[Cite as Citimortgage, Inc. v. Kinney, 2012-Ohio-2896.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

CITIMORTGAGE, INC. SUCCESSOR                                 JUDGES:
BY MERGER TO ABN AMRO                                        Hon. W. Scott Gwin, P.J.
MORTGAGE GROUP, INC.                                         Hon. William B. Hoffman, J.
                                                             Hon. John W. Wise, J.
        Plaintiff-Appellee
                                                             Case No. CT2011-0065
-vs-

KEVIN E. KINNEY, ET AL.                                      OPINION

        Defendant-Appellants



CHARACTER OF PROCEEDING:                                  Appeal from the Muskingum County Court
                                                          of Common Pleas, Case No. CE2010-0666


JUDGMENT:                                                 Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                   June 25, 2012


APPEARANCES:


For Plaintiff-Appellee                                    For Defendant-Appellants


THOMAS L. HENDERSON                                       MELISSA C. BENSON
LERNER, SAMPSON & ROTHFUSS                                Southeastern Ohio Legal Services
120 East Fourth Street, 8th Floor                         11 East Second Street
Cincinnati, Ohio 45202                                    Chillicothe, Ohio 45601
Muskingum County, Case No. CT2011-0065                                                2

Hoffman, J.


      {¶1}    Defendants-appellants Kevin and Sandra Kinney appeal the November

15, 2011 Judgment Entry entered by the Muskingum County Court of Common Pleas

granting summary judgment and issuing a decree in foreclosure in favor of Plaintiff-

appellee CitiMortgage, Inc., successor in interest to ABN AMRO Mortgage Group, Inc.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellants executed a promissory note dated March 21, 2003, payable to

ABN AMRO Mortgage Group, Inc. in the amount of $132,289.00.            The same date

Appellants executed and delivered a mortgage to ABN AMRO Mortgage Group, Inc.

The mortgage encumbers real property commonly known as 1850 Jackson Road,

Zanesville, Ohio 43701, and was filed for record on March 31, 2003.

      {¶3}    Appellants later filed for Chapter 7 Bankruptcy protection, and received a

discharge.    Accordingly, Appellants are immune from personal liability on the note.

Appellants did not enter into a reaffirmation agreement with ABN AMRO or redeem the

debt on the property pursuant to the United States Bankruptcy Code.

      {¶4}    In 2007, ABN AMRO Mortgage Group, Inc. was acquired by and merged

with CitiMortgage, Inc. Thereafter, Appellants ceased making payments. Appellants

and Appellee executed a loan modification in March 2009; however, they later again

ceased making payments.

      {¶5}    On October 12, 2010, CitiMortgage filed a complaint for foreclosure.

Appellants filed an answer in response. On January 3, 2011, Appellants amended their

answer, alleging CitiMortgage failed to comply with HUD regulations in the proceedings.
Muskingum County, Case No. CT2011-0065                                              3


       {¶6}   On May 20, 2011, CitiMortgage moved for summary and default judgment.

On June 2, 2011, Appellants filed an opposition to the motion and a cross-motion for

summary judgment.

       {¶7}   On November 15, 2011, the trial court granted summary judgment and

issued a decree in foreclosure in favor of CitiMortgage, Inc.

       {¶8}   Appellants now appeal, assigning as error:

       {¶9}   “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO PLAINTIFF AND DENYING DEFENDANTS’ SUMMARY JUDGMENT MOTION

WHERE PLAINTIFF FAILED TO PROVE THAT IT COMPLIED WITH THE FHA

SERVICING REQUIREMENTS, A CONDITION PRECEDENT TO FORECLOSURE.”

       {¶10} As cross-assignment of error, CitiMortgage assigns as error:

       {¶11} “I. THE TRIAL COURT ACTED PROPERLY IN GRANTING SUMMARY

JUDGMENT TO CITIMORTGAGE AND DENYING SUMMARY JUDGMENT TO THE

KINNEYS BECAUSE THE KINNEYS’ DISCHARGE, PURSUANT TO THE UNITED

STATES BANKRUPTCY CODE, MATERIALLY ALTERED THE NOTE, ABSENT

REAFFIRMATION OF THE DEBT.”

       {¶12} We will address the assignment of error and the cross-assignment of error

together, as they raise common and interrelated arguments.

       {¶13} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
Muskingum County, Case No. CT2011-0065                                                  4


      {¶14} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain 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. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶15} 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

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
Muskingum County, Case No. CT2011-0065                                                 5


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.

      {¶16} Appellants maintain the trial court erred in granting summary judgment in

favor of CitiMortgage and issuing the decree in foreclosure as CitiMortgage did not

conduct a face-to-face interview as required by 24 C.F.R. Section 203.604, and did not

provide a notice of default which was timely and which spoke to an "assignment" of the

loan to HUD.

      {¶17} Appellee CitiMortgage argues the trial court properly granted summary

judgment in their favor as Appellants Bankruptcy discharge pursuant to the U.S.

Bankruptcy Code materially altered the note, absent a reaffirmation of the debt. Thus,

Appellee argues Appellants effectively waived their rights to HUD requirements. We

find the argument raised in Appellee’s cross-assignment of error regarding waiver as a

result of Appellants’ bankruptcy discharge and failure to redeem was not raised in the

trial court. As such we find it cannot be raised on appeal. Accordingly, Appellee’s

cross-assignment of error is overruled.

      {¶18} Pursuant to our previous opinion in U.S. Bank, N.A. v. Detweiler, Stark

App. No. 2011CA00095, 2012-Ohio-73, we find at a minimum there remains a disputed

fact as to whether CitiMortgage failed to comply with the HUD requirements herein.

      {¶19} In Detweiler, this Court held,
Muskingum County, Case No. CT2011-0065                                               6


       {¶20} "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.

       {¶21} "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,

946 N.E.2d 777, 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 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."

       {¶22} Applying Detweiler, the judgment of the Muskingum County Court of

Common Pleas is reversed and the matter is remanded to the trial court for further
Muskingum County, Case No. CT2011-0065                                           7


proceedings in accordance with the law and this Opinion.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur                            s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE
Muskingum County, Case No. CT2011-0065                                                    8


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


CITIMORTGAGE, INC. SUCCESSOR BY :
MERGER TO ABN AMRO MORTGAGE     :
 GROUP, INC.                    :
                                :
     Plaintiff-Appellee         :
                                :
-vs-                            :                     JUDGMENT ENTRY
                                :
KEVIN E. KINNEY, ET AL.         :
                                :
     Defendant-Appellants       :                     Case No. CT2011-0065


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

Muskingum County Court of Common Pleas is reversed, and the matter is remanded to

that court for further proceedings in accordance with the law and our Opinion. Costs to

Appellee.




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


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


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