Bank of Am. v. Bobovyik
2014 Ohio 5499
Ohio Ct. App.2014Background
- Appellant Douglas Bobovnyik executed a mortgage in 2008; Bank of America (successor to mortgagee) filed foreclosure in July 2012 seeking judgment for unpaid principal/interest.
- Appellant answered alleging (1) bank failed to comply with HUD §203.604 (face‑to‑face meeting requirement) before acceleration/foreclosure, (2) payments in June–Aug 2009 were not credited, and (3) bank refused his contractual right to reinstate in January 2010.
- Bank moved for summary judgment, attaching an affidavit and business records (payment history, a March 15, 2012 "face‑to‑face" HUD letter), and produced call/field notes in discovery showing attempted field visits after the letter.
- Appellant opposed with a short memorandum, attached discovery materials (including the bank’s call/field notes), but did not submit his own affidavit to authenticate or explain payments/reinstatement attempts.
- Trial court granted summary judgment for the bank; appellant appealed. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lender satisfied HUD §203.604 requirement to make a reasonable effort at a face‑to‑face meeting | Bank relied on its March 15, 2012 HUD letter offering a representative visit and incorporated production of field/"Homesaver" notes showing three attempted visits | Bobovyik argued the letter alone did not prove a trip occurred and thus did not meet the regulation’s minimum (letter + at least one trip) | Court held evidence (including discovery attachments showing three field visits, unobjected to) established reasonable efforts; no genuine issue remained |
| Whether the timing of the lender’s face‑to‑face efforts (after earlier notice of intent to accelerate) voided compliance | Bank: HUD timing is aspirational; lender must comply before filing foreclosure, not necessarily within first three months of default | Bobovyik: efforts occurred long after notice to accelerate (more than two years) so regulation’s timing not met | Court held timing did not bar foreclosure—efforts occurred before filing suit and HUD deadlines are not an absolute bar if cure efforts occur prior to commencement of foreclosure |
| Whether appellant raised a triable issue that payments (June–Aug 2009) were made but not credited | Bank produced business records showing no credited payments; urged appellant to present admissible evidence (affidavit/receipts) | Bobovyik relied on a call note (business record recounting his claim) to show he told the bank payments were made | Court held the call note was inadmissible hearsay to prove payments (double hearsay); appellant failed to produce admissible evidence or affidavit, so no genuine factual dispute existed |
| Whether appellant established he was denied the contractual right to reinstate by tendering all amounts due | Bank argued appellant offered no evidence of a lump‑sum tender of the full amount due and that additional fees accrued before January 25, 2010 | Bobovyik pointed to call notes saying he would send two payments (totaling more than alleged deficiency) and a request‑for‑admissions assertion that he arranged to pay the deficiency | Court held appellant did not present evidence of a proper lump‑sum tender or that the amounts he proposed would have satisfied reinstatement; his statements in call notes were hearsay or speculative and he failed to direct the court to his admission, so summary judgment was appropriate |
Key Cases Cited
- Byrd v. Smith, 850 N.E.2d 47 (Ohio 2006) (summary judgment standard and burdens)
- Dresher v. Burt, 662 N.E.2d 264 (Ohio 1996) (party moving for summary judgment must initially show absence of genuine issue; reciprocal burden on nonmovant)
- Mastran v. Urichich, 523 N.E.2d 509 (Ohio 1988) (limitations on using a party’s out‑of‑court statements within business records to prove truth of the matter asserted)
- State ex rel. Gilmour Realty, Inc. v. Mayfield Heights, 910 N.E.2d 455 (Ohio 2009) (parties may waive objections to technical noncompliance with Civ.R. 56(C) by failing to object)
- Washington Bank v. Mahaffey, 796 N.E.2d 39 (Ohio App. 2003) (construing HUD §203.604 timing as encouraging early efforts but not an absolute bar to foreclosure if efforts occur before filing)