Court of Appeals of Ohio, Second District, Champaign
WELLS FARGO FINANCIAL OHIO 1, INC. Plaintiff-Appellee
VERA J. ROBINSON, et al. Defendant-Appellant
Appeal from Common Pleas Court No. 15-CV-104
DEBLASIS, Atty., Attorney for Plaintiff-Appellee.
DOUCET, Atty. and BRIANA HART, Atty. Reg. Attorneys for
1} Vera and Jeff Robinson appeal from a summary
judgment and decree of foreclosure entered for Wells Fargo
Financial Ohio 1, Inc. The Robinsons contend that the trial court
erred in granting summary judgment for Wells Fargo because
the supporting affidavit is insufficient to show default.
They also argue that it is inequitable to order foreclosure
on the encumbered property.
2} We conclude that the affidavit is sufficient. And
we conclude that the trial court reasonably found that the
balance of equities favors foreclosure. Consequently we
3} In 2005, the Robinsons executed a note for $186,
597.42 and a mortgage in favor of Wells Fargo Financial. The
terms of the loan were partially modified in 2009. In 2014,
after falling behind in their payments, the Robinsons applied
to Wells Fargo Bank (WFB), the servicing agent for Wells
Fargo Financial, for assistance through the federal
government's Home Affordable Modification Program (HAMP).
The aim of HAMP was to "help homeowners who were in or
were at immediate risk of being in default on their home
loans by reducing monthly payments to sustainable levels,
" Costigan v. Citimortgage, Inc. S.D. N.Y. No.
10 Civ 8776, 2011 WL 3370397, *1 (Aug. 2, 2011).
4} By letter dated March 24, 2014, WFB informed the
Robinsons that they had been approved to enter a Trial Period
Plan (TPP) under HAMP. The letter says that instead of their
normal monthly mortgage payment, the Robinsons should send
three reduced trial-period payments, one by May 1, one by
June 1, and the last by July 1. The Robinsons made each of
these payments and made no further payments. By letter dated
December, 30, 2014, WFB informed the Robinsons that they were
in default. The letter states that they are delinquent by $9,
438.61 and gives them until February 3, 2015, to cure the
5} By letter dated February 5, 2015, WFB offered the
Robinsons a second TPP, with a slightly higher monthly
payment. In another letter, dated March 12, 2015, WFB for the
first time tells the Robinsons that because they failed to
continue making payments they are no longer eligible for HAMP
under the first TPP. The letter reminds them, though, that
they were approved for a second TPP. The Robinsons did not
accept the second TPP offer.
6} In June 2015, Wells Fargo filed the present
foreclosure action, claiming that the amount due is $185,
863.97. In March 2016, Wells Fargo moved for summary
judgment, supporting its motion with an affidavit from a WFB
vice president. Attached to the affidavit are the note,
mortgage, notice of default, and a "Substitution of Loan
Terms Agreement." The Robinsons opposed summary judgment
with an affidavit from each of them. Each avers that a WFB
representative instructed them not to make the August 2014
payment. Later, the Robinsons filed internal WFB emails,
which they had obtained in discovery, in which WFB employees
admit that they mishandled the Robinson's account.
7} The trial court sustained Wells Fargo's
summary-judgment motion. The court concluded that Wells Fargo
showed that it owned the note and mortgage and that the
Robinsons are in default. And the court determined that
foreclosure is an equitable remedy.
8} The Robinsons appealed.