[Cite as BAC Home Loans Servicing, LP. v. Mullins, 2014-Ohio-4761.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
BAC HOME LOANS SERVICING, LP, :
Plaintiff-Appellee, : CASE NO. CA2013-12-015
: OPINION - vs - 10/27/2014 :
JAMES R. MULLINS, JR., a.k.a. : James R. Mullins, et al., : Defendants-Appellants. :
CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 09 CV 27935
Blank Rome LLP, John R. Wirthlin, Michael B. Hurley, 1700 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, for plaintiff-appellee
James R. Mullins, Jr., 115 West Somers Street, Eaton, Ohio 45320, defendant-appellant, pro se
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, James R. Mullins, Jr. a.k.a. James R. Mullins (Mullins),
appeals pro se from the decisions of the Preble County Court of Common Pleas entering
summary judgment and a decree for foreclosure in favor of plaintiff-appellee, BAC Home
Loans Servicing, LP f.k.a. Countrywide Home Loans Servicing, LP (BAC), and denying Preble CA2013-12-015
Mullins' motion for relief from summary judgment. For the reasons set forth below, we affirm.
I. FACTS
{¶ 2} On May 23, 2008, Mullins executed a promissory note with Somerville National
Bank (Somerville) for a loan in the amount of $94,606 to purchase a home. The note
provided that the interest rate would be 6.375 percent yearly and payments would begin on
July 1, 2008. To secure payment of the promissory note, Mullins executed a mortgage
against the home, located on Somers Street in Eaton, Ohio (Somers Street property).
{¶ 3} On December 3, 2009, BAC filed a complaint in foreclosure against Mullins. In
its complaint, BAC alleged that it was the holder of the indorsed-in-blank promissory note
secured by the mortgage on the Somers Street property. BAC further alleged Mullins had
defaulted on the note in the amount of $93,861.93, together with interest at a rate of 6.375
percent from February 1, 2009. BAC asserted it had a valid first lien on the property and
sought to have the mortgage foreclosed, the property sold, and the proceeds distributed.
The Federal Home Loan Bank of Cincinnati (Bank of Cincinnati) and Jane Doe, the spouse
of Mullins, were listed as additional defendants who may have an interest in the action.1
{¶ 4} On December 24, 2009, Mullins filed a letter with the trial court, which the court
construed as an answer to BAC's complaint. In this letter, Mullins informed the court that he
was in the process of seeking a loan modification. Mullins did not otherwise respond to the
allegations set forth in BAC's complaint. On January 15, 2010, BAC moved for summary
judgment against Mullins. Mullins sought an extension of time to respond to BAC's motion,
and the trial court granted his request, giving him until March 2, 2010 to file his response.
1. The Preble County Treasurer was also listed as a defendant in the foreclosure action. The Preble County Treasurer filed an answer to BAC's complaint on December 7, 2009, claiming to have a valid lien on the Somers Street property. In the trial court's December 3, 2013 entry sustaining summary judgment in favor of BAC and entering a decree for foreclosure, the trial court specifically found the "lien as set forth in the Answer of Defendant Preble County Treasurer" a "good and valid lien and the first and best lien upon the [Somers Street] premises." Jane Doe, the Bank of Cincinnati, and the Preble County Treasurer are not parties to the present appeal. -2- Preble CA2013-12-015
Mullins failed to file a response, and on March 9, 2010, the trial court granted BAC's motion
for summary judgment.
{¶ 5} BAC subsequently sought default judgment against the Bank of Cincinnati and
Jane Doe as they had failed to file an answer or otherwise appear in the action. Prior to
ruling on this motion, the trial court issued an entry staying the case. In its entry, the trial
court stated: "The Court is advised that the principal parties hereto are in the process of
effectuating a loan modification. Accordingly, this matter is stayed pending dismissal of the
action or in the alternative notice from [BAC] that this matter should be reactivated."
{¶ 6} On February 3, 2012, the case was reactivated after the parties failed to reach
a loan modification agreement. On March 7, 2012, Mullins filed a "Motion of Countersuit,"
alleging that there was "fraud perpetrated" by BAC. The fraud complained of by Mullins
allegedly occurred during the loan modification process. BAC moved to strike Mullins'
"Motion for Countersuit" on the grounds that it was an untimely counterclaim filed without
leave of court. On March 28, 2012, the trial court issued a decision denying Mullins' "Motion
for Countersuit," finding that the motion was not timely filed.
{¶ 7} Thereafter, in April 2012, Mullins had the case removed to federal court. On
August 1, 2012, the District Court for the Southern District of Ohio issued a decision
remanding the case back to the state court. Mullins v. Bank of America Corp., S.D.Ohio No.
3:12-CV-131 (Aug. 1, 2012) (Decision and Entry: (1) Adopting the Report and
Recommendation of the United States Magistrate Judge; (2) Remanding to the State Court;
and (3) Terminating this Case From the Docket). Mullins appealed to the Sixth Circuit Court
of Appeals, which ultimately dismissed his appeal. Mullins v. Bank of America Corp., 6th Cir.
No. 12-3988 (Oct. 11, 2013) (Order Dismissing Appeal).
{¶ 8} On November 14, 2013, the case was again reactivated in the Preble County
Court of Common Pleas. At this time, BAC filed a "Renewed Motion for Default Judgment" -3- Preble CA2013-12-015
against the Bank of Cincinnati and Jane Doe. A hearing on the motion for default judgment
was set for December 2, 2013. Prior to the date of the hearing, Mullins filed a motion to have
the hearing rescheduled. He also filed a "Petition for Permission to File Answer to [BAC's]
Order" (Petition). In his "Petition," Mullins argued BAC committed fraud "in their initial
proceedings of foreclosure relief" and he sought to have the court reverse its decision
awarding summary judgment to BAC.
{¶ 9} On November 26, 2013, the trial court issued a decision denying Mullins'
request to reschedule the December 2, 2013 default hearing and denying Mullins' "Petition."
The trial court treated Mullins' "Petition" as a Civ.R. 60(B) motion for relief from its March 9,
2010 decision granting summary judgment to BAC. The court concluded that Mullins' motion
for relief had been untimely filed as more than three and one-half years had passed since
summary judgment had been granted to BAC.
{¶ 10} On December 3, 2013, the trial court issued a final appealable order "sustaining
[BAC]'s motion for summary judgment" against Mullins and entering default judgment against
the Bank of Cincinnati and Jane Doe. The court further entered a decree for foreclosure.
{¶ 11} Mullins timely appealed from the trial court's December 3, 2013 entry, raising
two assignments of error.
II. ANALYSIS
A. Opportunity to be Heard
{¶ 12} Assignment of Error No. 1:
{¶ 13} [MULLINS'] DUE PROCESS RIGHTS - - IN ACCORDANCE WITH THE 14TH
AMENDMENT OF THE UNITED STATES CONSTITUTION WAS [SIC] VIOLATED.
{¶ 14} In his first assignment of error, Mullins argues the trial court denied him
"meaningful participation" in the case as the court did not give him an opportunity to be heard
or to "prove the fraud." Specifically, Mullins complains he was denied the opportunity to be -4- Preble CA2013-12-015
heard with respect to (1) his motion for countersuit, (2) his request to reschedule the
December 2, 2013 default hearing, and (3) his Civ.R. 60(B) "Petition."
1. Motion for Countersuit
{¶ 15} Mullins argues the trial court erred by not allowing him to proceed with his
"countersuit." He contends the "countersuit" was timely as it was filed within a year of the
case being reactivated for the first time.
{¶ 16} From the record, it is apparent that the trial court treated Mullins' "Motion for
Countersuit" as a request for leave to amend a pleading to add a counterclaim for fraud.
Civ.R. 13(F) provides that "[w]hen a pleader fails to set up a counterclaim through oversight,
inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up
the counterclaim by amendment." Whether or not a party may, under appropriate
circumstances, amend a responsive pleading to include a counterclaim is a decision left to
the sound discretion of the trial court, and a trial court's decision will not be disturbed absent
an abuse of discretion. Chase Manhattan Mtge. Corp. v. Urquhart, 12th Dist. Butler Nos.
CA2004-04-098 and CA2004-10-271, 2005-Ohio-4627, ¶ 17. An abuse of discretion
constitutes more than an error of law or judgment; it requires a finding that the trial court
acted unreasonably, arbitrarily, or unconscionably. Wells Fargo Bank v. Smith, 12th Dist.
Brown No. CA2012-04-006, 2013-Ohio-855, ¶ 13.
{¶ 17} We find no abuse of discretion by the trial court in denying Mullins' "Motion for
Countersuit." Under facts similar to the present case, we found that a trial court did not
abuse its discretion by denying a motion for leave to file a counterclaim where the defendant-
homeowner did not attempt to file the counterclaim until almost one year after the complaint
was filed and after summary judgment had been granted to the plaintiff-bank. See Urquhart
at ¶ 18. Here, the record reflects that Mullins did not seek leave to file a counterclaim for
fraud until well after the time to answer or respond to the complaint had passed. -5- Preble CA2013-12-015
Furthermore, Mullins request to file a counterclaim for fraud occurred nearly two years after
summary judgment had been granted to BAC. Accordingly, based on these facts, we agree
with the trial court's finding that Mullins' motion was untimely and, therefore, conclude that the
trial court did not abuse its discretion in denying his "Motion for Countersuit."
2. Request for a Continuance
{¶ 18} Mullins also argues the trial court erred by denying his motion for a continuance
of the December 2, 2013 hearing. Mullins contends he communicated his unavailability to
the trial court and that the hearing should have been rescheduled so that he could attend the
proceeding.
{¶ 19} The decision to grant or deny a continuance is within the sound discretion of the
trial court and will not be reversed absent an abuse of discretion. U.S. Bank v. Fitzgerrel,
12th Dist. Clermont No. CA2011-09-063, 2012-Ohio-4522, ¶ 18. "In ruling upon a motion for
a continuance, the trial court balances the court's interest in controlling its docket and the
public's interest in an efficient judicial system with the possibility of prejudice to the
defendant." Id.
{¶ 20} We find no error in the trial court's denial of Mullins' request for a continuance.
Mullins sought a continuance of a hearing on BAC's motion for default judgment against the
Bank of Cincinnati and Jane Doe. Mullins was not a party subject to the default judgment
motion. As such, we find that any prejudice Mullins experienced by the denial of his request
for a continuance was minimal and outweighed by the trial court's interest in controlling its
docket. We therefore conclude that the trial court did not abuse its discretion in denying
Mullins' motion for a continuance of the December 2, 2013 default hearing.
3. Civ.R. 60(B) "Petition"
{¶ 21} Mullins also contends the trial court erred in denying his Civ.R. 60(B) "Petition"
as there was evidence that summary judgment was inappropriate given the fraud committed -6- Preble CA2013-12-015
against him and the fraud committed against the court. He further argues the court should
have held a hearing on his "Petition."
{¶ 22} As an initial matter, we find that Mullins' arguments with respect to the "fraud
committed against the court" are waived. Mullins argues for the first time on appeal that BAC
committed fraud against the court when it failed to provide the court with a true and accurate
copy of the deed to the Somers Street property and provided the trial court with a fraudulent
"robo-signed" assignment of the mortgage from Somerville to BAC. These arguments were
not set forth in Mullins' "Petition" and are, therefore, waived for purposes of appeal. See
Wells Fargo Bank, N.A. v. Geiser, 12th Dist. Butler No. CA2013-06-103, 2014-Ohio-3379, ¶
10, fn. 3 ("[i]t is axiomatic that a party cannot raise new issues or legal theories for the first
time on appeal and failure to raise an issue before the trial court results in waiver of that
issue for appellate purposes").
{¶ 23} With respect to Mullins' claim that BAC perpetrated fraud against Mullins
individually to obtain summary judgment in the foreclosure action, we review the trial court's
denial of Mullins' Civ.R. 60(B) "Petition" for an abuse of discretion. Kutz v. Kutz, 12th Dist.
Madison No. CA2012-08-017, 2013-Ohio-532, ¶ 9.
{¶ 24} To prevail on a Civ.R. 60(B) motion for relief from judgment, the movant must
demonstrate that (1) he has a meritorious defense or claim to present if relief is granted, (2)
he is entitled to relief under one of the five grounds set forth in Civ.R. 60(B)(1) through (5),
and (3) the motion is made within a reasonable time, and, where the grounds of relief are
Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment was entered. Aurora
Loan Servs. v. Brown, 12th Dist. Warren Nos. CA2010-01-010 and CA2010-05-041, 2010-
Ohio-5426, ¶ 35, citing GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146, 150-151
(1976). "The three requirements necessary to sustain a Civ.R. 60(B) claim are independent
and conjunctive." Carrelli v. Goodwin, 12th Dist. Clinton No. CA93-12-038, 1994 WL -7- Preble CA2013-12-015
409636, *1 (Aug. 8, 1994). Therefore, the movant must establish all three requirements in
ordered to be entitled to relief. Cox v. Zimmerman, 12th Dist. Clermont No. CA2011-03-022,
2012-Ohio-226, ¶ 13.
{¶ 25} After reviewing the record, we find that the trial court did not abuse its discretion
by denying Mullins' "Petition" for relief from summary judgment as his motion was not made
within a reasonable time. Because Mullins alleged he was entitled to relief on the basis of
fraud under Civ.R. 60(B)(3), he was required to file his "Petition" "not more than one year
after the judgment, order, or proceeding was entered or taken." Civ.R. 60(B). In the present
case, summary judgment was entered against him on March 9, 2010. Mullins did not seek
relief from this judgment until November 20, 2013, over three years later. Mullins' motion for
relief, therefore, was not timely.
{¶ 26} Even if Mullins' motion had been timely made, the motion was properly denied
as Mullins failed to present the necessary operative facts to establish a meritorious defense
to the action. "In order to establish a meritorious defense, a moving party 'must present
operative facts that demonstrate the existence of a meritorious defense or claim.'" Fifth Third
Bank v. Schoessler's Supply Room, L.L.C., 190 Ohio App.3d 1, 2010-Ohio-4074, ¶ 13 (12th
Dist.), quoting Natl. City Bank v. Rini, 162 Ohio App.3d 662, 2005-Ohio-4041, ¶ 20 (11th
Dist.). "If a party who seeks relief from judgment does not present operative facts or
presents facts of limited or meager quality, then a trial court is justified in denying relief."
Whittle v. Davis, 12th Dist. Butler No. CA2013-08-153, 2014-Ohio-445, ¶ 22, citing Bank of
New York Mellon v. Stefanidis, 10th Dist. Franklin No. 11AP-157, 2011-Ohio-6455, ¶ 12.
{¶ 27} Here, Mullins provided only general allegations of fraud. He did not specify in
his "Petition" the manner in which BAC defrauded him as a way of obtaining summary
judgment; nor did he attach or provide evidence to support his claim of fraud. As we have
previously held, "[m]ere general allegations and mere conclusions of law are not sufficient to -8- Preble CA2013-12-015
justify relief from judgment." Tri-County Pavings, Inc. v. Everman, 12th Dist. Fayette No.
CA91-11-024, 1992 WL 126260, *1 (June 8, 1992). As Mullins' general assertion of fraud
was insufficient to meet his burden of establishing operative facts demonstrating a
meritorious defense to the foreclosure action, we find no error in the trial court's denial of his
Civ.R. 60(B) "Petition."
{¶ 28} Further, we find no error in the trial court's decision to deny the "Petition"
without first holding a hearing. "A trial court is not required to conduct a hearing on a Civ.R.
60(B) motion 'unless [the] motion and accompanying materials contain operative facts to
support relief.'" Kutz, 2013-Ohio-532 at ¶ 9, quoting Hover v. O'Hara, 12th Dist. Warren No.
CA2006-06-077, 2007-Ohio-3614, ¶ 30. As Mullins' Civ.R. 60(B) "Petition" did not contain
operative facts supporting relief from judgment, the trial court was not required to hold a
hearing on his "Petition."
{¶ 29} Accordingly, having found no merit to Mullins' arguments, his first assignment of
error is overruled.
B. Appropriateness of Summary Judgment
{¶ 30} Assignment of Error No. 2:
{¶ 31} APPELLEE IS NOT ENTITLED TO THE SUMMARY JUDGMENT [SIC] AS
THEY HAVE TRANSFERRED THE PROPERTY TO ANOTHER SERVICER, PENNYMAC,
WHOM HAS THREATENED TO FILE THEIR OWN FORECLOSURE AND THEY HAVE
COMMITTED FRAUD.
{¶ 32} In his second assignment of error, Mullins contends the trial court should not
have entered judgment in favor of BAC as, at the time the trial court issued its December 3,
2013 entry sustaining summary judgment and granting a decree in foreclosure, BAC was no
longer the servicer of the promissory note. Mullins also argues that summary judgment was
inappropriate as BAC obtained judgment by fraudulent means. -9- Preble CA2013-12-015
1. Transfer of Interest: "PennyMac"
{¶ 33} Mullins contends, for the first time on appeal, that BAC could not have been
awarded judgment as it no longer had an interest in the promissory note. Mullins states the
note was transferred to the entity "PennyMac Loan Services, LLC" (PennyMac) around the
time the trial court issued its December 3, 2013 entry, thereby making PennyMac the real
party in interest. This argument was never raised or presented below. As we previously
stated, "[i]t is axiomatic that a party cannot raise new issues or legal theories for the first time
on appeal and failure to raise an issue before the trial court results in waiver of that issue for
appellate purposes." Wells Fargo Bank, N.A. v. Geiser, 2004-Ohio-3779 at ¶ 10, fn. 3.
2. Allegations of Fraud in Loan Modification Process
{¶ 34} Mullins argues summary judgment was inappropriate as BAC only obtained
judgment after fraudulently representing to Mullins and the trial court that it was engaged in a
"loan modification * * * process that would have legally stopped the foreclosure suit." Mullins
contends that although BAC led both the court and him to believe that a loan modification
was possible, BAC never really intended to resolve the matter by reaching an agreement with
Mullins. Mullins attacks BAC's conduct during the loan modification process but does not
attack BAC's evidence in support of summary judgment.
{¶ 35} The fact that Mullins and BAC were discussing a modification to the terms of
the promissory note did not affect BAC's ability to seek judgment on the note. "Mere
negotiations do not affect the validity or enforceability of a loan or mortgage." Wells Fargo
Bank, N.A. v. Stevens, 7th Dist. Mahoning No. 12 MA 219, 2014-Ohio-1399, ¶ 2. See also
Chase Home Fin., L.L.C. v. Heft, 3d Dist. Logan Nos. 8-10-14 and 8-11-16, 2012-Ohio-876, ¶
27-28. "A lender has no duty to modify a loan. * * * Until both parties agree to the
modification, the original terms of the loan are still in force, and mere negotiations are
unenforceable." Stevens at ¶ 16, citing Huntington v. R.R. Wellington, Inc., 9th Dist. Portage - 10 - Preble CA2013-12-015
No. 2012-P-0035, 2012-Ohio-5935, ¶ 25-27.
{¶ 36} Here, Mullins' attempt at reaching a compromise with BAC throughout the
proceedings did not create a material issue of fact concerning his liability under the terms of
the note. BAC was entitled to seek judgment under the terms of the note that were in effect.
Moreover, Mullins never denied that he defaulted on his loan obligations. In fact, by failing to
specifically deny the allegations set forth in BAC's complaint within his answer, Mullins
admitted that BAC was the holder of the note and mortgage, that he had defaulted on the
terms of the note, and that BAC properly accelerated the amount due under the note. See
Civ.R. 8(D) ("[a]verments in a pleading to which a responsive pleading is required, other than
those as to the amount of damage, are admitted when not denied in the responsive
pleading). The evidence BAC attached in support of its motion for summary judgment, along
with Mullins' admissions, demonstrated BAC's right to foreclose on the property and to
recover the funds due pursuant to the terms of the promissory note. See Fifth Third Mtge.
Co. v. Bell, 12th Dist. Madison No. CA2013-02-003, 2013-Ohio-3678, ¶ 25.
{¶ 37} Given the evidence submitted by BAC demonstrating its entitlement to
summary judgment, and Mullins' failure to present any evidence demonstrating a genuine
issue of material fact to preclude judgment from being entered, we find that summary
judgment was properly entered in BAC's favor. See Civ.R. 56(C); Mootispaw v. Eckstein, 76
Ohio St.3d 383, 385 (1996) (holding that the nonmoving party "may not rest on the mere
allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R.
56, must set forth specific facts showing the existence of a genuine triable issue").
{¶ 38} Accordingly, having found no merit to Mullins' arguments, his second
assignment of error is overruled.
III. CONCLUSION
{¶ 39} For the reasons set forth above, we affirm the decisions of the trial court - 11 - Preble CA2013-12-015
entering summary judgment and a decree for foreclosure in favor of BAC and denying
Mullins' "Petition" for relief from summary judgment.
{¶ 40} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.
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