[Cite as Citimortgage, Inc. v. Kinney, 2012-Ohio-2896.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
CITIMORTGAGE, INC. SUCCESSOR JUDGES: BY MERGER TO ABN AMRO Hon. W. Scott Gwin, P.J. MORTGAGE GROUP, INC. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Plaintiff-Appellee Case No. CT2011-0065 -vs-
KEVIN E. KINNEY, ET AL. OPINION
Defendant-Appellants
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CE2010-0666
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 25, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellants
THOMAS L. HENDERSON MELISSA C. BENSON LERNER, SAMPSON & ROTHFUSS Southeastern Ohio Legal Services 120 East Fourth Street, 8th Floor 11 East Second Street Cincinnati, Ohio 45202 Chillicothe, Ohio 45601 Muskingum County, Case No. CT2011-0065 2
Hoffman, J.
{¶1} Defendants-appellants Kevin and Sandra Kinney appeal the November
15, 2011 Judgment Entry entered by the Muskingum County Court of Common Pleas
granting summary judgment and issuing a decree in foreclosure in favor of Plaintiff-
appellee CitiMortgage, Inc., successor in interest to ABN AMRO Mortgage Group, Inc.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellants executed a promissory note dated March 21, 2003, payable to
ABN AMRO Mortgage Group, Inc. in the amount of $132,289.00. The same date
Appellants executed and delivered a mortgage to ABN AMRO Mortgage Group, Inc.
The mortgage encumbers real property commonly known as 1850 Jackson Road,
Zanesville, Ohio 43701, and was filed for record on March 31, 2003.
{¶3} Appellants later filed for Chapter 7 Bankruptcy protection, and received a
discharge. Accordingly, Appellants are immune from personal liability on the note.
Appellants did not enter into a reaffirmation agreement with ABN AMRO or redeem the
debt on the property pursuant to the United States Bankruptcy Code.
{¶4} In 2007, ABN AMRO Mortgage Group, Inc. was acquired by and merged
with CitiMortgage, Inc. Thereafter, Appellants ceased making payments. Appellants
and Appellee executed a loan modification in March 2009; however, they later again
ceased making payments.
{¶5} On October 12, 2010, CitiMortgage filed a complaint for foreclosure.
Appellants filed an answer in response. On January 3, 2011, Appellants amended their
answer, alleging CitiMortgage failed to comply with HUD regulations in the proceedings. Muskingum County, Case No. CT2011-0065 3
{¶6} On May 20, 2011, CitiMortgage moved for summary and default judgment.
On June 2, 2011, Appellants filed an opposition to the motion and a cross-motion for
summary judgment.
{¶7} On November 15, 2011, the trial court granted summary judgment and
issued a decree in foreclosure in favor of CitiMortgage, Inc.
{¶8} Appellants now appeal, assigning as error:
{¶9} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO PLAINTIFF AND DENYING DEFENDANTS’ SUMMARY JUDGMENT MOTION
WHERE PLAINTIFF FAILED TO PROVE THAT IT COMPLIED WITH THE FHA
SERVICING REQUIREMENTS, A CONDITION PRECEDENT TO FORECLOSURE.”
{¶10} As cross-assignment of error, CitiMortgage assigns as error:
{¶11} “I. THE TRIAL COURT ACTED PROPERLY IN GRANTING SUMMARY
JUDGMENT TO CITIMORTGAGE AND DENYING SUMMARY JUDGMENT TO THE
KINNEYS BECAUSE THE KINNEYS’ DISCHARGE, PURSUANT TO THE UNITED
STATES BANKRUPTCY CODE, MATERIALLY ALTERED THE NOTE, ABSENT
REAFFIRMATION OF THE DEBT.”
{¶12} We will address the assignment of error and the cross-assignment of error
together, as they raise common and interrelated arguments.
{¶13} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Muskingum County, Case No. CT2011-0065 4
{¶14} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
the moving party is entitled to judgment as a matter of law; and 3) it appears from the
evidence that reasonable minds can come to but one conclusion and viewing such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.
(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.
{¶15} It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for
granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280
at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that
the nonmoving party cannot prove its case, bears the initial burden of informing the trial
court of the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on the essential element(s)
of the nonmoving party's claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no
evidence to prove its case. Rather, the moving party must be able to specifically point to
some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the
nonmoving party has no evidence to support the nonmoving party's claims. If the
moving party fails to satisfy its initial burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its initial burden, the nonmoving party
then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing Muskingum County, Case No. CT2011-0065 5
there is a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.” The record on
summary judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.
{¶16} Appellants maintain the trial court erred in granting summary judgment in
favor of CitiMortgage and issuing the decree in foreclosure as CitiMortgage did not
conduct a face-to-face interview as required by 24 C.F.R. Section 203.604, and did not
provide a notice of default which was timely and which spoke to an "assignment" of the
loan to HUD.
{¶17} Appellee CitiMortgage argues the trial court properly granted summary
judgment in their favor as Appellants Bankruptcy discharge pursuant to the U.S.
Bankruptcy Code materially altered the note, absent a reaffirmation of the debt. Thus,
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[Cite as Citimortgage, Inc. v. Kinney, 2012-Ohio-2896.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
CITIMORTGAGE, INC. SUCCESSOR JUDGES: BY MERGER TO ABN AMRO Hon. W. Scott Gwin, P.J. MORTGAGE GROUP, INC. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Plaintiff-Appellee Case No. CT2011-0065 -vs-
KEVIN E. KINNEY, ET AL. OPINION
Defendant-Appellants
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CE2010-0666
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 25, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellants
THOMAS L. HENDERSON MELISSA C. BENSON LERNER, SAMPSON & ROTHFUSS Southeastern Ohio Legal Services 120 East Fourth Street, 8th Floor 11 East Second Street Cincinnati, Ohio 45202 Chillicothe, Ohio 45601 Muskingum County, Case No. CT2011-0065 2
Hoffman, J.
{¶1} Defendants-appellants Kevin and Sandra Kinney appeal the November
15, 2011 Judgment Entry entered by the Muskingum County Court of Common Pleas
granting summary judgment and issuing a decree in foreclosure in favor of Plaintiff-
appellee CitiMortgage, Inc., successor in interest to ABN AMRO Mortgage Group, Inc.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellants executed a promissory note dated March 21, 2003, payable to
ABN AMRO Mortgage Group, Inc. in the amount of $132,289.00. The same date
Appellants executed and delivered a mortgage to ABN AMRO Mortgage Group, Inc.
The mortgage encumbers real property commonly known as 1850 Jackson Road,
Zanesville, Ohio 43701, and was filed for record on March 31, 2003.
{¶3} Appellants later filed for Chapter 7 Bankruptcy protection, and received a
discharge. Accordingly, Appellants are immune from personal liability on the note.
Appellants did not enter into a reaffirmation agreement with ABN AMRO or redeem the
debt on the property pursuant to the United States Bankruptcy Code.
{¶4} In 2007, ABN AMRO Mortgage Group, Inc. was acquired by and merged
with CitiMortgage, Inc. Thereafter, Appellants ceased making payments. Appellants
and Appellee executed a loan modification in March 2009; however, they later again
ceased making payments.
{¶5} On October 12, 2010, CitiMortgage filed a complaint for foreclosure.
Appellants filed an answer in response. On January 3, 2011, Appellants amended their
answer, alleging CitiMortgage failed to comply with HUD regulations in the proceedings. Muskingum County, Case No. CT2011-0065 3
{¶6} On May 20, 2011, CitiMortgage moved for summary and default judgment.
On June 2, 2011, Appellants filed an opposition to the motion and a cross-motion for
summary judgment.
{¶7} On November 15, 2011, the trial court granted summary judgment and
issued a decree in foreclosure in favor of CitiMortgage, Inc.
{¶8} Appellants now appeal, assigning as error:
{¶9} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO PLAINTIFF AND DENYING DEFENDANTS’ SUMMARY JUDGMENT MOTION
WHERE PLAINTIFF FAILED TO PROVE THAT IT COMPLIED WITH THE FHA
SERVICING REQUIREMENTS, A CONDITION PRECEDENT TO FORECLOSURE.”
{¶10} As cross-assignment of error, CitiMortgage assigns as error:
{¶11} “I. THE TRIAL COURT ACTED PROPERLY IN GRANTING SUMMARY
JUDGMENT TO CITIMORTGAGE AND DENYING SUMMARY JUDGMENT TO THE
KINNEYS BECAUSE THE KINNEYS’ DISCHARGE, PURSUANT TO THE UNITED
STATES BANKRUPTCY CODE, MATERIALLY ALTERED THE NOTE, ABSENT
REAFFIRMATION OF THE DEBT.”
{¶12} We will address the assignment of error and the cross-assignment of error
together, as they raise common and interrelated arguments.
{¶13} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Muskingum County, Case No. CT2011-0065 4
{¶14} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
the moving party is entitled to judgment as a matter of law; and 3) it appears from the
evidence that reasonable minds can come to but one conclusion and viewing such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.
(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.
{¶15} It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for
granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280
at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that
the nonmoving party cannot prove its case, bears the initial burden of informing the trial
court of the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on the essential element(s)
of the nonmoving party's claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no
evidence to prove its case. Rather, the moving party must be able to specifically point to
some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the
nonmoving party has no evidence to support the nonmoving party's claims. If the
moving party fails to satisfy its initial burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its initial burden, the nonmoving party
then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing Muskingum County, Case No. CT2011-0065 5
there is a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.” The record on
summary judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.
{¶16} Appellants maintain the trial court erred in granting summary judgment in
favor of CitiMortgage and issuing the decree in foreclosure as CitiMortgage did not
conduct a face-to-face interview as required by 24 C.F.R. Section 203.604, and did not
provide a notice of default which was timely and which spoke to an "assignment" of the
loan to HUD.
{¶17} Appellee CitiMortgage argues the trial court properly granted summary
judgment in their favor as Appellants Bankruptcy discharge pursuant to the U.S.
Bankruptcy Code materially altered the note, absent a reaffirmation of the debt. Thus,
Appellee argues Appellants effectively waived their rights to HUD requirements. We
find the argument raised in Appellee’s cross-assignment of error regarding waiver as a
result of Appellants’ bankruptcy discharge and failure to redeem was not raised in the
trial court. As such we find it cannot be raised on appeal. Accordingly, Appellee’s
cross-assignment of error is overruled.
{¶18} Pursuant to our previous opinion in U.S. Bank, N.A. v. Detweiler, Stark
App. No. 2011CA00095, 2012-Ohio-73, we find at a minimum there remains a disputed
fact as to whether CitiMortgage failed to comply with the HUD requirements herein.
{¶19} In Detweiler, this Court held, Muskingum County, Case No. CT2011-0065 6
{¶20} "Appellants assert the trial court erred in granting summary judgment in
favor of U.S. Bank as U.S. Bank failed to produce evidence it complied with conditions
precedent prior to initiating the within foreclosure proceedings.
{¶21} "Appellants' loan at issue was a FHA insured loan; thus, subject to the
requirements of 24 C.F.R. 203.604, including a face-to-face interview as a condition
precedent to foreclosure. On remand from the first appeal, U.S. Bank argued it did not
have to satisfy the face-to-face interview requirement of 24 C.F.R. 203.604 as
Appellants were in bankruptcy. As set forth in the Statement of the Facts and Case
supra, this Court previously reversed the decision of the trial court and remanded the
matter for further proceedings to determine whether U.S. Bank complied with certain
conditions precedent to foreclosure. U.S. Bank, N.A. v. Detweiler, 191 Ohio App.3d 464,
946 N.E.2d 777, 2010–Ohio–6408. This Court held U.S. Bank must first establish it
complied with 24 C.F.R. 203.604 by having a face-to-face interview with Appellants, or
by making a reasonable attempt to arrange a face-to-face interview before bringing the
foreclosure action. Id. This Court held sending a certified letter is 'the minimum
requirement for a reasonable effort to arrange a face-to-face meeting.' Id."
{¶22} Applying Detweiler, the judgment of the Muskingum County Court of
Common Pleas is reversed and the matter is remanded to the trial court for further Muskingum County, Case No. CT2011-0065 7
proceedings in accordance with the law and this Opinion.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ John W. Wise _____________________ HON. JOHN W. WISE Muskingum County, Case No. CT2011-0065 8
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
CITIMORTGAGE, INC. SUCCESSOR BY : MERGER TO ABN AMRO MORTGAGE : GROUP, INC. : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : KEVIN E. KINNEY, ET AL. : : Defendant-Appellants : Case No. CT2011-0065
For the reasons stated in our accompanying Opinion, the judgment of the
Muskingum County Court of Common Pleas is reversed, and the matter is remanded to
that court for further proceedings in accordance with the law and our Opinion. Costs to
Appellee.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________ HON. JOHN W. WISE