from the Franklin County Court of Common Pleas C.P.C. No.
Rome, LLP, Chrissy Dunn Dutton, and John R. Wirthlin, for
Aid Society of Columbus, and Leslie Varnado, Jr., for
appellants David M. Graf and Michelle Graf Crawford.
1} Defendants-appellants, David M. Graf ("Graf)
and Michelle Graf Crawford ("Crawford"), appeal
from a judgment of the Franklin County Court of Common Pleas
in favor of defendant-appellee, Ocwen Loan Servicing, LLC
("Ocwen"). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
2} On December 30, 2009, Graf and his late wife,
Donna Graf (the "Grafs"), executed a note in favor
of GMAC Mortgage ("GMAC") in the original amount of
$120, 421 and a mortgage pledging the Grafs' new
residence at 3590 Rolling Hills Lane, Grove City, Ohio 43123,
as security for the note. The note was insured by the Federal
Housing Authority ("FHA"). GMAC subsequently
endorsed the note in blank.
3} On February 7, 2013, the Grafs were informed
Ocwen had assumed the servicing responsibility for their FHA
loan. On July 28, 2014, Ocwen sent a letter to the Grove City
address notifying the Grafs of a default in payment and
informing the Grafs Ocwen intended to accelerate the balance
due on the note. There is no dispute in this case the Grafs
defaulted on the note. An assignment of the mortgage to Ocwen
was recorded on March 24, 2015.
4} When Donna Graf passed away, her interest in the
property passed to her two children, Crawford and David S.
Graf. David S. Graf has not appeared in this action.
5} Pursuant to applicable federal regulations, the
note and corresponding mortgage places certain limitations on
Ocwen's right to declare a default and commence
foreclosure proceedings. More particularly, Section 9(d) of
the note provides in relevant part: "This Security
Instrument does not authorize acceleration or foreclosure if
not permitted by regulations of the Secretary." (Ex. B,
attached to Complaint.) The relevant regulations issued by
the FHA Secretary appear at 24 C.F.R. 203 et seq. Of critical
importance to this action is 24 C.F.R. 203.604, which
provides, in relevant part, as follows:
(b) 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
meeting within 30 days after such default and at least 30
days before foreclosure is commenced, or at least 30 days
before assignment is requested if the mortgage is insured on
Hawaiian home land pursuant to section 247 or Indian land
pursuant to section 248 or if assignment is requested under
§ 203.350(d) for mortgages authorized by section 203(q)
of the National Housing Act.
(c)A face-to-face meeting is not required if:
(2) The mortgaged property is not within 200 miles of the
mortgagee, its servicer, or a branch office of either.
6} On March 14, 2016, Ocwen commenced a foreclosure
action in the Franklin County Court of Common Pleas against
appellants and several other necessary parties. A copy of the
note and mortgage were attached as exhibits to the complaint
in support of Ocwen's allegation that it was both the
holder of the note at the time it filed the complaint and, as
assignee of the mortgage, the party entitled to initiate
7} On March 31, 2016, the Franklin County Treasurer
filed an answer to the complaint, and on April 11, 2016,
appellants filed their answer. Among the defenses asserted by
appellants were the following: "[Ocwen] is required to
provide him with notice of the interview and to actually
conduct a face-to-face interview with him prior to filing the
foreclosure complaint. These steps were not taken in this
case. Further, there are no exceptions that waive the
requirements of notice and conducting a face-to-face
interview. Moreover, the plaintiff failed to issue the
required notice informing David M. Graf of the opportunity of
having a face-to-face interview. Both the failure to conduct
the required interview and the failure to provide notice of
the interview are violations of 24 C.F.R.
§203.604(b)." (Apr. 11, 2016 Answer at ¶ 3.)
8} On January 17, 2017, Ocwen filed a motion for
summary judgment on the complaint. In support of the motion,
Ocwen submitted the affidavit of Jesse Rosenthal, Ocwen's
contract management coordinator. Rosenthal's affidavit
contains the following relevant averments:
1. * * * I am over the age of eighteen years, and I have
personal knowledge of the facts and matters stated herein.
The statements set forth in this Affidavit are true and
correct, to the best of my knowledge and belief.
* * *
14. [P]ursuant to the regulations of the U.S. Department of
Housing and Urban Development, no attempts to conduct a
face-to-face meeting were necessary and required because the
mortgaged property is not within 200 miles of the mortgagee,
its servicer or a branch office of either.
(Rosenthal Aff. at 1, 4, attached to Pl.'s Mot. for Summ.
9} On February 28, 2017, appellants filed a
memorandum in opposition to Ocwen's motion for summary
judgment and a cross-motion for summary judgment. Appellants
submitted the affidavit of Graf both in opposition to
Ocwen's motion for summary judgment and in support of
appellants' cross-motion for summary judgment. In his
affidavit, Graf avers as follows:
Having been duly cautioned, the affiant says the following
statements are true:
* * *
4. The plaintiff, Ocwen Loan Servicing, has not pursued
reasonable loss mitigation efforts. There should be no
forfeiture of my right to own real ...