[Cite as U.S. Bank, N.A. v. Detweiler, 2012-Ohio-73.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

U.S. BANK, N.A.                                            JUDGES:
                                                           Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                                 Hon. John W. Wise, J.
                                                           Hon. Julie A. Edwards, J.
-vs-
                                                           Case No. 2011CA00095
BENJAMIN R. DETWEILER, ET AL.

        Defendants-Appellants                              OPINION




CHARACTER OF PROCEEDING:                                Appeal from the Stark County Court of
                                                        Common Pleas, Case No. 2009 CV 04084


JUDGMENT:                                               Reversed and Final Judgment Entered


DATE OF JUDGMENT ENTRY:                                 January 9, 2012


APPEARANCES:


For Plaintiff-Appellee                                  For Defendant-Appellant


KIMBERLEE S. ROHR                                       PAUL E. ZINDLE
Lerner, Sampson & Rothfuss                              ANAHID THOMPSON
120 East Fourth Street, 12th Floor                      Community Legal Aid Services, Inc.
Cincinnati, Ohio 45202                                  50 South Main St., Suite 800
                                                        Akron, Ohio 44308
Stark County, Case No. 2011CA00095                                                     2

Hoffman, P.J.


          (¶1)   Defendants-appellants Benjamin R. and Mary Detweiler appeal the March

24, 2011 Judgment Entry of the Stark County Court of Common Pleas granting

summary judgment in favor of Plaintiff-appellee U.S. Bank, N.A., in this foreclosure

action.

                            STATEMENT OF THE FACTS AND CASE

          (¶2)   On October 22, 1998, Benjamin R. and Mary Detweiler (“Appellants”)

executed a note in the amount of $78,100 to Residential Bancorp. On the same day,

Appellants also granted Residential Bancorp a mortgage in the amount of $78,100 on

the property located at 14836 Ravenna Ave. N.E., Hartville, Ohio. The mortgage

identifies the loan as a federally insured loan subject to the regulations of the United

States Department of Housing and Urban Development (“HUD”).

          (¶3)   On October 23, 1998, Residential Bancorp assigned the note and

mortgage to the Leader Mortgage Company. Appellee U.S. Bank, N.A.’s, complaint

states it is the successor by merger to the Leader Mortgage Company.

          (¶4)   In 2005, Appellants filed a petition for Chapter 7 bankruptcy with the

United States Bankruptcy Court, Northern District of Ohio. By virtue of the bankruptcy,

Appellants were immune from collection activity and potentially personal liability on the

note.

          (¶5)   On August 10, 2009, relief from operation of the bankruptcy stay was

granted to U.S. Bank, N.A., and the Trustee was directed to abandon the property.

          (¶6)   On September 11, 2009, U.S. Bank notified Appellants by letter of the

default on the note and breach of the mortgage securing the note. The letter stated in
Stark County, Case No. 2011CA00095                                                          3


order to cure the default and breach, Appellants were to pay the required funds within

30 days of the date of the letter. If funds were not received within 30 days to bring the

account current, U.S. Bank stated it would accelerate the sums due under the note and

the terms of the mortgage.

       (¶7)   U.S. Bank filed its complaint in foreclosure against Appellants on October

21, 2009. U.S. Bank stated therein it was the holder of the note, but a copy of the note

was unavailable at that time. U.S. Bank subsequently filed a notice of filing of the note

on November 3, 2009.

       (¶8)   Appellants filed a pro se answer on December 23, 2009. In their answer,

Appellants alleged U.S. Bank was not the real party in interest and it lacked standing to

file the suit. Appellants also argued U.S. Bank failed to satisfy certain conditions

precedent, including among their arguments compliance with all necessary HUD

regulations and other conditions precedent, prior to filing its complaint in foreclosure.

       (¶9)   U.S. Bank filed a motion for summary judgment on January 29, 2010.

Appellants filed a motion for summary judgment on March 7, 2011. Via Judgment Entry

of February 23, 2010, the trial court granted summary judgment in favor of U.S. Bank,

and denied Appellant’s motion for summary judgment.

       (¶10) Appellants filed a Civ.R. 60(B) motion to vacate the February 23, 2010

Judgment Entry on March 8, 2010. The trial court stayed the matter when Appellants

filed a notice of appeal to this Court of the trial court’s February 23, 2010 judgment.

       (¶11) Via Judgment Entry of December 13, 2010, this Court reversed the

February 23, 2010 Judgment Entry of the trial court and remanded the matter holding,
Stark County, Case No. 2011CA00095                                                           4


       (¶12) “We find that the mortgage loan in this case is federally insured and that

by the terms in the note and mortgage it is subject to HUD regulations in the case of

default or acceleration. The HUD regulations, incorporated within the terms of the

default or acceleration provisions, include those requirements found in Sections

203.602 and 203.604, Title 24, C.F.R., as stated above. Those requirements, therefore,

are conditions precedent.

       (¶13) “The next issue is whether appellee sufficiently established under Civ.R.

56 that it complied with the requisite conditions precedent before initiating the

foreclosure process against the property. We find that appellee has established only

partial compliance with the stated HUD regulations through its Civ.R. 56(C) evidence.

       (¶14) “In support of its motion for summary judgment, appellee submitted its

affidavit, stating, ‘Affiant states that the defendant was served with notice of their default

and notice of the plaintiff's intent to accelerate by letter, attached hereto as Exhibit ‘D.’ ’

The letter, sent to appellant Benjamin R. Detweiler on September 11, 2009, states that it

serves ‘as notice of the default of the Promissory Note and breach of the mortgage

securing that Note.’ We find that this letter supports Appellee's claim that it sufficiently

complied with providing appellants with notice of the delinquency as required by Section

203.602, Title 24, C.F.R.

       (¶15) “However, appellee must also establish that it sufficiently complied with

Section 203.604, Title 24, C.F.R. as a condition precedent to foreclosure. See

Washington Mut. Bank v. Mahaffey, 154 Ohio App.3d 44, 2003-Ohio-4422, 796 N.E.2d

39 (Second District Court of Appeals found that mortgagee was not entitled to summary

judgment when it failed to establish that it sufficiently complied with Section 203.604,
Stark County, Case No. 2011CA00095                                                         5


Title 24, C.F.R.). Reviewing the motion for summary judgment in a light most favorable

to the nonmoving party, we find that it is clear that appellee made no attempt to

establish that it complied with the regulation that it have a face-to-face interview with the

mortgagor, or made a reasonable effort to arrange the interview, before bringing the

foreclosure action. Further, the September 11, 2009 letter cannot be used to

demonstrate even minimal compliance with Section 203.604, Title 24, C.F.R., because

subsection (d) of that rule prescribes a certified letter as the minimum requirement for a

reasonable effort to arrange a face-to-face meeting. There is no evidence to show that

the September 11, 2009 letter was sent to appellants by certified mail, and the letter

does not contain any language purporting to arrange a face-to-face meeting. See

CitiMortgage, Inc. v. Ferguson, Fairfield App. No. 2006CA00051, 2008-Ohio-556, 2008

WL 376380 (failure to provide documentary evidence that notice of default and

acceleration was sent by certified mail as required by the terms of the mortgage

prevented summary judgment in favor of mortgagee).

       (¶16) “Accordingly, we find that there is a genuine issue of material fact whether

appellee complied with the conditions precedent prior to initiating the foreclosure

proceedings. We find that although appellants failed to respond to the summary

judgment, on this issue summary judgment is not appropriate pursuant to Civ.R. 56(E).”

       (¶17) U.S. Bank, N.A. v. Detweiler (2010), 191 Ohio App.3d 464.

       (¶18) On remand to the trial court for further proceedings as to whether U.S.

Bank, N.A. complied with the conditions precedent necessary for foreclosure, the trial

court, via Judgment Entry of March 24, 2011, again granted summary judgment in favor

of U.S. Bank.
Stark County, Case No. 2011CA00095                                                      6


      (¶19) Appellants now appeal, assigning as error:

      (¶20) “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO PLAINTIFF U.S. BANK, N.A. WHEN PLAINTIFF PRODUCED NO EVIDENCE

THAT IT COMPLIED WITH CONDITIONS PRECEDENT PRIOR TO INITIATING THE

FORECLOSURE PROCEEDINGS.

      (¶21) “II. THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY

JUDGMENT TO DEFENDANTS WHEN THE RULE 56 EVIDENCE ESTABLISHES

THAT PLAINTIFF U.S. BANK, N.A. FAILED TO HAVE A FACE-TO-FACE MEETING

WITH THE DETWEILERS OR MAKE A REASONABLE EFFORT TO ARRANGE A

MEETING.”

      (¶22) Appellants’ assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

                                             I. & II.

      (¶23) It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no
Stark County, Case No. 2011CA00095                                                      7


evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

       (¶24) Appellants assert the trial court erred in granting summary judgment in

favor of U.S. Bank as U.S. Bank failed to produce evidence it complied with conditions

precedent prior to initiating the within foreclosure proceedings.

       (¶25) Appellants’ loan at issue was a FHA insured loan; thus, subject to the

requirements of 24 C.F.R. 203.604, including a face-to-face interview as a condition

precedent to foreclosure. On remand from the first appeal, U.S. Bank argued it did not

have to satisfy the face-to-face interview requirement of 24 C.F.R. 203.604 as

Appellants were in bankruptcy. As set forth in the Statement of the Facts and Case

supra, this Court previously reversed the decision of the trial court and remanded the

matter for further proceedings to determine whether U.S. Bank complied with certain

conditions precedent to foreclosure. U.S. Bank, N.A. v. Detweiler, 191 Ohio App.3d 464,

2010-Ohio-6408. This Court held U.S. Bank must first establish it complied with 24

C.F.R. 203.604 by having a face-to-face interview with Appellants, or by making a
Stark County, Case No. 2011CA00095                                                     8


reasonable attempt to arrange a face-to-face interview before bringing the foreclosure

action. Id. This Court held sending a certified letter is “the minimum requirement for a

reasonable effort to arrange a face-to-face meeting.” Id.

         (¶26) The law of the case doctrine provides a decision of a reviewing court in a

case remains the law of the case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels. Nolan v. Nolan (1984), 11

Ohio St.3d 1. Here, on remand, and for the first time in these proceedings, Appellee

U.S. Bank asserted it was not required to comply with the face-to-face interview

requirement due to Appellants’ bankruptcy.       Appellee did not assert this argument

during the prior appeal or as a basis for reconsideration thereof. Instead Appellant

raised the issue for the first time on remand. We find the argument is subject to issue

preclusion pursuant to the law of the case doctrine.

         (¶27) Appellee U.S. Bank’s January 29, 2010 motion for summary judgment

which was the subject of the prior appeal asserts compliance with all necessary HUD

regulations as conditions precedent. If Appellee wanted to argue it was excused from

compliance with the condition precedent of a face-to-face meeting due to Appellants’

bankruptcy, it could have made the argument prior to or during the first appeal.

Appellee had the opportunity to raise the argument during the prior appeal to this Court

as a conditional cross-assignment of error but failed to do so; therefore, is judicially

estopped by law of the case doctrine from raising the issue upon remand to the trial

court.

         (¶28) Appellant’s filed a motion for summary judgment on March 7, 2011, and

U.S. Bank filed a memorandum contra on March 7, 2011. U.S. Bank’s memorandum
Stark County, Case No. 2011CA00095                                                   9


contra does not establish compliance with the conditions precedent set forth in the HUD

regulations. Therefore, the trial court erred in not granting summary judgment in favor

of Appellants.

      (¶29) Appellants’ assignments of error are sustained.

      (¶30) The judgment of the Stark County Court of Common Pleas is reversed.

Pursuant to App. R.12(B), we order final judgment granting Appellants’ motion for

summary judgment and order Appellee’s foreclosure action dismissed and costs

assessed to Appellee.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE


                                           s/ Julie A. Edwards ___________________
                                           HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00095                                                 10


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


U.S. BANK, N.A.                            :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
BENJAMIN R. DETWEILER, ET AL.              :
                                           :
       Defendants-Appellants               :         Case No. 2011CA00095


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is reversed.         Summary judgment is granted to

Appellants. Appellee’s foreclosure action is dismissed and costs incurred in the trial

court are assessed to Appellee. Costs of this appeal are assessed to Appellee




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. JOHN W. WISE


                                           ___________________________________
                                           HON. JULIE A. EDWARDS
