U.S. Bank Trust Natl. Assn. v. Keane

2024 Ohio 727

• Court: Ohio Court of Appeals
• Decided: February 29, 2024
• Docket: 112386
• Status: Published

Opinion

[Cite as U.S. Bank Trust Natl. Assn. v. Keane, 2024-Ohio-727.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

U.S. BANK TRUST NATIONAL : ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT : SOLELY AS TRUSTEE OF LSF10 MASTER PARTICIPATION TRUST, : No. 112386 Plaintiff-Appellee, :

v. :

MARY JOAN KEANE, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 29, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-21-949682

Appearances:

Manley Deas Kochalski LLC and Matthew J. Richardson, for appellee.

Herman Law, LLC, and Edward F. Herman, for appellants.

FRANK DANIEL CELEBREZZE, III, J.:

Mary Joan Keane and James P. Keane (collectively “the Keanes”) appeal

the judgment of the trial court granting summary judgment for U.S. Bank Trust National Association, not in its individual capacity, but solely as Trustee of LSF10

Master Participation Trust (“U.S. Bank”) on a foreclosure complaint. For the

reasons that follow, this court affirms.

I. Factual and Procedural History

On July 8, 2021, U.S. Bank filed a complaint in foreclosure naming as

defendants the Keanes, State of Ohio Department of Taxation, and Sheen Falls

Strategies, LLC (“Sheen”). The complaint alleged that in January 2008, the Keanes

executed a promissory note and secured the note with a mortgage on the property

located at 22250 Hilliard Boulevard in Rocky River, Ohio (“the premises”). The

complaint described that James’s personal obligations under the note had been

discharged in a bankruptcy proceeding and, as a result, Mary Joan remained

personally liable for the amount due on the note, $256,217.06, plus interest at 2.5

percent per annum, the deferred amount of $79,339.73, plus late charges, advances,

costs, and expenses. The complaint sought judgment against Mary Joan and

foreclosure of the property. About a month later, the court allowed U.S. Bank to file

an amended complaint adding two defendants, Kevin McGinty (“McGinty”) and

Daniel O. Geib (“Geib”), alleging that they may have an interest in the property as

well.

McGinty and Geib answered separately, both conceding that they had a

judgment lien on the premises. The Keanes answered and filed a counterclaim and

cross-claim against McGinty, Geib, and Sheen, asking to quiet their interest in the premises and for a declaration that they are not entitled to any proceeds from the

foreclosure of the premises.

In March 2022, U.S. Bank sought default judgment against Sheen,

alleging that Sheen had failed to defend its interest despite proper service. Shortly

after the motion was filed, Sheen and U.S. Bank stipulated to Sheen’s untimely

answer to U.S. Bank’s amended complaint, and Sheen also answered the cross-

claims alleged by the Keanes. The trial court denied the motion for default judgment

against Sheen as moot.

At the same time the default judgment against Sheen was filed, U.S.

Bank also filed a motion for summary judgment as to its claims against the Keanes.

Relevant to this appeal, attached to the motion was an affidavit executed by Priscilla

Serrato (“Serrato”), an assistant secretary at Fay Servicing LLC, a Texas entity, the

servicer of U.S. Bank’s loan and nonparty to the instant action. The Keanes

responded to the motion with a response captioned “[Civ.R.] 56(F) Response to

Plaintiff’s Motion for Summary Judgment.” The motion alleged that the Keanes

sought to depose Serrato and requested that the court either deny the motion for

summary judgment or grant a continuance to allow the Keanes to depose Serrato.

At the April 2022 case-management conference, the court allowed the Keanes an

extension of time to respond to U.S. Bank’s summary judgment motion by June 21,

2022; allowed for a reply brief to be filed on or before July 5, 2022; and concluded

that the court would rule on the summary judgment motion thereafter. In May 2022, the Keanes notified the court that Serrato had not

appeared at her deposition and filed a separate motion seeking for Serrato to be held

in contempt. The subpoenas attached to the motion demonstrated that the Keanes

attempted to serve Serrato at Fay Serving LLC’s corporate address in Texas and on

Fay Serving LLC’s statutory agent for service of process located in Ohio. U.S. Bank

filed a motion to quash the subpoena and a response to the motion for contempt,

arguing in both that Serrato had not been properly served with the subpoena, which

the court granted because the Keanes did not comply with Civ.R. 45(B). On June 8,

2022, the trial court denied the Keanes’ contempt motion and granted U.S. Bank’s

motion to quash the subpoena.

The June 21, 2022 deadline for a response to U.S. Bank’s summary

judgment motion came and went, and the Keanes did not respond.

On June 24, 2022, the Keanes filed a motion to strike Serrato’s affidavit

from the motion for summary judgment, alleging that U.S. Bank was purposefully

hiding the witness from the Keanes and refusing to accommodate the requested

deposition. U.S. Bank responded that the Keanes did not undertake the necessary

procedure to compel Serrato’s deposition, as a nonparty, out-of-state witness and

only recently served a Civ.R. 30(B)(5) notice seeking to depose a corporate witness

from U.S. Bank directly — well after the extension given to file a response to

summary judgment. U.S. Bank further argued that since the trial court granted U.S.

Bank’s motion to quash the original subpoena, there is no factual or legal basis to

grant the motion to strike. Another case-management conference was held on August 3, 2022.

The journal entry following the conference indicated that the Keanes’ motion to

strike Serrato’s affidavit was denied and gave the Keanes a further extension to

September 19, 2022, to file a responsive brief to U.S. Bank’s motion for summary

judgment.

There is no further activity on the docket until September 20, 2022,

when the magistrate granted U.S. Bank’s motion for summary judgment and

ordered the Keanes to file dispositive motions on their pending counterclaims and

cross-claims by October 10, 2022, and warned that failure to do so would result in

dismissal of those claims. The magistrate’s decision was journalized the next day.

The Keanes timely raised two objections to the magistrate’s decision:

that the magistrate’s decision did not dispose of the Keanes’ counterclaims and

cross-claims and that the Keanes were not afforded a proper response to the motion

for summary judgment because they were unable to cross-examine and/or depose

Serrato. The magistrate withdrew the decision in full.

On October 18, 2022, the Keanes filed a motion for judgment on the

pleadings as to any claims against McGinty, Geib, and Sheen, alleging that the liens

of all three parties were extinguished in James’s bankruptcy proceeding. U.S. Bank,

McGinty, Geib, and Sheen all filed briefs in opposition. Nonetheless, on

November 3, 2022, the magistrate determined that the motion for judgment on the

pleadings was “unopposed and granted” and advised that a full magistrate’s decision

would follow. McGinty and Geib filed objections to the magistrate’s decision, advising that they had responded to the Keanes’ judgment on the pleadings motion.

During this time, McGinty and Geib also filed a motion to strike the Keanes’ cross-

claims.

The magistrate issued another decision on November 4, 2022.

Relevant to this appeal, the decision granted U.S. Bank’s motion for summary

judgment and granted the Keanes’ claims for quiet title and declaratory judgment

against McGinty, Geib, and Sheen. All parties objected to the magistrate’s decision.

The court overruled all objections and adopted the magistrate’s

decision. It is from this journal entry that the Keanes took this appeal, assigning the

following assignment of error.

The trial court erred in granting summary judgment when the movant refused to allow the cross-examination by the non-movant of the movant’s summary judgment affiant.

II. Law and Analysis

The Keanes’ sole assignment of error contends that the trial court

erred in granting U.S. Bank’s motion for summary judgment because the trial court

did not take steps to ensure that the Keanes could cross-examine Serrato and

maintain that they were unable to properly oppose U.S. Bank’s motion without

conducting this deposition.

We review summary judgment rulings de novo, applying the same

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). The standard under Civ.R. 56 sets forth that summary judgment

is appropriate when (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3)

viewing the evidence most strongly in favor of the nonmoving party, reasonable

minds can reach only one conclusion that is adverse to the nonmoving party. The

party moving for summary judgment bears this burden and must set forth specific

facts that demonstrate its entitlement to summary judgment. Dresher v. Burt, 75

Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet

this burden, summary judgment is not appropriate; if the moving party meets this

burden, summary judgment is appropriate only if the nonmoving party fails to

establish the existence of a genuine issue of material fact. Id. at 293.

To support a motion summary judgment in a foreclosure case, Civ.R.

56(C) requires the party moving for summary judgment to “present ‘evidentiary

quality materials’ establishing (1) that the plaintiff is the holder of the note and

mortgage, or is a party entitled to enforce the instrument; (2) if the plaintiff is not

the original mortgagee, the chain of assignments and transfers; (3) that the

mortgagor is in default; (4) that all conditions precedent have been met; and (5) the

amount of principal and interest due.” Deutsche Bank Natl. Trust Co. v. Najar, 8th

Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 17, quoting United States Bank, N.A.

v. Adams, 6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10, citing Wachovia Bank

v. Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶ 40-45.

When responding to a motion for summary judgment, the adverse

party “must set forth specific facts showing that there is a genuine issue for trial.” Civ.R. 56(E). Civ.R. 56(E) continues, “If the party does not so respond, summary

judgment, if appropriate, shall be entered against the party.”

The Keanes never tendered a responsive motion to U.S. Bank’s

summary judgment motion disputing that any of the above prongs, as presented by

U.S. Bank, were inaccurate or incorrect, even though the trial court afforded them

two extensions to respond. As such, the Keanes did not meet their burden in

establishing that there is a genuine issue of material fact for trial.

On appeal, the Keanes raise several arguments relating to their

inability to depose Serrato, claiming that they were prevented from raising genuine

issues of material fact without being able to depose Serrato, U.S. Bank’s affiant.

When reviewing a trial court’s decisions on discovery matters, the appellate court

examines whether the trial court abused its discretion. BAC Home Loans Servicing,

L.P. v. Tabac, 8th Dist. Cuyahoga No. 99724, 2013-Ohio-5582, ¶ 20, citing Entingh

v. Old Man’s Cave Chalets, Inc., 4th Dist. Hocking No. 08CA14, 2009-Ohio-2242,

¶ 13.

The Keanes maintain that Civ.R. 56(E), which allows a court to

“permit affidavits to be supplemented or opposed by depositions or by further

affidavits,” should have excused their lack of response, claiming that they were

unable to set forth genuine issues of material fact without the necessary deposition

testimony from Serrato. Civ.R. 56(F) sets forth the procedure for alerting the trial

court as to this hardship: Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.

By its plain language, Civ.R. 56(F) required the Keanes to submit

affidavit testimony indicating that they could not support their brief in opposition

with facts essential to the opposition in the absence of further discovery. The Keanes

did not support their Civ.R. 56(F) motion with affidavit testimony, but the trial court

nonetheless permitted the Keanes extra time to attempt to serve the subpoena upon

Serrato and then respond to the summary judgment motion at two different times

during the pendency of this case.

The Keanes and U.S. Bank disagree as to whether the Keanes properly

subpoenaed Serrato pursuant to Civ.R. 45. Civ.R. 45(B) provides that service of a

subpoena

shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the person’s usual place of residence, or by placing a sealed envelope containing the subpoena in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal authority to show to whom delivered, date of delivery and address where delivered[.] * * * If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day’s attendance and mileage shall be tendered without demand.

The Keanes admit that they did not serve Serrato at her usual place of

residence nor did they tender the fees and mileage, despite requesting Serrato to

appear for an in-person deposition in Ohio. The Keanes attempted to serve Serrato at her place of employment at Fay Servicing LLC, in Texas,1 and through Fay

Servicing LLC’s statutory agent in Ohio, neither of which are proper under

Civ.R. 45(B). Thus, the Keanes did not properly effectuate service upon Serrato, nor

did the trial court err in quashing the subpoena based on improper service.

Based on the foregoing, we are unable to find merit in the Keanes’

argument that they were “stonewalled” from deposing Serrato. The Keanes did not

follow the proper procedure for subpoenaing Serrato, did not adequately preserve

their right to continue discovery under Civ.R. 56(F), did not request a deposition

pursuant to Civ.R. 30(B)(5) under the court’s time constraints, and did not attempt

to file any responsive pleading to U.S. Bank’s motion for summary judgment.

Accordingly, we overrule the Keanes’ sole assignment of error and

affirm the judgment of the trial court.

III. Conclusion

The Keanes did not respond to U.S. Bank’s motion for summary

judgment and demonstrate that a genuine issue of material fact existed warranting

a trial of the issues. Even though the Keanes alleged that they were unable to

properly oppose U.S. Bank’s motion in the absence of a deposition, the Keanes were

unable to properly subpoena the witness, despite the allowance of ample time by the

trial court.

1 We note that service of a subpoena in a foreign jurisdiction is generally governed

by R.C. 2319.09 and, in this case, the Texas Rules of Civil Procedure. The Keanes did not even attempt to follow these procedures; thus, the out-of-state subpoena had no force and effect. Judgment affirmed.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, JUDGE

EILEEN A. GALLAGHER, P.J., and MICHELLE J. SHEEHAN, J., CONCUR