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Ryan v. Romo

United States District Court, S.D. Ohio, Eastern Division

May 22, 2017

JAMES M. RYAN, et al, Plaintiffs,
v.
PEDRO ROMO, et al, Defendants.

          Jolson Magistrate Judge

          OPINION & ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff James M. Ryan's (“Mr. Ryan”) Motion for Partial Summary Judgment (Doc. 78) and Defendant Wells Fargo Bank, N.A.'s (“Wells Fargo”) Motion for Summary Judgment (Doc. 83).

         I. BACKGROUND

         A. Factual Background

         On December 16, 2008, Wells Fargo as “Lender” entered into a Home Equity Conversion Loan Agreement (the “First Mortgage”) with Carolyn Ryan as “Borrower, ” with respect to property located at 3165 Dale Avenue, Columbus Ohio, 43219 (“property”). (Doc. 83-2 at Ex. C, PageId. # 1367.) Carolyn Ryan is married to James Ryan. Mr. Ryan executed the First Mortgage, “signing solely to release dower interest.” (Id. at PageId. # 1374.) HUD served as its government insurer. (Id. at PageId. # 1368.)[1] The First Mortgage included a condition that Wells Fargo can require payment in full, upon approval of the Secretary of HUD, if “the Property ceases to be the principal residence of a Borrower[.]” (Id. at PageId. # 1370.)

         On December 1, 2011, Wells Fargo sent a letter to Mrs. Ryan stating that taxes on the property had become delinquent. (Dickhaut Decl., Doc. 83-2, at ¶ 6; Ex. E at PageId. # 1403.)[2]The letter requested that Mrs. Ryan pay the taxes, and stated that Wells Fargo would advance the taxes should Mrs. Ryan fail to pay them. (Id.) The letter sought proof of payment of taxes within thirty (30) days. (Id.)

         On January 26, 2012, Mr. Ryan called Wells Fargo and stated that the Ryans would pay the taxes. (Dickhaut Decl. at ¶ 7.) By on or about February 13, 2012, Wells Fargo paid the taxes because the Ryans had not. (Id. ¶ 8.) On or about April 18, 2012, Wells Fargo learned that the Ryans were contesting the tax valuation for the Property. (Id. ¶ 10.) Wells Fargo attempted to reach Mrs. Ryan several times, by mail and by telephone, between February 2012 and October 2012, to no response. (Id. ¶¶ 9, 11.)

         Wells Fargo requested that Mrs. Ryan confirm that she continued to occupy the property. (Id. ¶ 12.) On or about November 27, 2012, Mrs. Ryan returned an occupancy verification form verifying that she occupied the property as her primary residence. (Id. Ex. F.) She also provided a phone number. (Id.)

         Wells Fargo attempted to reach Mrs. Ryan by letter and by telephone dozens of times between December 2012 and December 2013. (Dickhaut Decl. at ¶¶ 15-18, 21, 24, 26.) Mrs. Ryan did not respond, except to send a letter in September 2013 re-affirming her phone number, her residence at 3165 Dale Avenue, and requesting that Wells Fargo contact her only by mail. (Id. ¶ 20; Ex. J.)

         On September 6, 2013, Wells Fargo sent a “Non-occupancy notification” letter to Mrs. Ryan, which stated “[w]hen you no longer occupy the above property as your primary residence and are unable to reoccupy this property, your reverse mortgage loan becomes due and payable.” (Id. Ex I; C. Ryan Decl., Doc. 78-2, at Ex. A.) This letter also requested that Mrs. Ryan complete an enclosed form (“Non-Occupancy Notification”), which would inform Wells Fargo whether Mrs. Ryan intended to reoccupy or sell the property. (Id.) Mrs. Ryan did not respond. Wells Fargo sent a similar letter to Mr. Ryan, to which he did not respond. (J. Ryan Decl., Doc. 78-1 at Ex. A.) The letter to Mr. Ryan attached a form seeking the occupancy information of Mrs. Ryan as “borrower.” (Id.)

         In October 2013, Wells Fargo sent an inspector to verify whether Mrs. Ryan occupied the property. The inspector could not do so and instead noted that the occupancy status of the property was unknown. (Dickhaut Decl. at ¶ 22.)

         On November 8, 2013, Wells Fargo sent another letter to Mrs. Ryan, requesting that she verify the property as her primary residence. (Id. at ¶ 23.) The letter stated that if Mrs. Ryan did not return the verification form by November 29, 2013, it would “presume [she] no longer reside[d] at this address and [her] reverse mortgage w[ould] be in default.” (Id. Ex. K.) Mrs. Ryan completed the occupancy verification form on November 21, 2013, and sent it to Wells Fargo, which received it on or about December 6, 2013. (Id. Ex. K-1, ¶ 25.)

         In December 2013, a vendor hired by Wells Fargo called the residence. The person who answered the call identified himself as James M. Ryan SR and refused to provide access to the property. (Id. ¶ 26.)

         On December 17, 2013, Wells Fargo sent a letter to Mrs. Ryan stating that the loan was in default (“Default Letter”) because “the property . . . [wa]s no longer [her] primary residence, ” therefore, “th[e] loan [wa]s due and payable[.]” (Id. Ex. L; C. Ryan Decl. at Ex. B.) The letter requests, among other things, that Mrs. Ryan “contact [Wells Fargo] as soon as possible to discuss [her] options.” (Id.) Wells Fargo sent a similar letter to Mr. Ryan. (J. Ryan Decl. at Ex. B.) The Ryans did not respond, opting to file this lawsuit instead.

         In 2014, Wells Fargo assessed property inspection charges against the balance due under the First Mortgage, but has since reversed all inspection charges. (Second Dickhaut Decl., Doc. 83-3, at ¶ 4.) Wells Fargo also sent “Non-occupancy notification” letter to Mr. and Mrs. Ryan on April 29, 2014, attaching a Non-Occupancy Notification listing Mrs. Ryan as “borrower.” (J. Ryan Decl. at Ex. C; C. Ryan Decl. at Ex. C.)

         Mr. Ryan attaches several affidavits from family members attesting that he and Mrs. Ryan have lived in the property since 2008 as their primary residence. (Docs. 78-3 - 78-5)

         Wells Fargo has not filed a foreclosure action relating to this loan. (Second Dickhaut Decl. at ¶ 28.) Nor has Wells Fargo “made any negative credit reporting with respect to the [First Mortgage]” for Mr. or Mrs. Ryan. (Second Dickhaut Decl., Doc. 83-3, at ¶ 5.) Indeed, Wells Fargo is not even treating the loan as defaulted for non-occupancy. (Dickhaut Decl. at ¶ 28.)

         B. ...


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