RBS Citizens, NA v. Sharp
47 N.E.3d 170
Ohio Ct. App.2015Background
- In 2010 the Sharps executed a HUD-insured Ginnie Mae mortgage with RBS Citizens and defaulted in April 2010; loss-mitigation discussions continued ~15 months before foreclosure was filed in August 2011.
- RBS moved for partial summary judgment, arguing it was excused from a HUD face‑to‑face meeting requirement because it had no branch within 200 miles; the magistrate granted partial summary judgment on that issue.
- The magistrate later held a bench trial on (1) whether RBS properly gave notice of the right to a face‑to‑face meeting and (2) whether RBS complied with HUD loss‑mitigation requirements; the magistrate found for RBS on both issues.
- The trial court adopted the magistrate’s decision; the Sharps appealed, challenging (a) the 200‑mile exemption, (b) whether notice was sent by certified mail as required, and (c) whether RBS complied with loss‑mitigation rules.
- The appellate court held that (1) RBS failed to prove the 200‑mile branch‑office exemption and summary judgment on that point was improper, (2) RBS’s notice was sent by regular mail and thus did not meet the certified‑mail minimum under C.F.R. §203.604(d), and (3) RBS substantially complied with HUD loss‑mitigation requirements.
Issues
| Issue | Plaintiff's Argument (RBS) | Defendant's Argument (Sharps) | Held |
|---|---|---|---|
| Whether RBS was excused from a face‑to‑face meeting under the 200‑mile branch‑office exception | RBS: “branch office” means servicing office; no servicing office within 200 miles so exception applies | Sharps: “branch office” means any branch; RBS didn’t prove absence of any branch within 200 miles | Court: Reversed summary judgment — Ohio law treats “branch office” as any branch; RBS failed to prove the exemption |
| Whether RBS made a reasonable effort to arrange a face‑to‑face meeting by mailing notice | RBS: mailed correspondence to Sharps (argues sufficiency) | Sharps: HUD requires at least one certified‑mail letter; regular mail insufficient | Court: Sustained — evidence shows notice was regular mail; certified mail is required under C.F.R. §203.604(d) |
| Whether RBS complied with HUD loss‑mitigation duties (considering loan modification) | RBS: evaluated options and reasonably chose a repayment plan because modification would require buying out Ginnie Mae loans | Sharps: RBS refused to consider modification; failure to consider all HUD options | Court: Overruled — RBS considered modification, found it unviable, and substantially complied with loss‑mitigation rules |
| Whether the partial summary judgment was immediately appealable | RBS: partial summary judgment with Civ.R. 54(B) language was final | Sharps: partial order not final because remaining issues arise from same facts; objection timely after full resolution | Court: Agreed with Sharps — partial summary judgment wasn’t immediately appealable here; issues not waived |
Key Cases Cited
- Noble v. Colwell, 44 Ohio St.3d 92 (1989) (definition of a final appealable order)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (summary judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (moving and nonmoving party burdens on summary judgment)
- Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352 (1993) (procedure for Civ.R. 54(B) finality analysis)
- Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86 (1989) (discussion of related claims and finality)
- CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299 (2014) (identifies final appealable orders in foreclosure actions)