[Cite as JPMorgan Chase Bank v. Wanke,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

JPMORGAN CHASE BANK, :

Plaintiff-Appellee, : CASE NO. CA2013-06-102

: OPINION - vs - 2/10/2014 :

ELIZABETH WANKE, et al., :

Defendants-Appellants. :

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2012-10-3777

Brickler & Eckler LLP, Anne Marie Sferra, Nelson M. Reid, 100 South Third Street, Columbus, Ohio 43215, for plaintiff-appellee

James E. Kolenich, 9435 Waterstone Blvd., Cincinnati, Ohio 45249, for defendants- appellants

HENDRICKSON, P.J.

{¶ 1} Defendants-appellants, Elizabeth Wanke and William Wanke, appeal from a

decision of the Butler County Court of Common Pleas granting summary judgment in favor of

plaintiff-appellee, JPMorgan Chase Bank, N.A. For the reasons detailed below, we affirm the

decision of the trial court.

{¶ 2} On October 11, 2007, Elizabeth Wanke executed a promissory note in favor of Butler CA2013-06-102

JPMorgan in the principal amount of $183,000, with interest of 6.5 percent per annum to

purchase a home located at 7947 Kennesaw Drive in West Chester, Ohio. The note called

for monthly payments for a period of 30 years. Appellants executed a mortgage that secured

the note and encumbered the property.

{¶ 3} JPMorgan filed a complaint in foreclosure against appellants on July 15, 2011

due to appellants' failure to make the required payments. That action was subsequently

dismissed without prejudice on June 14, 2012.

{¶ 4} On October 15, 2012, JPMorgan commenced the present action regarding the

same promissory note, mortgage, and property that were involved in the original action. On

November 19, 2012, appellants removed the case to the U.S. District Court for the Southern

District of Ohio. However, the case was subsequently remanded to the Butler County Court

of Common Pleas on January 25, 2013.

{¶ 5} On March 28, 2013, JPMorgan filed a motion for summary judgment. In

response, appellants filed a "motion for enlargement of time Civ.R. 56(F) with affidavits

attached." Appellants' motion stated that additional discovery time was necessary to depose

certain JPMorgan employees on the issue of "collateral source payments." Essentially,

appellants argued that JPMorgan was not legally entitled to foreclose on their property

because JPMorgan received "bailout money" through the federal government's Troubled

Asset Relief Program. Therefore, appellants maintained that additional discovery time was

necessary because "if the Plaintiff was 'bailed out' by taxpayers due to mortgage defaults like

the one at issue here then it would violate equity in Ohio for them to be permitted the 'double

recovery' of also being permitted to seize the collateral for a loan that had already been paid."

{¶ 6} On May 31, 2013, the trial court denied appellants' motion for additional

discovery time under Civ.R. 56(F) and granted JPMorgan's motion for summary judgment.

Appellants now appeal the trial court's decision, raising one assignment of error:

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{¶ 7} THE COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY

DENYING DEFENDANTS [sic] R. 56(F) MOTION AND GRANTING SUMMARY JUDGMENT

TO THE PLAINTIFF.

{¶ 8} In their sole assignment of error, appellants argue the trial court erred in

denying their request for additional discovery time under Civ.R. 56(F) and granting summary

judgment in favor of JPMorgan. Appellants posit that JPMorgan cannot foreclose on their

property because JPMorgan received TARP "bailout money" from the federal government. In

essence, appellants believe that the federal TARP money received by JPMorgan should be

applied to offset the amount due on their promissory note. Appellants argue that, if

JPMorgan is permitted to foreclose on the property, JPMorgan would "double recover"

because JPMorgan would be in receipt of both the foreclosed property and the federal TARP

money. In other words, appellants contend that JPMorgan cannot foreclose on their property

because JPMorgan did not suffer any damages as a result of the default on the promissory

note at issue in the present case. Therefore, appellants maintain that additional discovery

time pursuant to Civ.R. 56(F) was necessary in order to depose bank employees on the issue

of damages.

{¶ 9} We will first address whether the trial court erred in overruling appellants'

motion for additional discovery time under Civ.R. 56(F). Pursuant to Civ.R. 56(F):

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.

Accordingly, "Civ.R. 56(F) 'affords a party a mechanism whereby it can seek deferral of

action on a motion for summary judgment so that it may obtain affidavits opposing the motion

or conduct discovery related to it.'" BAC Home Loans Servicing, L.P. v. Kolenich, 194 Ohio

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App.3d 777,

, ¶ 18 (12th Dist.), quoting Gates Mills Invest. Co. v. Pepper

Pike,

(8th Dist. 1978); Fifth Third Mtge. Co. v. Bell, 12th Dist.

Madison No. CA2013-02-003,

. A party seeking a continuance to

conduct discovery under Civ.R. 56(F) must support the motion by a proper affidavit. Kolenich

at ¶ 18. "General averments requesting a continuance for the purpose of discovery are

insufficient as the party must state a factual basis and reasons why the party cannot present

sufficient documentary evidence without a continuance." Bell at ¶ 42.

{¶ 10} A trial court maintains discretion to manage the discovery process. Bank of

Am., N.A. v. Singh, 12th Dist. Butler No. CA2012-07-146,

. On appeal,

a decision regarding the regulation of discovery will not be reversed absent an abuse of

discretion. Id.; Bell at ¶ 43. 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. Blakemore v. Blakemore,

(1983).

{¶ 11} In support of their motion for additional discovery time under Civ.R. 56(F),

appellants attached their sworn affidavits, which requested additional discovery time in order

to depose certain witnesses. Appellants testified "[t]he purpose of [those] deposition[s] would

be to obtain admissible evidence that [JPMorgan] has not suffered any damages due to my

alleged default or at least that [JPMorgan's] damages are less than [JPMorgan] request[ed]

in their Complaint." No additional reasons for additional discovery time were provided in

appellants' affidavits, except to acknowledge, "[i]f I am not permitted to conduct this discovery

I will have no other way to provide this Court with the facts necessary to justify my opposition

to summary judgment."

{¶ 12} Based on our review of the record, we find the trial court did not abuse its

discretion in denying appellants' Civ.R. 56(F) motion. Appellants had a sufficient opportunity

in both state and federal court to conduct discovery. Singh at ¶ 18 (The Ohio Rules of Civil

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Procedure "allow parties to conduct discovery after commencement of the action."). The

original foreclosure action in this lawsuit was commenced on July 15, 2011. Although the

trial court lacked the ability to order any discovery during the five-month period before the

case was voluntarily dismissed, appellants still had more than 14 months to conduct relevant

discovery before JPMorgan filed its motion for summary judgment at issue in this case.

Wells Fargo Bank, N.A. v. Washington, 12th Dist. Butler No. CA2011-11-211, 2013-Ohio-

773, ¶ 11 (holding that a trial court is divested of jurisdiction following a voluntary dismissal of

a complaint).

{¶ 13} Moreover, appellants' suggestion that JPMorgan cannot foreclose on their

property because of "collateral source payments," such as TARP bailout money is without

merit. See Sipple v. A.G. Edwards & Sons, Inc., 1st Dist. Hamilton No. C-10701, 2002-Ohio-

4342, ¶ 7 (a trial court does not abuse its discretion in denying a Civ.R. 56(F) motion "if

discovery proceedings would not have aided in establishing or negating the facts material to

the claims"). Appellants have failed to provide any support for the contention that "collateral

source payments," such as the TARP bailout money, precludes a creditor from bringing an

action in foreclosure. In fact, this court has previously considered and rejected identical

arguments raised on this issue. Kolenich,

at ¶ 22-25; BAC Home Loans

Servicing, L.P. v. Kolenich, 12th Dist. Butler No. CA2012-01-001,

, at ¶ 40.

{¶ 14} In conclusion, appellants had ample opportunity to conduct discovery during

this lengthy foreclosure action and additional time for discovery on the issue of "collateral

source payments" would not have aided in establishing or negating any material fact involved

in the litigation. Because appellants did not provide any other specific reason to justify their

motion for additional discovery time under Civ.R. 56(F), we find the trial court did not abuse

its discretion in denying appellants' motion.

{¶ 15} Since we find the trial court did not err when it denied appellants' motion for

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additional discovery time, we now address whether the trial court properly granted

JPMorgan's motion for summary judgment. Summary judgment is a procedural device used

to terminate litigation and avoid a formal trial where there are no issues in a case to try.

Simmons v. Yingling, 12th Dist. Warren No. CA2010-11-117,

, ¶ 19. An

appellate court's review of a summary judgment decision is de novo. Grafton v. Ohio Edison

Co.,

(1996).

{¶ 16} Pursuant to Civ. R. 56, summary judgment is appropriate when "(1) there is no

genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law,

and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to

the nonmoving party, said party being entitled to have the evidence construed most strongly

in his favor." Whitaker v. Advantage RN, L.L.C., 12th Dist. Butler No. CA2012-04-082, 2012-

Ohio-5959, ¶ 16, quoting Zivich v. Mentor Soccer Club, Inc.,

(1998).

The party moving for summary judgment has the initial burden of demonstrating no genuine

issue of material fact exists. Dresher v. Burt,

(1996). "The

nonmoving party must then rebut the moving party's evidence with specific facts showing the

existence of a genuine triable issue; it may not rest on the mere allegations or denials in its

pleadings." Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-11-288,

, ¶ 7.

{¶ 17} "A party seeking to foreclose on a mortgage must establish execution and

delivery of the note and mortgage; valid recording of the mortgage; it is the current holder of

the note and mortgage; default; and the amount owed." Kolenich ,

at ¶ 10,

quoting Countrywide Home Loans, Inc. v. Baker, 10th Dist. Franklin No. 09AP-968, 2010-

Ohio-1329, ¶ 8.

{¶ 18} In support of its motion for summary judgment, JPMorgan attached the affidavit

of Richard Eubanks, a vice president of JPMorgan. Eubanks averred that JPMorgan was in

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possession of the note, the note was secured by a mortgage on appellants' property, and the

note was in default due to nonpayment. Eubanks also testified as to the total amount due

and owing on the promissory note. A copy of the executed note and mortgage were attached

to the affidavit. Appellants never denied that JPMorgan holds the note which is in default or

that JPMorgan holds the mortgage on their property. Those pertinent facts appear

undisputed in light of appellants' Civ.R. 56(F) motion, in which appellants acknowledged

"[t]his case is unusual among modern foreclosure cases in that it does not present issues of

the assignment date of the mortgage (Schwartzwald/jurisdiction issues)1 or of Plaintiff's ability

or right to enforce the note (UCC issues)."2 Rather, appellants' sole basis for contesting the

trial court's decision was based on the allegation that JPMorgan received "collateral source

payments" through the receipt of TARP bailout money.

{¶ 19} Because appellants challenged the grant of summary judgment in favor of

JPMorgan solely on the ground that they were unreasonably denied the opportunity to

conduct discovery on the issue of "collateral source payments," we likewise find the trial court

did not err in granting summary judgment in favor of JPMorgan on its foreclosure complaint.

JPMorgan presented uncontested evidence that appellants had defaulted on the promissory

note and JPMorgan had standing to foreclose on the property. Based on the evidence

presented, appellants failed to demonstrate a genuine issue of material fact to survive

summary judgment in the present action. Accordingly, we overrule appellants' sole

assignment of error.

{¶ 20} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.

1. The Ohio Supreme Court in Fed. Home Loan Mortg. Corp. v. Schwartzwald,

-Ohio-5017, ¶ 24-25, determined that a plaintiff in a foreclosure action must have standing at the time the complaint is filed in order to invoke the jurisdiction of the common pleas court.

2. Ohio's version of the Uniform Commercial Code (U.C.C.) governs who may enforce a promissory note like the one at issue in the present case. R.C. 1301.01 et seq.; Bell,

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