arising out of the same transaction as the claim (the loan

agreement) was not barred by the one year statute of limitations since it was a recoupment.”

Residential Funding Co., L.L.C. v. Thorne, Lucas App. No. L-09-1324, 2010-Ohio-4271,



         4
            Defined as “[t]he right of a defendant to have the plaintiff’s claim reduced or eliminated because of the
plaintiff’s breach of contract or duty in the same transaction.” Black’s Law Dictionary (9th Ed.Rev.2009). Further, it is a
defense only; it will not support affirmative relief. Continental Acceptance Corp. v. Rivera (1976), 50 Ohio App.2d 338,
346, 363 N.E.2d 772.

                                                            12
¶ 39. Appellant never argued that this was a recoupment claim or defense or that the TILA

claim was not time-barred.

        {¶ 26} Even if the claims were timely brought, this does not create a genuine issue of

fact because appellant points only to 16 C.F.R. 433.2 as imposing liability on CitiMortgage,

an assignee. This regulation deals only with the “sale or lease of goods or services to

consumers.” The sale and financing of real property is not covered. Therefore, appellant has

not demonstrated that CitiMortgage is liable for alleged TILA or RESPA violations

committed by the loan originator.

        {¶ 27} Congress specifically limited assignee liability in TILA. 15 U.S.C. 1641(a)

states: “[A]ny civil action for a violation of this subchapter or proceeding under Section

1607 of this title which may be brought against a creditor may be maintained against any

assignee of such creditor only if the violation for which such action or proceeding is brought

is apparent on the face of the disclosure statement, except where the assignment was

involuntary.”5 See also Kelley, Assignee Liability: Through the Minefield (2007), 61

CONFLQR 279, 280. Appellant has failed to argue that the alleged violations were clear on

the face of the instruments necessary to impose liability under TILA, how the statutory

provisions of RESPA and TILA were violated, and how they apply to CitiMortgage.

        {¶ 28} Appellant also asserted a claim of intentional infliction of emotional distress.

“The Ohio Supreme Court has declared that, absent contemporaneous physical injury,

        5
           Ohio has a similar provision for violations of the Consumer Sales Practices Act, R.C. 1345.091, which
significantly limits liability of assignees.
                                                         13
compensable emotional distress must be severe and disabling.” Knief v. Minnich (1995), 103

Ohio App.3d 103, 108, 658 N.E.2d 1072, citing Paugh v. Hanks (1983), 6 Ohio St.3d 72, 451

N.E.2d 759, paragraph three of the syllabus. Cases following Paugh have required a plaintiff

to “present some guarantee of genuineness in support of their claim, such as expert evidence,

to prevent a court from granting summary judgment in favor of the defendant.” Knief at 108,

citing Grote v. J.S. Mayer & Co. (1990), 59 Ohio App.3d 44, 48, 570 N.E.2d 1146. Here,

appellant has not offered any “guarantee of genuineness” that she has, in fact, suffered

debilitating emotional distress of the type compensable in Ohio. See Hayes v. Heintz,

Cuyahoga App. No. 79335, 2002-Ohio-2608.

       {¶ 29} Therefore, the trial court did not err in granting summary judgment to

CitiMortgage on appellant’s counterclaims. Appellant’s second assignment of error is

overruled.

                                                                        Judgment affirmed.


       STEWART, P.J., and ROCCO, J., concur.




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