Lakeview Loan Servicing, L.L.C. v. Schultz , 2019 Ohio 4689 ( 2019 )

[Cite as Lakeview Loan Servicing, L.L.C. v. Schultz, 2019-Ohio-4689.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Lakeview Loan Servicing, LLC, :
Plaintiff-Appellant, :
No. 18AP-399
v. : (C.P.C. No. 17CV-4507)
Robert D. Schultz, III et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on November 14, 2019
On brief: Thompson Hine LLP, Scott A. King, and Terry W.
Posey, Jr., for appellant. Argued: Scott A. King.
On brief: Thomas L. Sooy, for appellee. Argued: Thomas L.
Sooy.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Plaintiff-appellant, Lakeview Loan Servicing, LLC ("Lakeview"), appeals
from a judgment of the Franklin County Court of Common Pleas granting summary
judgment in favor of defendant-appellee, Robert D. Schultz, III, and denying Lakeview's
motion for summary judgment. For the reasons that follow, we reverse the grant of
summary judgment in favor of Schultz and remand the matter to the trial court to grant
Lakeview's motion for summary judgment.
{¶ 2} In December 2009, Schultz obtained a loan from First Ohio Home Finance,
Inc. ("First Ohio") for $271,016, and signed a note ("the Note") promising to repay the loan.
The Note was secured by a mortgage in favor of Mortgage Electronic Registration Systems,
Inc. ("MERS") as nominee for First Ohio ("the Mortgage") on property located at 326
No. 18AP-399 2
Chertsey Court, Westerville, Ohio ("the Property"). The Note was subsequently transferred
from First Ohio to Flagstar Bank, FSB ("Flagstar"). The Mortgage was assigned from MERS
to Matrix Financial Services Corporation ("Matrix") in June 2014.
{¶ 3} In August 2014, Matrix filed a complaint asserting Schultz was in default on
the Note beginning January 1, 2014 and seeking judgment on the Note and foreclosure on
the Mortgage ("the first case"). Matrix and Schultz filed motions for summary judgment.
The Franklin County Court of Common Pleas denied Matrix's motion for summary
judgment and granted Schultz's motion for summary judgment, concluding Matrix failed
to demonstrate compliance with 24 C.F.R. 203.604 prior to filing its complaint. The trial
court dismissed Matrix's complaint without prejudice.
{¶ 4} On July 28, 2015, Schultz filed a petition for Chapter 7 bankruptcy and he
received a discharge on November 10, 2015. The case was closed on December 2, 2015.
{¶ 5} In July 2016, Matrix filed a second complaint asserting Schultz was in default
on the Note beginning January 1, 2014. Based on the bankruptcy discharge, Matrix did not
seek a personal monetary judgment against Schultz on the note, but sought foreclosure on
the Mortgage ("the second case"). In October 2016, Matrix assigned the mortgage to
Lakeview. In February 2017, Lakeview was substituted as plaintiff in the second case and
voluntarily dismissed the complaint.
{¶ 6} In May 2017, Lakeview filed a complaint asserting Schultz was in default on
the Note beginning February 1, 2014, and again, did not seek a personal monetary judgment
against Schultz but sought foreclosure on the Mortgage ("the third case"). Lakeview and
Schultz filed motions for summary judgment. The trial court denied Lakeview's motion for
summary judgment and granted Schultz's motion for summary judgment, concluding
Schultz was entitled to judgment as a matter of law because Lakeview failed to comply with
24 C.F.R. 203.604.
{¶ 7} Lakeview appeals and assigns the following two assignments of error for our
review:
[I.] The Trial Court erred in dismissing the Complaint.
[II.] The Trial Court erred in failing to enter summary
judgment for Lakeview Loan Servicing, LLC.
No. 18AP-399 3
{¶ 8} Lakeview argues in its first assignment of error the trial court erred by
granting summary judgment in favor of Schultz. Lakeview asserts the trial court erred by
concluding Schultz was entitled to summary judgment because Lakeview did not comply
with 24 C.F.R. 203.604 and Lakeview was barred by collateral estoppel from demonstrating
compliance with that regulation. Lakeview further argues the regulation did not apply
because Schultz had been discharged from his personal liability under the Note in a
bankruptcy proceeding.
{¶ 9} Summary judgment is appropriate when the moving party demonstrates
that: (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 come to but one conclusion
when viewing the evidence most strongly in favor of the non-moving party, and that
conclusion is adverse to the non-moving party. Hudson v. Petrosurance, Inc., 127 Ohio
St.3d 54, 2010-Ohio-4505, ¶ 29, citing Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105
(1996). Appellate review of a trial court's ruling on a motion for summary judgment is de
novo. Hudson at ¶ 29. De novo appellate review means the court of appeals independently
reviews the record and affords no deference to the trial court's decision. Zurz v. 770 W.
Broad AGA, LLC, 192 Ohio App. 3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall,
183 Ohio App. 3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.). In ruling on a motion for
summary judgment, the court must resolve all doubts and construe the evidence in favor of
the non-moving party. Pilz v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240,
2004-Ohio-4040, ¶ 8. Therefore, we undertake an independent review to determine
whether Schultz was entitled to judgment as a matter of law on Lakeview's claims.
{¶ 10} Under the National Housing Act, the Secretary of the United States
Department of Housing and Urban Development ("HUD") is authorized to insure mortgage
loans for approved lenders to reduce the risk of loss if a borrower defaults on his or her
payment obligations. 12 U.S.C. 1709. "By reducing the risk associated with extending a
mortgage loan, Congress sought to induce lenders to offer such loans to low-income
individuals." U.S. Bank Natl. Assoc. v. Cavanaugh, 10th Dist. No. 18AP-358, 2018-Ohio-
5365, ¶ 12, citing GMAC Mtge. of Pennsylvania v. Gray, 10th Dist. No. 91AP-650 (Dec. 10,
1991). In 24 C.F.R. 203, Subpart C, HUD has identified servicing practices of lending
institutions deemed acceptable for mortgages insured by HUD. 24 C.F.R. 203.500. The
parties agree the Mortgage provides that the underlying loan is insured by HUD. The
No. 18AP-399 4
Mortgage also provides acceleration and foreclosure are not permitted unless permitted by
HUD regulations.
{¶ 11} 24 C.F.R. 203, Subpart C, includes 24 C.F.R. 203.604 as one of the
regulations applicable to HUD-insured mortgages. Under that regulation, 24 C.F.R.
203.604, a mortgagee "must have a face-to-face interview with the mortgagor, or make a
reasonable effort to arrange such a meeting, before three full monthly installments due on
the mortgage are unpaid." 24 C.F.R. 203.604(b). The regulation provides that a face-to-
face meeting is not required if one of several conditions apply, including "[a] reasonable
effort to arrange a meeting is unsuccessful." 24 C.F.R. 203.604(c)(5). The regulation
further provides that a reasonable effort to arrange a face-to-face meeting "shall consist at
a minimum of one letter sent to the mortgagor certified by the Postal Service as having been
dispatched" and "at least one trip to see the mortgagor at the mortgaged property, unless
the mortgaged property is more than 200 miles from the mortgagee, its servicer, or a
branch office of either, or it is known that the mortgagor is not residing in the mortgaged
property." 24 C.F.R. 203.604(d).
{¶ 12} Lakeview argued it complied with the requirements of 24 C.F.R. 203.604 by
making a reasonable effort to arrange a face-to-face meeting prior to filing the third case.
Lakeview submitted an affidavit from Vanessa M. Ellison, a loan administration analyst for
Lakeview ("the Ellison Affidavit"). Attached to the Ellison Affidavit was a letter dated
March 5, 2014, sent to Schultz by Flagstar, advising Schultz he could request a face-to-face
meeting to discuss the status of his loan ("the face-to-face meeting letter"). Lakeview
argued the face-to-face meeting letter established compliance with the first step in making
a reasonable effort to arrange a face-to-face meeting as provided by 24 C.F.R. 203.604(d).
The trial court held that because Lakeview's predecessor, Matrix, failed to present the face-
to-face meeting letter during the first case and summary judgment was granted in favor of
Schultz in that case, Lakeview was barred by collateral estoppel from arguing in the third
case that the face-to-face meeting letter established compliance with the regulation.
{¶ 13} Collateral estoppel, or issue preclusion, "prevents parties or their privies from
relitigating facts and issues in a subsequent suit that were fully litigated in a prior suit."
Thompson v. Wing, 70 Ohio St. 3d 176, 183 (1994). "Collateral estoppel applies when the
fact or issue: (1) was actually and directly litigated in the prior action, (2) was passed upon
and determined by a court of competent jurisdiction, and (3) when the party against whom
No. 18AP-399 5
collateral estoppel is asserted was a party in privity with a party to the prior action." Id. See
also McCabe Corp. v. Ohio Environmental Protection Agency, 10th Dist. No. 12AP-204,
2012-Ohio-6256, ¶ 19 ("[T]he elements of issue preclusion under Ohio law are that: (1) the
identical issue or fact was actually and directly at issue in a previous action; (2) the issue or
fact was passed upon and determined by a court of competent jurisdiction; (3) the issue or
fact was actually litigated, directly determined, and essential to the final judgment in the
prior action; and (4) both actions involved the same parties, or their privies.").
{¶ 14} In granting summary judgment in favor of Schultz in the first case, the trial
court concluded Matrix failed to make a reasonable effort to arrange a face-to-face meeting
with Schultz prior to filing for foreclosure. The trial court treated compliance with 24 C.F.R.
203.604(b) as a condition precedent and held that Matrix failed to demonstrate it satisfied
this condition precedent prior to filing the first case.1 The court further concluded Schultz
presented evidence establishing Matrix failed to send a certified letter attempting to
arrange a face-to-face meeting and Matrix failed to refute Schultz's evidence demonstrating
that no genuine issue of material fact existed. The trial court granted summary judgment
in favor of Schultz. Under these circumstances, we conclude that collateral estoppel does
not bar Lakeview, as the successor to Matrix, from attempting to establish compliance with
24 C.F.R. 203.604(b) in the third case.2
{¶ 15} Lakeview further argues the trial court erred by concluding it was barred from
filing for foreclosure due to failure to comply with 24 C.F.R. 203.604(b). The trial court
held that Lakeview was required under 24 C.F.R. 203.604(b) to have a face-to-face meeting
with Schultz or make a reasonable effort to arrange such a meeting before three full monthly
installments on the mortgage were unpaid, citing this court's decision in Wells Fargo Bank,
1 Despite concluding in the first case that compliance with 24 C.F.R. 203.604 was a condition precedent, the
trial court cited this court's decision in Gray which held that compliance with the regulation was an affirmative
defense. In a recent decision, this court declined to overrule Gray but noted that other Ohio courts of appeals
have treated compliance with 24 C.F.R. 203.604 as a condition precedent rather than an affirmative defense.
Cavanaugh at ¶ 20-21.
2 Schultz cites this court's decision in Bell v. Ohio State Bd. of Trustees, 10th Dist. No. 06AP-1174, 2007-Ohio-
2790, in support of his argument that collateral estoppel bars Lakeview from establishing compliance with 24
C.F.R. 203.604(b). However, Bell involved a scenario where collateral estoppel applied because a federal court
made factual findings within a summary judgment ruling that also related to claims that were subsequently
brought in a state court action. Id. at ¶ 30-39. In the present case, by contrast, the trial court's summary
judgment in the first decision involved a finding that Matrix failed to present evidence to establish compliance
with 24 C.F.R. 203.604(b), rather than a finding of fact that Matrix had not complied with the regulation.
No. 18AP-399 6
N.A. v. Burd, 10th Dist. No. 15AP-1044, 2016-Ohio-7706. The trial court held because
Lakeview failed to conduct a face-to-face meeting with Schultz or make a reasonable effort
to arrange such a meeting within the timeline set forth in the regulation, Lakeview failed to
comply with a condition precedent to foreclosure on the Mortgage and, therefore, Schultz
was entitled to summary judgment.
{¶ 16} In Burd, the lender filed an initial foreclosure complaint that it later
voluntarily dismissed without prejudice after entering into a loan modification agreement
with the homeowner. Id. at ¶ 3. The lender subsequently filed a second foreclosure
complaint, asserting the homeowner defaulted on his debt as modified by the loan
modification agreement. The lender did not have or make a reasonable attempt to have a
face-to-face meeting with the homeowner prior to filing the second foreclosure complaint.
As part of the second foreclosure proceeding, the lender and the homeowner participated
in an unsuccessful court-sponsored mediation. The court granted summary judgment in
favor of the homeowner on the second foreclosure complaint, finding the lender failed to
satisfy a condition precedent to foreclosure. Id. at ¶ 4. The lender then filed a third
foreclosure complaint. Prior to filing the third foreclosure complaint, the lender sent a
letter to the homeowner via certified mail inviting him to participate in a meeting regarding
mortgage payment assistance options, but the lender did not make a trip to see the
homeowner at the property. Id. at ¶ 10. The lender moved for summary judgment, arguing
that participation in the court-sponsored mediation session during the second foreclosure
case constituted a face-to-face meeting for purposes of compliance with 24 C.F.R.
203.604(b). Id. at ¶ 11. The trial court denied the lender's motion for summary judgment
and granted summary judgment in favor of the homeowner, finding the lender failed to
comply with the requirements of 24 C.F.R. 203.604(b). Id. at ¶ 5. On appeal, this court
affirmed in part and reversed in part, holding that under the facts presented, the lender
failed to comply with 24 C.F.R. 203.604(b). The court noted the lender made no attempt
to comply with the regulation prior to filing its second foreclosure complaint, and then filed
the third foreclosure complaint based on the same default date and relying on the
previously unsuccessful court-sponsored mediation session, thereby preventing the
homeowner from having any real opportunity to avoid the third foreclosure action. Id. at
¶ 14.
No. 18AP-399 7
{¶ 17} Subsequent to the trial court's decision in the present case, this court decided
Cavanaugh. In Cavanaugh, the homeowner stopped making payments on his mortgage
after July 1, 2014. The lender sent a letter to the homeowner on June 23, 2015, informing
him that he might be eligible for a face-to-face meeting with a representative of the lender.
A representative of the lender visited the property on December 20, 2015, in an attempt to
contact the homeowner. The lender ultimately filed for foreclosure on July 21, 2017. The
trial court granted summary judgment in favor of the lender. On appeal, the homeowner
argued the lender failed to comply with 24 C.F.R. 203.604 by sending the certified letter
and making the property visit before three full monthly installments due on the mortgage
were paid. Cavanaugh at ¶ 27. This court rejected the homeowner's argument, finding
that, when read in context with related regulations, 24 C.F.R. 203.604(b) requires "a face-
to-face meeting, or a reasonable attempt to arrange such a meeting, before a lender
commences foreclosure proceedings." (Emphasis added.) Id. at ¶ 29. The Cavanaugh
decision distinguished Burd, noting that Burd did not expressly hold that failure to meet
the timeline specified in 24 C.F.R. 203.604(b) barred a lender from seeking foreclosure.
Cavanaugh at ¶ 32.
{¶ 18} We conclude that Cavanaugh, rather than Burd, controls our analysis of the
present appeal. This is not a case where the lender completely failed to comply with the
requirements of 24 C.F.R. 203.604 before filing for foreclosure. Rather, although Lakeview
concedes it did not take the required steps before three full monthly installments on the
mortgage were due, it claims it complied with the requirements of the regulation prior to
filing the third case. Ellison asserted in her affidavit that Flagstar sent the face-to-face
meeting letter to Schultz and that a visit was made to the Property for the purpose of
arranging a face-to-face meeting. The exhibits attached to the Ellison Affidavit appear to
show the face-to-face meeting letter was sent on March 5, 2014, and that the property visit
occurred on April 25, 2017. The third case was filed on May 17, 2017.
{¶ 19} To be entitled to summary judgment, Schultz was required to demonstrate
there was no genuine issue of material fact and that he was entitled to judgment as a matter
of law. In evaluating Schultz's motion for summary judgment, the court must resolve all
doubts and construe the evidence in favor of Lakeview as the non-moving party. Pilz at ¶ 8.
Schultz failed to demonstrate that Lakeview did not comply with 24 C.F.R. 203.604 prior
to filing the third case. Based on the holding in Cavanaugh, that compliance with 24 C.F.R.
No. 18AP-399 8
203.604(b) requires having or making a reasonable effort to arrange a face-to-face meeting
prior to filing for foreclosure, Schultz failed to establish he was entitled to judgment as a
matter of law. Therefore, the trial court erred by granting summary judgment in favor of
Schultz.
{¶ 20} Because we find the trial court erred by concluding Schultz was entitled to
summary judgment based on Lakeview's failure to comply with 24 C.F.R. 203.604, we need
not reach Lakeview's argument that the regulation does not apply because Schultz's
personal obligation on the Note was discharged in bankruptcy. Furthermore, Lakeview did
not argue this to the trial court. "Under Ohio law, 'arguments raised for the first time on
appeal are improper.' " Tucker v. Leadership Academy for Math & Science of Columbus,
10th Dist. No. 14AP-100, 2014-Ohio-3307, ¶ 20, quoting Marysville Newspapers, Inc. v.
Delaware Gazette Co., Inc., 3d Dist. No. 14-06-34, 2007-Ohio-4365, ¶ 23. In Tucker, this
court noted that despite a de novo standard of review regarding motions for summary
judgment, that standard of review does not supersede the well-settled practice of not
addressing issues raised for the first time on appeal. Id. at ¶ 20. Accordingly, we sustain
Lakeview's first assignment of error.
{¶ 21} Lakeview argues in its second assignment of error the trial court erred by
denying its motion for summary judgment. The trial court concluded Lakeview's motion
for summary judgment was rendered moot because Schultz was entitled to summary
judgment; however, the court further stated Lakeview's summary judgment motion would
fail because Lakeview failed to present any evidence beyond the Ellison Affidavit to
establish that the face-to-face meeting letter was sent via certified mail.
{¶ 22} Generally, denial of summary judgment is not a final, appealable order.
Carter v. Complete Gen. Constr. Co., 10th Dist. No. 08AP-309, 2008-Ohio-6308, ¶ 8, citing
Celebrezze v. Netzley, 51 Ohio St. 3d 89 (1990). "However, when the trial court has entered
final judgment in the matter and the case is decided solely on questions of law and
undisputed fact, we may consider whether it was error to deny summary judgment."
Huntington Natl. Bank v. R. Kids Count Learning Ctr., LLC, 10th Dist. No. 16AP-688,
2017-Ohio-7837, ¶ 26. See also Mulvey v. GuideOne Mut. Ins. Co., 10th Dist. No. 17AP-47,
2017-Ohio-7902, ¶ 7 ("While denial of summary judgment is usually not a final appealable
order, we may address and rule on such a denial when the trial court has entered final
judgment in the matter and the case turns on undisputed facts and purely legal questions.").
No. 18AP-399 9
{¶ 23} Lakeview argues the trial court erred by holding the Ellison Affidavit was
insufficient to establish the face-to-face meeting letter was sent via certified mail, as
required under 24 C.F.R. 203.604(d). Ellison averred in her affidavit that the face-to-face
meeting letter was mailed via certified mail. In Cavanaugh, this court found a similar
affidavit to be sufficient to establish that a letter attempting to arrange a face-to-face
meeting was sent via certified mail. See Cavanaugh at ¶ 26 ("First, the Cavanaughs attack
the evidence that U.S. Bank used certified mail to send the June 23, 2015 letter. However,
in making this argument, the Cavanaughs ignore the testimony of Crystal D. Crowe, a U.S.
Bank officer, who stated in her affidavit that the June 23, 2015 letter was sent 'via certified
mail.' "). Thus, the trial court erred in stating that Lakeview failed to establish the face-to-
face meeting letter was sent via certified mail.
{¶ 24} Schultz's memorandum in opposition to Lakeview's motion for summary
judgment argues that Lakeview did not comply with the second requirement of making a
reasonable attempt to arrange a face-to-face meeting under 24 C.F.R. 203.604(d) by
undertaking a trip to see the mortgagor at the mortgaged property. The trial court agreed.
{¶ 25} Ellison's Affidavit set forth she was:
[A] representative of Lakeview Loan Servicing, LLC
("Lakeview or Plaintiff") and [is] duly authorized to make this
Affidavit for Lakeview in its capacity as the holder of the note
* * *. [She has] the personal knowledge required to execute
this Affidavit, and can confirm the accuracy of the information
set forth herein. If sworn as a witness, [she] could competently
testify to the facts contained herein. [She has] personally
reviewed each document attached to this Affidavit.
(Aff. at ¶ 2.)
{¶ 26} "Unless controverted by other evidence, a specific averment that an affidavit
pertaining to business is made * * * upon personal knowledge of the affiant * * * satisfies
the Civ.R. 56(E) requirement that affidavits supporting and opposing motions for summary
judgment show that the affiant is competent to testify to the matters stated." State ex rel.
Corrigan v. Seminatore, 66 Ohio St. 2d 459 (1981), paragraph two of the syllabus. The
Ellison Affidavit was sufficient evidence to establish that she had personal knowledge and
had reviewed all the documents. Ellison averred she attached "the business records
showing that a visit was made to the subject property for the purpose of arranging a face to
No. 18AP-399 10
face meeting with the borrower." (Aug. 14, 2017 Memo in Support Mot. Summ. Jgmt. at
2.)
{¶ 27} The Ellison Affidavit was accompanied by an exhibit showing a visit was
made to the property for purposes of arranging a face-to-face meeting with Schultz. That
exhibit consisted of a two-page document issued by Mortgage Contracting Services, LLC,
containing 14 photographs of the property and the surrounding area. Although the
photographs as filed with the trial court are blurry, the photographs bear labels such as
"address number view," "front view," "occupancy indicators," and "other" and are
discernible.3 The Ellison Affidavit establishes that exhibit 11 is a business record that
provides a visit was made for the specified purpose. The Ellison Affidavit sufficiently
established the second requirement under 24 C.F.R. 203.604(b) of making a reasonable
attempt to arrange a face-to-face meeting. Lakeview's second assignment of error is
sustained.
{¶ 28} For the foregoing reasons, we sustain Lakeview's two assignments of error.
We reverse the judgment of the Franklin County Court of Common Pleas to the extent it
granted summary judgment in favor of Schultz and denied Lakeview's motion for summary
judgment. We remand the matter to the Franklin County Court of Common Pleas in order
to grant Lakeview's motion for summary judgment.
Judgment reversed
and cause remanded.
McGRATH, JJ, concurs.
DORRIAN, J., concurring in part and dissenting in part.
{¶ 29} I concur with the majority's conclusion that collateral estoppel does not bar
Lakeview Loan Servicing, LLC ("Lakeview"), as the successor to Matrix Financial Services
Corporation ("Matrix"), from attempting to establish compliance with 24 C.F.R.
203.604(b) in the third case. I also concur that U.S. Bank, N.A. v. Cavanaugh, 10th Dist.
No. 18AP-358, 2018-Ohio-5365, rather than Wells Fargo Bank, N.A. v. Burd, 10th Dist.
3 Upon this panel's inquiry of court staff as to whether the trial court was presented with copies of the exhibits
more legible than the electronic record provided to this court, court staff reached out to appellant's counsel in
an effort to obtain a more legible copy. Appellant's counsel did provide court staff with another copy of the
exhibit. However, because this copy was not before the trial court and appellee's counsel was not also
contacted by court staff, the panel declines to review and consider the copy of the exhibit provided to this
court's staff. We only consider the copy of the exhibit provided to the trial court.
No. 18AP-399 11
No. 15AP-1044, 2016-Ohio-7706, controls our analysis of the present appeal. Finally, I
concur the trial court erred by granting summary judgment in favor of Robert D. Schultz,
III. Therefore, I would sustain Lakeview's first assignment of error.
{¶ 30} I respectfully dissent, however, from the majority's conclusion that the trial
court erred by denying Lakeview's motion for summary judgment. Notwithstanding the
Ellison Affidavit, I would find Schultz's memorandum in opposition to Lakeview's motion
raised a genuine issue of material fact regarding whether Lakeview actually complied with
the second requirement of making a reasonable attempt to arrange a face-to-face meeting
under 24 C.F.R. 203.604(d) by undertaking a trip to see the mortgagor at the mortgaged
property. I disagree with the majority that the 14 photographs attached to the Ellison
Affidavit are discernable. Rather, I find it difficult to discern what is being depicted. In two
of the photographs, the individual taking the photographs appears to be holding some sort
of rectangular paper with a hole; another photograph depicts a rectangular paper with a
hole hanging from the door handle of the residence, perhaps having been left by the
photographer. Due to the poor quality of the photographs, it is impossible to discern what,
if anything, was written or printed on the paper. The Mortgage Contracting Services, LLC
document is dated April 27, 2017, although the photographs appear to contain a date stamp
of April 25, 2017. There is no narrative portion of the document describing who took the
photographs or for what purpose. There is no indication in the Mortgage Contracting
Services, LLC document that the individual who took the photographs was at the property
for the purpose of arranging a face-to-face meeting with Schultz pursuant to 24 C.F.R.
203.604(d), or had authority to act on behalf of Lakeview. Likewise, the Ellison Affidavit
provides no information identifying Mortgage Contracting Services, LLC or setting forth
the relationship between that entity and Lakeview. The exhibit to the Ellison Affidavit also
appears to include a one-page document referring to the Federal Housing Administration
and containing sections titled "Help! I can't make my mortgage payment," "What should I
do?," "What options will help me keep my home?," and "What options do I have if I can't
keep my home?" Although the document generally advises the recipient to contact his or
her lender, it does not appear to be specifically addressed to Schultz or refer to him by name,
nor does it specifically refer to Lakeview or the servicer of the loan. Further, there is no
indication how, if at all, this document is connected to the Mortgage Contracting Services,
LLC document that precedes it. Schultz noted many of these deficiencies in his
No. 18AP-399 12
memorandum in opposition to Lakeview's motion for summary judgment. Thus, although
the Ellison Affidavit asserts the exhibit is a business record showing that a visit was made
to the property for the purpose of arranging a face-to-face meeting with Schultz, the
documents contained in the exhibit do not support this assertion.
{¶ 31} In considering Lakeview's motion for summary judgment, the court must
resolve all doubts and construe the evidence in favor of Schultz as the non-moving party.
Pilz v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8.
Applying this standard, I would conclude Lakeview failed to demonstrate there was no
genuine issue of material fact as to whether it complied with 24 C.F.R. 203.604(d) by
making a visit to the property for purposes of arranging a face-to-face meeting. Thus,
Lakeview's motion for summary judgment cannot be decided solely on questions of law and
undisputed fact and the trial court's denial of Lakeview's motion for summary judgment
was not a final appealable order. Therefore, I would overrule Lakeview's second assignment
of error and dismiss Lakeview's appeal to the extent it challenges the trial court's denial of
its motion for summary judgment for lack of a final appealable order.
{¶ 32} For these reasons, I respectfully concur in part and dissent in part.
McGRATH, J., retired, formerly of the Tenth Appellate District,
assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
_________________________