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Inc. v. Robinson

Court of Appeals of Ohio, Second District, Champaign

May 19, 2017

WELLS FARGO FINANCIAL OHIO 1, INC. Plaintiff-Appellee
v.
VERA J. ROBINSON, et al. Defendant-Appellant

         Civil Appeal from Common Pleas Court No. 15-CV-104

          RICK DEBLASIS, Atty., Attorney for Plaintiff-Appellee.

          TROY DOUCET, Atty. and BRIANA HART, Atty. Reg. Attorneys for Defendant-Appellant.

          OPINION

          HALL, P.J.

         {¶ 1} Vera and Jeff Robinson appeal from a summary judgment and decree of foreclosure entered for Wells Fargo Financial Ohio 1, Inc.[1] 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 affirm.

         I. Background

         {¶ 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 default.

         {¶ 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.

         II. ...


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