[Cite as US Bank Natl. Assn. v. Abbruzzese, 2010-Ohio-2565.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
US BANK NATIONAL ASSOCIATION Plaintiff-Appellee -vsANTHONY ABBRUZZESE, ET AL. Defendants-Appellants
JUDGES: Hon. Julie A. Edwards, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.
Case No. 08CAE050021 OPINION
CHARACTER OF PROCEEDING:
Appeal from the Court of Common Pleas, Case No. 2008CVE01-0010
JUDGMENT:
Reversed & Remanded
DATE OF JUDGMENT ENTRY:
June 4, 2010
APPEARANCES: For Plaintiff-Appellee PAMELA S. PETAS P.O. Box 42728 Cincinnati, OH 45242 For Defendants-Appellants BENJAMIN S. ZACKS JAMES R. BILLINGS ROBIN L. JINDRA 33 South James Road 3rd Floor Columbus, OH 43213
Delaware County, Case No. 08CAE050021 Farmer, J. {¶1}
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On January 4, 2008, appellee, U.S. Bank National Association, filed a
complaint in foreclosure against appellants, Anthony and Ruschele Abbruzzese and RRA Company, LLC, for defaulting on a promissory note and mortgage. {¶2} On March 14, 2008, appellee filed a motion for summary judgment. On
March 31, 2008, appellants filed a stipulated extension of time to file a response to the motion for summary judgment, extending its response time to April 10, 2008. By
judgment entry and decree in foreclosure filed April 1, 2008, the trial court granted summary judgment to appellee. {¶3} Appellants filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows: I {¶4} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT." I {¶5} appellee. Appellants claim the trial court erred in granting summary judgment to Specifically, appellants claim the trial court erred in disregarding the
stipulated extension of time to file a response to the motion for summary judgment. Given the specific facts sub judice, we agree. {¶6} Appellee filed a motion for summary judgment on March 14, 2008. On
March 21, 2008, appellee filed a notice of assignment of mortgage from Wilmington Finance, Inc. to appellee. On March 31, 2008, appellants filed a stipulated extension of time to file a response to the motion for summary judgment. Appellee's counsel agreed
Delaware County, Case No. 08CAE050021
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with the stipulation per telephone confirmation. The stipulation permitted an extension of ten days or until April 10, 2008 for appellants to respond. On April 1, 2008, the trial court filed a judgment entry and decree in foreclosure, granting summary judgment to appellee. {¶7} Civ.R. 56(C) does not provide any specific time for which a motion for
summary judgment is to be heard. However, it clearly indicates that fourteen days should be given for a response: "The 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 opposing affidavits." {¶8} The Court of Common Pleas for Delaware County provides the following
for ruling on motions: {¶9} "Except as otherwise ordered by the judge or magistrate, all motions are
hereby set for a non-oral hearing to occur on the twenty-first day following the filing of the motion." Loc.R. 7.05 of the Court of Common Pleas of Delaware County. {¶10} "Once the initial motion has been filed, any memorandum contra to the motion shall be filed and served upon opposing counsel no later than the fourteenth day following the filing of the motion. Failure to file and serve a memorandum contra may result in the Court granting the motion as filed and served. A reply memorandum may be filed and served upon opposing counsel within seven days after the date stated in the certificate of service in the memorandum contra. The dates and time periods set forth under this rule may be extended by the Court upon written application and for good cause shown. Where appropriate, the moving party shall submit separately a proposed
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Judgment Entry to this effect." Loc.R. 7.07 of the Court of Common Pleas of Delaware County. {¶11} We find that less than twenty-one days had lapsed from the filing of the motion for summary judgment and therefore, per local rules, the decision of April 1, 2008 was premature. Even though there was a stipulated extension, the trial court violated its own local rules. {¶12} Appellee argues because appellants' obligation was discharged via U.S. Bankruptcy order dated August 6, 2009, the matter is moot. However, appellee
concedes an "in rem" action is still viable against RRA Company, LLC. Only one debt of appellants was discharged. We find the issue is not moot vis-à-vis RRA Company, LLC. {¶13} The sole assignment of error is granted. {¶14} The judgment of the Court of Common Pleas of Delaware County, Ohio is hereby reversed. By Farmer, J. Edwards, P.J. and Delaney, J. concur. _s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
_s/ Patricia A. Delaney________________ JUDGES SGF/sg 504
Delaware County, Case No. 08CAE050021 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
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US BANK NATIONAL ASSOCIATION Plaintiff-Appellee -vsANTHONY ABBRUZZESE, ET AL. Defendants-Appellants
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JUDGMENT ENTRY
CASE NO. 08CAE050021
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Delaware County, Ohio is reversed, and the matter is remanded to said court for further proceedings consistent with this opinion. Costs to appellee.
s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
_s/ Patricia A. Delaney________________ JUDGES
