CitiMortgage, Inc. v. Hoge
962 N.E.2d 327
Ohio Ct. App.2011Background
- Hoge refinanced in 2005; executed a note/mortgage to American Equity Mortgage in 2006 for $85,500, later assigned to CitiFinancial then CitiMortgage.
- Hoge alleges AEM misrepresented the payment amount ( purported $680) not including taxes/insurance raising actual payment to $872 and failed to provide closing documents 3 days before closing.
- Before December 27, 2007 Hoge allegedly became delinquent; CitiMortgage filed foreclosure; Hoge sought multiple extensions to research loan documents and prepare responsive filings.
- Hoge filed an answer and counterclaims on September 2, 2008 asserting fraud/misrepresentation, TILA, RESPA, and intentional infliction of emotional distress.
- CitiMortgage moved for summary judgment February 2, 2009; magistrate later held CitiMortgage had standing and granted summary judgment on March 26, 2010; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hoge was properly afforded opportunity to respond to summary judgment | Hoge denied adequate time to respond to merits of motion | Record shows extended time requests were denied implicitly; sufficient notice and time existed | No reversible error; Hoge had ample time; no due-process violation |
| Whether CitiMortgage had standing to foreclose as holder of the note/mortgage | Standing contested due to assignment history and origination concerns | Assignee inherits rights and defenses; CitiMortgage valid holder | CitiMortgage had standing; foreclosure proper |
| Whether appellant’s fraud/misrepresentation defense survives against an assignee | AEM fraud could be asserted against assignee; fraud defenses survive assignment | Assignee takes contract subject to defenses, but appellant failed to prove specific fraud elements | Fraud defense failed; no genuine issue of material fact |
| Whether TILA/RESPA claims are barred or viable against the assignee | TILA/RESPA violations alleged; time limits may apply; assignee liable under certain theories | Regulations cited do not apply to real property sale; assignee liability is limited by statute | Claims either time-barred or not attributable to CitiMortgage; no liability established |
| Whether emotional distress claim can survive summary judgment | Emotional distress supported by conduct related to foreclosure | No contemporaneous physical injury and no genuineness guarantee; insufficient proof | TIED claim not viable; summary judgment affirmed on this claim |
Key Cases Cited
- Wells Fargo Bank, N.A. v. Sessley, 188 Ohio App.3d 213 (2010-Ohio-2902) (foreclosure after default and acceleration permits judgment)
- Bank One, N.A. v. Swartz, 2004-Ohio-1986 (Ohio) (default and acceleration support foreclosure judgment)
- Rose v. Natl. Mut. Ins. Co., 134 Ohio App.3d 229 (1999-Ohio-) (trial court must consider moving party’s burden even if no response filed)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary-judgment standard; burden shifting for movant/nonmovant)
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988) (summary-judgment standards; Civ.R. 56 considerations)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (no genuine issue of material fact requisite for summary judgment)
- Brown v. Akron Beacon Journal Publishing Co., 81 Ohio App.3d 135 (1991) (due-process considerations and notice for summary judgment)