Deutsche Bank Natl. Trust Co. v. Brown

[Cite as Deutsche Bank Natl. Trust Co. v. Brown, 2016-Ohio-907.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

DEUTSCHE BANK NATIONAL TRUST C.A. No. 27829

COMPANY, AS TRUSTEE FOR

FIRSTFRANKLIN MORTGAGE LOAN

TRUST 2006-FF11, MORTGAGE PASS-

THROUGH CERTIFICATES, SERIES APPEAL FROM JUDGMENT

2006-FF11 ENTERED IN THE

COURT OF COMMON PLEAS

Appellee COUNTY OF SUMMIT, OHIO

CASE No. CV-2014-09-4393

v.

MARLENE S. BROWN, et al.

Appellant

DECISION AND JOURNAL ENTRY

Dated: March 9, 2016

HENSAL, Judge.

{¶1} Defendant-Appellant, Marlene Brown, appeals from the judgment of the Summit

County Court of Common Pleas, granting summary judgment to Plaintiff-Appellee, Deutsche

Bank National Trust Company, as Trustee for First Franklin Mortgage Loan Trust 2006-FF11,

Mortgage Pass-Through Certificates, Series 2006-FF11, on its complaint in foreclosure. For the

following reasons, this Court affirms.

I.

{¶2} Deutsche Bank National Trust Company, as Trustee for First Franklin Mortgage

Loan Trust 2006-FF11, Mortgage Pass-Through Certificates, Series 2006-FF11 (“Deutsche

Bank”) filed a complaint in foreclosure against Marlene Brown, asserting that she had breached

the terms and conditions of her promissory note, and that Deutsche Bank satisfied all conditions

2

precedent under the note and mortgage. Deutsche Bank alleged that the note was in default due

to nonpayment, rendering the debt immediately due and payable.

{¶3} Months later, Deutsche Bank moved for summary judgment. Ms. Brown filed a

brief in opposition, and Deutsche Bank filed a reply. Following Deutsche Bank’s reply, Ms.

Brown moved the trial court for leave to file a surreply. Without ruling on Ms. Brown’s motion

for leave, the trial court granted Deutsche Bank’s motion for summary judgment and issued a

decree of foreclosure. Ms. Brown appealed, raising four assignments of error. Ms. Brown

subsequently withdrew her fourth assignment of error, leaving three assignments of error for our

review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN, IN CONTRAVENTION OF CIVIL

RULE 56(C) AND DUE PROCESS, IT FAILED TO DETERMINE THAT MS.

BROWN HAD AN AUTOMATIC RIGHT TO AN OPPORTUNITY TO FILE A

SURREPLY IN REPLY TO DEUTSCHE BANK’S REPLY TO MS. BROWN’S

REPLY TO DEUTSCHE BANK’S MOTION FOR SUMMARY JUDGMENT.

{¶4} In her first assignment of error, Ms. Brown argues that the trial court violated

Civil Rule 56(C) and due process when it failed to determine that she had an automatic right to

file a surreply to Deutsche Bank’s reply brief to her brief in opposition to its motion for summary

judgment. In response, Deutsche Bank argues, in part, that Civil Rule 56(C) does not permit

surreplies, and that the moving party is entitled to “the last word” on a motion for summary

judgment.

{¶5} The version of Civil Rule 56(C) in effect at the time of the parties’ summary-

judgment briefing provided that “[t]he 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

3

opposing affidavits.” Ms. Brown construes this language as providing an “unfettered” and

“automatic” right to file a surreply. Summit County Local Rule 7.14(C)(1), however, provides

that a party may file a surreply only with leave of court upon a showing of good cause. Loc.R.

7.14(C)(1) of the Court of Common Pleas of Summit County, General Division. Ms. Brown,

therefore, argues that Local Rule 7.14(C)(1) contravenes Civil Rule 56(C) and violates her due-

process right to be heard.

{¶6} Ms. Brown’s argument lacks merit. Courts may adopt local rules governing the

filing of responses to motions for summary judgment so long as they are not inconsistent with

rules set forth by the Supreme Court of Ohio. Ohio Constitution, Article IV, Section 5(B);

Civ.R. 83(A); see Hooten v. Safe Auto Ins. Co., 100 Ohio St.3d 8, 2003-Ohio-4829, ¶ 28

(recognizing that “[t]here are many variations of local rules regarding the filing of responses to

motions for summary judgment[.]”). Despite Ms. Brown’s arguments, nothing in Civil Rule

56(C) provides for an “unfettered” or “automatic” right to file a surreply. See First Fin. Servs.,

Inc. v. Cross Tabernacle Deliverance Church, Inc., 10th Dist. Franklin No. 06AP-404, 2007-

Ohio-4274, ¶ 39 (stating that “the Ohio Rules of Civil Procedure contain no provision for filing a

surreply to a motion for summary judgment.”). Because Civil Rule 56(C) contains no provision

for filing a surreply, Ms. Brown’s argument that Local Rule 7.14(C)(1) contravenes Civil Rule

56(C) and violates due process by denying her the automatic right to file a surreply lacks merit.

Accordingly, Ms. Brown’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN, PURSUANT TO LOCAL RULE, IT

FAILED TO DETERMINE THAT MS. BROWN DEMONSTRATED GOOD

CAUSE FOR PURPOSES OF FILING A SURREPLY TO DEUTSCHE

BANK’S REPLY TO MS. BROWN’S REPLY TO DEUTSCHE BANK’S

MOTION FOR SUMMARY JUDGMENT.

4

{¶7} In her second assignment of error, Ms. Brown argues that the trial court erred by

failing to determine that she demonstrated good cause for purposes of filing a surreply under

Local Rule 7.14(C)(1). As an initial matter, we note that the trial court did not render a judgment

specifically denying Ms. Brown’s motion for leave to file a surreply. Rather, it implicitly

overruled the pending motion when it granted Deutsche Bank’s motion for summary judgment.

Georgeoff v. O’Brien, 105 Ohio App.3d 373, 378 (9th Dist.1995) (“When a trial court fails to

rule upon a motion, it will be presumed that it was overruled.”).

{¶8} As discussed above, Local Rule 7.14(C)(1) permits a party to file a surreply “with

leave of the Court only upon a showing of good cause.” Loc.R. 7.14(C)(1). We review a trial

court’s decision to grant or deny a surreply for an abuse of discretion. First Fin. Servs., Inc.,

2007-Ohio-4274, at ¶ 39. An abuse of discretion implies that a trial court was unreasonable,

arbitrary or unconscionable in its judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

{¶9} In her motion, Ms. Brown argued that good cause existed because Deutsche Bank

made inaccurate and misleading statements in its reply brief, and it mischaracterized the

summary-judgment standard. Her arguments, however, were duplicative of those raised in her

initial reply to Deutsch Bank’s motion for summary judgment. Additionally, our review of the

summary-judgment briefing indicates that the arguments raised in Deutsch Bank’s reply brief

were responsive to those raised in Ms. Brown’s brief opposition, and echoed those raised in its

original motion. Ms. Brown, therefore, was not denied a meaningful opportunity to respond to

Deutsch Bank’s arguments. Smith v. Ray Esser & Sons, Inc., 9th Dist. Lorain No. 10CA009798,

2011-Ohio-1529, ¶ 15 (“Allowing new arguments in a reply brief denies respondents the

meaningful opportunity to respond.”). Accordingly, we find that the trial court could have

5

reasonably concluded that Ms. Brown did not demonstrate good cause for purposes of Local

Rule 7.14(C)(1). Ms. Brown’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED WHEN IT EFFECTIVELY DETERMINED

THAT, PURSUANT TO PARAGRAPH 22 OF THE MORTGAGE, DEUTSCHE

BANK’S NOTICE OF DEFAULT PROPERLY SPECIFIED THE DEFAULT

AND THE ACTION REQUIRED TO CURE THE DEFAULT FOR PURPOSES

OF AVOIDING ACCELERATION.

{¶10} In her third assignment of error, Ms. Brown argues that the trial court erred by

granting summary judgment in favor of Deutsche Bank because Deutsche Bank failed to

establish that it satisfied the conditions precedent to foreclosure. Specifically, Ms. Brown argues

that the notice of default was insufficient because it contained “ambiguous and confusing”

language regarding the amount she needed to pay to cure the default and avoid acceleration.

{¶11} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court, viewing the facts

of the case in the light most favorable to the non-moving party and resolving any doubt in favor

of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427, 2011-Ohio-1519, ¶ 8.

{¶12} Paragraph 22 of the mortgage governs acceleration. It provides that, prior to

acceleration, the lender must provide the borrower a notice that specifies: (1) the default; (2) the

action required to cure the default; (3) a date by which the default must be cured, which cannot

be less than 30 days from the date the notice is given to the borrower; (4) that the borrower’s

failure to cure the default on or before the specified date may result in acceleration, foreclosure,

and the sale of the property; and (5) that the borrower has the right to reinstate after acceleration

and has the right to assert defenses in any foreclosure proceeding.

6

{¶13} A review of the notice issued to Ms. Brown indicates that it contained all of the

required information. Ms. Brown seemingly concedes that the required information is present,

but argues that two additional “contradictory and/or ambiguous statements” rendered the notice

insufficient because it required her to speculate as to the action required to cure the default. The

statements at issue are as follows: (1) “For the loan to be current and not in default, any

additional monthly payments, late charges and other charges that may be due under the note,

mortgage and applicable law after the date of this notice must also be paid.”; and (2) “If funds

are not received by the above referenced date, we will proceed with acceleration.”

{¶14} We do not find the additional statements to be contradictory or ambiguous, nor do

we find that they required Ms. Brown to speculate as to the action required to cure the default.

In this regard, the statements come after the language advising Ms. Brown of the exact amount of

the delinquency ($95,263.85) and the date by which she is required to pay (August 19, 2014) in

order to avoid acceleration. The additional statements simply contemplate the possibility of Ms.

Brown’s continued nonpayment and do not affect the sufficiency of the notice. See Wells Fargo

Bank, N.A. v. Murphy, 7th Dist. Mahoning No. 13 MA 35, 2014-Ohio-2937, ¶ 29-31 (addressing

a similar argument and holding that statements contemplating the possibility of continued

nonpayment did not affect the validity of the notice). We, therefore, find no merit in Ms.

Brown’s argument and hold that the trial court did not err in granting summary judgment in favor

of Deutsche Bank. Ms. Brown’s third assignment of error is overruled.

III.

{¶15} Ms. Brown’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

7

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.

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(C). 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 Appellant.

JENNIFER HENSAL

FOR THE COURT

MOORE, P. J.

SCHAFER, J.

CONCUR.

APPEARANCES:

GREGORY R. SAIN, Attorney at Law, for Appellant.

SCOTT A. KING and TERRY W. POSEY, Attorneys at Law, for Appellee.