Wells Fargo Bank, N.A. v. Horn
2016 Ohio 1573
Ohio Ct. App.2016Background
- Wells Fargo filed a foreclosure complaint (Apr 19, 2010) against Brian and Carol Horn on an FHA‑insured mortgage; Horn asserted bankruptcy immunity as to the note and opposed foreclosure on procedural grounds.
- Wells Fargo moved for summary judgment; Horn filed a pro se response then retained counsel and filed an answer; the magistrate and trial court granted summary judgment and later issued a decree of foreclosure.
- Horn appealed; this Court initially reversed for lack of demonstrated standing at filing, but the Ohio Supreme Court held standing may be proved after filing and remanded for consideration of Horn’s other assignments of error.
- On remand Horn argued, among other things, that Wells Fargo failed to make the 24 C.F.R. §203.604 required “reasonable efforts” to arrange a face‑to‑face interview before foreclosure; Wells Fargo relied on five letters and an affidavit that Horn did not respond and that no servicing office was within 200 miles.
- Horn submitted an affidavit denying a face‑to‑face meeting and asserting Wells Fargo had a branch within 200 miles (North Olmsted); the trial court adopted the magistrate’s finding that the letters satisfied the regulation and granted summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wells Fargo made "reasonable efforts" under 24 C.F.R. §203.604 to arrange a face‑to‑face interview before foreclosure | Horn: genuine issue of material fact exists because Wells Fargo did not both send certified letter and make a trip to the mortgaged property; Horn avers Wells Fargo had a nearby branch and no meeting occurred | Wells Fargo: sending five letters sufficed; Horn didn’t prove a meeting occurred; no office within 200 miles justified letter‑only effort | Court: Reversed summary judgment — genuine dispute exists because regulation requires both a certified letter and at least one trip unless an exception applies, and Wells Fargo failed to show the exception applied or that it made a trip |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (standard of review for summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (summary judgment test under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (party moving for summary judgment bears initial evidentiary burden)
- State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447 (reciprocal burden on non‑moving party to set forth specific facts)
- Wells Fargo v. Horn, 142 Ohio St.3d 416 (2015) (Ohio Supreme Court holding standing may be proved after the complaint is filed)