Court of Appeals of Ohio, Seventh District, Mahoning
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.
Bruce Broyles, Bruce M. Broyles Co LPA, 164 Griswold Drive,
Boardman, Ohio 44512, for Defendant-Appellant.
Gene Donofrio, Cheryl L. Waite, Kathleen Bartlett, Judges.
OPINION AND JUDGMENT ENTRY
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.
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,
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 §
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.
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.
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
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.
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.
Appellant's sole ...