Bayview Loan Serviceing, LLC v. Frimel

Syllabus

The plaintiff company sought to foreclose a mortgage on certain real prop- erty owned by the defendant F. The plaintiff filed a motion for summary judgment as to liability only on the complaint and as to F's special defenses and counterclaim. In July, 2017, at a scheduled hearing on the plaintiff's motion for summary judgment, the plaintiff's counsel indicated that although she was ready to proceed with regard to the motion for summary judgment, she would leave it to the trial court's discretion in light of the suspension from the practice of law of F's attorney and F's attempts to retain another attorney. During that hearing, the court noted that it would consider the plaintiff's motion on or after August 18, 2017, but that it would grant the motion for summary judgment if F failed to file an objection by that time. The court also noted that it would hear oral argument on the merits of the motion for summary judgment if F requested argument on or before August 18, 2017, but that it would otherwise consider the matter on the papers. On August 21, 2017, F's new attorney, H, filed an objection to the plaintiff's motion for summary judgment, indicating that oral argument was requested, but the court subsequently granted the plaintiff's motion for summary judgment, with- out a hearing, on the basis of the parties' written submissions. Thereafter, the trial court rendered a judgment of foreclosure by sale, from which F appealed to this court. Held that the trial court erred in granting the plaintiff's motion for summary judgment without the motion appearing on the short calendar and without permitting oral argument on the motion: although that court, in granting the plaintiff's motion for sum- mary judgment, cited F's failure to file an opposition to the motion by the deadline established by the court and treated F's objection as untimely and insufficient because it did not include a memorandum of law, evidence, or an affidavit, the court was required to consider, in the