[Cite as Metro. Life v. Lee, 2018-Ohio-4915.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 JEFFERSON COUNTY

                   METROPOLITAN LIFE INSURANCE COMPANY,

                                           Plaintiff-Appellee,

                                                   v.

                                       MARY B. LEE ET AL.,

                                      Defendants-Appellants.


                        OPINION AND JUDGMENT ENTRY
                                          Case No. 18 JE 0006


                                     Civil Appeal from the
                        Court of Common Pleas of Jefferson County, Ohio
                                    Case No. 17 CV 00438

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Kathleen Bartlett, Judges.


                                            JUDGMENT:
                                       Reversed and Remanded


Atty. Laura Infante and Atty. Ashley Mueller, Clunk, Hoose Co., LPA, 4500 Courthouse
Blvd., Suite 400, Stow, Ohio 44224, for Plaintiff-Appellee and

Atty. Pamela Bolton, Southeastern Ohio Legal Services, 100 North Third Street,
Steubenville, Ohio 43952 and Atty. William Canterberry, Southeastern Ohio Legal
Services, 15 West Locust Avenue, Suite A, Newark, Ohio 43055, for Defendant-
Appellants.
                                                                                      –2–



                               Dated: December 11, 2018


Donofrio, J.

       {¶1}    Defendant-appellant, Mary Lee, appeals from a Jefferson County
Common Pleas Court decision granting summary judgment in favor of plaintiff-appellee,
Metropolitan Life Insurance Company.
       {¶2}    Appellant purchased a home in Steubenville, Ohio in 2003. She executed
a note (Note) and corresponding mortgage (Mortgage).               Through a series of
assignments, appellee became the holder of the Note and Mortgage on May 16, 2017.
       {¶3}    On September 25, 2017, appellee filed a complaint in foreclosure against
appellant. Appellee alleged that appellant was in default on her Mortgage payment after
failing to make a payment for six months. Appellant filed a response to the complaint
bringing seven affirmative defenses, one of which was that appellee failed to satisfy a
condition precedent by not properly giving notice of default.
       {¶4}    Appellee filed a motion for summary judgment. Appellee attached the
Mortgage, the Note, the account activity, and the notice of default. An accompanying
affidavit stated that the notice of default was mailed in accordance with the Note and
Mortgage.
       {¶5}    In response to the motion for summary judgment, appellant again argued
that appellee had not met conditions precedent, including that it did not give her proper
notice of default. She attached her own affidavit, which stated that she had not received
the notice of default. Appellant attached the tracking information of the letter, which
showed that it was returned to sender after delivery was not made.            She further
attached a letter from the United States Postal Service stating that the letter was sent by
certified mail and was returned to sender.
       {¶6}    The trial court granted appellee’s motion for summary judgment and
issued a foreclosure decree. Appellant filed a timely notice of appeal. The trial court
stayed its judgment pending this appeal.
       {¶7}    Appellant now raises a single assignment of error, which states:




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             THE TRIAL COURT ERRED BY GRANTING A SUMMARY
      JUDGMENT OF FORECLOSURE FOR PLAINTIFF MORTGAGEE WHEN
      GENUINE       ISSUES     OF    MATERIAL      FACT     EXIST    REGARDING
      WHETHER IT SENT A NOTICE OF DEFAULT AND ACCELERATION TO
      DEFENDANT HOMEOWNER BY REGULAR FIRST-CLASS MAIL.

      {¶8}   Appellant points out that notice is a condition precedent to executing a
foreclosure action. She claims that appellee did not follow the terms of the Note and did
not satisfy the condition precedent when it sent the notice by certified mail instead of by
ordinary first-class mail.   Moreover, appellee asserts that she never received the
certified mail notice and, therefore, was never given notice of appellee’s intent to
foreclose.
      {¶9}   An appellate court reviews a summary judgment ruling de novo. Comer v.
Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus, we shall apply
the same test as the trial court in determining whether summary judgment was proper.
      {¶10} A court may grant summary judgment only when (1) no genuine issue of
material fact exists; (2) the moving party is entitled to judgment as a matter of law; and
(3) the evidence can only produce a finding that is contrary to the non-moving party.
Mercer v. Halmbacher, 9th Dist., 2015-Ohio-4167, 44, 44 N.E.3d 1011 N.E.3d 1011, ¶
8; Civ.R. 56(C). The initial burden is on the party moving for summary judgment to
demonstrate the absence of a genuine issue of material fact as to the essential
elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt,
75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). If the moving party meets its burden,
the burden shifts to the non-moving party to set forth specific facts to show that there is
a genuine issue of material fact. Id.; Civ.R. 56(E). “Trial courts should award summary
judgment with caution, being careful to resolve doubts and construe evidence in favor of
the nonmoving party.” Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346,
617 N.E.2d 1129 (1993).
      {¶11} At issue here is whether appellee met all conditions precedent for
foreclosure. The Note provided a mandatory notice requirement:

             (C) Notice of Default


Case No. 18 JE 0006
                                                                                       –4–


               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
       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.

       {¶12} (Appellee Motion for S.J., Nwabara Dep. Ex. A). Although the Note uses
the word “may” the notice requirement is mandatory and is a condition precedent to
foreclosure.   Bank of New York Mellon v. Roarty, 7th Dist. No. 10-MA-42, 2012-Ohio-
1471, ¶ 25.
       {¶13}    Under the heading, “GIVING OF NOTICES” the Note prescribes the
manner with which the Note holder will send the notice. It states:

               Unless applicable law requires a different method, any notice that
       must be given to me under this Note will be given by delivering it or
       mailing it by first class mail to me at the Property Address above or at a
       different address if I give the Note Holder a notice of my different address.

       {¶14} (Appellee Motion for S.J., Nwabara Dep. Ex. A). In addition, the Mortgage
provides: “Any notice to Borrower in connection with this Security Instrument shall be
deemed to have been given to Borrower when mailed by first class mail or when
actually delivered to Borrower’s notice address if sent by other means.”         (Appellee
Motion for S.J., Nwabara Dep. Ex. B).
       {¶15}    Appellant attached her own affidavit to her summary judgment motion.
She averred that she never received the notice of appellee’s intent to foreclose.
(Appellant Response to Motion for S.J., Lee Dep. ¶ 8). Moreover, she attached a copy
of the United States Post Office certified mail receipt indicating that the notice appellee
sent was returned to it as “unclaimed/being returned to sender.” (Appellant Response
to Motion for S.J., Ex. B). Appellee does not dispute that the notice was returned to it.
       {¶16}    Appellee contends that certified mail and first-class mail are the same
and, therefore, both get the presumption of delivery that the Mortgage defines.



Case No. 18 JE 0006
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Appellant counters that certified mail falls within the “sent by other means” wording of
the Mortgage, and therefore requires actual delivery.
       {¶17}   This court does not give the presumption of delivery when a letter is
mailed by certified mail. Roarty, 7th Dist. No. 10-MA-42 at ¶ 34. Examining an almost
identical notice provision and presumption of delivery passage in the mortgage, this
court found:

       Appellee did not send notice via regular first class mail. So there is no
       presumption that appellants received notice in this manner. Further, there
       is evidence that appellee attempted to provide the Notice by certified mail.
       However, the evidence indicates that the certified mail was never actually
       delivered to appellants. Thus, a genuine issue of material fact exists as to
       whether appellee complied with the notice requirement, which was a
       prerequisite to acceleration.

Id.
       {¶18} In coming to this holding, this court followed the Tenth District’s reasoning
in National City Mortg. Co. v. Richards, 10th Dist. No. 08-AP-630, 2009-Ohio-2556.
That court explained:

       National City mailed its notice of default to Richards only by certified mail,
       which was returned to National City unclaimed. National City did not mail a
       notice of default by ordinary mail, either contemporaneously with its
       certified-mail notice or after return of the certified-mail envelope.
       Accordingly, no presumption of delivery arose. Moreover, even if a
       rebuttable presumption had arisen upon National City's certified mailing,
       the presumption was decisively rebutted by the uncontradicted evidence
       that the certified mail was returned to National City unclaimed.

Id. at ¶ 28.
       {¶19}   There is an important difference between certified mail and ordinary first-
class mail. If no authorized party is at the residence to receive the certified mail, a
notice is left at the residence informing them that the letter is available for pickup at the



Case No. 18 JE 0006
                                                                                        –6–


post office during a certain time period, after which time it will be returned to the sender.
The mail is not simply left at the residence, where it can be assumed the resident
received it as is the case with ordinary first-class mail.
       {¶20}    The law supports a distinction between ordinary first-class mail and
certified mail. For example, the Ohio Revised Code refers to both “certified mail” and
“first-class” mail.   See e.g., R.C. 5721.381(A) (“shall notify the certificate holder by
ordinary first class or certified mail”). And the Ohio Rules of Civil Procedure refer to
both certified and first-class mail. See e.g., Civ.R. 4.6(C) (referring to both certified and
ordinary mail service). The United States Supreme Court has even recognized the
difference, noting “the use of certified mail might make actual notice less likely in some
cases-the letter cannot be left like regular mail to be examined at the end of the day,
and it can only be retrieved from the post office for a specified period of time.” Jones v.
Flowers, 547 U.S. 220, 235, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006).
       {¶21}    Appellee contends that requiring it to send notice by regular first-class
mail imposes a burden beyond that of the Note and Mortgage. But appellee’s contract
expressly provides a presumption of delivery if the letter is sent by first-class mail.
Neither the Note nor the Mortgage required appellee to use certified mail. It is important
to note that appellee would be able to establish delivery under the terms of the
Mortgage if the certified letter was actually delivered.
       {¶22}    In sum, certified mail is different from first-class mail.   And the Note
requires service by actual delivery “or mailing it by first class mail.” The notice was not
actually delivered in this case and it was not mailed by first-class mail. Therefore, a
genuine issue of material fact exists as to whether appellee successfully met the notice
condition precedent to foreclosure. Therefore, the trial court erred in granting summary
judgment in favor of appellee.
       {¶23}    Accordingly, appellant’s sole assignment of error has merit and is
sustained.
       {¶24}    For the reasons stated above, the trial court’s judgment is hereby
reversed and this matter is remanded for further proceedings pursuant to law and
consistent with this opinion.




Case No. 18 JE 0006
                        –7–




Waite, J., concurs
Bartlett, J., concurs




Case No. 18 JE 0006
[Cite as Metro. Life v. Lee, 2018-Ohio-4915.]




        For the reasons stated in the Opinion rendered herein, the sole assignment of
error is sustained and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Jefferson County, Ohio, is reversed. We hereby remand
this matter to the trial court for further proceedings according to law and consistent with
this Court’s Opinion. Costs to be taxed against the Appellee.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
