U.S. Bank v. Schubert
2014 Ohio 3868
Ohio Ct. App.2014Background
- Homeowners Dennis and Sue Schubert were sued in foreclosure by U.S. Bank; they filed counterclaims against U.S. Bank and loan servicer Ocwen, including an FDCPA claim.
- The trial court denied dismissal as to breach-of-contract and implied covenant claims, but dismissed the FDCPA and several other counterclaims under Civ.R. 12(B)(6).
- The July 31, 2013 judgment included a Civ.R. 54(B) certification ("no just reason for delay"); the court later issued a nunc pro tunc entry attempting to remove that certification.
- The Schuberts appealed; the Court of Appeals first analyzed whether the July 31 order was a final, appealable order.
- On the merits, the Schuberts alleged U.S. Bank acquired the loan after default and that Ocwen serviced the loan while the account was in default and made false or misleading statements about arrearages, implicating 15 U.S.C. §1692e subsections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could convert a final, appealable order into a nonfinal order by a nunc pro tunc entry removing Civ.R. 54(B) language | Schuberts: The original entry with Civ.R. 54(B) is final and appealable; the nunc pro tunc could not erase a true prior entry | U.S. Bank/Ocwen: The Civ.R. 54(B) language was entered in error and should be removed nunc pro tunc | Court: Nunc pro tunc may only reflect what court actually did; removing the certification was improper because the original entry reflected an express determination supporting finality; the July 31 order is final and appealable |
| Whether dismissal of the FDCPA claim under Civ.R. 12(B)(6) was proper because defendants were creditors, not "debt collectors" | Schuberts: U.S. Bank and Ocwen treated/obtained the debt after default and made false statements, so they may be "debt collectors" under the FDCPA | U.S. Bank/Ocwen: Mortgagee/servicer are creditors and thus excluded from the FDCPA as a matter of law | Court: Reversed dismissal — whether a mortgagee/servicer is a debt collector depends on whether the debt was acquired or treated as in default; facts alleged support FDCPA claim and cannot be decided on the pleadings |
| Whether the FDCPA claim was foreclosed because foreclosure and breach claims would provide comparable relief | Schuberts: FDCPA seeks different relief and requires proof of different facts (misrepresentations) than foreclosure/breach claims | U.S. Bank/Ocwen: Foreclosure context shows creditor status and overlapping relief | Court: FDCPA claim affects substantial rights and involves different facts; immediate appeal and adjudication were appropriate |
| Whether alternative defenses (statute of limitations, recoupment, etc.) warranted dismissal at pleading stage | Schuberts: Not addressed; focused on sufficiency of pleadings | U.S. Bank/Ocwen: Raised alternative grounds for dismissal | Court: Declined to address alternative defenses because trial court made no findings on them; remanded for further proceedings |
Key Cases Cited
- Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352 (Ohio 1993) (two-part test for Civ.R. 54(B) certification; factual determination entitled to deference)
- State v. Greulich, 61 Ohio App.3d 22 (9th Dist. 1988) (proper scope and limits of nunc pro tunc entries)
- Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355 (6th Cir. 2012) (broad construction of FDCPA; non‑originating debt holders who acquired or treated debt as in default may be "debt collectors")
- McAnaney v. Astoria Fin. Corp., 357 F. Supp. 2d 578 (E.D.N.Y. 2005) (mortgagees/servicers that obtained/assumed debt before default are creditors and generally outside FDCPA)
- Castrillo v. American Home Mortgage Servicing, Inc., 670 F. Supp. 2d 516 (E.D. La. 2009) (distinguishing servicer/assignee status by timing of acquisition relative to default; factual issue not suited to dismissal)
- Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301 (9th Dist. 2002) (application of Wisintainer two-part analysis in appellate review)