[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 jud gment 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 pr operty. Ocwen moved for summary judgment on its complaint, to which the McBen tteses responded in opposition, arguing in pa rt 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 Ocwe n’s motion for summary judgment and entere d a decree of foreclosure.2

The McBentteses timely appealed. In their sole assignment of e rror, the McBentteses asserted “the trial court erred in granting summary judgment because gen uine issues of material fact remained in dispute as to whethe r Ocwen was exempt from complyi ng 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-fa ce meeting is not required if * * * [t]he mortgaged property is not within 200 miles of the mortgag ee, its servicer, or a branch office

of either * * *.” {¶3} In sustaining the McBentteses’ s ole assignment or error and rev ersing the trial court’s granting of sum mary judgment, the Ocwen I Court concluded: In its judgment entry, the trial court failed to address the ar gument advanced by the McBentteses regarding whethe r Ocwen, its servicer, or a bra nch office of either was within 200 miles of t he subject property. We are the refore unable to ascertain if the argument was considered by the trial court, or rejected after consideration by the court. Becau se the trial court did not add ress this issue in its judgment entry, we are compelled to reverse and remand the matt er to the trial court to consider the M cBentteses' argument in the first instan ce.

Id . at ¶ 9 {¶4} Upon remand, the trial court agai n granted summary judgment in favor of Ocwen. In addressing the McBentteses’ a rgument 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 prov ided 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 a ll business records related to this action, the manner in which they were create d, and personal review of the s ame. 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, Ohio3

45505 is not a location or branch office of Ocwen Loan Servici ng, LLC. I further attest that the address at the Assurant location is the mailing address for insurance claims. I further attest t hat 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 re quests: 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 inte rest in that building located at One Assurant Way in Springfield, Ohio 45505.” (Interrogatory 15.) 4) “Ocwen does not have an ownership inte rest in that building located at One Assurant Way in Springfield, Ohio 45505.” (Interrogatory 17.) 5) “Ocwen does not own any office equi pment 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 whic h to file their opposition to the motion for summary judgment, the McBentteses provided the affidavit of their attorney, in w hich 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 wh ich 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 from4

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 poi nting to or submitting some evidence that shows the existence of a genuine dispute over the material facts. Besides the unve rified document, which cannot be considered, they have provided only the affidavit of their attorney, who in dicates that his search of various internet sites leads him to the conclusion th at 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 respons es noted above and the uncontro verted 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 t he address in question concerns property insurance claims only.

* * * (Emphasis added.) {¶5} The McBentteses now appeal rai sing 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 WI TH [24 C.F.R. 203.604 (c)(2)].

{¶6} In their sole assignment of error, the McBentteses argue the tr ial court erred in granting Ocwen’s Civ.R. 56 motion f or summary judgment. We dis agree. {¶7} Pursuant to Civ.R. 56, summar y judgment is appropriate if: (1) [n]o genuine issue as to any material fact remains to be li tigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it ap pears from the evidence that reasonable minds can come to but one conclusion, and viewing su ch evidence most strongly in favor of the party against whom the motion for summ ary judgment is made, that conclusion is adve rse to that party.5

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 de monstrating 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 s howing 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 evid entiary materials a court may consider whe n determining how to rule on a motion for summary judgment. Specifically, the court may consider “the pleadings, deposition s, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and wr itten stipulations of fact[.]” Civ.R. 56(C). In addition, “the trial c ourt may consider a type of do cument not expressly mentioned in Civ.R. 56(C) if such document is ‘accompanied by a personal cer tification that [it is] genuine or [is] incorporated by reference in a properly framed affidavit p ursuant 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, analy zed a similar

matter. The Graf record revealed that Ocwen, in its capacity as servicer of a F ederal Housing Authority loan, filed a motion for summary judgment seeking for eclosure 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 attac hed the affidavit of6

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 Ho using and Urban Development, no attempts to c onduct 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 f iled a memorandum in opposition whe rein they attached the affidavit of David Graf, averring, in relevant part, that: 5. The servicer, Ocwen Loan Servicing, do es 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 in formation appears under the hea ding “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 sum mary judgment, Ocwen argued Graf’s averment regarding the existence of a Springfield, Ohio branch office was not based on his personal knowledge and the una uthenticated screenshot attac hed to his affidavit contained inadmissible hearsay. Id . at ¶ 12. The trial court, in granting Ocwen’s motion for sum mary judgment, reasoned: Accordingly, Ocwen maintained Graf's affidavit does not contain admissible evidence to rebut Rosenthal's ave rment that “the mortgaged prop erty 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 tri al court were to consider Graf’s affidavit, pursuant to the decision of the Four th 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 whet her the mortgaged property was within 200 miles of an Ocwen “branch office,” as t hat term is used in 24 C.F.R. 203.604(c). * * * [T]he averment in Graf’s affidavit regarding the Ocwen of fice in Springfield, Ohio did not permit the inference that Ocwen had a n office at that location that conducted loan origi nating or loan servicing func tions. The trial court found, at best, the affida vit and documents attached ther eto established that Ocwen maintained an ins urance 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 O cwen. In so doing, the Tenth Dis trict stated:

* * * Graf’s affidavit does not contain an averment that he has perso nal knowledge of the information contained therei n. The affidavit contains no ot her facts or information which would permit the inference that Graf has pers onal 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 Springfi eld branch, nor does he claim to have ever contacted the Springfiel d branch either by telephone or other means. 1 Consequently, Graf’s knowledge of the existence an Ocwen Springfield branch office , if any, arises exclusively fro m the screen shot attached to his affidavit as Exhibit 2.

* * * Though we do not believe Graf need ed to present the testimony o f 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 establis h his personal knowledge of the existence of the Springfield office or to esta blish the screen shot is authentic. Without any averment Exhibit 2 represents a true and accurate copy of information from Oc wen’s website, and in the absence of subs tantial evidence from which the trial court could infer the screen shot was auth entic, 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-m otion for summary judgment stated: “Wells Fargo has at least one branch office within 200 miles of my home” and further explained the mortgager visite d that office on at least one pri or occasion. As such, The Fourth District Court of Appeals found the mortgagor’s affidavit suffi cient “to carry his initial Civ.R. 56(C) burden, and thus, t he burden shifted t o the bank to provi de rebuttal materials.” Id

.8

Exhibit 2 is of no evidentiary v alue and could not be considere d 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 wit h 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 affidav it, the McBentteses’ counsel

averred he went onto Ocwen’s we bsite and saw “lists of various office addresses for Ocwen Loan Servicing, LLC” and he used “a number of internet map refe rences which demonstrate that the location of the Ocwen Loan Servicing, LLC located at O ne Assurant Way in Springfield, Ohio is 175 miles fro m the mortgaged property.” T he McBentteses’ counsel also indicated he needed additional time for discovery and he had se rved Ocwen discovery on December 6, 2018. The McBentteses’ counsel did not, however, a uthenticate the screenshot of the purported Ocwen addresses as “true and accurate” informatio n from Ocwen’s website, nor did he attach any copies, authen ticated or not, of the “interne t 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 t he mortgaged property is within 200 miles of the mortgagee, its servicer, or a branch office of either. Moreover, the

unauthenticated screenshot attach ed 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 attach ed the same unauthenticated lis t of purported addresses from Ocwen.com, along with Ocwen’s ori ginal responses to the McBentt eses’ discovery requests. The McBentteses, however, did not attach an affidavit in suppor t of their memorandum in9

opposition to summary judgment attesting they had personal know ledge that the mortgaged property is within 200 miles of t he mortgagee, its servicer, or a branch office of either, at the One Assurant Way address in Spr ingfield, Ohio. Additionally, t he 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 acknowl edge that, on its face, the purported screenshot of Ocwen’s a ddresses 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, where in 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 with in 200 miles of the mortgagee, it s servicer, or a branch of either, and (2) Ocwen Loan Servicing, LLC does not maintain any servici ng operations, services or activities out of the One Assurant Way location. Instead, as a ttested by Vital Philma, the One Assurant Way location is used as a mailing address for insuranc e claims. Moreover, Ocwen attached its supplemental respons es to the McBentteses’ request for discovery wherein Ocwen specifically indicated: (1) Ocwen does not have a possessory in terest 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 an y office equipment in the building located at One Assurant Way; and (4) Ocwen does not ha ve, or pay wages to, any employees in the building locat ed at One Assurant Way. {¶14} Thus, because Ocwen satisfied its initial burden, pursuant to C iv.R. 56, by demonstrating there are no genuine issues of material fact conc erning whether the mortgaged property is within 200 miles of the mortgagee, its servicer, or a branch office of either, and10

because the McBentteses failed to set forth specific facts show ing there is a genuine issue with regard to the face-to-face exemp tion for trial, the trial courtdid 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 McBen tteses’ sole assignment of error is overr uled.

III. {¶16} For the reasons stated above, the McBentteses’ sole assignmen t of error is overruled. The judgment of the S ummit County Court of Common P leas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State o f 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 consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t 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 pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellants.

B ETTY SUTTON FOR THE COURT11

CARR, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: BRUCE M. BROYLES, Attorney a t Law, for Appellants. SARAH A. WILSON and JOHN R. WIRTHLIN, Attorneys at Law, for App ellee.