[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 

 Appellee 

 v. 

OSCAR MCBENTTES, et al. 

 Appellants 

C.A. No. 29688 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

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 PlaintiffAppellee, 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. 
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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 
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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 
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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. 
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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-Ohio1311, ¶ 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 
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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.