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RBS Citizens NA v. Sharp

Court of Appeals of Ohio, Seventh District, Mahoning

June 22, 2018

RBS CITIZENS NA, Plaintiff-Appellee,
v.
MARY KAY SHARP ET AL., Defendants-Appellants.

          Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2016 CV 01543.

          Affirmed. Atty. Phillip Barragate and Atty. Ashlyn Heider, Shapiro Van Ess Phillips & Barragate, 4805 Montgomery Road, Suite 320, Norwood, Ohio 44512, for Plaintiff-Appellee.

          Atty. Bruce Broyles, Bruce M. Broyles Co LPA, 164 Griswold Drive, Boardman, Ohio 44512, for Defendant-Appellant.

          BEFORE Gene Donofrio, Cheryl L. Waite, Kathleen Bartlett, Judges.

          OPINION AND JUDGMENT ENTRY

          Donofrio, J.

         {¶1} Defendant-appellant, Mary Kay Sharp, appeals the judgment of the Mahoning County Court of Common Pleas granting summary judgment in favor of plaintiff-appellee, Citizens Bank, NA fka RBS Citizens, NA.

         {¶2} On January 13, 2010, appellant executed a promissory note which was secured by a mortgage in favor of appellee. On April 1, 2010, appellant defaulted on the note. Appellee filed a foreclosure complaint against appellant on August 9, 2011.

         {¶3} Appellee moved for summary judgment with the trial court and appellant opposed said motion. The trial court granted summary judgment in favor of appellee. Summary judgment in favor of appellee was reversed and remanded by this Court on appeal. RBS Citizens, NA v. Sharp, 7th Dist. No. 13 MA 11, 2015-Ohio-5438. In our reasoning, we held that the note and mortgage were governed by 24 CFR § 203.604(d) which required the mortgagee to make a reasonable effort to arrange a face-to-face meeting with the mortgagor prior to initiating a foreclosure action. The mortgagee is required to send a letter to the mortgagor via certified mail attempting to arrange a face-to-face meeting. While appellee sent the letter detailing appellant's right to a face-to-face meeting, it was done via regular mail and not certified mail. Because the letter was not sent by certified mail, this Court held that there were genuine issues of material fact concerning appellee's compliance with CFR 24 § 203.604.

         {¶4} On remand, the trial court denied appellee's motion for summary judgment on the basis that there were factual issues regarding appellee's compliance with CFR 24 § 203.604. Appellee dismissed its complaint without prejudice.

         {¶5} On May 13, 2016, appellee sent appellant a letter via certified mail informing appellant of her right to request a face-to-face meeting. On June 4, 2016, appellee sent a representative to appellant's residence to discuss arranging a face-to-face meeting. Appellant declined the request for the face-to-face meeting and indicated that any information she received from appellee's representative would be forwarded to her attorney. Three days later, on June 7, 2016, appellee filed another complaint in foreclosure against appellant and her husband, James Sharp.

         {¶6} Appellee filed another motion for summary judgment on its foreclosure claim. In this motion, appellee attached an affidavit from Ida Goode, a foreclosure specialist employed with appellee. The motion also contained numerous exhibits which showed: the existence of a promissory note between appellant, appellant's husband, and appellee, an open end mortgage on appellant's property, an assignment of the mortgage to appellee, a payment history which showed that appellant defaulted around April of 2010, and a letter from appellee to appellant dated May, 13, 2016 sent via certified mail which explained appellant's right to have a face-to-face interview to discuss possible foreclosure alternatives.

         {¶7} Appellant opposed appellee's motion for summary judgment arguing that there were genuine issues of material fact concerning appellee's compliance with 24 CFR § 203.604. Specifically, appellant argued that appellee "failed [to] put forth evidence that [appellee] [sic] to considered [appellant and her husband] for loss mitigation in the hierarchy required by [the Department of Housing and Urban Development] Mortgagee letter 00-05." (Memo in Opposition to Summary Judgment, 4). Specifically, appellant argued that there was no evidence appellee considered appellant for special forbearance or a partial claim in order to mitigate the loss. Additionally, appellant argued that shortly after appellee's representative visited appellant's residence, on advice of counsel, appellant contacted appellee and requested a loan modification application. But prior to receiving said application, appellee instituted this action.

         {¶8} In its judgment entry dated February 21, 2017, the trial court granted appellee's motion for summary judgment finding that appellee satisfied all Department of Housing and Urban Development (HUD) loss mitigation requirements. The trial court issued its final judgment entry for foreclosure in rem on March 6, 2017. Appellant timely filed this appeal on April 4, 2017. Appellant raises one assignment of error.

         {¶9} Appellant's sole ...


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