[Cite as HSBC Mtge. Servs., Inc. v. Watson, 2015-Ohio-221.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PAULDING COUNTY 

 

HSBC MORTGAGE SERVICES, INC., 

 PLAINTIFF-APPELLEE, 

 CASE NO. 11-14-03 

 v. 

PAMELA J. WATSON, ET AL., 

 DEFENDANTS-APPELLANTS, 

 -AND- O P I N I O N 

TREASURER OF PAULDING COUNTY, 

 DEFENDANT-APPELLEE. 

 

Appeal from Paulding County Common Pleas Court 

Trial Court No. CI 12178 

Judgment Reversed and Cause Remanded 

Date of Decision: January 26, 2015 

 

APPEARANCES: 

 

George C. Rogers for Appellants 

Rachel M. Kuhn for Appellee 
Case No. 11-14-03 

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PRESTON, J. 

{¶1} Defendants-appellants, Pamela J. Watson (“Watson”), now known as 

Pamela Lambert, and William L. Lambert (“Lambert”), appeal the April 18, 2014 

judgment entry of the Paulding County Court of Common Pleas granting 

foreclosure in favor of plaintiff-appellee, HSBC Mortgage Services, Inc. 

(“HSBC”). For the reasons that follow, we reverse. 

{¶2} On August 22, 2012, HSBC filed a complaint for foreclosure against 

Watson, Lambert, and the Paulding County Treasurer. (Doc. No. 1). In it, HSBC 

averred that it was “the holder of a certain promissory note” executed by Watson 

and “the holder of a certain mortgage deed, securing the payment of said 

promissory note” and that Watson was in default. (Id.). HSBC attached copies of 

the note and the mortgage to its complaint. (Id.). 

{¶3} Watson and Lambert filed their answer on December 13, 2012. (Doc. 

No. 23). 

{¶4} On April 29, 2013, HSBC filed a motion for summary judgment. 

(Doc. No. 27). Attached to HSBC’s motion was an “affidavit of amount due,” 

executed by Heather Burgos (“Burgos”), in which Burgos stated, among other 

things, that HSBC “is in possession of the original promissory note,” which is 

secured by a mortgage, that HSBC mailed a “notice of right to cure default” to 
Case No. 11-14-03 

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Watson, that “[t]he default has not been cured,” and that as of March 28, 2013, 

$96,670.33 was owed. (Burgos Aff., ¶ 3-7, Doc. No. 27, attached). 

{¶5} On May 8, 2013, the trial court filed a journal entry, which established 

a discovery cutoff date of June 21, 2013 and ordered that the defendants respond 

to HSBC’s motion for summary judgment by July 5, 2013 and that HSBC reply to 

the defendants’ responses by July 15, 2013. (Doc. No. 28). 

{¶6} On May 24, 2013, Watson served discovery requests on HSBC, 

including requests for admissions. (See Doc. No. 31, Ex. A). 

{¶7} On June 28, 2013, the trial court granted HSBC’s motion for 

additional time to respond to Watson’s discovery requests, ordering that HSBC 

respond to the discovery requests by July 23, 2013. (Doc. No. 30). 

{¶8} On July 1, 2013, Watson moved “to extend the date for Watson to 

respond to the summary judgment motion until seven days following HSBC’s 

response to [her] discovery request.” (Doc. No. 31). 

{¶9} HSBC failed to respond to Watson’s discovery requests by July 23, 

2013. (See Doc. Nos. 32, 37). 

{¶10} On August 2, 2013, Watson filed a memorandum in opposition to 

HSBC’s motion for summary judgment combined with her own motion for 
Case No. 11-14-03 

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summary judgment.1

 (Doc. No. 32). In it, Watson relied on the admissions of 

HSBC—deemed admitted by HSBC’s failure to respond to Watson’s requests for 

admissions—including that “HSBC does not have possession of the original note, 

Exhibit A to the Complaint,” and that “Burgos did not personally observe the 

original note prior to executing the April 10, 2013 affidavit attached to” HSBC’s 

motion for summary judgment. (Id.). Watson attached a copy of her discovery 

requests to her August 2, 2013 combined filing. (Id., Ex. A). 

{¶11} On August 9, 2013, HSBC filed a “notice of service of [HSBC’s] 

responses to [Watson’s] discovery requests,” stating that it served responses to 

Watson’s discovery requests on August 8, 2013. (Doc. No. 34). Also that day, 

HSBC filed a motion for additional time, until August 30, 2013, to respond to 

Watson’s August 2, 2013 combined filing. (Doc. No. 33). The trial court granted 

HSBC’s motion for additional time on August 12, 2013. (Doc. No. 35). On 

August 16, 2013, the trial court ordered that HSBC respond by August 30, 2013 

and that “[d]efendants” reply to HSBC’s response by September 13, 2013. (Doc. 

No. 36). 

 

1

 The trial court did not rule on Watson’s July 1, 2013 motion before her July 5, 2013 response deadline or 

before she filed her August 2, 2013 combined filing. However, in an August 16, 2013 journal entry, the 

trial court stated, “THIS CAUSE came on for consideration upon the filing of Pamela J. Watson’s 

Memorandum Contra the HSBC Motion for Summary Judgment and Motion for Summary Judgment 

received herein.” (Capital emphasis sic; italics emphasis added.) (Doc. No. 36). The trial court proceeded 

in that entry to set filing deadlines in response to Watson’s August 2, 2013 combined filing. The parties do 

not raise the issue of the timeliness of Watson’s August 2, 2013 combined filing, so we will not address it 

in this appeal. 
Case No. 11-14-03 

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{¶12} On August 30, 2013, HSBC filed its “combined reply brief in 

support of its motion for summary judgment; opposition to [Watson’s] motion for 

summary judgment; and [HSBC’s] Civ.R. 36(B) motion to withdraw requests for 

admission deemed admitted.” (Doc. No. 37). In its filing, HSBC suggested that 

its failure to respond to Watson’s discovery requests “was due to inadvertent error 

by the office of HSBC’s counsel.” (Id.). HSBC also argued that the admissions 

were “irrelevant or contrary to evidence already presented in this case.” (Id.). 

HSBC continued, “This matter is more appropriately decided upon the merits, 

rather than mere procedural technicalities.” (Id.). 

{¶13} On September 12, 2013, Watson filed her “memorandum contra 

motion to be reviewed [sic] from admissions, and reply memorandum re: summary 

judgment.” (Doc. No. 38). Watson argued, among other things, that unexplained 

“inadvertent error” is not a permissible ground to allow the withdrawal of 

admissions and that “the Watsons” would be prejudiced if the trial court allowed 

HSBC to withdraw its admissions because the discovery cutoff date had passed by 

the time HSBC responded to Watson’s discovery requests, foreclosing the 

possibility of depositions of HSBC officers. (Id.). 

{¶14} On February 12, 2014, the trial court issued an “order granting 

[HSBC’s] motion for summary judgment and motion to withdraw requests for 

admissions deemed admitted and denying [Watson’s] motion for summary 
Case No. 11-14-03 

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judgment.” (Doc. No. 39). The one-page order was submitted to the trial court by 

HSBC’s counsel, and the trial court did not explain its decision. (See id.). 

{¶15} On April 18, 2014, the trial court issued its judgment entry ordering 

the property foreclosed and sold. (Doc. No. 40). 

{¶16} On May 16, 2014, Watson and Lambert filed a notice of appeal.2

 

(Doc. No. 43). They raise three assignments of error for our review. Because it is 

dispositive, we address Watson and Lambert’s first assignment of error. 

Assignment of Error No. I 

The trial court erred in granting Plaintiff’s Civ. R. 36(B) motion 

to withdraw admissions deemed admitted.

{¶17} In their first assignment of error, which they combine with their 

second assignment of error in their brief, Watson and Lambert argue that they 

were prejudiced by the trial court’s decision to grant HSBC’s Civ.R. 36(B) motion 

without reopening discovery and giving them an opportunity “to obtain discovery 

to use in lieu of” the admissions. (Appellants’ Brief at 10). They also argue that 

in a consent decree issued in another case, HSBC admitted that it filed affidavits 

not based on personal knowledge and litigated foreclosure proceedings without 

confirming possession of promissory notes—admissions that Watson and Lambert 

 

2

 Although both Watson’s and Lambert’s names appear on the notice of appeal, it appears that—aside from 

the answer, which also mentions both Watson and Lambert—Watson and Lambert referred to themselves 

in their trial-court filings simply as “Watson.” They did so in their brief in this appeal as well. (See 

Appellants’ Brief at 4). HSBC does not suggest otherwise. Accordingly, throughout this opinion, we will 

refer simply to “Watson” whenever Watson and Lambert did so in their filings in the trial court. 
Case No. 11-14-03 

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say raise issues that are essential to explore in requests for admissions or 

depositions. Finally, Watson and Lambert argue that the trial court should not 

have granted HSBC’s Civ.R. 36(B) motion because HSBC failed to produce the 

original note, did not object to or rebut the request for admission regarding lack of 

authority to execute the assignment of the mortgage securing the note, and the 

notice of default did not comply with the notice requirements in the note. For 

these reasons, Watson and Lambert argue, the trial court erred. 

{¶18} Civ.R. 36 governs requests for admissions, including the withdrawal 

and amendment of admissions, and provides, in part: 

(A) * * * A party may serve upon any other party a written request 

for the admission, for purposes of the pending action only, of the 

truth of any matters within the scope of Civ.R. 26(B) set forth in the 

request, that relate to statements or opinions of fact or of the 

application of law to fact, including the genuineness of any 

documents described in the request. * * * 

(1) * * * The matter is admitted unless, within a period designated 

in the request, not less than twenty-eight days after service of the 

request or within such shorter or longer time as the court may allow, 

the party to whom the request is directed serves upon the party 
Case No. 11-14-03 

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requesting the admission a written answer or objection addressed to 

the matter, signed by the party or by the party’s attorney. * * * 

(B) Effect of admission. Any matter admitted under this rule is 

conclusively established unless the court on motion permits 

withdrawal or amendment of the admission. Subject to the 

provisions of Civ. R. 16 governing modification of a pretrial order, 

the court may permit withdrawal or amendment when the 

presentation of the merits of the action will be subserved thereby and 

the party who obtained the admission fails to satisfy the court that 

withdrawal or amendment will prejudice the party in maintaining his 

action or defense on the merits. 

Civ.R. 36. See also State ex rel. Davila v. Bucyrus, 194 Ohio App.3d 325, 

2011-Ohio-1731, ¶ 22 (3d Dist.). “‘A request for admission can be used to 

establish a fact, even if it goes to the heart of the case. This is in accord with the 

purpose of the request to admit—to resolve potentially disputed issues and thus to 

expedite the trial.’” Davila at ¶ 23, quoting Cleveland Trust Co. v. Willis, 20 Ohio 

St.3d 66, 67 (1985). A party’s failure to timely respond to a request for admission 

results in the matter being automatically admitted under Civ.R. 36(A). Id. at ¶ 28. 

See also Civ.R. 36(A)(1) (stating that the failure to timely respond to a request for 

admission means “[t]he matter is admitted”). 
Case No. 11-14-03 

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{¶19} “‘Any matter admitted under Civ.R. 36 is conclusively established 

unless the court on motion permits withdrawal or amendment of the admission.’” 

Davila at ¶ 24, quoting Willis at 67. “The word ‘conclusively’ establishes that 

evidence may not be used to contradict an admission made pursuant to Civ.R. 36.” 

Crespo v. Harvey, 2d Dist. Montgomery No. 25861, 2014-Ohio-1755, ¶ 7, citing 

1970 Advisory Committee Note, Fed.R.Civ.P. 36 (“The new provisions give an 

admission a conclusively binding effect, for purposes only of the pending action, 

unless the admission is withdrawn or amended.”). 

{¶20} “A trial court may permit withdrawal of an admission if it will aid in 

presenting the merits of the case and the party who obtained the admission fails to 

demonstrate that withdrawal will prejudice him in maintaining his action.” Davila 

at ¶ 24, citing Willis at 67. “If these two prerequisites are satisfied, then, and only 

then, the trial court may permit the modification or withdrawal of the deemed 

admissions * * *.” (Emphasis sic.) Crespo at ¶ 29 (Fain, J., concurring). See also

id. at ¶ 10 (“There is a two-prong test for determining whether a trial court may 

allow a withdrawal or an amendment to a previous admission.”); S.K. Constr. Co., 

Inc. v. L & K Indus. Painting Contrs., Inc., 2d Dist. Greene No. 98 CA 11, 1998 

WL 770255, *3 (Nov. 6, 1998) (noting that “both of the two criteria in Civ.R. 

36(B) must be met before relief from admissions may be considered”); 

CitiMortgage, Inc. v. Beam, 7th Dist. Mahoning No. 13 MA 62, 2014-Ohio-3809, 
Case No. 11-14-03 

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¶ 15 (describing “the elements of the two part test” found in Civ.R. 36(B)); 

Abuhilwa v. Corr. Med. Ctr., 10th Dist. Franklin No. 08AP-642, 2008-Ohio-6915, 

¶ 10-14 (analyzing whether the “two-part test” of Civ.R. 36(B) was satisfied). 

“Civ.R. 36(B) ‘emphasizes the importance of having the action resolved on the 

merits, while at the same time assuring each party that justified reliance on an 

admission in preparation for trial will not operate to his prejudice.’” Davila at ¶ 

24, quoting Willis at 67. 

{¶21} “A trial court’s decision on a motion to withdraw admissions will not 

be disturbed on appeal absent an abuse of discretion.” Id., citing Brown v. 

Weidner, 3d Dist. Seneca No. 13-06-08, 2006-Ohio-6852, ¶ 28. “‘Abuse of 

discretion’ implies that the trial court was arbitrary, unreasonable, or 

unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 

(1983). 

{¶22} In this case, because Watson demonstrated that, without the 

opportunity to conduct additional discovery, withdrawal of HSBC’s admissions 

would prejudice her in maintaining her defense on the merits, the trial court 

abused its discretion when it granted HSBC’s motion to withdraw its admissions 

without allowing Watson to conduct additional discovery. We begin our analysis 

by examining the summary-judgment standard and the substantive law governing 

HSBC’s foreclosure action to determine whether any of the matters conclusively 
Case No. 11-14-03 

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established by HSBC’s admissions, on which Watson relied in her memorandum 

in opposition to HSBC’s motion for summary judgment, precluded summary 

judgment in favor of HSBC. 

{¶23} Summary judgment is proper where there is no genuine issue of 

material fact, the moving party is entitled to judgment as a matter of law, and 

reasonable minds can reach but one conclusion when viewing the evidence in 

favor of the non-moving party, and the conclusion is adverse to the non-moving 

party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 

69 Ohio St.3d 217, 219 (1994). “The substantive law underlying the claims 

provides the framework for reviewing motions for summary judgment, both with 

respect to whether there are genuine issues of material fact and whether the 

moving party is entitled to judgment as a matter of law.” Darno v. Davidson, 9th 

Dist. Summit No. 26760, 2013-Ohio-4262, ¶ 5, citing Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986) and Burkes v. Stidham, 107 Ohio 

App.3d 363, 371 (8th Dist.1995). 

{¶24} “To properly support a motion for summary judgment in a 

foreclosure action, a plaintiff must present evidentiary-quality materials showing: 

(1) the movant is the holder of the note and mortgage, or is a party entitled to 

enforce the instrument; (2) if the movant is not the original mortgagee, the chain 

of assignments and transfers; (3) the mortgagor is in default; (4) all conditions 
Case No. 11-14-03 

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precedent have been met; and (5) the amount of principal and interest due.” 

Wright-Patt Credit Union, Inc. v. Byington, 6th Dist. Erie No. E-12-002, 

2013-Ohio-3963, ¶ 10, citing U.S. Bank, N.A. v. Coffey, 6th Dist. Erie No. 

E-11-026, 2012-Ohio-721, ¶ 26 and Wachovia Bank of Delaware v. Jackson, 5th 

Dist. Stark No. 2010-CA-00291, 2011-Ohio-3202, ¶ 40-45. 

{¶25} “Ohio’s version of the Uniform Commercial Code governs who may 

enforce a note[,] * * * including promissory notes secured by mortgages on real 

estate.” HSBC Mtge. Servs., Inc. v. Edmon, 6th Dist. Erie No. E-11-046, 

2012-Ohio-4990, ¶ 26. An allonge attached to the note in this case contains the 

following blank indorsement: 

PAY TO THE ORDER OF: 

____________________________________ 

WITHOUT RECOURSE 

/s/ Hope N. Gausmann 

Hope N Gausmann 

Assistant Secretary 

Accredited Home Lenders, Inc., A California Corporation 

(Burgos Aff., ¶ 3, Ex. B, Doc. No. 27, attached). A “blank indorsement” is “an 

indorsement that is made by the holder of the instrument and that is not a special 

indorsement.”3

 R.C. 1303.25(B). “When an instrument is indorsed in blank, the 

instrument becomes payable to bearer and may be negotiated by transfer of 

 

3

 A “special indorsement” is “an indorsement that is made by the holder of an instrument * * * and that 

identifies a person to whom it makes the instrument payable.” R.C. 1303.25(A). 
Case No. 11-14-03 

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possession alone until specially indorsed.” Id. See also Wells Fargo Bank, N.A. v. 

Byers, 10th Dist. Franklin No. 13AP-767, 2014-Ohio-3303, ¶ 14 (“A blank 

indorsement makes the instrument payable to the bearer pursuant to R.C. 

1303.25(B).”). “A ‘holder’ includes a person who is in possession of an 

instrument payable to bearer.” BAC Home Loans Servicing, L.P. v. Haas, 3d Dist. 

Marion No. 9-13-40, 2014-Ohio-438, ¶ 27, citing U.S. Bank Natl. Assn. v. 

Kamal, 7th Dist. Mahoning No. 12 MA 189, 2013-Ohio-5380, ¶ 18 and R .C. 

1301.01(T)(1)(a).4

 See also Edmon at ¶ 26, fn. 3. 

{¶26} In this case, Burgos stated in her affidavit, “The Plaintiff is in 

possession of the original promissory note and/or loan agreement (“Note”) for this 

Loan, bearing the date of 11/24/2004, in which the Defendant(s) PAMELA J 

WATSON promised to pay the sum of $79,500.00.” (Burgos Aff., ¶ 3, Doc. No. 

27, attached). However, by failing to respond to Watson’s requests for 

admissions, HSBC admitted that “HSBC does not have possession of the original 

note, Exhibit A to the Complaint.” (Doc. No. 32, Ex. A). Demonstrating 

possession of the note—or alternatively, entitlement to enforce the note—is a 

prerequisite to obtaining summary judgment in a foreclosure action, and a 

plaintiff’s inability to demonstrate possession of the note or entitlement to enforce 

 

4

 “R.C. 1301.01 was repealed by Am.H.B. No. 9, 2011 Ohio Laws File 9, effective June 29, 2011. That act 

amended and renumbered the provisions of Chapter 1301 of the Ohio Revised Code so that the definitions 

section of the Uniform Commercial Code now appear [sic] at R.C. 1301.201.” Bank of Am. v. Vaught, 12th 

Dist. Clermont No. CA2013-11-085, 2014-Ohio-3383, ¶ 13, fn. 1. Because R.C. 1301.201 applies only to 

transactions entered on or after June 29, 2011, we apply R.C. 1301.01 to this appeal. 
Case No. 11-14-03 

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it will preclude summary judgment. See Bank of Am., N.A. v. Loya, 9th Dist. 

Summit No. 26973, 2014-Ohio-2750, ¶ 15; Bank of New York Mellon Trust Co. 

Natl. v. Mihalca, 9th Dist. Summit No. 25747, 2012-Ohio-567, ¶ 14, 18. 

Therefore, before the trial court granted HSBC’s motion to withdraw its 

admissions, HSBC’s admission, conclusively establishing that it did not possess 

the note, precluded summary judgment in its favor. 

{¶27} We also agree with Watson that HSBC’s admission that “Burgos did 

not personally observe the original note prior to executing the April 10, 2013 

affidavit attached to the summary judgment motion in this case” precluded 

summary judgment in HSBC’s favor. (Doc. No. 32, Ex. A). In another case to 

which HSBC was a party, the Sixth District Court of Appeals concluded that a 

genuine issue of fact remained as to whether the affiant—who testified in her 

deposition that she did not compare a copy of the note with the original—was a 

“witness with knowledge” under Evid.R. 901(B)(1) who could authenticate the 

note in her affidavit. Edmon, 2012-Ohio-4990, at ¶ 16-24. See also Bank of Am. 

v. Smith, 1st Dist. Hamilton No. C-130306, 2014-Ohio-2845, ¶ 15 (citing Edmon

and concluding that “summary judgment was improper” because “Bank of 

America failed to properly introduce the note into the record to support its motion 

for summary judgment”). In this case, HSBC’s admission that Burgos did not 

personally observe the original note before executing her affidavit conclusively 
Case No. 11-14-03 

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established that Burgos did not properly authenticate the note for the purpose of 

establishing that HSBC is the holder of the note. 

{¶28} HSBC argues that “[m]any” of its admissions “were irrelevant or 

contrary to admissible evidence already presented by HSBC in establishing that it 

was entitled to summary judgment.” (Appellee HSBC’s Brief at 5). First, HSBC 

cites no rule or case supporting the proposition that a party may not request an 

admission that contradicts an affidavit already offered by an opposing party, and 

we have found no such rule or case. Second, HSBC’s argument ignores that any 

matter admitted under Civ.R. 36 “is conclusively established” and that “evidence 

may not be used to contradict an admission made pursuant to Civ.R. 36.” Civ.R. 

36(B); Crespo, 2014-Ohio-1755, at ¶ 7. Third, HSBC failed to address in its brief 

Watson and Lambert’s argument that they were prejudiced by the trial court’s 

decision to allow HSBC to withdraw its admissions without allowing Watson to 

conduct additional discovery. 

{¶29} For the reasons above, Watson demonstrated that the matters 

conclusively established by at least two of HSBC’s admissions precluded 

summary judgment in HSBC’s favor. (See Doc. No. 38). Watson also 

demonstrated that because the discovery cutoff date had passed, she would be 

prejudiced if the trial court granted HSBC’s motion to withdraw its admissions 

without allowing additional discovery. (See id.). Therefore, we hold that by 
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granting HSBC’s motion to withdraw its admissions—and thereby removing 

conclusively established matters that would have otherwise precluded summary 

judgment—without allowing Watson to conduct additional discovery, the trial 

court abused its discretion. See Heiland v. Smith, 9th Dist. Lorain No. 

11CA010137, 2013-Ohio-134, ¶ 17 (concluding that, in a case in which the 

plaintiff relied on admissions of the defendants in opposing the defendants’ 

motion for summary judgment after the close of discovery, “[t]he trial court’s 

decision to grant the defendants’ motion to amend their admissions after [the 

plaintiff] had opposed summary judgment in reliance on the admissions was 

unreasonable * * *”).5

{¶30} Based on our conclusion that the trial court abused its discretion in 

granting HSBC’s Civ.R. 36(B) motion because Watson demonstrated that she 

would be prejudiced by the withdrawal, we need not and do not address the second 

prong of Civ.R. 36(B)’s two-part test—namely, whether withdrawal of the 

admissions would aid in presenting the merits of the case. Nor do we address 

whether HSBC was required to demonstrate that its failure to timely respond to 

Watson’s requests for admissions was based on “compelling circumstances,” or 

 

5

 While we agree with the Ninth District’s conclusion in Heiland that “[t]he trial court’s decision to grant 

the defendants’ motion to amend their admissions after [the plaintiff] had opposed summary judgment in 

reliance on the admissions was unreasonable,” we decline to conclude, as the Ninth District did, that the 

trial court’s “simultaneous award of summary judgment based upon the amended admissions was 

improper.” As we will explain below under our discussion of Watson and Lambert’s second and third 

assignments of error, we need not and do not address the propriety of the trial court’s granting HSBC’s 

motion for summary judgment and denying Watson’s motion for summary judgment. 
Case No. 11-14-03 

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whether HSBC’s simply claiming “inadvertent error” satisfied the “compelling 

circumstances” standard. Compare Crespo, 2014-Ohio-1755, at ¶ 21 (concluding 

that “Civ.R. 36(B) * * * does not make compelling circumstances an issue”) with

Whitehouse v. Customer is Everything!, Ltd., 11th Dist. Lake No. 2007-L-069, 

2007-Ohio-6936, ¶ 34 (“[A]ppellants must set forth ‘compelling circumstances’ to 

justify their failure to respond to the request for admissions.”). Finally, we need 

not and do not address the additional issues Watson and Lambert raise under their 

first assignment of error—namely, production of the original note, authority to 

execute the assignment of the mortgage, and the adequacy of the notice of default. 

{¶31} However, one additional point bears mentioning. In its brief, HSBC 

suggests that its failure to timely respond to Watson’s requests for admissions 

“was due to inadvertent error” and somehow Watson’s counsel’s fault, arguing, 

“Counsel for Appellants did not reach out to counsel for HSBC to discuss the 

pending discovery or follow up on its status prior to having the Requests for 

Admissions deemed admitted.” (Appellee HSBC’s Brief at 5). HSBC also argues 

that to decide this appeal in Watson and Lambert’s favor would allow the “case to 

be decided on a procedural technicality.” (Id. at v). 

{¶32} We find HSBC’s arguments egregious, especially considering HSBC 

received additional time to respond to Watson’s requests for admissions. Under 

Civ.R. 36, it was HSBC’s responsibility—not Watson’s—to timely respond to 
Case No. 11-14-03 

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Watson’s requests for admissions. “[The appellee] ‘fails to realize that the civil 

rules, even those [it] finds distasteful, are in fact the law.’” L.E. Sommer Kidron, 

Inc. v. Kohler, 9th Dist. Wayne No. 06CA0044, 2007-Ohio-885, ¶ 53, quoting 

GMAC Mtge. Corp. v. Titch, 9th Dist. Medina No. 04CA0012-M, 2005-Ohio-868, 

¶ 24. Moreover, “[t]his court is aware of the realities of the secondary mortgage 

market but we must apply the Rules of Civil Procedure and Evidence set forth by 

the Ohio Supreme Court.” Jackson, 2011-Ohio-3202, at ¶ 58. In short, “‘[a]s 

[Watson] followed the applicable civil rules, [she was] justified in relying upon 

[HSBC’s] admission and should not be prejudiced by that reliance.’” Heiland, 

2013-Ohio-134, at ¶ 17, quoting Kohler at ¶ 53. 

{¶33} Watson and Lambert’s first assignment of error is sustained. 

Assignment of Error No. II 

The trial court erred in granting judgment to Plaintiff 

summarily without reopening discovery in light of Defendants’ 

prior outstanding motion for discovery time to respond if 

Plaintiff would timely respond to discovery requests. 

Assignment of Error No. III 

The trial court erred in failing to grant Defendant’s motion for 

summary judgment based upon the facts of record and 

admissions of Plaintiff. 

{¶34} In their second assignment of error, Watson and Lambert make the 

same arguments that they make under their first assignment of error, including that 

the trial court erred by concurrently allowing HSBC to withdraw its admissions 
Case No. 11-14-03 

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and granting summary judgment in HSBC’s favor without allowing them the 

opportunity to conduct additional discovery. In their third assignment of error, 

Watson and Lambert argue that they were “clearly entitled to Summary Judgment 

dismissing the Complaint” because HSBC “did not have possession of the original 

note,” “did not have an authorized assignment of mortgage,” and “did not have a 

valid Notice of Default and Acceleration letter as a condition precedent to bringing 

the Complaint” and because “HSBC had not alleged in the Complaint that Watson 

had actually executed the note nor submitted any proof that she had done so.” 

(Appellants’ Brief at 15-16). 

{¶35} We held above that the trial court abused its discretion by granting 

HSBC’s motion to withdraw its admissions without allowing Watson to conduct 

additional discovery. The trial court’s rulings on the parties’ motions for summary 

judgment were based on its erroneous discovery order granting HSBC’s motion to 

withdraw its admissions without allowing Watson to conduct additional discovery. 

In light of the erroneous discovery order, ruling on either party’s motion for 

summary judgment was premature. Therefore, Watson and Lambert’s second and 

third assignments of error have been rendered moot, and we decline to address 

them. App.R. 12(A)(1)(c). See also Aetna Life Ins. Co. v. Everhardt, 6th Dist. 

Lucas No. L 89-251, 1990 WL 97693, *2 (July 13, 1990). 
Case No. 11-14-03 

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{¶36} “When a judgment is reversed and remanded for further proceedings, 

the trial court may take up the matter at the point where the first error was 

committed.” In re C.P., 187 Ohio App.3d 246, 2010-Ohio-346, ¶ 19 (10th Dist.). 

“The effect of a reversal and an order of remand is to reinstate the case to the 

docket of the trial court in precisely the same condition that obtained before the 

error occurred.” Wilson v. Kreusch, 111 Ohio App.3d 47, 51 (2d Dist.1996). 

{¶37} On remand for further proceedings consistent with this opinion, the 

trial court may proceed in any number of ways, including, for example, reopening 

discovery, allowing additional motions concerning discovery, and allowing the 

resubmission of motions for summary judgment. See Nester v. Lima Mem. Hosp., 

139 Ohio App.3d 883, 889 (3d Dist.2000) (“It is well established that the 

management of discovery lies within the broad discretion of the trial courts.”), 

citing State ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55, 57 (1973); Cooper v. 

Valvoline Instant Oil Change, 10th Dist. Franklin No. 07AP-392, 2007-Ohio5930, ¶ 7 (“[I]t is within the trial court’s discretion to grant leave to file a motion 

for summary judgment even when the action has been set for trial.”), citing Detray 

v. Mt. Carmel Health, 10th Dist. Franklin No. 96APE08-1010, 1997 WL 189333 

(Apr. 17, 1997). 
Case No. 11-14-03 

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{¶38} Having found error prejudicial to the appellants herein in the 

particulars assigned and argued, we reverse the judgment of the trial court and 

remand for further proceedings consistent with this opinion. 

Judgment Reversed and 

Cause Remanded 

WILLAMOWSKI, J., concurs. 

/jlr 

ROGERS, P.J., concurs separately. 

{¶39} While I concur with the analysis of the majority in which they find 

that the trial court abused its discretion in granting HSBC’s Civ.R. 36 motion, I 

write separately to emphasize one point. The majority states that on remand, “the 

trial court may proceed in any number of ways, including, for example, reopening 

discovery, allowing additional motions concerning discovery, and allowing the 

resubmission of motions for summary judgment.” (Majority Opin., ¶ 37). Thus, 

on remand, HSBC’s admissions will be deemed admitted unless HSBC takes a 

positive step to withdraw them. The trial court has the discretion to deny either 

party’s motion to reopen discovery, and decide the summary judgment motions 

based on HSBC’s admissions that are, at this point in time, deemed admitted. It 

also has the ability, under the majority’s analysis, to reopen discovery, which 

would give HSBC yet another chance to file yet another motion to withdraw its 
Case No. 11-14-03 

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admissions.6

 Even if HSBC files a motion to withdraw admissions and can prove 

that both prongs of Civ.R. 36(B) are satisfied, the trial court still has the discretion 

to deny HSBC’s motion. 

{¶40} Under Civ.R. 36(B), “the court may permit withdrawal * * * when 

the presentation of the merits of the action will be subserved thereby and the party 

who obtained the admission fails to satisfy the court that withdrawal * * * will 

prejudice the party in maintaining his action or defense on the merits.” (Emphasis 

added.) “[G]iven the use of the word ‘may’ in Civ.R. 36(B), the trial court is not 

automatically required to withdraw admissions if all the requirements under the 

rule are satisfied.” Cotrill v. Noah Transp., L.L.C., 2d Dist. Miami No. 2014-CA2, 2014-Ohio-2098; see also Colopy v. Nationwide Ins. Co., 9th Dist. Summit No. 

17019, 1995 WL 500061, *2 (Aug. 23, 1995) (“[Civ.R. 36(B)] does not mandate 

withdrawal of admissions whenever the merits are subserved and prejudice is not 

demonstrated; the rule states that the court ‘may’ permit withdrawal or 

amendment.”). 

 

6

 By my account, in this hypothetical situation, it would be HSBC’s third motion to withdraw admissions 

deemed admitted. Although HSBC’s June 27, 2013 motion was captioned as a “motion for extension to 

respond to defendant’s discovery requests” it was actually a motion to withdraw admissions deemed 

admitted. Pursuant to Watson’s discovery requests, and the Ohio Civil Rules of Procedure, HSBC was 

required to respond to Watson’s request for admissions on June 21, 2013, but it did not. Therefore at that 

point in time, HSBC should not have been asking for an extension for time, as their deadline had already 

passed, but instead, should have been asking to modify or withdraw its admissions. 
Case No. 11-14-03 

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{¶41} In exercising its discretion to deny or grant a motion to withdraw 

admissions, a trial court should consider all circumstances involving the motion 

including the culpability of the negligent party. 

If the culpability of the negligent party is great, perhaps because the 

party has demonstrated a pattern of indifference to discovery and to 

orders of the court, and the inconvenience to the trial court and to the 

adverse parties is great * * * then the sound exercise of discretion 

would lead a reasonable trial court to overrule a motion to modify or 

withdraw deemed admissions. 

Crespo v. Harvey, 2d Dist. Montgomery No. 25861, 2014-Ohio-1755, ¶ 31. 

Therefore, while Civ.R. 36(B) may not “require a movant to demonstrate 

compelling circumstances for failing to timely respond to a request for admissions, 

the trial court may consider whether there is a justifiable excuse for the failure, as 

well as any other pertinent facts, when considering the culpability of the party that 

failed to respond.” Cottrill at ¶ 10. 

{¶42} I agree with the majority’s statement that HSBC’s actions in this case 

are “egregious.” (Majority Opin., ¶ 32). On May 24, 2013, Watson served her 

request for admissions on HSBC. Instead of timely answering the request for 

admissions, HSBC failed to answer by the deadline. Instead of asking the court 

to modify or withdraw its admissions, it incorrectly asked the court for an 

extension of time. The trial court and Watson graciously allowed HSBC 

additional time to respond to Watson’s simple discovery requests, but HSBC once 

again failed to respond to the admissions. Even on appeal, HSBC does not accept 
Case No. 11-14-03 

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responsibility for its negligent behavior nor does it offer this court a satisfactory 

answer for not timely responding to the request for admissions. Instead, HSBC 

claims there was an “inadvertent error” by its counsel and then, unbelievably, tries 

to shift the blame on Watson. This only further demonstrates HSBC’s lack of 

understanding, or perhaps its disregard, for the Ohio Rules of Civil Procedure. I 

remind HSBC that “[e]ach rule [of civil procedure] is intended to serve a 

particular purpose and a party who makes a conscious effort to ignore the rules 

does so at his own peril.” Klesch v. Reid, 95 Ohio App.3d 664, 675 (8th 

Dist.1994). Further, the “behavior of a party’s attorney generally will be imputed 

to his or her client.” Neely v. Capra, 11th Dist. Lake Nos. 2001-L-035, 2001-L080, 2002 WL 331953, *3 (Mar. 1, 2002). This is because the client “ ‘voluntarily 

chose this attorney as his representative in the action, and he cannot * * * avoid 

the consequences of the acts or omissions of this freely selected agent.’ ” BTE 

Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 152 (1976), 

quoting Link v. Wabash RR. Co., 370 U.S. 626, 633-634, 82 S.Ct. 1386 (1962). 

Thus, HSBC must suffer the consequences of its counsel’s deficiencies and has 

recourse in an action for legal malpractice. 

{¶43} In conclusion, I can only think what the result would be if the roles 

were reversed. What if it were Watson who missed her deadline to respond to a 

discovery request, and offered no explanation as to her negligence. Would the 
Case No. 11-14-03 

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trial court have been so forgiving and accommodating toward her failure to follow 

basic civil procedures? I think not. The civil rules apply to all equally. HSBC 

chose to ignore those rules. They should face the consequences, not have another 

opportunity to adequately respond to a simple request. I would reverse and 

remand with instructions to vacate the judgment granted to HSBC and, based on 

the conclusive admissions by HSBC, grant summary judgment to Watson and 

dismiss the complaint.