Court of Appeals of Ohio, Eighth District, Cuyahoga
DEUTSCHE BANK TRUST CO. OF AMERICAS PLAINTIFF-APPELLEE
DAVID W. JONES, ET AL. DEFENDANTS-APPELLANTS
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANTS Sam Thomas, III, Esq. Sam Thomas, III
Esq. & Associates.
ATTORNEYS FOR APPELLEE DEUTSCHE BANK COMPANY AMERICAS, AS
TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE
ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-QS9 Ted
A. Humbert Charles V. Gasior Ashley E. Mueller Jason A.
Whitacre Clunk, Paisley, Hoose Co., L.P.A.
BEFORE: Blackmon, J., S. Gallagher, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.
Appellants David Jones ("Jones") and Caroline Jones
(collectively referred to as "the Joneses") appeal
the trial court's judgment granting foreclosure in favor
of appellee Deutsche Bank Trust Co. of Americas
("Deutsche Bank"). The Joneses assign the following
three errors for our review:
I. The trial court erred to the prejudice of [the Joneses] by
granting [Deutsche Bank's] motion for summary judgment
even though [Deutsche Bank] failed to prove that it satisfied
all conditions precedent mandated by the National Housing Act
of 1934 (912 U.S.C.1701 et seq.) and 42 U.S.C.
II. Reviewing [Deutsche Bank's] motion for summary
judgment de novo, the record is clear and convincing that the
trial court erred to the prejudice of [the Joneses] by
granting [Deutsche Bank's] motion for summary judgment.
III. The trial court erred to the prejudice of [the Joneses]
by granting [Deutsche Bank's] motion for summary judgment
based upon the existence of genuine issues of material fact
regarding [Deutsche Bank's] failure to provide sufficient
evidence of entitlement to foreclosure and/or damages.
Having reviewed the record and relevant law, we affirm the
trial court's decision. The apposite facts follow.
On May 23, 2006, the Joneses purchased a multifamily property
located on Glenmont Road in Cleveland. Jones signed a note
payable to First Magnus Financial Corporation ("First
Magnus") for $150, 000. The record indicates that an
allonge payable to the order of Deutsche Bank as Trustee
("Deutsche Bank Trustee") for Residential Accredit
Loans, Inc. ("RALI") was attached to the note. The
Joneses also executed a mortgage in favor of Mortgage
Electronic Registration Systems, Inc. ("MERS")
acting solely as nominee for First Magnus. On August 29,
2012, the mortgage was assigned from First Magnus to Deutsche
Bank Trust Co. ("Deutsche Bank Trust") as trustee
for Residential Accredit Loans, Inc. ("RALI"), and
duly recorded. Later, in April 2016, the mortgage was
assigned from Deutsche Bank Trust to Deutsche Bank, and duly
On July 11, 2016, Deutsche Bank filed a complaint for
foreclosure and other equitable relief, alleging that due to
nonpayment, the loan balance of $142, 475 had accelerated.
Deutsche Bank also alleged that all conditions precedent to
seeking foreclosure were satisfied.
On January 30, 2017, Deutsche Bank filed a motion for summary
judgment, supported by the copies of the mortgage, note
endorsements and assignments, and an affidavit from Deutsche
Bank Trust's loan service officer, Jesse Rosenthal
("Rosenthal"). Rosenthal averred that the last
payment on the loan was received in 2012, and the balance of
$142, 475 was now due. In opposition, the Joneses argued that
Deutsche Bank failed to comply with conditions precedent to
seeking foreclosure under regulations promulgated by the
United States Department of Housing and Urban Development
("HUD"). The Joneses also alleged that Deutsche
Bank lacked standing to enforce the note and mortgage, and
that there was insufficient evidence demonstrating
On March 23, 2017, the magistrate issued a decision granting
Deutsche Bank summary judgment. No objections were filed, and
on April 14, 2017, the trial court adopted the
In the first assigned error, the Joneses argue that Deutsche
Bank did not satisfy conditions precedent to filing its
foreclosure action because it failed to conduct a
face-to-face meeting with them as required under HUD
regulations, set forth in 24 C.F.R. 203.604(b).
Loans governed by or incorporating HUD regulations must
comply with 24 C.F.R. 203.604(b). Fed. Natl. Mtge. Assn.
v. Herren, 8th Dist. Cuyahoga No. 105088,
2017-Ohio-8401, ¶ 39; Bank of Am. v. Allen, 8th
Dist. Cuyahoga No. 105473, 2017-Ohio-7726, ¶ 19. In
relevant part, these regulations state:
The mortgagee must have a face-to-face interview with the
mortgagor, or make a reasonable effort to arrange such a
meeting, before three full monthly installments due on the
mortgage are unpaid. If default occurs in a repayment plan
arranged other than during a personal interview, the
mortgagee must have a face-to-face meeting with the
mortgagor, or make a reasonable attempt to arrange such a