DECISION GRANTING SUMMARY JUDGMENT TO DEENDANT BANK OF AMERICA, N.A.
LAWRENCE S. WALTER, Bankruptcy Judge.
The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 157(b)(2) and 1334 and the standing General Order of Reference in this District.
This matter is before the court on Defendant Bank of America, N.A.'s Motion for Summary Judgment [Adv. Doc. 26]; Plaintiff's Response to Defendant Bank of America, N.A.'s Motion for Summary Judgment [Adv. Doc. 36]; and Defendant's Reply to Plaintiff's Opposition to Motion for Summary Judgment [Adv. Doc. 39].
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
Plaintiff-Debtor Helen I. Murray ("Debtor") filed an adversary complaint against Defendant Bank of America, N.A. ("BANA") with a request for declaratory judgment as to the validity of a contract and various claims for damages. In the complaint, Debtor alleges that she is the current owner of her residential property at 844 Cliffside Drive, New Carlisle, Ohio that she acquired from her deceased husband, James E. Murray, after he passed away on April 1, 2012 [Adv. Doc. 1, ¶¶ 10-11]. The real estate is subject to a mortgage currently serviced by BANA [Id., ¶ 13; Adv. Doc. 11, ¶ 13]. The Debtor alleges that she is not a party to the mortgage and signed the mortgage only to release her dower rights [Adv. Doc. 1, ¶ 14]. Otherwise, she had no prior relationship with BANA [Id., ¶ 15].
When her husband passed away, Debtor alleges that she contacted BANA regarding the mortgage payment [Id., ¶ 16]. She alleges that BANA offered her a "trial modification plan" with a monthly payment of $447.93 [Id., ¶ 17]. She asserts that she began to make the payments under the plan and BANA accepted them [Id., ¶¶ 17-18]. Despite BANA's acceptance of the payments, Debtor asserts that BANA proceeded with the foreclosure of the real estate and a sheriff sale was scheduled leading her to file the bankruptcy case to stop the foreclosure and attempt to retain the real estate [Id., ¶¶ 19 and 20].
Subsequently, the Debtor filed her complaint against BANA asserting causes of action for breach of contract, breach of implied-in-fact contract, promissory estoppel, fraud, and declaratory judgment as to the validity of a contract. All causes of action in the complaint are based on Debtor's assertion that BANA offered Debtor a trial loan modification plan and this offer was relied on and/or accepted by Debtor by making payments to BANA [Id., ¶¶17-18, 34-35, 51-52, 64-65, 71-72].
B. Summary Judgment
Defendant BANA filed a motion for summary judgment on July 10, 2015. In its motion, BANA makes several arguments including that certain claims in the complaint are barred by the statute of frauds, that Debtor failed to plead fraud with particularity, and that matters in BANA's requests for admission should be deemed admitted against Debtor.
With respect to the requests for admission, BANA states that it served Debtor with requests but Debtor failed to respond. In support, BANA attaches the affidavit of BANA's attorney, James W. Sandy, attesting that his secretary served Debtor's counsel with BANA's First Set of Discovery Requests, Including Requests for Admissions (the "Discovery Requests"), on January 8, 2015 via email and regular U.S. mail [Adv. Doc. 26, Ex. 1, ¶¶2-3]. The Discovery Requests include the following:
REQUESTS FOR ADMISSION
1. Admit that BANA never offered You1 a trial or permanent loan modification. ADMIT OR DENY:
2. Admit that any loan modification was offered to James Murray. ADMIT or DENY:
[Id., Ex. 1 and attached Ex. A, p. 11]. James Sandy attests that he never received responses to these Discovery Requests [Id., Ex. 1, ¶ 4].
Debtor responds to BANA's motion for summary judgment without evidentiary materials. Instead, Debtor relies on several legal arguments. Regarding the requests for admission, Debtor does not deny that she failed to respond and states that she does not oppose the court deeming the requested admissions admitted [Adv. Doc. 36, p. 6]. Debtor further states: "Plaintiff [Debtor] agrees that she was never offered a loan modification but rather Bank of America offered it to her deceased husband." [Id.].
LEGAL ANALYSIS
A. Summary Judgment Standard
The appropriate standard to address BANA's motion for summary judgment is contained in Fed. R. Civ. P. 56 and incorporated in bankruptcy adversary proceedings by reference in Fed. R. Bankr. P. 7056. Rule 56(a) provides that summary judgment is to be granted by the court "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
In order to prevail, the moving party, if bearing the burden of persuasion at trial, must establish all elements of its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If the burden is on the non-moving party at trial, the movant must: 1) submit affirmative evidence that negates an essential element of the nonmoving party's claim or 2) demonstrate to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. Id. at 331-32. Thereafter, the opposing party "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51 (1986). All inferences drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 586-88. Nonetheless, mere conclusory allegations or unsupported opinions of the nonmovant are insufficient to defeat a motion for summary judgment. Id. See also Blaney v. Cengage Learning, Inc., 2011 WL 1532032, at *7 (S.D. Ohio Apr. 22, 2011).
B. Admissions Deemed Admitted
The court begins and ends with this critical argument made by BANA on summary judgment: that the Debtor failed to respond to BANA's requests for admission and deeming those requested facts admitted undermines all claims in Debtor's complaint.
Relevant to the issue is Federal Rule of Civil Procedure 36(a)(3) and (b), applicable via Federal Rule of Bankruptcy Procedure 7036, which addresses requests for admission:
(a) Scope and Procedure.
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(3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.
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(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.
Fed. R. Civ. P. 36. Pursuant to Rule 36, matters within requests for admission are deemed admitted if a party does not answer within 30 days of being served. The matters deemed admitted are conclusively established absent a motion to withdraw or amend. An admitted matter can serve as a basis for a summary judgment motion. See, e.g., Paulino v. Edmondson (In re Edmondson), 2007 WL 1302574, at *3-4 (Bankr. N.D. Ohio May 1, 2007); Davis v. North Amer. Mortg. Co. (In re Kenny), 276 B.R. 579, 581 (Bankr. S.D. Ohio 2002).
It is undisputed that BANA served Debtor's counsel with requests for admission on January 8, 2015 and that Debtor never answered them. Furthermore, Debtor did not file a motion to withdraw or amend the admissions. Instead, Debtor indicates in her responsive memorandum that she does not oppose the court deeming the admissions admitted [Adv. Doc. 36, p. 6]. Consequently, matters within BANA's request for admissions are deemed admitted and conclusively established on summary judgment pursuant to Rule 36.
The conclusively established matters includes that BANA never offered Debtor a trial or permanent loan modification; instead, any loan modification was offered to her husband, James Murray [Adv. Doc. 26, Ex. 1, attached Ex. A, p. 11]. These admitted facts directly contradict key allegations in Debtor's complaint. In the complaint, Debtor alleges that after her husband's death, she contacted BANA and BANA offered her a "trial modification plan" with a monthly payment of $447.93 [Adv. Doc. 1, ¶¶ 16-17]. The Debtor's allegation that BANA offered her a trial loan modification forms a critical element of each and every cause of action in her complaint [Id., ¶¶ 34, 51, 64, 71]. Because these critical facts have been conclusively established against the Plaintiff-Debtor, the court grants summary judgment to Defendant BANA.
CONCLUSION
Due to the conclusively established evidence arising from the matters deemed admitted upon the Debtor's failure to answer the requests for admission, summary judgment is granted to Defendant Bank of America, N.A. with respect to each and every cause of action in Plaintiff-Debtor Helen I. Murray's complaint. An order will be issued contemporaneously herewith.
SO ORDERED.
