Case Information
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[Cite as
Fifth Third Mtge. Co. v. Orebaugh
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IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
FIFTH THIRD MORTGAGE CO., :
CASE NO. CA2012-08-153 Plaintiff-Appellee, :
O P I N I O N : 4/29/2013 - vs -
:
REBECCA OREBAUGH, et al., :
Defendants-Appellant. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2010-08-3193
Graydon Head & Ritchey, LLP, Stacy A. Cole and Harry J. Finke, IV, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio 45202, for plaintiff-appellee Worrell A. Reid, 6718 Loop Road, #2, Centerville, Ohio 45459, for defendant-appellant, Rebecca Orebaugh
S. POWELL, J. A homeowner appeals a decision granting summary judgment in a foreclosure action in favor of the mortgage company. We affirm the grant of summary judgment to the mortgage company for the reasons outlined below. Appellant, Rebecca Orebaugh, executed a promissory note secured by a
mortgage on real property with appellee, Fifth Third Mortgage Company, in 2007. The loan *2 was modified in 2009. Fifth Third filed a complaint in foreclosure in Butler County Common Pleas Court on August 2, 2010. Fifth Third moved for and was granted summary judgment.
{¶ 3} Orebaugh now appeals, raising two assignments of error for our review. We note that an individual identified as Orebaugh's spouse was originally listed as a defendant, but is not part of this appeal. For ease of discussion in this appeal, we will combine both assignments of error and address them in reverse order.
{¶ 4} Assignment of Error No. 2: THE TRIAL COURT'S ORDER GRANTING PLAINTIFF'S THIRD MOTION FOR SUMMARY JUDGMENT WAS INCORRECT AS A MATTER OF LAW AS THE EVIDENCE CREATED A TRIABLE ISSUE OF FACT RELATING TO PLAINTIFF'S/APPELLANT'S FAILURE TO JOIN AN INDISPENSABLE PARTY, MAKING SUMMARY DISPOSITION INAPPROPRIATE. Assignment of Error No. 1: THE TRIAL COURT'S ORDER GRANTING PLAINTIFF'S THIRD MOTION
FOR SUMMARY JUDGMENT WAS INCORRECT AS A MATTER OF LAW AS THE EVIDENCE CREATED A TRIABLE ISSUE OF FACT RELATING TO APPELLANT'S DEFAULT ON THE NOTE AND MORTGAGE. Summary judgment is proper where (1) there is no genuine issue of material
fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds
can only come to a conclusion adverse to the party against whom the motion is made,
construing the evidence most strongly in that party's favor. Chase Manhattan Mortg. Corp. v.
Urquhart , 12th Dist. Nos. CA2004-04-098, CA2004-10-271,
was not proper because Fifth Third failed to join Fannie Mae and the United States as parties to the case, when she alleges they are owners of the note and mortgage. The record indicates that Fifth Third stated in an affidavit filed for purposes of summary judgment that it is the holder of the note and mortgage at issue and Fannie Mae owns the note and mortgage. It is well-settled that the real party in interest in a foreclosure action is the
current holder of the note and mortgage. BAC Home Loans Servicing, LP v. Kolenich , 12th
Dist. No. CA2012-01-001,
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In addition, Civ.R. 17(A) provides that every action shall be prosecuted in the
name of the real party in interest, and in a foreclosure action, the entity that is the current
holder of the note and mortgage is the real party in interest. Deutsche Bank Natl. Trust Co.
v. Sexton , 12th Dist. No. CA2009-11-288,
we find there are no genuine issues of material fact and reasonable minds can come to but one conclusion, and that conclusion is adverse to Orebaugh. The evidence shows that Fifth Third is the holder of the note and mortgage and was entitled to bring this foreclosure action. Therefore, Orebaugh failed to show that failure to join the owner of the note precluded summary judgment. Summary judgment to Fifth Third is appropriate on the issue of failure to join the owner of the note. Orebaugh's second assignment of error is overruled. Orebaugh next argues under her first assignment of error that there are genuine issues of material fact regarding whether she was in default of payment. Specifically, Orebaugh argues that she received an inadequate notice of default because the amount of the default as stated by Fifth Third in its default notice was incorrect and she tendered payments that were rejected. The promissory note in this case states in paragraph 6, in pertinent part:
If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of the Principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means According to paragraph 7, any notice that must be given to the borrower under
the note will be given by delivering it or by mailing it by first class mail to the borrower. *5 Paragraph 22 of the mortgage states, in part, that the lender shall give notice to borrower prior to acceleration, following borrower's breach of any covenant or agreement. The notice shall specify: the default; the action required to cure the default; a date, not less than 30 days from the date the notice is given to the borrower, by which default must be cured; and that failure to cure the default on or before date specified in the notice may result in acceleration of the sums secure by this security instrument, foreclosure by judicial proceeding and sale of the property. The notice should also inform the borrower of the right to reinstate after acceleration and the right to assert in the foreclosure preceding the non- existence of a default or any other defense to acceleration and foreclosure. Paragraph 15 of the mortgage stated that notices to borrower shall be deemed
given when mailed by first class mail or when actually delivered to borrower's notice address, if sent by other means. Fifth Third provided an affidavit of an employee for Fifth Third Bank, as
servicing agent for Fifth Third Mortgage Company, who has custody of the records for Orebaugh's loan. The affiant stated that Orebaugh is in default of payment on the note because the payment for April 2010 and thereafter has not been paid. Fifth Third's complaint, as well as the aforementioned affidavit averred that Fifth Third performed all of the prerequisites necessary under the note and mortgage to accelerate the note balance. The affiant stated that a letter attached to the affidavit was sent to Orebaugh by ordinary mail. The letter, dated June 2, 2010, included statements that Orebaugh was in default of payment, provided a deadline for payment of the past-due amounts, and indicated the note would be accelerated if the default was not cured. The complaint in foreclosure was filed on August 2, 2010. In reference to her first assertion, Orebaugh avers in her affidavit attached to a
previous responsive pleading that she "generally paid $475.00 (including taxes and interest) *6 pursuant to the terms of the modified HAMP loan," and did not owe the amount of $1968.98, as stated in the notice of default. She also claims she attempted to "bring the debt current," but Fifth Third refused the "tendered payments." For purposes of this discussion, "HAMP," as explained by the appellate court in
CitiMortgage, Inc. v. Carpenter , 2nd Dist. No. 24741,
offered by way of affidavit, standing alone and without corroborating materials under Civ.R.
56 will not be sufficient to demonstrate material issues of fact. Hillstreet Fund III, L.P. v.
Bloom , 12th Dist. No. CA2009-07-178,
default because it was required to provide notice in accordance with 24 C.F.R. 203.606 and *7 other procedures because her loan was "federally affected" as a result of the HAMP loan modification. Specifically, Orebaugh states in her affidavit that she "was never given a notice of default as prescribed by the Secretary of Housing and Urban Development (HUD), nor a face-to-face interview before the foreclosure was filed." First, we note that Fifth Third's complaint averred that it performed all of the
conditions precedent required to be performed. A review of Orebaugh's answer indicates that she generally asserted that Fifth Third failed "to give the notices required by the terms of the note and modification agreement." To the extent that Orebaugh is alleging the notices required by the note and
modification agreement were conditions precedent to filing the foreclosure, this court
previously observed that, in dealing with a cause of action contingent upon the satisfaction of
some condition precedent, Civ.R. 9(C) requires the lender to plead that the condition has
been satisfied and permits the lender to aver generally that any conditions precedent to
recovery have been satisfied. First Financial Bank v. Doellman , 12th Dist. No. CA2006-02-
029,
of conditions precedent, a party denying the performance or occurrence of a condition precedent must do so specifically and with particularity. Id .; see Civ.R. 9(C) (a general denial of performance of conditions precedent is not sufficient to place performance of a condition precedent in issue). Conditions precedent that are not denied in the manner provided by Civ.R. 9(C) are deemed admitted. Id . Even if Orebaugh's denials were sufficient, her argument fails for other reasons. The federal regulation cited by Orebaugh – 24 C.F.R. 203.606 – states, in
pertinent part, that a lender cannot commence foreclosure for a monetary default unless at least three full monthly installments due under the mortgage are unpaid, and it shall notify the *8 borrower in a specific format prescribed by the secretary of HUD that the borrower is in default and the lender intends to foreclose unless the default is cured. See also 24 C.F.R. 203.604 (lender must have face to face meeting with borrower or make reasonable effort to arrange such a meeting). Some courts have found that if the terms of a note and mortgage subject it to
HUD regulations regarding default and acceleration, then a homeowner may use a servicer's
failure to comply with those regulations to defend a foreclosure action. See, e.g., BAC Home
Loans Servicing, LP v. Taylor , 9th Dist. No. 26423,
HENDRICKSON, P.J. and PIPER, J., concur.