Follow Court Procedure or….Face Foreclosure in Ohio

First Merit Mortgage Corporation v. Miller, et. al.

Case Nos. 2004CA00052 & 2004CA00067
Decided on January 18, 2005

This is an appeal filed by Defendant on the decision of the Court granting the motion for summary judgment filed by the Plaintiff.

The factual backdrop of the case: Defendant borrowed money from the Plaintiff. He delivered a balloon note and a mortgage deed over his property to the Plaintiff. He defaulted and an action for foreclosure was filed by the Plaintiff against the defendant. The plaintiff moved for summary judgment. The court issued an order setting the motion for a non oral hearing but it required defendant to file his brief in opposition to the motion of the plaintiff.

Defendant failed to file his brief despite the order of the court. Several days after, defendant filed his brief without leave of court (without permission. Ordinarily, when a period is given and it has lapsed without filing what the court required, the party must request for leave). The Court struck the brief for having been untimely filed and considering there is no general issue of fact, it granted the motion for summary judgment and issued a decree of foreclosure.

The issues raised on appeal were: a) that the trial court abused its discretion in granting the motion for summary judgment; and, b) the trial court abused its discretion in issuing a decree of foreclosure.

The appellate court ruled that there is no abuse of discretion in granting the motion because the defendant failed to timely file his brief. Thus, the defenses and issues raised in his brief were not determined by the court. It further ruled that the issuance of the decree of foreclosure was proper and therefore there was no abuse of discretion.

This case was ruled in favor of the plaintiff. At LoanModificationStudio.com, we also bring forth cases in which the banks win so that you may learn from previous defenses.

Lesson Learned:

The defendant basically lost the case due to non-compliance with the order of the court. It is not merely procedural rule but one of lack of observance which resulted in an unopposed motion. When opposition is proper, the party to a case must be aware and be vigilant in not leaving assertions of the other party without any objection and without raising valid defenses. The defendant in this case, clearly took for granted the order of the court. Moreover, he filed his brief belatedly without even requesting for permission from the court. It is important to underscore the need to know equally the procedures in court as well as the substantive rights and defenses that one might interpose to pointedly address the issues of the complaint.

"Failure is instructive. The person who really thinks learns quite as much from his failures as from his successes."
- John Dewey

Written by Kevin Levonas and Giselle G.