Ocwen Loan Servicing, Inc. v. McBenttes , 2022 Ohio 278 ( 2022 )

[Cite as Ocwen Loan Servicing, Inc. v. McBenttes, 2022-Ohio-278.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
OCWEN LOAN SERVICING, LLC C.A. No. 29688
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
OSCAR MCBENTTES, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellants CASE No. CV-2018-04-1632
DECISION AND JOURNAL ENTRY
Dated: February 2, 2022
SUTTON, Judge.
{¶1} Defendants-Appellants, Oscar and Erin McBenttes, appeal the judgment of the
Summit County Court of Common Pleas, granting summary judgment in favor of Plaintiff-
Appellee, Ocwen Loan Servicing, LLC (“Ocwen”). For the reasons that follow, this Court
affirms.
I.
Relevant Background
{¶2} As set forth in Ocwen Loan Servicing, LLC v. McBenttes, 9th Dist. Summit No.
29343, 2019-Ohio-4884, ¶ 2 (“Ocwen I”):
In April 2018, [Ocwen] filed a complaint in foreclosure against the McBentteses
alleging default on a promissory note secured by the subject property. Ocwen
moved for summary judgment on its complaint, to which the McBentteses
responded in opposition, arguing in part that Ocwen had failed to meet a condition
precedent of the mortgage by failing to conduct a face-to-face interview with the
McBentteses. On February 20, 2019, the trial court granted Ocwen’s motion for
summary judgment and entered a decree of foreclosure.
2
The McBentteses timely appealed. In their sole assignment of error, the McBentteses asserted
“the trial court erred in granting summary judgment because genuine issues of material fact
remained in dispute as to whether Ocwen was exempt from complying with the requirements of
24 C.F.R. 203.604 (c)(2).” Id. at ¶ 3. The exemption to a face-to-face meeting pursuant to 24
C.F.R. 203.604 (c)(2) states, in relevant part, “[a] face-to-face meeting is not required if * * *
[t]he mortgaged property is not within 200 miles of the mortgagee, its servicer, or a branch office
of either * * *.”
{¶3} In sustaining the McBentteses’ sole assignment or error and reversing the trial
court’s granting of summary judgment, the Ocwen I Court concluded:
In its judgment entry, the trial court failed to address the argument advanced by
the McBentteses regarding whether Ocwen, its servicer, or a branch office of
either was within 200 miles of the subject property. We are therefore unable to
ascertain if the argument was considered by the trial court, or rejected after
consideration by the court. Because the trial court did not address this issue in its
judgment entry, we are compelled to reverse and remand the matter to the trial
court to consider the McBentteses' argument in the first instance.
Id. at ¶ 9
{¶4} Upon remand, the trial court again granted summary judgment in favor of Ocwen.
In addressing the McBentteses’ argument regarding 24 C.F.R. 203.604 (c)(2) , the trial court
stated, in pertinent part, as follows:
***
In support of its motion for summary judgment, [Ocwen] has provided an
affidavit [from Daniel Delpesche], by which the affiant attests * * * that the
mortgaged property is not within 200 miles of the mortgagee, its servicer, or a
branch of either[.]* * * [Ocwen] also submitted a supplemental affidavit of
Contract Management Coordinator, Vital Philma, in which Affiant Philma
indicates personal knowledge of all business records related to this action, the
manner in which they were created, and personal review of the same. Affiant
Philma also indicates that the mortgaged property is not within 200 miles of the
mortgagee, or its servicer or a branch of either. Further, Affiant Philma
provides, “I attest that the location at One Assurant Way in Springfield, Ohio
3
45505 is not a location or branch office of Ocwen Loan Servicing, LLC. I further
attest that the address at the Assurant location is the mailing address for
insurance claims. I further attest that Ocwen Loan Servicing, LLC does not
maintain any servicing operations, services or activities out of that location.”
Further, [Ocwen] provides the following answers to discovery requests:
1) “Ocwen does not have its location or a branch office within 200 miles of the
mortgaged property.” (Interrogatory 2.)
2) Ocwen provided a specific denial of the [McBenttes’] request for admission
that the Springfield, Ohio address is a location or a branch office of Ocwen.
(Request for Admission 1.)
3) “Ocwen does not have a possessory interest in that building located at One
Assurant Way in Springfield, Ohio 45505.” (Interrogatory 15.)
4) “Ocwen does not have an ownership interest in that building located at One
Assurant Way in Springfield, Ohio 45505.” (Interrogatory 17.)
5) “Ocwen does not own any office equipment in that building located at One
Assurant Way in Springfield, Ohio 45505.” (Interrogatory 19.)
6) “Ocwen does not have any rents, leases or right to use any office equipment in
that building located at One Assurant Way in Springfield, Ohio 45505.”
(Interrogatory 20.)
7) “Ocwen does not have any employees in that building located at One
Assurant Way in Springfield, Ohio 45505.” (Interrogatory 21.)
8) “Ocwen does not have any employees or pay any wages to any employee in
that building located at One Assurant Way in Springfield, Ohio 45505.”
(Interrogatories 22-25.)
In support of their motion for an extension of time within which to file their
opposition to the motion for summary judgment, the McBentteses provided the
affidavit of their attorney, in which he asserts that he went “onto the website of
Ocwen Loan Servicing, LLC and [has] seen lists of various office addresses for
Ocwen Loan Servicing, LLC.” He also indicated that he “used a number of
internet map references which demonstrate that the location of the Ocwen Loan
Servicing, LLC office located at One Assurant Way in Springfield, Ohio is 175
miles from the mortgaged property.” And, in their response to the summary
judgment motion, the McBentteses assert, “[t]he website of [Ocwen] sets forth an
address where borrowers can send insurance loss drafts to One Assurant Way
Springfield, Ohio 45505.” This information appears to have been garnered from
4
Exhibit A to the McBentteses’ response, which is an unverified document alleged
to be a printout from [Ocwen’s] website.
***
Upon consideration of the arguments and evidence presented, the court finds that
the McBentteses have not carried their reciprocal burden of pointing to or
submitting some evidence that shows the existence of a genuine dispute over the
material facts. Besides the unverified document, which cannot be considered,
they have provided only the affidavit of their attorney, who indicates that his
search of various internet sites leads him to the conclusion that the One Assurant
Way office is within 175 miles of the mortgaged property. Such is not evidence
based on personal knowledge that creates a dispute of material fact in light of the
uncontroverted discovery responses noted above and the uncontroverted affidavits
provided in support of [Ocwen’s] motion for summary judgment. Even if the
unverified document could be considered, it would not create an issue of material
fact, given that on its face it provides that the business at the address in question
concerns property insurance claims only.
***
(Emphasis added.)
{¶5} The McBentteses now appeal raising one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
WHEN THERE WERE GENUINE ISSUES OF MATERIAL FACT THAT
REMAINED IN DISPUTE REGARDING WHETHER [OCWEN] WAS
EXEMPT FROM COMPLYING WITH [24 C.F.R. 203.604 (c)(2)].
{¶6} In their sole assignment of error, the McBentteses argue the trial court erred in
granting Ocwen’s Civ.R. 56 motion for summary judgment. We disagree.
{¶7} Pursuant to Civ.R. 56, summary judgment is appropriate if:
(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving
party is entitled to judgment as a matter of law; and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing such evidence most
strongly in favor of the party against whom the motion for summary judgment is made,
that conclusion is adverse to that party.
5
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion
for summary judgment, the movant bears the initial burden of demonstrating that there are no
genuine issues of material fact concerning an essential element of the opponent's case. Dresher
v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party
“must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293, quoting
Civ.R. 56(E). This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996).
{¶8} Moreover, Civ.R. 56(C) sets forth an exclusive list of the evidentiary materials a
court may consider when determining how to rule on a motion for summary judgment.
Specifically, the court may consider “the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact[.]” Civ.R.
56(C). In addition, “the trial court may consider a type of document not expressly mentioned in
Civ.R. 56(C) if such document is ‘accompanied by a personal certification that [it is] genuine or
[is] incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E).’”
(Alterations sic.) Wallner v. Thorne, 189 Ohio App.3d 161, 2010-Ohio-2146, ¶ 18 (9th Dist.),
quoting Countrywide Home Loans, Inc. v. Rodriguez, 9th Dist. Lorain Nos. 03CA008345,
03CA008417, 2004-Ohio-4723, ¶ 9.
{¶9} In Ocwen Loan Servicing, LLC v. Graf, 10th Dist. Franklin No. 17AP-361, 2018-
Ohio-2411, (“Graf”) our sister Court, the Tenth District Court of Appeals, analyzed a similar
matter. The Graf record revealed that Ocwen, in its capacity as servicer of a Federal Housing
Authority loan, filed a motion for summary judgment seeking foreclosure against David M.
Graf and Michelle Graf Crawford for a property located at 3590 Rolling Hills Lane, Grove City,
Ohio 43123. Id. at ¶ 2-3. As evidentiary support for its motion, Ocwen attached the affidavit of
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Jesse Rosenthal, Ocwen’s contract management coordinator, which contained the following
relevant averment:
14. [P]ursuant to the regulations of the U.S. Department of Housing and Urban
Development, no attempts to conduct a face-to-face meeting were necessary and
required because the mortgaged property is not within 200 miles of the
mortgagee, its servicer or a branch office of either.
Id. at ¶ 8. The Grafs then filed a memorandum in opposition wherein they attached the affidavit
of David Graf, averring, in relevant part, that:
5. The servicer, Ocwen Loan Servicing, does have branch within 200 miles of
Columbus in Springfield, Ohio at One Assurant Way, Springfield, Ohio 45505 per
its website as noted in Exhibit 2.
(Emphasis in original.) Id. at ¶ 9. Further, Graf Exhibit 2, as described by the Tenth District
Court of Appeals, was a:
two-page document which looks to be a screen shot printed from an Internet
website. * * * The following information appears under the heading “Property
Insurance Claims”: * * *
Insurance Loss Drafts
One Assurant Way
Springfield, OH 45505
Id. at ¶ 10. In the reply brief in support of its motion for summary judgment, Ocwen argued
Graf’s averment regarding the existence of a Springfield, Ohio branch office was not based on
his personal knowledge and the unauthenticated screenshot attached to his affidavit contained
inadmissible hearsay. Id. at ¶ 12. The trial court, in granting Ocwen’s motion for summary
judgment, reasoned:
Accordingly, Ocwen maintained Graf's affidavit does not contain admissible
evidence to rebut Rosenthal's averment that “the mortgaged property is not within
200 miles of the mortgagee, its servicer or a branch office of either.” (Rosenthal
Aff. at ¶ 14.) In the alternative, Ocwen argued even if the trial court were to
consider Graf’s affidavit, pursuant to the decision of the Fourth District Court of
Appeals in Wells Fargo Bank, N.A. v. Dumm, 4th Dist. No. 13CA5, 2014-Ohio-
7
3124, the affidavit does not give rise to an issue of fact whether the mortgaged
property was within 200 miles of an Ocwen “branch office,” as that term is used
in 24 C.F.R. 203.604(c).
* * * [T]he averment in Graf’s affidavit regarding the Ocwen office in
Springfield, Ohio did not permit the inference that Ocwen had an office at that
location that conducted loan originating or loan servicing functions. The trial
court found, at best, the affidavit and documents attached thereto established that
Ocwen maintained an insurance claims office at the Springfield location.
Id. at ¶ 12-13.
{¶10} The Tenth District Court of Appeals affirmed the trial court’s granting of
summary judgment in favor of Ocwen. In so doing, the Tenth District stated:
***
Graf’s affidavit does not contain an averment that he has personal knowledge of
the information contained therein. The affidavit contains no other facts or
information which would permit the inference that Graf has personal knowledge
that Ocwen has a branch office in Springfield, Ohio. Unlike the affiant in
Phillabaum, Graf does not claim to have ever seen or visited the Springfield
branch, nor does he claim to have ever contacted the Springfield branch either by
telephone or other means.1 Consequently, Graf’s knowledge of the existence an
Ocwen Springfield branch office, if any, arises exclusively from the screen shot
attached to his affidavit as Exhibit 2.
***
Though we do not believe Graf needed to present the testimony of the Internet
webmaster in order to authenticate the screen shot at issue in this case, Graf's
affidavit essentially treats Exhibit 2 as a self-authenticating document. In our
opinion, Graf could not have done less in this case to establish his personal
knowledge of the existence of the Springfield office or to establish the screen shot
is authentic. Without any averment Exhibit 2 represents a true and accurate copy
of information from Ocwen’s website, and in the absence of substantial evidence
from which the trial court could infer the screen shot was authentic, we find
1
Notably, in Wells Fargo v. Phillabaum, 4th Dist. Highland No. 10CA10, 2011-Ohio-
1311, ¶ 11, the affidavit in support of the mortgagor’s cross-motion for summary judgment
stated: “Wells Fargo has at least one branch office within 200 miles of my home” and further
explained the mortgager visited that office on at least one prior occasion. As such, The Fourth
District Court of Appeals found the mortgagor’s affidavit sufficient “to carry his initial Civ.R.
56(C) burden, and thus, the burden shifted to the bank to provide rebuttal materials.” Id.
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Exhibit 2 is of no evidentiary value and could not be considered by the trial court
in ruling on Ocwen’s motion for summary judgment.
***
Id. at ¶ 25, 34.
{¶11} Here, the McBentteses’ counsel attached an affidavit, along with a screenshot of
what appears to be a list of addresses from Ocwen.com, to a motion for additional time to
respond to Ocwen’s motion for summary judgment. In the affidavit, the McBentteses’ counsel
averred he went onto Ocwen’s website and saw “lists of various office addresses for Ocwen
Loan Servicing, LLC” and he used “a number of internet map references which demonstrate
that the location of the Ocwen Loan Servicing, LLC located at One Assurant Way in
Springfield, Ohio is 175 miles from the mortgaged property.” The McBentteses’ counsel also
indicated he needed additional time for discovery and he had served Ocwen discovery on
December 6, 2018. The McBentteses’ counsel did not, however, authenticate the screenshot of
the purported Ocwen addresses as “true and accurate” information from Ocwen’s website, nor
did he attach any copies, authenticated or not, of the “internet maps” referenced in this affidavit.
As our sister Court indicated in Graf, the McBentteses’ counsel’s averment regarding his
internet searches did not demonstrate personal knowledge that the mortgaged property is within
200 miles of the mortgagee, its servicer, or a branch office of either. Moreover, the
unauthenticated screenshot attached to the McBentteses’ counsel’s affidavit contains
inadmissible hearsay.
{¶12} Further, in their memorandum in opposition to Ocwen’s motion for summary
judgment, the McBentteses attached the same unauthenticated list of purported addresses from
Ocwen.com, along with Ocwen’s original responses to the McBentteses’ discovery requests.
The McBentteses, however, did not attach an affidavit in support of their memorandum in
9
opposition to summary judgment attesting they had personal knowledge that the mortgaged
property is within 200 miles of the mortgagee, its servicer, or a branch office of either, at the
One Assurant Way address in Springfield, Ohio. Additionally, the McBentteses did not
authenticate the screenshot of the purported Ocwen address list as true and accurate information
from Ocwen’s website. Finally, the McBentteses did not acknowledge that, on its face, the
purported screenshot of Ocwen’s addresses demonstrates the One Assurant Way address relates
only to insurance claims.
{¶13} Ocwen, however, in support of its motion for summary judgment, provided the
verified affidavits of Daniel Delpesche and Vital Philma, wherein the affiants attested: (1) a
face-to-face meeting was not required in accordance with 24 C.F.R. 203.604 (c)(2) because the
mortgaged property is not within 200 miles of the mortgagee, its servicer, or a branch of either,
and (2) Ocwen Loan Servicing, LLC does not maintain any servicing operations, services or
activities out of the One Assurant Way location. Instead, as attested by Vital Philma, the One
Assurant Way location is used as a mailing address for insurance claims. Moreover, Ocwen
attached its supplemental responses to the McBentteses’ request for discovery wherein Ocwen
specifically indicated: (1) Ocwen does not have a possessory interest in the building located at
One Assurant Way; (2) Ocwen does not have an ownership interest in the building located at
One Assurant Way; (3) Ocwen does not own, rent, lease or use any office equipment in the
building located at One Assurant Way; and (4) Ocwen does not have, or pay wages to, any
employees in the building located at One Assurant Way.
{¶14} Thus, because Ocwen satisfied its initial burden, pursuant to Civ.R. 56, by
demonstrating there are no genuine issues of material fact concerning whether the mortgaged
property is within 200 miles of the mortgagee, its servicer, or a branch office of either, and
10
because the McBentteses failed to set forth specific facts showing there is a genuine issue with
regard to the face-to-face exemption for trial, the trial court did not err in granting summary
judgment in favor of Ocwen. See Dresher, 75 Ohio St.3d at 292-293; see also Civ.R. 56(E).
{¶15} Accordingly, the McBentteses’ sole assignment of error is overruled.
III.
{¶16} For the reasons stated above, the McBentteses’ sole assignment of error is
overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
BETTY SUTTON
FOR THE COURT
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CARR, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
BRUCE M. BROYLES, Attorney at Law, for Appellants.
SARAH A. WILSON and JOHN R. WIRTHLIN, Attorneys at Law, for Appellee.