Ocwen Loan Servicing, L.L.C. v. Graf
2018 Ohio 2411
Ohio Ct. App.2018Background
- David M. Graf and his (then) wife executed an FHA-insured note and mortgage in 2009; Ocwen later became the loan servicer and recorded an assignment of mortgage.
- Ocwen notified the borrowers of default and initiated foreclosure in March 2016; borrowers admitted default but asserted regulatory defenses to foreclosure.
- 24 C.F.R. §203.604(b) requires a face-to-face interview (or reasonable attempt) before foreclosure unless the property is not within 200 miles of the mortgagee, servicer, or a branch office.
- Ocwen submitted an affidavit (Rosenthal) stating no office or branch existed within 200 miles, invoking the §203.604(b) exception.
- Graf submitted an affidavit attaching an unauthenticated screenshot purportedly from Ocwen’s website showing an Ocwen Springfield, Ohio address; Graf did not aver personal knowledge of the site or the branch’s functions.
- The trial court granted Ocwen summary judgment, concluding Graf’s evidence was inadmissible/insufficient; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Ocwen) | Defendant's Argument (Graf) | Held |
|---|---|---|---|
| Whether Ocwen complied with 24 C.F.R. §203.604(b) (face-to-face interview exemption) | Ocwen: property not within 200 miles of mortgagee/servicer/branch; exemption applies. | Graf: Ocwen has a Springfield, OH branch (per website), so the exemption does not apply and face-to-face interview was required. | Held: Ocwen met its summary-judgment burden; Graf’s affidavit and website printout were not properly authenticated or based on personal knowledge, so they could not create a factual dispute. |
| Admissibility/authentication of internet printout used to show branch location | Ocwen: printout is unauthenticated hearsay and Graf lacks personal knowledge. | Graf: offered the screenshot as Exhibit 2 to his affidavit to show Ocwen’s Springfield office. | Held: Screenshot unauthenticated and hearsay; Graf failed to make a prima facie showing of authenticity or personal knowledge, so it was inadmissible. |
| Whether a “branch office” must perform loan-servicing/origination functions to trigger §203.604(b) | Ocwen (alternative): even if a Springfield office existed, a branch must be staffed/qualified to conduct the face-to-face meeting (per Dumm). | Graf: cited cases holding "branch office" need not be limited to loan-servicing branches. | Held: Court did not decide the broader definitional question because Graf produced no admissible evidence of any Ocwen branch within 200 miles; summary judgment for Ocwen affirmed on that independent ground. |
| Whether Graf’s affidavit satisfied Civ.R. 56(E) personal-knowledge requirement | Ocwen: Graf’s affidavit lacks personal-knowledge averments and relies on hearsay. | Graf: affidavit asserts the screenshot and cites the website. | Held: Graf failed to aver personal knowledge or that the screenshot was a true/accurate copy; affidavit insufficient under Civ.R. 56(E). |
Key Cases Cited
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (summary-judgment burden-shifting framework)
- Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621 (Ohio 1992) (only evidence admissible at trial may be considered on summary judgment)
- Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314 (Ohio 2002) (personal knowledge requirement for witness testimony)
- United States v. Reilly, 33 F.3d 1396 (3d Cir. 1994) (prima facie authentication standard for documents)
- Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007) (standards and hurdles for authenticating website printouts/electronically stored information)
- Wells Fargo v. Phillabaum, 192 Ohio App.3d 712 (Ohio Ct. App. 2011) (affidavit stating a bank branch was within 200 miles held sufficient where affiant had visited the branch)