[Cite as Huntington Bank v. Popovec, 2013-Ohio-4363.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

THE HUNTINGTON BANK ) 

SUCCESSOR BY MERGER WITH ) CASE NO. 12 MA 119 

SKY BANK, ) 

 ) 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) OPINION 

 ) 

DAVID B. POPOVEC, et al., ) 

 ) 

 DEFENDANTS-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 08 CV 1014. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Eric Deighton 

Carlisle, McNellie, Rini, Kramer 

& Ulrich Co., LPA 

24755 Chagrin Blvd., Suite 200 

Cleveland, OH 44122 

For Defendants-Appellant: Attorney Bruce Broyles 

5815 Market Street, Suite 2 

Youngstown, OH 44512 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Dated: September 23, 2013 
[Cite as Huntington Bank v. Popovec, 2013-Ohio-4363.]

DeGenaro, P.J. 

{¶1} Defendants-Appellant, Eva Popovec, appeals the June 6, 2012 judgment of 

the Mahoning County Court of Common Pleas granting summary judgment in favor of 

Plaintiff-Appellee, The Huntington National Bank, in a foreclosure action. On appeal, 

Popovec asserts that summary judgment was improper because she presented evidence 

demonstrating that Huntington failed to meet a condition precedent to foreclosure, namely 

that it failed to provide proper notice of default and acceleration, pursuant to the note and 

mortgage. Huntington counters that Popovec was precluded from contesting the validity 

of Huntington's notice because she failed to file an answer. 

{¶2} Upon review, Huntington is correct and Popovec's assignment of error is 

meritless. Popovec failed to file an answer in this case and thus has failed to specifically 

deny Huntington's compliance with the notice provision, pursuant to Civ.R. 9(C). Thus, 

Huntington's performance of this condition precedent is deemed admitted, and Popovec 

was barred from later contesting the propriety of Huntington's notice in her brief in 

opposition to Huntington's motion for summary judgment, and consequently, now on 

appeal. Accordingly, the judgment of the trial court is affirmed. 

Facts and Procedural History 

{¶3} On October 3, 2003, Popovec, along with her then-husband David executed 

and delivered a promissory note to Sky Bank. The note was secured by a mortgage on 

property located at 6405 Farmington Circle in Canfield. Huntington is Sky Bank's 

successor by merger. 

{¶4} On March 12, 2008, Huntington filed a complaint for foreclosure, naming, 

among others, Popovec as a defendant and asserting that Popovec had defaulted on the 

Note and owed $182,642.82 plus interest. In the Complaint, Huntington generally pled 

that it had satisfied all conditions precedent to filing the foreclosure action. Popovec was 

properly served with the summons and complaint. 

{¶5} After no answer was filed, Huntington filed a motion for default judgment 

which was granted by the trial court on June 19, 2008. Therein the trial court noted that 

Popovec had filed for bankruptcy, listing Huntington's claim, and that as a result no 

money judgment could be entered against Popovec. 
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{¶6} The initial order of sale was recalled. On June 3, 2011, just before the 

property was again set to be sold at sheriff's sale, Popovec filed a motion to vacate the 

default judgment. The trial court stayed the sale pending ruling on the motion. As her 

meritorious defense in her 60(B) motion, Popovec alleged that Huntington was not the 

real party in interest. She asked the trial court to vacate the June 19, 2008 order granting 

default judgment under Civ.R. 60(B)(5), the so-called "catch-all" provision, and sought 

leave to file an answer setting forth her meritorious defense. Huntington filed a brief in 

opposition and Popovec replied, alleging additionally that since Huntington was merely a 

servicer and not the real party in interest that it could not have provided Popovec notice of 

default pursuant to the terms of the promissory note. 

{¶7} On October 27, 2011, the magistrate issued a decision granting Popovec's 

60(B) motion to afford her "the opportunity to present her meritorious defense(s)." 

{¶8} When five months went by and Popovec had still not filed an answer or 

responsive pleading, Huntington filed a motion for summary judgment. It alleged that 

there was no genuine issue of material fact: Popovec defaulted on the note and mortgage 

by failing to pay; and Huntington properly exercised its option to accelerate the unpaid 

balance of the note and proceed with foreclosure. Attached to its motion for summary 

judgment were the affidavit of Clair Turk, an authorized signer for Huntington, the 

acceleration and default notice sent to Popovec and the certified mail receipts showing 

the mailing date and the date Popovec signed and received the notice. 

{¶9} Popovec filed a combined cross-motion for summary judgment and brief in 

opposition to Huntington's motion for summary judgment on May 2, 2012. Popovec 

attached no affidavits or other exhibits to this motion. Therein, she alleged Huntington's 

notice of acceleration and default failed to comply with the terms of the note and 

mortgage insofar as it did not provide her sufficient time to cure the default and because it 

was not sent by the proper party. This was the first time Popovec had ever raised the 

time issue; she did allege that notice was sent by an improper party in her reply brief in 

support of her motion to vacate. 

{¶10} On May 24, 2012, Huntington filed a combined reply to Popovec's brief in 
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opposition to summary judgment along with a brief in opposition to Popovec's summary 

judgment motion. Again it attached the affidavit of Clair Turk, the acceleration and default 

notice sent to Popovec and the various certified mail receipts. 

{¶11} On June 6, 2012, the trial court granted Huntington's summary judgment 

motion and ordered foreclosure, finding no just cause for delay. On June 27, 2012, 

Popovec filed a notice of appeal with this court along with a motion for stay in the trial 

court. On August 13, 2012, the magistrate issued an order granting a stay pending the 

outcome of this appeal. 

Failure to File Answer Contesting Performance of Condition Precedent 

{¶12} In her sole assignment of error, Popovec asserts: 

{¶13} "The trial court erred in granting summary judgment when there was 

evidence demonstrating that Appellee failed to meet a condition precedent." 

{¶14} Popovec asserts that the trial court erred in finding that there was no 

genuine issue of material fact as to whether the notice of acceleration/default complied 

with the terms of the note and mortgage. In response, Huntington asserts, as a threshold 

matter, that Popovec failed to raise Huntington's alleged failure to meet this condition 

precedent insofar as she did not file an answer in this case. As such, Huntington asserts 

that it was improper for Popovec to raise this issue for the first time in her brief in 

opposition to Huntington's motion for summary judgment. 

{¶15} "Where prior notice of default and/or acceleration is required by a provision 

in a note or mortgage instrument, the provision of notice is a condition precedent," and it 

is subject to the requirements of Civ.R. 9(C). First Financial Bank v. Doellman, 12th Dist. 

No. CA2006-02-029, 2007-Ohio-222, ¶20. Civ.R. 9(C) provides: "In pleading the 

performance or occurrence of conditions precedent, it is sufficient to aver generally that 

all conditions precedent have been performed or have occurred." By contrast, "[a] denial 

of performance or occurrence shall be made specifically and with particularity." Id. 

Conditions precedent that are not denied in the manner provided by Civ.R. 9(C) are 

deemed admitted. Fifth Third Mtge. Co. v. Orebaugh, 12th Dist. No. CA2012–08–153, 

2013-Ohio-1730, ¶29, citing First Financial at ¶20; see also Civ.R. 8(D). 
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{¶16} Here, Huntington alleged in its complaint that "it has performed all of the 

conditions precedent required to be performed by it." This is sufficient under Civ.R. 9(C). 

 Popovec failed to file an answer in this case and thus has failed to deny Huntington's 

performance of the condition precedent. Thus, Huntington's performance of the condition 

precedent is deemed admitted. Accordingly, Popovec was barred from later contesting 

the propriety of Huntington's notice in her brief in opposition to Huntington's motion for 

summary judgment, and consequently, now on appeal. See, e.g., Satterfield v. Adams 

Cty./Ohio Valley School Dist., 4th Dist. No. 95CA611, 1996 WL 655789, *5 (Nov. 6, 1996) 

(where defendant failed to specifically deny performance of a condition precedent in its 

answer pursuant to Civ.R. 9(C) compliance was deemed admitted and defendant could 

not subsequently raise the issue on appeal.) 

{¶17} In conclusion, Popovec's assignment of error is meritless. Popovec failed to 

file an answer in this case and thus has failed to specifically deny Huntington's 

compliance with the mortgage's notice provision, pursuant to Civ.R. 9(C). Performance of 

the notice provision constitutes a condition precedent to foreclosure. Thus, Huntington's 

performance of this condition precedent is deemed admitted, and Popovec was barred 

from later contesting the propriety of Huntington's notice in her brief in opposition to 

Huntington's motion for summary judgment, and consequently, now on appeal. 

Accordingly, the judgment of the trial court is affirmed. 

Vukovich, J., concurs. 

Waite, J., concurs.