[Cite as Lakeview Loan Servicing, L.L.C. v. Hurd, 2020-Ohio-3163.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

LAKEVIEW LOAN SERVICING, LLC, 

Plaintiff-Appellee, 

v. 

CARRIE L. HURD ET AL., 

Defendants-Appellants.

 

OPINION AND JUDGMENT ENTRY 

Case No. 19 MA 0017 

 

Civil Appeal from the 

Court of Common Pleas of Mahoning County, Ohio 

Case No. 2017 CV 03163 

BEFORE: 

Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed. 

Atty. Christian Niklas, and Atty. Suzana Krasnicki, Keith D. Weiner & Associates, LPA, 

75 Public Square, 4th Floor, Cleveland, Ohio 44113, for Plaintiff-Appellee and 

Atty. Bruce Broyles, 2670 North Columbus Street, Suite L, Lancaster, Ohio 43130, for 

Defendants-Appellants. 

 
 – 2 – 

Case No. 19 MA 0017

May 29, 2020 

 

Donofrio, J. 

{¶1} Defendants-appellants, Carrie and Aaron Hurd, appeal the judgment of 

the Mahoning County Common Pleas Court granting summary judgment and a decree of 

foreclosure in favor of plaintiff-appellee, Lakeview Loan Servicing, LLC. 

{¶2} On March 12, 2013, appellants purchased real property located at 134 

Wolcott Drive in Youngstown, Ohio (the property). WCS Lending, LLC financed 

appellants’ purchase of the property. The financing was memorialized in a promissory 

note that was secured by a mortgage on the property. The note required appellants to 

make monthly payments of $754.39 for 30 years on the principal amount of $119,352 at 

an interest rate of 6.5%. 

{¶3} On April 9, 2015, appellants and LoanCare (appellants’ loan servicer) 

agreed to a loan modification. The loan modification required appellants to make monthly 

payments of $590.34 for 30 years on the new principal amount of $121,807.56 at an 

interest rate of 4.125% beginning on May 1, 2015. 

{¶4} Appellants missed their November of 2015 payment on the loan 

modification. They continued thereafter to make each monthly payment until April 2017. 

On December 15, 2016, LoanCare sent appellants a letter via certified mail stating 

appellants were in default on the loan modification agreement and attempted to arrange 

a face-to-face meeting to discuss foreclosure alternatives. 

{¶5} LoanCare sent appellants numerous letters from December 15, 2016 until 

June 19, 2017 informing them that their loan was in default. The June 19, 2017 letter 

stated appellants failed to make any payments between May 1, 2017 and June 19, 2017. 

{¶6} On November 6, 2017, WCS Lending, LLC assigned appellee the 

mortgage. After the assignment, LoanCare was still the servicing agent on appellants’ 

loan. 

{¶7} Appellee filed this action on December 1, 2017 seeking, among other 

things, foreclosure of the property. Appellee’s complaint generally averred that all 

necessary conditions precedent were satisfied prior to initiating foreclosure proceedings. 
 – 3 – 

Case No. 19 MA 0017

{¶8} Appellants filed their answer which denied that appellee satisfied all 

necessary conditions precedent prior to initiating foreclosure, specifically Department of 

Housing and Urban Development (HUD) regulations 24 CFR 203.604(b) and 24 CFR 

203.605(a). 

{¶9} On May 25, 2018, appellee filed its motion for summary judgment. 

Appellee argued that there was no genuine issue of material fact that appellants defaulted 

on the note and that all necessary conditions precedent were satisfied prior to initiating 

foreclosure proceedings. Appellee attached numerous exhibits to its motion. 

{¶10} On June 27, 2018, appellee filed a motion to temporarily stay the 

proceedings on the basis that it offered appellants a three-month trial loan modification. 

On July 16, 2018, the trial court granted this order and stayed the proceedings for 120 

days. 

{¶11} On July 23, 2018, appellants filed an opposition to appellee’s motion for 

summary judgment. Appellants argued appellee did not submit evidence that it complied 

with the face-to-face meeting requirement of 203.604(d). Appellants also argued that 

their loan servicer instructed them to stop making payments on the loan in May of 2017. 

{¶12} In support of their second argument, appellants submitted the affidavit of 

appellant Aaron Hurd. Appellants also cited their account history report which indicated 

that appellants were making payments on the loan up to May of 2017. 

{¶13} On October 4, 2018, appellants filed two motions. First, they filed a motion 

to return this action to active status. Appellants argued that appellee failed to timely 

provide them with information regarding the proposed loan modification and deprived 

them of adequate time to consider the loan modification offer. Second, appellants filed a 

motion for leave to file an omitted counterclaim. This motion argued that their proposed 

counterclaim was based, at least in part, on events that happened during the trial loan 

modification offer. The trial court granted the motion to return the case to active status 

but denied the motion to file an omitted counterclaim. 

{¶14} Appellee filed a reply to appellants’ opposition to summary judgment. This 

reply contained numerous letters sent by appellee to appellants informing appellants that 

they were in default on their loan and informing them of their right to a face-to-face 

meeting. 
 – 4 – 

Case No. 19 MA 0017

{¶15} On January 18, 2019, the trial court granted appellee’s motion for 

summary judgment. The trial court held that there was a valid promissory note between 

appellants and appellee that was secured by a mortgage on the property, appellants 

breached the terms of the note, and appellee was entitled to foreclosure. 

{¶16} Appellants timely filed a notice of appeal on February 11, 2019. Appellants 

now raise two assignments of error. 

{¶17} Appellants’ first assignment of error states: 

 THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT WHEN APPELLEE LENDER FAILED TO DEMONSTRATE 

THAT IT COMPLIED WITH TITLE 24 C.F.R. SECTIONS [sic] 203.604(b)

WHICH REQUIRES THE MORTGAGEE TO HAVE A FACE-TO-FACE 

MEETING WITH THE MORTGAGOR, OR MAKE A REASONABLE 

ATTEMPT TO ARRANGE SUCH A MEETING WITHIN 30 DAYS AFTER 

DEFAULT. 

{¶18} Appellants make numerous arguments in this assignment of error. They 

argue that they were continuously in default beginning in November of 2015 and lasting 

until May of 2017. Because they were continuously in default for approximately 19 

months, they argue that appellee failed to comply with the time requirements regarding 

face-to-face meetings under HUD regulations. They then argue that the time 

requirements of face-to-face meetings are mandatory and, if the time requirements are 

not met, the terms of the loan should be reinstated in order to allow lenders to timely 

comply with HUD regulations. 

{¶19} An appellate court reviews a trial court’s summary judgment decision de 

novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v. 

Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for 

summary judgment is properly granted if the court, upon viewing the evidence in a light 

most favorable to the nonmoving party, determines that: (1) there are no genuine issues 

as to any material facts; (2) the movant is entitled to judgment as a matter of law, and (3) 

the evidence is such that reasonable minds can come to but one conclusion and that 
 – 5 – 

Case No. 19 MA 0017

conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St. 

3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10. 

{¶20} “[T]he moving party bears the initial responsibility of informing the trial 

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

demonstrate the absence of a genuine issue of fact on a material element of the 

nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 

(1996). The trial court’s decision must be based upon “the pleadings, depositions, 

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and 

written stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C). The nonmoving 

party has the reciprocal burden of specificity and cannot rest on the mere allegations or 

denials in the pleadings. Id. at 293. 

{¶21} Summary judgment is appropriate when there is no genuine issue as to 

any material fact. A “material fact” depends on the substantive law of the claim being 

litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d 

1088 (8th Dist. 1995), citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-248, 106 

S.Ct. 2505, 91 L.Ed.2d 202 (1986). 

{¶22} Relevant to this appeal, appellee’s complaint set forth a claim for 

foreclosure of the property. In order for a plaintiff to be granted summary judgment on a 

foreclosure claim, the plaintiff must show: (1) they are the holder of the note and 

mortgage, (2) the mortgagor is in default, and (3) the amount of principal and interest due. 

See Bank of Am. v. Saadey, 7th Dist. Mahoning No. 12 MA 196, 2014-Ohio-3569, ¶ 18. 

{¶23} Appellee’s complaint stated that it was the holder of appellants’ note and 

mortgage and that appellants failed to pay the note according to its terms and conditions. 

Appellants’ answer admitted that they failed to pay the note according to its terms and 

conditions but denied that appellee satisfied all necessary conditions precedent prior to 

initiating foreclosure proceedings. 

{¶24} Appellee’s motion for summary judgment contained numerous exhibits. 

Among these exhibits were: a copy of appellants’ promissory note; a copy of appellants’ 

mortgage; a copy of the assignment of appellants’ mortgage naming appellee as the 

assignee; a copy of appellants’ loan modification agreement; a notice of default sent by 

certified mail to appellant Carrie Hurd dated December 15, 2016; another notice of default 
 – 6 – 

Case No. 19 MA 0017

sent to appellants dated June 19, 2017; and a copy of appellants’ account history. 

Appellants’ account history shows that the last payment they made on the note was in 

April of 2017. The account history also shows that between May of 2015 (the first full 

month after the loan modification was in effect) and April of 2017, appellants made the 

full payment on the note every month except for November of 2015. 

{¶25} Appellee also attached the affidavit of Shanna Simmons. Simmons is an 

assistant secretary with LoanCare. Simmons averred that: appellee is in possession of 

appellants’ promissory note; appellants’ account is due for the May 1, 2017 payment and 

all subsequent payments; and that there remains due on the note $117,521.50 with an 

interest rate of 4.125% per annum beginning on April 1, 2017. 

{¶26} Appellants’ opposition to summary judgment argued that appellee did not 

satisfy the face-to-face meeting requirement of 24 CFR 203.604(b) prior to initiating 

foreclosure proceedings. This regulation states, in relevant part: 

The mortgagee must have a face-to-face interview with the mortgagor, or 

make a reasonable effort to arrange such a meeting, before three full 

monthly installments due on the mortgage are unpaid. If default occurs in 

a repayment plan arranged other than during a personal interview, the 

mortgagee must have a face-to-face meeting with the mortgagor, or make 

a reasonable attempt to arrange such a meeting within 30 days after such 

default and at least 30 days before foreclosure is commenced * * *. 

{¶27} A “reasonable effort” includes a minimum of one letter sent by U.S. 

certified mail and one trip to see the mortgagor at the mortgaged property. 24 CFR 

203.604(d). 

{¶28} Appellants’ opposition to summary judgment argued they are on a 

repayment plan arranged other than during a personal interview and, pursuant to 24 CFR 

203.604(b), appellee was required to at least make a reasonable attempt at a face-toface meeting within 30 days of default. They argued that they defaulted on the note in 

November of 2015 and, thus, appellee was required to make a reasonable attempt at a 

face-to-face meeting within 30 days from November of 2015. They attached Aaron Hurd’s 

affidavit in support. 
 – 7 – 

Case No. 19 MA 0017

{¶29} Appellee’s reply to appellant’s opposition to summary judgment argued 

that it satisfied this condition precedent by sending numerous letters by certified mail to 

appellants attempting to arrange a face-to-face meeting and visiting the property prior to 

initiating foreclosure. Appellee’s reply contained numerous letters it sent to appellants 

notifying them that appellants were in default. Exhibit 1 is another copy of the June 19, 

2017 letter that was not sent by certified mail. Exhibit 2 is a letter from appellee sent to 

appellants by certified mail dated February 14, 2017, informing appellants that their loan 

is past due and attempts to arrange a face-to-face meeting. Exhibit 3 is a letter from 

appellee sent to appellants by certified mail dated April 14, 2017, informing appellants 

that their loan is past due and informing them of attempts to arrange a face-to-face 

meeting. Exhibit 4 is a letter from appellee sent to appellants by certified mail dated May 

15, 2017, informing appellants that their loan is past due and attempting to arrange a 

face-to-face meeting. Exhibit 5 is a letter from appellee sent to appellants by certified 

mail dated June 14, 2017, informing appellants that their loan is past due and attempting 

to arrange a face-to-face meeting. 

{¶30} Based on the summary judgment evidence, there is no genuine issue of 

material fact that appellee complied with relevant HUD regulations. While appellants did 

not make their November of 2015 payment on the note, they continued making payments 

on the note every month until the April 2017 payment. Once appellants stopped making 

payments after April of 2017, they were also considered in default. Appellee made 

numerous attempts via certified mail to arrange a face-to-face meeting prior to initiating 

foreclosure proceedings, including on May 15, 2017 and June 14, 2017. Moreover, 

appellee sent a representative to visit the property on April 30, 2017. Thus, appellee did 

attempt to arrange a face-to-face meeting within 30 days of default by sending numerous 

letters to appellant by certified mail and visiting the property. 

{¶31} Accordingly, appellants’ first assignment of error is without merit and is 

overruled. 

{¶32} Appellants’ second assignment of error states: 

 THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT WHEN APPELLANTS PRESENTED EVIDENCE THAT 

APPELLEE ENCOURAGED THEM TO STOP MAKING PAYMENTS. 
 – 8 – 

Case No. 19 MA 0017

{¶33} Appellants argue that summary judgment in appellee’s favor was improper 

because appellee’s employees induced appellants to breach the terms of the loan by 

advising them to stop making payments. Thus, they argue that the doctrine of unclean 

hands bars appellee’s foreclosure claim. 

{¶34} As this assignment of error also challenges the trial court’s award of 

summary judgment, it is subject to the same de novo standard of review previously set 

forth in appellants’ first assignment of error. 

{¶35} Pursuant to the doctrine of unclean hands, “one who seeks equity must do 

equity.” State ex rel. DeWine v. Shadyside Party Ctr., 7th Dist. Belmont No. 13 BE 26, 

2014-Ohio-2357, ¶ 29 citing Basil v. Vincello, 50 Ohio St.3d 185, 553 N.E.2d 602 (1990). 

The doctrine of unclean hands requires that the party invoking equity “not be guilty of 

reprehensible conduct” regarding the subject matter of the action. Id. quoting Basil. A 

foreclosure action is equitable in nature. Buckeye Retirement Co. L.L.C. v. Walling, 7th 

Dist. Mahoning No. 05 MA 119, 2006-Ohio-7059, ¶ 16. “[T]he unclean hands doctrine 

should not be imposed where a party has legal remedies available to address an opposing 

party's asserted misconduct.” Deutsche Bank Natl. Trust Co. v. Pevarski, 4th Dist. 

Washington No. 08CA52, 2010-Ohio-785, ¶ 24 quoting Safranek v. Safranek, 8th Dist. 

Cuyahoga No. 80413, 2002-Ohio-5066. 

{¶36} The doctrine of unclean hands is an affirmative defense. See Beneficial 

Fin. 1, Inc. v. Edwards, 7th Dist. Mahoning No. 13 MA 106, 2014-Ohio-5514, ¶ 17. “An 

affirmative defense must be raised in the pleadings or in an amendment to the pleading, 

or it is waived.” Sharp v. Miller, 7th Dist. Jefferson No. 17 JE 0022, 2018-Ohio-4740, ¶ 

37. Appellants did not raise unclean hands as an affirmative defense in the pleadings or 

in an amendment to the pleadings. Thus, they waived this issue. 

{¶37} Addressing the merits of this assignment of error would not change the 

result. Appellants argue that Hurd’s affidavit, Simmons’ affidavit, and their account history 

report show that appellee induced them to stop making payments on the note. While 

Hurd’s affidavit avers that appellee advised appellants to stop making payments, selfserving affidavits are insufficient to create a genuine issue of material fact during 

summary judgment proceedings. Nolan v. Hinzey, 7th Dist. Belmont Nos. 15 BE 0047, 
 – 9 – 

Case No. 19 MA 0017

15 BE 0048, 2016-Ohio-4657, ¶ 56 citing Telecom Acquisition Corp. I v. Lucis Ents., Inc., 

8th Dist. Cuyahoga No. 102119, 2016-Ohio-1466. 

{¶38} As for Simmons’ affidavit and appellants’ account history report, there is 

nothing specific in either of these that indicates appellee induced appellant to stop making 

payments on the note. Without specific evidence, a mortgagor’s claim that the mortgagee 

induced the mortgagor to default on a note is insufficient to create a genuine issue of 

material fact. See GMAC Mtg., LLC v. Jackson, 3d Dist. Marion No. 9-13-01, 2013-Ohio2150 ¶ 28-35. 

{¶39} Accordingly, appellants’ second assignment of error is without merit and 

is overruled. 

{¶40} For the reasons stated above, the trial court’s judgment is hereby affirmed. 

Robb, J., concurs. 

D’Apolito, J., concurs.
[Cite as Lakeview Loan Servicing, L.L.C. v. Hurd, 2020-Ohio-3163.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of 

the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed 

against the Appellants. 

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.